New South Wales Court of Criminal Appeal CITATION: Tran v Regina [2006] NSWCCA 266 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 02/03/2006 JUDGMENT DATE: 30 August 2006 JUDGMENT OF: Beazley JA at 1; Adams J at 2; Howie J at 28 DECISION: Leave to appeal granted. Appeal is allowed. A non-parole period of four years and three months commencing 21 August 2003 and a balance of term of two years and nine months commencing 21 November 2007 and ending on 20 August 2010 are substituted. The applicant will be eligible to be considered for parole on 20 November 2007. CATCHWORDS: Criminal Law - Sentencing - Parity with co-offender - No matter of principle. LEGISLATION CITED: Drug (Misuse and Trafficking) Act 1985 - s 25(2) Crimes (Sentencing Procedure) Act 1999 - ss 44, 54A Cartwright (1989) 17 NSWLR 243 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 CASES CITED: R v Hung Lo [2005] NSWCCA 436, (2005) 159 A Crim R 71 R v Sangalang [2005] NSWCCA 171 Postiglione v The Queen (1997) 189 CLR 295 Lowe v The Queen (1984) 154 CLR 606 PARTIES: Minh Tran v Regina FILE NUMBER(S): CCA 2005/2289 COUNSEL: D. Arnott SC - Crown H. Dhanji - Applicant SOLICITORS: S. Kavanagh - Crown J. Doolan - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0858 LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ LOWER COURT DATE OF DECISION: 10/12/2004 IN THE COURT OF CRIMINAL APPEAL 2005/2289 CCAP BEAZLEY JA ADAMS J HOWIE J WEDNESDAY 30 AUGUST 2006 Minh TRAN v REGINA Judgment 1 BEAZLEY JA: I agree with the orders proposed by Adams J and otherwise endorse the comments of Howie J. Introduction 2 ADAMS J: The applicant entered an early plea of guilty to an indictment containing a single count of supplying a commercial quantity of heroin contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985. This involved 834.9 grams of heroin and, accordingly, a maximum penalty of twenty years' imprisonment with a standard non-parole period of ten years' imprisonment applied. The applicant also asked that twenty-four other matters be taken into account on a Form 1. Two of those matters concern amounts of money ($355,000, $2,007.05 and $2,300) discovered on a search of his flat; the rest of the offences concern the possession of small amounts of different drugs conceded by the prosecution to have been held by the applicant for his own use. The applicant was sentenced to imprisonment for eight years with a non-parole period of five years. Facts 3 The facts of the offence were not in dispute. The following account comes largely from the reasons for sentence of the learned sentencing judge. Police conducting an investigation by using physical and electronic surveillance intercepted a telephone call between a person known as Lam and the applicant concerning the supply of drugs – in the conversation referred to as 'tapes'. In a later conversation the applicant told Lam that something was going to happen on 21 August 2003. Lo had been instructed by Lam to obtain two "movies" and bring them out – these movies referred to blocks of heroin which were to be supplied to the applicant. Lo went to the restaurant with Hoang and was instructed by Lam to "order beef noodles and place the video under the noodles". Sometime later Lam and another co-offender Fung, travelled to the restaurant where they met Lo and Hoang. Hoang and Lam went to the applicant's residence and Lam carried the plastic bag believed to contain the two blocks of heroin which had been placed there by Lo. It then transpired that the applicant only wanted one block of heroin which was the block of heroin in the white plastic bag in Lo's possession when, some time later, he was arrested. It is clear that Lo was directly involved in the supply of large quantities of high-grade heroin although he acted under the direction of Lam and Fung. The applicant and Lam left the unit and drove back to the restaurant which Lam had come from. Outside the restaurant the applicant was arrested. 4 The applicant's premises were searched. The police found 834.96 grams of heroin, of which about half was in powder form and the other half as white rock. Police also found thirty-five bundles of currency notes totalling $355,000, $2,300 in another location in the unit and $2,000 on the applicant's person. This cash gives rise to the three charges in the Form 1 although, in substance, they comprised the one charge. When the applicant was first interviewed on 3 September 2003 he denied having any dealings in or involvement with heroin supply. The other charges on the Form 1 listed eighteen separate small quantities of drugs, comprising heroin, MDMA, amphetamine, methylamphetamine, buprenorphine and cannabis and three quantities (methylamphetamine, methadone and buprenorphine) sufficient to comprise a deemed supply which were found in various parts of the applicant's premises. 