Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hung v R [2023] NSWCCA 172 Hearing dates: 1 May 2023 Decision date: 10 July 2023 Before: Leeming JA at [1]; Rothman J at [38]; McNaughton J at [39] Decision: 1. Grant leave to appeal. 2. Appeal dismissed. Catchwords: CRIME – appeal – appeal against sentence – parity – whether justifiable sense of grievance by reason of sentence imposed on co-offender – whether same total sentences imposed on applicant and co-offender justified Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Cases Cited: C v R [2022] NSWCCA 285 Fenech v R [2018] NSWCCA 160 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Labban v R [2022] NSWCCA 275 Miles v The Queen [2017] NSWCCA 266 R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 Weiss v R [2020] NSWCCA 188 Z v R [2022] NSWCCA 286 Category: Principal judgment Parties: Mai Van Hung (Applicant) Rex (Respondent) Representation: Counsel: T Ramrakha (Applicant) M Swift (Respondent) Solicitors: Legal Aid NSW (Applicant) Office of the DPP (NSW) (Respondent) File Number(s): 2021/00077449 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 9 June 2022 Before: Buscombe DCJ File Number(s): 2021/00077449 JUDGMENT 1. LEEMING JA: Mr Mai Van Hung seeks leave to appeal from the sentence imposed by the District Court on 9 June 2022 following his plea of guilty to the offence of supplying between 5 January and 18 March 2021 a large commercial quantity of a prohibited drug, namely, 722g of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is life imprisonment, and the standard non-parole period is 15 years imprisonment. The sentence also took into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), four offences on a "Form 1", namely, knowingly dealing with the proceeds of crime of $4,750, and three offences of possessing prohibited drugs (5g each of heroin and methylamphetamine, and 5ml of gamma-butyrolactone). The sentence, which incorporated a discount of 25% for the plea, was six and a half years imprisonment with a non-parole period of three and a half years, backdated to 18 March 2021 when the applicant was taken into custody. 2. The notice of appeal was not filed until some eight months later, on 15 February 2023. It contains a single ground: The applicant has a justifiable sense of grievance in respect of the sentence imposed on him as compared to the sentence imposed on Thanh Quang Duong. 1. Mr Duong was sentenced on the same day by the same judge for the same offence, namely, supplying a large commercial quantity of methylamphetamine. The amount of the drug supplied was somewhat larger (915.88g), but took into account two offences on a Form 1 (one offence of supplying 29g of methylamphetamine and another of dealing with the proceeds of crime namely $5,600). 2. The sentencing of both offenders took place pursuant to separate statements of agreed facts, supplemented by affidavits from each man. Neither was required for cross-examination. 3. The offending took place in the following way. There were two other co-offenders, Mr Daniel Wong and Ms Le Thanh Vuong. The four were involved in a series of supplies of methylamphetamine to an undercover operative. 4. On a number of occasions (eight in the case of Mr Duong, four in the case of the applicant) an undercover operative was contacted by a co-offender Ms Vuong for the supply of methylamphetamine. After the amount and price was agreed, a meeting was arranged with the undercover operative to deliver the drug. Thereafter, another co-offender Mr Wong would drive to the applicant's residence with the amount of methylamphetamine and then leave. Shortly thereafter, Mr Duong would drive to the applicant's residence and enter into his unit for a short time, before returning to his own residence with the prohibited drugs for Ms Vuong to supply to the undercover operative. 5. In each case, a proportion of the money paid by the undercover operative was provided to the applicant by Mr Duong and Ms Vuong, who then gave this money to Mr Wong. Mr Wong then paid the applicant for his contribution of the money. 6. Mr Duong was sentenced on the basis of eight supplies as follows: 5 January 2021, 27.5g with a purity of 79.5% for $6,300. 16 January 2021, 55.7g with a purity of 80% for $12,200. 21 January 2021, 55.5g with a purity of 79.5% for $12,200. 29 January 2021, 55.1g made up of 27.5g with a purity of 80% and 27.68g with a purity of 79% for $12,200. 5 February 2021, 161.1g with a purity of 80% for $36,300. 15 February 2021, 165.7g with a purity of 81% for $36,300. 22 February 2021, 166.9g with a purity of 80.5% for $36,300. 18 March 2021, 223g for $46,600 the purity of which amount was not tested. 1. The applicant was sentenced in relation only to the last four (which were also the largest) supplies on 5 February, 15 February, 22 February and 18 March 2021. 2. According to the applicant's affidavit, Mr Wong gave him a small amount of ice and heroin to take for pain he said he was experiencing. The applicant said he had known Mr Duong since 1988 and Mr Wong since 2001. He confirmed that Mr Wong would drop the drugs off to his home and that Mr Duong would pick up the drugs and come back with the payment. He said he received $500 from Mr Wong for the first supply, $1,000 for the second and third supply, and $4,000 for the supply on 18 March 2021. He said that he did not know the co-offender Ms Vuong prior to the offending. The sentencing judge accepted the truthfulness of this evidence. 