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Court of Criminal Appeal 27 July 2018

R v Yiu; R v Yau

[2018] NSWCCA 155

Drugs
CRIMINAL LAW SENTENCE CROWN APPEAL DRUG OFFENCE MANIFEST INADEQUACY PLEA OF GUILTY BY EACH RESPONDENT

Citation: R v Yiu; R v Yau [2018] NSWCCA 155
Court: Court of Criminal Appeal
Date: 27 July 2018
Judges: Meagher JA; Rothman J; Garling J

Background

The Crown appealed against sentences imposed in the District Court on two respondents who each pleaded guilty to knowingly taking part in the supply of a large commercial quantity of methylamphetamine (999.1 g, at 78.5% purity), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Each respondent was discovered through an undercover police operation in April 2016.

The first respondent, Mr Yiu, was 28 at the time of the offending. He was directly involved in negotiating the transaction with the undercover operative and stood to receive $5,000 for his role. The second respondent, Ms Yau, was 22, had suffered a violent childhood in Hong Kong, and had been addicted to methylamphetamine since the age of 13. Her role included introducing the undercover operative to the supply network, speaking directly to purchasers, and being present at the drug and money handover.

The District Court sentenced each respondent to a head sentence of 3 years' imprisonment with a non-parole period of 2 years, after applying a 25% discount for their early guilty pleas. The Crown argued these sentences were manifestly inadequate and pointed to identifiable errors in the sentencing judge's reasoning.

Legal Issues

  • Whether the sentences imposed on each respondent were manifestly inadequate, having regard to the objective seriousness of the offending and the statutory guideposts of the maximum penalty and standard non-parole period.
  • Whether the sentencing judge erred in classifying the respondents' objective criminality as being "towards the lower end" or "at the bottom of the batting order."
  • Whether identifiable errors, including the failure to treat Mr Yiu's bail status and Form 1 offences as aggravating factors, explained the alleged manifest inadequacy.
  • Whether the Court should exercise its residual discretion to decline to intervene in the sentences, including by reference to parity considerations with co-offenders.
  • What sentences were appropriate upon resentencing, including whether special circumstances existed to justify departing from the statutory non-parole ratio.

Decision

Ground 1: Manifest inadequacy and error in classifying objective seriousness

The Court held that the sentencing judge incorrectly described the respondents' objective criminality as being at the lowest end of the range. Neither respondent was a mere courier. Mr Yiu participated directly in negotiations with the undercover operative, and Ms Yau introduced the operative to the supply network, spoke to purchasers, and was present at the handover (at [108]-[115]). Because their conduct fell between that of Ms Chung (whose offending was correctly described as "at the very bottom of the range") and Mr Piao (who was higher in the chain and motivated by money), the correct characterisation was that their offending was below mid-range in objective seriousness, but not at the lowest level (at [110], [123]).

The Court found the sentences manifestly inadequate, plainly unjust, and unreasonable, concluding they did not adequately reflect the objective criminality, the need for general and specific deterrence, or the statutory guideposts of the maximum penalty and standard non-parole period (at [111], [117]). Because the sentences were manifestly inadequate, it was unnecessary to separately resolve each identified specific error (at [117]).

Ground 2: Parity and the residual discretion

The Court rejected the proposition that parity can be used to increase a sentence beyond what is independently appropriate, and equally that resentencing should create a new disparity against unchallenged co-offender sentences (at [95], [97]). The Court was satisfied the Crown had demonstrated the residual discretion not to intervene should not be exercised (at [137]).

Resentencing

On resentencing, the Court continued the 25% discount for each respondent's early guilty plea and found special circumstances in each case, based on the respondents' drug dependency and the need for an extended supervision and treatment period in the community (at [127], [134]). The Court imposed a head sentence of 6 years' imprisonment for each respondent, with a non-parole period of 4 years (at [136]).

Orders Made

  • Mr Yiu: Appeal allowed. Sentence varied to a non-parole period of 4 years' imprisonment commencing 14 April 2016, with a remainder of term of a further 2 years' imprisonment. First eligible for parole on 13 April 2020.
  • Ms Yau: Appeal allowed. Sentence varied to a non-parole period of 4 years' imprisonment commencing 13 April 2016, with a remainder of term of a further 2 years' imprisonment. First eligible for parole on 12 April 2020.

Key Takeaways

  • A sentencing judge's characterisation of objective seriousness is reviewable where it is not open on the evidence. Here, the Court of Criminal Appeal found that describing the respondents' criminality as being "at the bottom of the batting order" was incorrect given their active roles in brokering and facilitating the supply, which went well beyond those of a mere courier (at [110]-[115]).

  • Manifest inadequacy alone, without the identification of specific error, is a sufficient basis for a Crown appeal to succeed. Once the Court determined the sentences were plainly unjust and unreasonable, it did not need to resolve whether each particularised error was established (at [99], [117]).

  • The maximum penalty and standard non-parole period function as important legislative guideposts in sentencing, but the Court rejected a purely arithmetic approach that measures a sentence's appropriateness by its ratio to those benchmarks (at [113]).

  • Parity in sentencing operates as a constraint against creating injustice among co-offenders, but it cannot justify imposing a sentence higher than is independently warranted, nor can resentencing create a fresh disparity against an unchallenged co-offender's sentence (at [95], [97]).

  • Special circumstances can be found where an offender's drug addiction requires an extended period of post-release supervision and treatment in the community, thereby justifying a departure from the statutory ratio between the non-parole period and head sentence (at [134]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (Cth)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Attorney General’s Application Under S 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Baines v R [2016] NSWCCA 132
- Baxter v R [2007] NSWCCA 237
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Frigiani v R [2007] NSWCCA 81
- Green v the Queen; Quinn v the Queen [2011] HCA 49 (2011) 244 CLR 462; [2011] HCA 49
- Hill v R [2012] NSWCCA 265
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Koh v R [2013] NSWCCA 287
- Lam v R [2014] NSWCCA 50
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Parente v R [2017] NSWCCA 284
- Porter v R [2008] NSWCCA 145
- R v AB [2018] NSWCCA 113
- R v GWM [2012] NSWCCA 240
- R v JW (2010) 77 NSWLR 7; (2010) 199 A Crim R 486; [2010] NSWCCA 49
- R v Medd (a Pseudonym) [2016] NSWCCA 216
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42
- see R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- Tuvunivono v R [2013] NSWCCA 176