R v Pham [2001] NSWCCA 307

New South Wales Court of Criminal Appeal

CITATION : R v Pham [2001] NSWCCA 307 FILE NUMBER(S) : CCA 6024/01; 60273/01 HEARING DATE(S) : 13 August 2001 JUDGMENT DATE : 13 August 2001

PARTIES : Regina Tuan Ba Pham JUDGMENT OF : Wood CJ at CL at 1; Sperling J at 48

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0093 LOWER COURT JUDICIAL Woods DCJ OFFICER :

COUNSEL : E A Wilkins (C) M C Ramage QC with Ms Michael (A) SOLICITORS : S E O'Connor Mark Klees & Associates CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence – supply of commercial quantity of heroin – two counts of supply of sample of heroin - 1 count supply of methylamphetamine – whether role of the applicant was that of "secondary principal" – expression ambiguous – whether parity in sentencing – whether correct starting point of sentence – whether court should have taken into account applicant's past drug use – no substance to submissions LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 s 25(2) DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60241/01 60273/01 WOOD CJ AT CL SPERLING J MONDAY 13 AUGUST 2001 REGINA v TUAN BA PHAM

JUDGMENT

1 WOOD CJ AT CL: The applicant seeks leave to appeal from a sentence of imprisonment for ten years and six months with a non parole period of seven years and eleven months, imposed upon him for the offence of supplying 2.1 kgs of heroin, being an amount just over twice the large commercial quantity applicable to that substance. That is an offence for which the maximum available penalty is one of imprisonment for life: S 25(2) Drug Misuse & Trafficking Act 1985. 2 The applicant was, at the same time, sentenced for two counts of supplying two samples of heroin, respectively in amounts of 0.38 grams and 0.19 grams, and for one count of supplying 0.2 grams of methylamphetamine. In respect of these two further heroin offences, concurrent terms of imprisonment for three years with non-parole periods for two years and three months were imposed. For the methylamphetamine offence, a concurrent fixed term of one year was imposed. In respect of that matter, a further offence of possession of 0.14 grams of that substance was taken into account on a form 1. 3 The offences were detected during a targeted NCA operation, and involved a somewhat sophisticated and well organised criminal venture on the part of those involved. It is common ground that the offender occupying the highest rung in the distribution chain was a person Cuong, known by the honorific "Uncle". It was he who initially held the drugs, and it was from him that the others took instructions. However both the applicant and a co-offender Nguyen were significantly involved in the operation, being persons described by his Honour as "secondary principals". This was a term of somewhat uncertain meaning and of dubious value. However, it can be taken to mean that these two offenders were the persons entrusted with authority to arrange the sale of drugs and to effect their delivery once a sale had been negotiated. 4 In the case of the applicant, his involvement began in Melbourne, where he met a covert operative Alex on 4 April 2000, and offered to him six blocks of heroin each of 12.5 ounces for sale in Sydney. A price of $51,000 per block was negotiated between the applicant and Alex. Arrangements were made for a meeting in Sydney. That meeting took place at the Star City Casino on 12 April 2000. It was attended by the applicant, by Alex and by another covert operative, Dat. 5 On this occasion Alex and Dat showed the applicant $200,000 in bank notes in a sports bag. The applicant gave to Alex three paper packets containing the two small quantities of heroin (one being white in colour and one beige), and the small quantity of methylamphetamine, which were respectively the subject of the three lesser supply charges. They were offered as samples, the applicant asking Alex what kind of heroin he preferred, and also indicating that he could supply "ice", or methylamphetamine, of good quality at the price of a $120,000 per kilo. Arrangements were made for a further meeting on the following day. 6 On the afternoon of 13 April Alex met the applicant and a co-offender Nguyen in Ultimo. They were joined by Dat who was carrying $306,000 as show money in the boot of his vehicle. After some discussion the applicant, Nguyen and Alex drove to a block of home units in Illawarra Road Marrickville. They were followed by Dat in his vehicle. Further discussions took place at those premises concerning the arrangements for the exchange of the heroin and the money. 7 At this point Alex and Dat changed their roles, Alex remaining in Dat's vehicle with the money, while Dat went with the applicant and Nguyen to a unit inside the Illawarra Road building. Dat was there introduced to another person, Le, with whom further discussion took place in relation to the way in which the exchange would be effected. 