3. The sentencing judge assessed the objective seriousness of the applicant's offending was assessed as "towards the lower end of the range of objective seriousness, but not at the bottom". When comparing the applicant's offending and that of Mr Duong, the sentencing judge noted that the total amount involved in the supplies by the applicant was "almost 200g less than the total amount involved in the supplies that Duong involved himself in". His Honour was satisfied that both the applicant and Mr Duong were involved in the offence for financial gain. Significantly for one of the applicant's submissions, he said "I consider Duong's role to be greater than that of [the applicant], and similar to that of Vuong, but a little below her role". His Honour assessed the objective seriousness of Mr Duong's offence as "considerably below the mid-range of objective seriousness for such offending". His Honour did not express a comparison between the objective seriousness of Ms Vuong and the applicant. 4. The sentencing judge devoted considerable attention to the subjective cases of each the applicant and Mr Duong, and what follows is taken from his Honour's sentencing remarks, about which no complaint was made. 5. Mr Duong was 52 years old when sentenced but had a very limited criminal history (fines in 2018 and 2021 for offences of possessing prohibited drugs and goods in custody). His Honour said that his lack of a criminal record entitled him to some leniency, there being "no evidence suggesting that his lack of a criminal record somehow facilitated the commission of the offence". He had two adult daughters from his first marriage, and retained the support of his ex-wife. He was estranged from his second wife, whom he had married four years earlier. He had a "strong" employment history, although unemployed at the time, and was using 1g of "ice" a day. His offending was attributed to the need to fund his drug consumption and gambling addictions. 6. On the other hand, the applicant was 62 when sentence was imposed and had previously been convicted in 1990 for the offences of possessing prohibited imports and attempting to obtain possession of prohibited imports. He had been sentenced to 13 years imprisonment with a minimum term of 10 years. 7. The applicant was born in Vietnam. He left school aged 11 and was sent to board with another family. He returned home at the end of the Vietnam war, and found work. When aged 18 he was part of the crew of a vessel which mutinied, and he ended up in Singapore. He was granted refugee status and settled in Australia in 1978. 8. After his release from prison for the offence for which he was sentenced in 1990, he was shot in the leg in 2002 while working in a restaurant in Cabramatta, and claimed that he suffered pain in that leg ever since. 9. There had been a significant gap in the applicant's criminal record so far as drug offending was concerned, but he returned to Vietnam in 2006. He commenced a relationship with a woman in 2011, and two children were born in 2013 and 2014. He lived in Ho Chi Minh City until 2017. He became ill and returned to Australia in 2017 to seek medical treatment. In 2018 his wife and children arrived from Vietnam to live with him. He had not worked since around 2005 because of medical issues. He was in receipt of a disability pension, and his wife said that the applicant engaged in offending "because he wanted to earn money to provide for the children" and her. The sentencing judge said that the applicant's wife remained supportive, and was willing to accommodate him after his release, although it appeared that the marriage was over. 10. The sentencing assessment report stated that he used between 1g – 3g of "ice" daily. The applicant disputed this and said he used about one gram of "ice" a fortnight. The applicant said that most of the money he received from the offending was used to support his habit, but noted in his affidavit that it was his intention to use the money to assist with his family's financial difficulties. 11. The most serious offending aside from the 1990 drug offending was a high range PCA which was first dealt with in 2006. It was ultimately dealt with by way of an intensive correction order in 2019, the sentencing judge stating that "it would appear because he absconded to Vietnam, not having completed a community service order". 12. The applicant suffers from a series of serious medical conditions. He requires dialysis three times a week as a consequence of end stage renal failure. He has also been diagnosed with ischemic heart disease, diabetic retinopathy, neuropathy and hypertension. The dialysis is administered in the prison hospital, where he has been since arrest on 18 March 2021 for the offending the subject of this appeal. There was evidence that the treatment was effective. 