Lim v The Queen [2018] VSCA 64 (20 March 2018)

Last Updated: 20 March 2018

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0181

ALAN AIK HUAT LIM	Applicant

v

THE QUEEN	Respondent

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JUDGES:	OSBORN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2018
DATE OF JUDGMENT:	20 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 64
JUDGMENT APPEALED FROM:	Director of Public Prosecutions (Cth) v Chu & Anor [2017] VCC 1027 (Judge Mason)

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CRIMINAL LAW — Appeal — Sentence — Traffick in a commercial quantity of a border controlled drug —Whether sentence contravened the principle of parity — Whether there is a marked disparity between the sentences of co-offenders — Difference in the roles of co-offenders — Whether manifestly excessive — Applicant has no relevant priors — Early plea of guilty — Past family hardship — Limited role as conduit in criminal drug enterprise — Genuine remorse — Serious offending —Application for leave to appeal against sentence dismissed — Criminal Code (Cth), ss 302.2(1) —Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 —Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 —DPP (Cth) v Thomas 347 ALR 275

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APPEARANCES:	Counsel	Solicitors

For the Applicant:	Ms M Tittensor	Pica Criminal Lawyers

For the Crown:	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

OSBORN JA:

BEACH JA:

1 Following a plea of guilty Alan Aik Huat Lim was sentenced by his Honour Judge Mason on 31 July 2017 in the County Court at Melbourne as follows:

*Charge*	*Offence*	*Max Penalty*	*Sentence*	*Cumulation/* *Concurrency*
1	Traffick in a commercial quantity of a controlled drug contrary to ss 302.2(1) Criminal Code (Cth)	Life	9 years	N/A
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period:		6 years’ imprisonment
Pre-sentence detention declared:		699 days
6AAA Statement: 12 years’ imprisonment with a non-parole period of 8 years’ imprisonment.

2 On the same date, and again following pleas of guilty, Wing Thi Chu, Lim’s co-offender in respect of the trafficking offence was sentenced by his Honour Judge Mason as follows:

*Charge*	*Offence*	*Max Penalty*	*Sentence*	*Cumulation/* *Concurrency*
1	Import a commercial quantity of a border controlled drug contrary to ss 307.1(1) Criminal Code (Cth)	Life	9 years	Commencement 31 July 2022 (3 years cumulation)
2	Attempt to traffick in a commercial quantity of a controlled drug contrary to ss 11.1(1) and 302.2(1) Criminal Code (Cth)	Life	11 years	Base
Total Effective Sentence:		14 years’ imprisonment
Non-Parole Period:		10 years’ imprisonment
Pre-sentence detention declared:		635 days
6AAA Statement: 18 years’ imprisonment with a non-parole period of 14 years’ imprisonment.

3 Sing Fat Cheung, Chu’s co-offender with respect to the importation offence, was sentenced to seven years’ imprisonment with a non-parole period of four and a half years by his Honour Judge Stuart in the County Court at Melbourne on 22 November 2016 following a plea of guilty to one charge of importing a commercial quantity of a border control drug contrary to s 307.1(1) Criminal Code (Cth).

The proposed grounds of appeal

4 Lim seeks leave to appeal on two bases.

(1) The sentences imposed upon the applicant and his co-offender, Wing Thi Chu, gave rise in the applicant to a justifiable sense of grievance.

(2) Lim’s head sentence and non-parole period are manifestly excessive.

The basis of the trafficking charges

5 On 29 August 2015 Chu had a series of telephone conversations with an unknown male concerning the supply of drugs. Chu was told that a quantity of drugs would be provided for him. On 31 August 2015 Chu made a telephone call to Lim who advised him that he would arrive at 6:00 am the following morning.

6 At 7:00 am on 1 September Lim arrived at the Southern Cross station by way of an overnight bus from Sydney. He was carrying a back pack and satchel and accompanied by another male. He advised Chu that he had arrived and arrangements were made to meet at premises in Maribyrnong.

