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Court of Criminal Appeal 18 September 2020

Tiew v R

[2020] NSWCCA 234

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE DRUG OFFENCES NO LESSER SENTENCE WARRANTED OFFENDER

Citation: Tiew v R [2020] NSWCCA 234
Court: Court of Criminal Appeal, New South Wales
Date: 18 September 2020
Judges: Macfarlan JA; Fagan J; Cavanagh J

Background

The appellant, a Malaysian national, pleaded guilty in the District Court to supplying a large commercial quantity of methamphetamine (67.477 kg) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He had been recruited in Malaysia by a drug syndicate and came to Australia to facilitate the importation of methamphetamine concealed in wax impregnated into flat-packed shelving. His role included meeting a police civilian participant to arrange deliveries and personally transporting boxes containing the drug.

Judge Mahony SC DCJ sentenced the appellant to 14 years and 6 months imprisonment with a non-parole period of 10 years and 10 months, commencing from his arrest on 1 December 2015. The sentencing judge assessed the objective seriousness of the offending as above the mid-range for a s 25(2) offence, noting the large quantity involved and the appellant's operational role within the syndicate.

The application for leave to appeal was filed out of time. The Crown did not oppose leave on that ground but opposed the appeal on the merits.

  • Whether the sentencing judge erred by double-counting aggravating factors, specifically disregard for public safety, financial gain, and planning, when assessing objective seriousness
  • Whether the sentencing judge erred by failing to make an express finding on remorse
  • Whether the sentencing judge failed to give proper weight to the appellant's lack of prior convictions, good character, and prospects of rehabilitation
  • Whether the sentence was manifestly excessive
  • Whether the sentence gave rise to a justifiable sense of grievance by reason of disparity with the sentence imposed on a co-offender (Bannister)

Decision

The Court of Criminal Appeal rejected each of the five grounds of appeal. On the double-counting argument, the Court was not satisfied that the sentencing judge had impermissibly counted the same matters twice. The features identified, including the scale of the operation, the financial incentive, and the degree of planning, were legitimately weighed as part of the overall assessment of objective seriousness rather than counted as separate aggravating factors stacked on top of one another.

On the failure to find remorse, the Court found no appellable error. Where a sentencing judge does not make an express finding of remorse, this does not of itself constitute error, particularly where the evidence of genuine remorse was not compelling. The Court similarly found no failure to account for the appellant's lack of prior convictions and good character, or his rehabilitation prospects, on the face of the sentencing remarks.

The manifest excess ground also failed. Given the quantity of drug involved and the appellant's active operational role, the sentence was within the proper range and no lesser sentence was warranted in law.

On the parity ground, the Court drew a sharp distinction between the appellant's role and that of Bannister. Bannister was characterised at sentencing as a storeman who moved boxes in the appellant's absence and did not participate in either of the meetings with the civilian participant. The sentencing judge placed Bannister's offending in the low range, towards the middle of that range. The Court held that the differences in objective seriousness between the two offenders fully and rationally explained the sentencing differential, and that no justifiable sense of grievance arose, applying the principles from Green v The Queen.

Orders Made

  • Leave to appeal granted (including in respect of the out-of-time filing)
  • The appeal is dismissed

Key Takeaways

  • A sentencing judge's assessment of objective seriousness as "above the mid-range" does not constitute double-counting simply because the features identified, such as planning, financial motivation, and public safety risk, are also present in the statutory or common law catalogue of aggravating factors; the question is whether those features were impermissibly counted twice rather than weighed holistically.
  • No error arises from a failure to make an express finding on remorse where the evidence of genuine remorse was not strong; the absence of such a finding is not automatically a standalone sentencing error.
  • Under the parity principle as affirmed in Green v The Queen, a co-offender's lesser sentence does not give rise to a justifiable sense of grievance where the difference in objective roles and culpability is sufficient to explain the disparity rationally and fully.
  • Participation in a large-scale importation syndicate at an operational level, including physically transporting drug-laden goods and arranging handovers, places an offender at a meaningfully higher level of culpability than a co-offender whose role is limited to storing the goods in a shared premises.
  • In dismissing the appeal, the Court confirmed that a sentence of 14 years and 6 months (non-parole period 10 years and 10 months) for supply of 67.477 kg of methamphetamine at an operational syndicate level was within the available range and not manifestly excessive.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Law Enforcement (Controlled Operations) Act 1997 (NSW)

Cases
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Mulato v R [2006] NSWCCA 282
- Salafia v R [2015] NSWCCA 141