8 Le indicated that the transaction would take place at another location. She then walked with Dat to Ewart Street in Dulwich Hill where they were both picked up by an Asian male driving a motor vehicle registered to Le. 9 The driver of this vehicle then took them a short distance down Ewart Street before stopping at another block of home units. Le drove off leaving Dat and the Asian driver behind. On their way into the building they were met by an unidentified Asian male and an Asian female in the courtyard. The former handed a shopping bag to the driver, and then left with the female. Dat and the driver went into unit 13, where Dat was given the shopping bag which upon inspection was found to contain three packages each containing two blocks of heroin. 10 Dat contacted Alex by mobile phone to confirm that he had received the heroin, and also to make arrangements to bring the money to the unit. In the meantime, Alex, the applicant and Nguyen had remained together at Marrickville in or near the vehicle which contained the money. 11 During this period, Nguyen had engaged in a number of conversations by mobile phone with Le, whom he referred to as "Aunt Phuong" and with the driver of the motor vehicle. 12 After the call from Dat was received, the money was counted and Nguyen confirmed with the driver of Le's vehicle, whom he addressed as "Uncle", that the money was correct. 13 Nguyen then directed Alex to drive to Ewart Street. When they arrived there Nguyen left the vehicle and went into the unit where Dat was waiting. The applicant and Alex waited outside for them. They were, at this point, arrested and the bag containing the $306,000 was recovered. When Nguyen and Dat left the unit carrying the shopping bag, with its heroin packages, they were also arrested as was Le a short time later. 14 The arrests of Alex and Dat were naturally enough show arrests. When the applicant was interviewed, he admitted his involvement in the supply offences. Examination of his personal property turned up the residual quantity of methylamphetamine which gave rise to the offence included in the Form 1. 15 Nguyen, it may be observed, declined to be interviewed at this stage. 16 The estimated street value of the 2.1 kgs of heroin, which upon analysis was found to constitute 893 grams of pure heroin, was about $2.1 million. 17 Both the applicant and Nguyen pleaded guilty, and were sentenced by his Honour Woods DCJ in the District Court. The sentence imposed upon Nguyen for the single offence of which he was convicted, namely the supply of the 2.1 kgs of heroin was one of seven and a half years with a non parole period of four years. 18 At the time of the offence the applicant was aged about 30 years, and had a prior criminal history including several convictions in Victoria for offences of burglary, theft, and breaches of community based orders. He also had convictions for a number of offences of dishonesty involving the obtaining of financial advantage by deception, obtaining property by deception and making false documents. These had been dealt with on 11 November 1999, and had led to a total sentence of 12 months imprisonment, of which 10 months had been suspended. He came from a good family, but experienced the significant difficulty and hardship associated with his experience when, after escaping from Vietnam with his father and brother in 1980, he had lived for two months or so in a refugee camp in Malaysia, before gaining entry into Australia. 19 Once in this country he completed his Higher School Certificate, and entered the Royal Melbourne Institute of Technology before abandoning his tertiary studies to embark upon a business career in the area of loan finance. 20 He married in 1993, but later separated from his wife in about 1997. He did not become involved in delinquent behaviour or drug abuse in his teens, but began to use drugs after the breakdown of his marriage. There was some evidence of him having been hospitalised at one time in 1999, after an episode of drug induced psychosis, and of suffering some degree of depression associated with his business difficulties. 21 In a letter addressed to the Court he expressed contrition and an intention to abstain from drug abuse. That letter was however significantly self-serving so far as it sought to minimise his criminality, and it does not suggest that he has much by the way of insight into the seriousness of his involvement in the drug trade at a commercial level. 22 Nguyen was a 19 year old at the time of the offence. He had been living in Australia on a student visa and had a lesser criminal history although it included convictions for drug related offences. In his case, the evidence showed that he had been dislocated from his family, had a limited command of the English language, and was drug dependent. He was assessed by his Honour to have been "vulnerable", and his youth was something which, it was said was a matter "which very greatly distinguished him from his co-offender". 23 In the case of the applicant special circumstances were expressly not found. In the case of Nguyen, while his Honour did not expressly deal with the question, it is evident from the sentencing order, which involved a non-parole period of the order of 53 percent of the head sentence, that they were found to exist. Properly would that been so, having regard to his age, his background and his lack of family and community ties, which did require that there be a significant period of post release supervision. 24 Four grounds were argued in support of the application.