7 When Lim arrived at these premises he called Chu and Chu arrived shortly thereafter. The two men then entered the rear of a house.

8 Once they had entered the house police executed a search warrant and entered the premises. Upon entry they found the two men in a rear bedroom. Also located in the room was a yellow plastic bag found to contain three packages containing methamphetamine.

9 Forensic analysis revealed that the packages contained 4986.1 grams of methamphetamine at 79.7 per cent, yielding a total net weight of 3973.9 grams of methamphetamine. As the sentencing judge observed, the total quantity trafficked or attempted to be trafficked was 5.3 times the commercial quantity applicable to methamphetamine. The wholesale value of the drug was estimated to be between approximately $997,220 and $1.59 million and the street value was estimated to be approximately between $2.49 million and $4.98 million.

Personal background

10 The sentencing judge detailed a series of matters relating to Lim and the background to his offending.^[1]

11 Lim was aged 38 at the date of sentence. He was born in Malaysia and assisted his family in difficult financial circumstances by working from a young age.

12 Lim left school after the equivalent of year 10 and worked variously as a waiter and in a factory. He developed skills in art and graphics and came to Australia after a friend encouraged him to do so on the basis that he might obtain employment here in the area of graphic design.

13 The friend arranged a visa for Lim but upon his arrival in Australia Lim discovered that the visa did not allow him to work. The friend then told Lim that he would arrange a student visa for him but that this would cost money. In order to obtain the visa he had to pay for enrolment in a course.

14 After some delay Lim was told that he was required to deliver something to Melbourne and that his school fees would be paid in return. When he asked about the nature of the delivery he was told not to ask questions. He agreed to undertake the delivery in circumstances where the people involved had his passport, knew his details and the details of his family. He made only one such trip which led to his arrest and was accompanied and monitored whilst making that trip. He was in circumstances of vulnerability in Australia with no support and open to exploitation from others. Following his arrest in September 2015 Lim was initially held in custody in police cells and was assaulted by other prisoners. In consequence he had isolated himself since that date.

15 He was completely separated from his family and friends and knew no one in Australia. He received no visitors.

16 Whilst in custody his father died tragically in a motor car collision in Malaysia and his mother suffered physical injury which prevented her from working. This caused him anxiety and grief because he was not able to support his mother. His only contact with his family was limited to phone calls.

17 During his time in custody Lim had returned negative results for drug testing and committed himself to rehabilitation programs. His English skills were quite limited and basis.

18 Ultimately the sentencing judge specifically accepted the following matters of mitigation in respect of Lim:

your plea of guilty and that it was entered at an appropriately early stage given the circumstances;
your previous good character - you are a mature man, you have worked hard and responsibly in the past for your family and you have not previously offended;
your remorse as reflected in your plea of guilty and expressed directly, which I accept is genuine;
your circumstances of vulnerability in Australia with no support and being open as you were to exploitation by others;
the isolation and hardship you have had and will continue to experience away from your family and friends;
your prospects of rehabilitation, which I assess as being reasonably good; and
your role in the offending, which was essentially limited to being a closely supervised conduit for others.

Parity

19 The principle of parity is an aspect of equal justice. Equal justice requires that like offences should be treated alike but, conversely, relevant differences between offenders will justify different outcomes. The principle raises the question whether there is a marked disparity between the sentences of the co-offenders which gives rise to a justifiable sense of grievance on the applicant’s part.^[2] No justifiable grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.^[3] In Thien Thi Tran v The Queen, Ashley JA (with whom Osborn and Whelan JJA agreed) said:

First, the Court is not placed in the position of the sentencing judge. The question to be answered is whether it is satisfied, on objective consideration of the entire circumstances of the offenders and the offending, that the applicant is entitled to have a justifiable sense of grievance. This requires the Court to be persuaded that the sentence passed upon the applicant was not reasonably open.^[4] There is no single correct sentence. That is so whether complaint is made of manifest excess or of want of parity.
Second, sentencing involves a synthesis of the entire circumstances of the offending and the offender. Where more than one offender is being sentenced, just as where a single offender is to be sentenced, sentencing is not a mechanical exercise in which circumstances are to be weighed with a pretence of arithmetical certainty.^[5] Indeed, where more than one offender is being sentenced, and despite parity considerations requiring a judge to compare the circumstances of the offending and the offenders, disparate circumstances may lend themselves even less to such an exercise. An attempt to demonstrate that the sentence imposed on one of the offenders was not reasonably open, by resort to a minute examination of the individual circumstances of the offending and the offenders, runs counter to the concept of instinctive synthesis.^[6]

20 In the present case, the judge recognised there were clear distinctions between the offenders by reason of the different number of offences in which they were involved and the different roles played by them with respect to the trafficking offences.^[7]

21 His Honour also recognised an additional totality issue arose in Chu’s case because of time spent in custody for a subsequent conviction after his initial arrest.^[8] Albeit the period in issue was only 21 days.

22 Lim raises two submissions:

(a) the two year differentiation in sentence with respect to trafficking does not adequately reflect Lim’s lesser role in the offending; and

(b) factors personal to Lim justifying mitigation of sentence are not adequately reflected in the two year differentiation. It is submitted that:

There were other relevant sentencing considerations, favourable to the applicant, which set him apart from Mr CHU. He endured a more difficult upbringing and was not as well educated; he was not awaiting trial and on bail for drug offending when he offended; he was assaulted in custody; he is isolated and lonely in gaol and has no visitors; he has suffered the tragic death of his father and injury to his mother whilst in custody; he entered a plea of guilty at an earlier stage than CHU; and the judge’s findings mean that for him, specific deterrence is not as important a sentencing consideration, and his prospects of rehabilitation are better than CHU’s.^[9]

23 Insofar as the question of role is concerned, the judge expressly acknowledged the different roles played by the offenders and characterised Lim’s role as being that ‘he opportunistically agreed to assist as a courier for others. Any role in arrangements was essentially limited to place and time of intended delivery. Again, your motivation was financial reward.’^[10]

24 It may be inferred that the two year difference in sentence is principally attributable to the different roles played by the offenders. The difference was material both in absolute and relative terms. It could not give rise to a justifiable sense of grievance in circumstances where despite their different roles Lim himself performed an essential and responsible role in the enterprise and the difference in the sentences imposed fall to be viewed broadly in the context of the circumstances as a whole, including considerations of totality having regard not only to Chu’s total effective sentence but also the additional totality consideration identified by the sentencing judge.

25 In Nguyen v R [2016] HCA 17; (2016) 331 ALR 30, Gageler, Nettle and Gordon JJ said:

Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence^[11] while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences^[12]. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case^[13]. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong^[14]. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.

26 When regard is had to Chu’s total effective sentence in the context of the circumstances of the offending as a whole^[15] it cannot be concluded that comparison with the sentence imposed on Lim justifies a sense of grievance on Lim’s past.

27 Insofar as the personal considerations referred to are concerned, there were aspects of Chu’s personal situation which rendered a custodial sentence particularly onerous for him. In particular, the fact that as the judge identified, he will endure anguish as his wife and young children pass through life in the community without his presence.^[16]

28 The matters relied on by Lim do not persuade us that the difference in the sentences imposed by his Honour was unreasonable or outside the range.

29 As the decision in Tran emphasises, his Honour was required to exercise his discretion by reference to the circumstances as a whole. When all the circumstances of the case are considered, the difference between an 11 year and nine year sentence for the related offending was well within the range.

Manifest excess

30 Counsel for Lim emphasised that he was able to call in aid the following matters:

He was born to a family that suffered financial hardship, had taken on duties to help support them from a young age, and had worked hard and responsibly for them.

b. He had no previous nor subsequent convictions.
c. He had pleaded guilty at an appropriately early stage.

He was in circumstances of vulnerability in custody and open to exploitation from others when he offended.
His role was essentially limited to being a closely supervised conduit for others for a short period of time.

f. He was genuinely remorseful.