13. The sentencing judge noted evidence that although the applicant was on a waiting list for a kidney transplant, he had a significantly higher mortality risk than a healthy person. The sentencing judge adverted to the significance of a serious medical condition to the exercise of the sentencing discretion, and addressed R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at length. Ultimately his Honour concluded that: Where an offender with serious health problems engages in serious and protracted criminality knowing that the consequences of detection is a substantial period of imprisonment, then that is also a consideration to have regard to. Here the offender had his serious medical conditions as at the time of the commission of the offending, which was a … large commercial supply of prohibited drugs. 1. The applicant placed reliance on the following aspect of his Honour's reasons: In the past, he had received a significant sentence of imprisonment for involving himself in the drug trade, and he must have known that involving himself in the offending would lead to a significant sentence being imposed if he was caught. There is no suggestion that the offender Hung's medical condition has significantly deteriorated since the commission of the offence, and overall the evidence supports a finding that Corrective Services are ensuring that his medical conditions are being appropriately treated. I do find, however, that the offender Hung's medical conditions make his time in custody more onerous than it would be for an offender who does not suffer his medical conditions. He would also appear to be particularly vulnerable given his medical conditions and the COVID-19 pandemic. I also note that he has a reduced life expectancy as a consequence of the time he has been on dialysis, although that would have occurred whether or not he was in prison. 1. After noting that there was no suggestion that the prospects of receiving a kidney transplant were lessened by his imprisonment, his Honour stated that he had "mitigated the offender's sentence to some degree due to his health in accordance with the principles discussed in Achurch." 2. No criticism was addressed to any aspect of the way in which his Honour addressed the applicant's medical condition. 3. The sentencing judge found that both the applicant and Mr Duong expressed remorse, but that Mr Duong's was "not as fulsome as that displayed by the offender, Hung". His Honour was satisfied that the applicant had "some genuine remorse in relation to his offending". 4. The sentencing judge found that each of the applicant and Mr Duong had reasonable prospects of rehabilitation, the former despite his much worse history of offending, but in light of his community support and the gap in his offending. His Honour made findings of special circumstances for each man. His Honour stated that in both cases the Form 1 offending had no real impact on the sentence to be imposed. 5. His Honour addressed parity in terms: There is an issue of parity in this sentence. In particular, having regard to the sentence I imposed on the co-offender, Vuong. I sentenced Vuong for the same offence that these two offenders are to be sentenced for, although the amount of drug the subject of her sentence was the same as in relation to the offender, Duong, and less therefore, than the amount of drug the subject of Hung's offence. Vuong also had a proceeds of crime offence on the form 1. I found that offence had no impact on the sentence to be imposed on the principal count. I noted when sentencing the offender, Vuong, that the Crown had accepted that her role was less than her co-offenders. Based on the material I now have before me, I am not satisfied that concession was an appropriate one. Given what appears to be the limited roles of the offenders, Hung and Duong, as revealed in the material before me on their sentence, I consider that although Vuong's role involved her meeting with the undercover officer, and therefore, having the risk associated with doing so, she appears to have had more of an organising role than either of the two offenders I am to sentence today. As explained earlier when discussing the objective seriousness of the offences, I consider that Hung's role is a limited one. He receives the drugs from [Wong] for a relatively short time. Vuong and Duong collect them, and return with the buy money which Hung holds until it is collected by Wong. Duong's role is closer to that of Vuong, in my opinion. In terms of the subjective cases, all three offenders pleaded guilty in the Local Court. Vuong had a relatively poor subjective case. She committed the offence while on parole for a similar offence for which she had been sentenced in 2013. Her criminal record disentitled her to leniency and the offence was committed on conditional liberty which was an aggravating factor. I found that the offender, Vuong, had little insight or remorse in relation to her offending, and had a medium risk of re-offending. I found that the offender, Vuong, had no better than guarded prospects of rehabilitation. I made a limited finding of special circumstances when fixing her non-parole period. Given my findings as to the role of each of the offenders in these remarks, and the different subjective cases, in my opinion, the offenders, Hung and Duong, should receive a considerably lesser sentence than Vuong received, although I am conscious of not imposing sentences which create a justifiable sense of grievance for any of the offenders. (Emphasis added.) 