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Court of Criminal Appeal 17 September 2019

Yin v Regina

[2019] NSWCCA 217

Drugs
CRIME DRUG OFFENCES COMMONWEALTH OFFENCES IMPORT/EXPORT BORDER CONTROLLED PROHIBITED PLANT OR DRUG TWO CO

Citation: Yin v Regina [2019] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 17 September 2019
Judges: Bathurst CJ (principal judgment); Harrison J; N Adams J (both agreeing)

Background

The applicant was convicted after a two-week jury trial of possessing a commercial quantity of unlawfully imported methamphetamine, contrary to s 307.5(1) of the Criminal Code (Cth). The offence involved a 41-kilogram shipment of methamphetamine imported from Taiwan, with a pure content of approximately 33 kilograms. He was sentenced to 16 years imprisonment with a non-parole period of 10 years.

Two co-offenders were involved in the same enterprise. They pleaded guilty to attempting to possess a commercial quantity of methamphetamine and each received 10 years imprisonment with a non-parole period of 6 years, including a 25% discount for their guilty pleas. The sentencing judge found the applicant held a more senior role in the operation than the co-offenders.

The applicant sought leave to appeal against his sentence, arguing the sentencing judge had misjudged how his conduct compared to that of the co-offenders and that the resulting disparity gave rise to a justifiable sense of grievance.

  • Whether the sentencing judge erred in assessing the comparative objective seriousness of the applicant's offending relative to his two co-offenders
  • Whether the disparity between the applicant's sentence and those of the co-offenders gave rise to a justifiable sense of grievance under the parity principle

Decision

Ground 1: Comparative objective seriousness

The sentencing judge found, beyond reasonable doubt, that the applicant played a materially more significant role than his co-offenders. The evidence supported findings that the applicant managed the enterprise's finances, funded travel and accommodation, directed the co-offenders, organised the corporate consignee, and maintained contact with operatives in Taiwan. Bathurst CJ found no error in that assessment. The facts showed the applicant occupied a senior position in Australia in relation to obtaining possession of the drugs, which properly distinguished his culpability from that of the co-offenders.

Ground 2: Parity

Bathurst CJ restated the established parity principle: like offenders should be treated alike, but different sentences are permissible where culpability or subjective circumstances differ. The court will intervene only where the disparity is such as to give rise to a justifiable sense of grievance assessed by objective criteria, drawing on Green v The Queen; Quin v The Queen (2011) 244 CLR 462 and Postiglione v The Queen (1997) 189 CLR 295.

The court accepted the parties' agreed position that the co-offenders' sentences reflected a discount for assisting in the conduct of the trial, in addition to their guilty plea discounts. Even accounting for that, Bathurst CJ concluded that the difference in roles, against a background of similar subjective circumstances, justified the more severe sentence imposed on the applicant. The disparity did not produce a justifiable sense of grievance.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge may find a co-offender's role more serious beyond reasonable doubt by drawing on the facts necessarily accepted by the jury in returning a guilty verdict.
  • Under the parity principle, a substantially more severe sentence for one co-offender does not automatically give rise to a justifiable sense of grievance where the difference in culpability is clearly established and subjective circumstances are comparable.
  • In dismissing both grounds, the court applied the principle from Green and Quin that appellate courts must respect the qualitative and discretionary judgments required of the primary judge when drawing distinctions between co-offenders.
  • A senior coordinating role, including managing finances, directing co-offenders, organising logistics, and maintaining contact with overseas participants, can properly attract significantly greater punishment than a more subordinate operational role.
  • Where a discount for assisting at trial is not separately quantified in the sentencing remarks, the Court of Criminal Appeal noted it is not necessarily helpful to speculate on the precise percentage, though it was prepared to proceed on the basis agreed by the parties.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 307.5(1), 11.1(1), 11.2A

Cases
- Green v The Queen; Quin v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Postiglione v The Queen (1997) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Klomfar v R [2019] NSWCCA 61
- R v Nguyen; R v Pham [2010] NSWCCA 238
- Chan, Lo and Nguyen v R [2010] NSWCCA 153
- R v Yuan [2015] NSWCCA 198
- R v Lee [2007] NSWCCA 234
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Biddle v R [2017] NSWCCA 128
- Clarke v R [2015] NSWCCA 232
- Hordern v R [2019] NSWCCA 138
- R v O'Donoghue (1988) 34 A Crim R 397
- Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278