He had participated in rehabilitation and educative courses whilst in custody and his prospects for rehabilitation are reasonably good.
He had suffered and would continue to suffer real guilt, anguish, regret and grief over the death of his father and injury to his mother whilst he has been in custody, and what his absence has meant.
He had and would continue to suffer isolation and hardship away from his family whilst he remained in custody.^[17]

31 The sentencing judge recognised each of these factors in the course of his sentencing remarks.

32 Having regard to the gravity of the offending, however, we do not consider that a sentence of nine years’ imprisonment could be characterised as manifestly excessive, particularly in the case of a mature offender.

33 The maximum penalty, quantity and value of the drugs involved, coupled with the considered involvement by Lim in the operation for motives of personal gain, all support the view that it is not. The trial judge was required to give adequate expression to the need for just punishment, general and specific deterrence. The significance of general deterrence in cases of this type necessarily means that less weight can be given to factors personal to the offender, than might otherwise be the case.^[18]

34 Reference to the cases cited by the Commonwealth Director demonstrates that there is no inconsistency between the level of the sentence imposed and current sentencing practice with respect to broader comparable cases.^[19]

35 Nor does the sentence imposed upon Cheung demonstrate that Lim’s sentence is manifestly excessive. Cheung’s offending involved a substantially smaller quantity of pure methamphetamine and cannot in itself be regarded as fixing the appropriate yardstick of sentencing practice in any event.

36 The sentence imposed upon Lim was not so plainly excessive as to bespeak error of principle.^[20]

37 In all the circumstances, despite the comprehensive and lucid argument advanced on behalf of Lim, we would refuse leave to appeal.

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^[1] Director of Public Prosecutions (Cth) v Chu & Anor [2017] VCC 1027 (‘Reasons’) [47]–[61].

^[2] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610, 613, 623.

^[3] R v Wolfe [2008] VSCA 284 [9].

^[4] DPP (Cth) v KMD [2015] VSCA 255 [109].

^[5] In DPP v Dalgleish (a Pseudonym) [2017] HCA 41 [4]–[6] Kiefel CJ, Bell and Keane JJ re-stated and illumined this long-established principle, one among very many instances being the observations of Crockett J in R v Nagy [1992] VicRp 45; [1992] 1 VR 637, 638–9, cited by Nathan J in R v Mundy (1994) 76 A Crim R 92, 97.

^[6] [2017] VSCA 346 [23]–[24] (citations in original).

^[7] Reasons [4].

^[8] Ibid [65].

^[9] Applicant’s written case [22].

^[10] Reasons [61].

^[11] Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(a); R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566, 572 [15] per Spigelman CJ.

^[12] Mill [1988] HCA 70; (1988) 166 CLR 59, 62–3; Pearce [1998] HCA 57; (1998) 194 CLR 610, 623–4 [43]–[45] (McHugh, Hayne and Callinan JJ).

^[13] Mill [1988] HCA 70; (1988) 166 CLR 59, 62–3; Director of Public Prosecutions v Grabovac [1998] 1 VR 664, 680 (Ormiston JA), 665 (Winneke P agreeing), 690 (Hedigan AJA agreeing).

^[14] Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66, 67 [7] (Simpson J).

^[15] As to which see our decision in Wing Thi Chu v The Queen [2018] VSCA 65.

^[16] Reasons [62].

^[17] Applicant’s written case [29].

^[18] DPP (Cth) v Thomas [2016] VSCA 237 [193].

^[19] DPP (Cth) v Thomas (2016) 347 ALR 275; DPP (Cth) v Wu [2016] VCC 141; R v Agboti [2014] QCA 280; (2014) 246 A Crim R 72; Saab v The Queen [2012] VSCA 165; Legault v R [2014] NSWCCA 271; Hui v The Queen [2015] VSCA 314.

^[20] Nguyen v R [2016] HCA 17; (2016) 331 ALR 30 46, [66] (Gageler, Nettle and Gordon JJ). R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ), and the cases there cited.

Authorities Cited22

Referred to (22)