1. It is apparent that the word "less" highlighted above is a slip for "more". Nothing turns on this, and the applicant's counsel placed no reliance upon it. Elsewhere in the reasons the sentencing judge correctly stated that the drugs involved in the applicant's offending were less than those involved in Mr Duong's offending. The error in the sentencing judge's remarks happened when he was determining that despite his rejection of the Crown's concession about the role of Ms Vuong, and in the course of making favourable findings as to each of the applicant and Mr Duong receiving a considerably lesser sentence than was imposed upon her. 2. Mr Duong received the same total sentence of 6 years and 6 months imprisonment, but with a non-parole period of 4 years, as opposed to the non-parole period of 3 years and 6 months received by the applicant. 3. The applicant's written and oral submissions were brief. He referred to the fact that the sentencing judge characterised Mr Duong's offending as "similar to" and "closer to that of" Ms Vuong, that the applicant's record was not an aggravating factor, although it disentitled him to leniency, that the applicant had the advantage of a finding of genuine remorse, and the applicant's serious health concerns. The oral submissions emphasised the same points, and made reference to a very recent decision of this Court, Butler v R [2023] NSWCCA 100, in which a parity ground succeeded notwithstanding that the applicant and his co-offender were sentenced by the same judge. 4. There was no dispute as to the applicable principles. The question is an objective one, although styled in terms of an offender's grievance. As was said in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31]: The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: "the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. (Footnotes omitted.) 1. The question is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge: C v R [2022] NSWCCA 285 at [33]; Z v R [2022] NSWCCA 286 at [31]-[32]; Labban v R [2022] NSWCCA 275 at [24]. It is not necessary to find a "gross, marked or glaring" discrepancy: Miles v The Queen [2017] NSWCCA 266 at [9], [38], [67]. Instead, it is better to use the expressions of the High Court, namely, "marked disparity" or "marked and unjustified disparity": Fenech v R [2018] NSWCCA 160 at [30]; Weiss v R [2020] NSWCCA 188 at [89]. 2. The position then is that two men were sentenced for the same offence on the same day by the same judge, although that does not stand in the way of this ground's success. The applicant's offending involved fewer supplies, and less drugs, than that of Mr Duong, and although both were at the lower end of the range of objective seriousness, the applicant's offending was less objectively serious than that of Mr Duong. Both pleaded guilty and received a 25% discount. Both were involved in the offending to fund their drug and gambling addictions. Both men were found to be remorseful, with the applicant's remorse exceeding that of Mr Duong. Both were found to have reasonable prospects of rehabilitation. The applicant, unlike Mr Duong, suffered from a series of serious medical conditions, which were said to mitigate his sentence "to some degree". 3. All of those factors favour a lesser sentence being imposed upon the applicant as opposed to Mr Duong. But telling against that result is the fact that Mr Duong had no significant criminal record, while the applicant had previously been involved in a serious drug offence and had been sentenced to 13 years' imprisonment with a non-parole period of 10 years. Mr Duong was entitled to leniency, and the sentencing judge said as much expressly ("[h]is lack of a criminal record entitles him to some leniency"). The applicant was not. 4. Although the applicant's submissions drew attention to the finding that the objective seriousness of Mr Duong's offending was "similar to that of Vuong", what matters is that it was greater than that of the applicant, and that both were well below the mid-range ("towards the lower end of the range of objective seriousness, but not at the bottom" as opposed to "considerably below the mid-range of objective seriousness"). 5. It is the sentences as a whole which are to be compared in order to determine whether the applicant has a justifiable sense of grievance. I readily accept that the fact that the total sentence imposed on each man is the same does not prevent a complaint of parity arising. However, I see no error in these two men receiving the same total sentence. It is tolerably plain how the same total sentence is to be justified in the present case. In effect, the somewhat worse objective seriousness of Mr Duong's offending, and the aspects of the applicant's subjective case which warranted a lesser sentence (notably, his remorse and his health) were offset by the fact that he had previously committed a serious drug offence, thereby disentitling him to leniency. It is to be noted that the differential findings of special circumstances result in a substantially shorter non-parole period for the applicant (3 years and 6 months) as opposed to Mr Duong (4 years). 6. For those reasons, the differences between the applicant and Mr Duong supply a reasonable justification for the sentence imposed on each man. They do not give rise to a justifiable sense of grievance. Although there should be a grant of leave to appeal, I would dismiss the appeal. 7. ROTHMAN J: I agree with Leeming JA. 8. McNAUGHTON J: I agree with Leeming JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2023