5 It was agreed between the prosecution and the defence that the applicant acted as a middleman or broker in the sense that he was the intermediary between the source of the drugs and the purchaser of them, introducing them to each other and allowing his premises to be used to effect these transactions, being the place where money was passed to the seller and drugs to the purchaser. It was agreed that he did not occupy a place in any particular hierarchy. There was no dispute that the applicant had a significant drug addiction. It was accepted by the learned sentencing judge that the applicant was to receive $4,000 and an amount of heroin for his role in this particular transaction. Subjective features 6 The prosecution conceded that the applicant's plea was given at the earliest opportunity. Her Honour also accepted that there were "Cartwright [(1989) 17 NSWLR 243] considerations" in the applicant's case, to which the agreed facts and discussion about them at the sentence hearing refer and which it is not necessary to set out in this judgment. Her Honour gave a discount in this respect in the order of 15%. Having regard to the early plea, the applicant's sentence was discounted by an additional 25% in line with the decision of this Court in R v Thomson and Houlton (2000) 49 NSWLR 383 7 The applicant and his sister came to Australia as refugees in 1979 when he was twenty years of age. His niece gave evidence that the applicant had taken care of her family and was very generous to them. She had not seen him for about a year before his arrest and said that when she first saw him in custody she barely recognised him because he looked so unwell. The applicant admitted to her that he had been a drug user and that being in jail had forced him to stop using drugs. He was anxious to begin his recovery. The applicant's niece visited him weekly and, over time, noticed a great change in her uncle as he appeared to be physically much better and had apparently stopped using drugs. The applicant expressed to his niece great remorse for his crime and for the shame which it had brought on their family and said that he hoped on his release from jail he would be able to live with his sister in Brisbane and work with her in their restaurant. His niece's family have said that they will look after the applicant. His niece's family have said that they will look after the applicant. Another niece of the applicant also gave evidence in support of him, telling of his generosity and support of her family. She was also shocked to discover the applicant's drug addiction and was alarmed at how unwell he looked when she first visited him in jail. She also believed that the applicant was no longer using drugs. 8 The learned sentencing judge accepted that the applicant's family would give him support, both emotionally and practically, on his release from jail so that there was both work and a place for him to live when he is released. She accepted that he wished to live with them and accept that support. Her Honour also accepted that the applicant had indeed expressed remorse to his nieces. The applicant was 44 years of age as at the date of sentence with a minor prison record. 9 A psychologist's report was tendered on the applicant's behalf relating the traumatic events experienced by the applicant during the Vietnam War, which one might readily accept were extremely distressing. The psychologist thought that, as a result of these experiences, the applicant developed post-traumatic stress disorder. Even so, when he came to Australia the applicant obtained work and, it appears, did not commence abusing drugs until he experienced a relationship breakdown at about the age of 38. He consumed both ecstasy and cannabis and, at about the age of 41 was introduced to smoking heroin to which he became addicted. When he was unable to obtain heroin he used street methadone and began experimenting with ice. Shortly after this he used buprenorphine to assist with his heroin addiction. It was the psychologist's opinion that the applicant used drugs as a way of self-medicating for his post-traumatic stress disorder. The learned sentencing judge, as I understand her reasons for sentence, accepted the psychologist's opinion. The sentence 10 The learned sentencing judge concluded that there were good prospects for the applicant's rehabilitation on his release from jail. As is obvious from the sentence, her Honour considered that special circumstances existed justifying a variation of the ratio between the non-parole period and the head sentence from the statutory calculus in s 44 of the Crimes (Sentencing Procedure) Act 1999. 11 As I have mentioned, the standard non-parole period applicable under s 54A of the Crimes (Sentencing Procedure) Act is ten years. Where there is a plea of guilty, this period is a relevant consideration in assessing the objective seriousness of the crime: R v Way (2004) 60 NSWLR 168. It is not suggested that her Honour erred in the way in which she dealt with this aspect of the sentencing assessment. 12 The learned sentencing judge found that she could not conclude that the applicant committed this offence due to his drug addiction. She considered that there was some planning involved and that the applicant's role in the process of supply was "significant". The appeal 13 The applicant does not submit that the sentence, considered alone, is manifestly excessive. Mr Dhanji of counsel for the applicant advanced the single ground that the applicant's sentence should be reduced having regard to the sentences imposed upon his co-offenders. 14 Lo was sentenced by McLoughlin DCJ on two charges of supplying large commercial quantities of heroin, comprising 1,406.07 grams and 834.9 grams. On the first of these charges, Lo was sentenced to a non-parole period of seven years and an additional term of three years and six months commencing on 21 August 2003. On the second charge (involving the heroin which the applicant was also convicted of supplying) Lo was sentenced to a non-parole period of four years and an additional term of two years. The terms of imprisonment were partly concurrent with the second non-parole period, commencing five years after the commencement of the sentence on the first charge. The partial concurrency was ordered having regard to the principle of totality. 15 The first of Lo's charges arose from the possession of the drugs in the motor vehicle in which he was arrested and occurred on the same day in which he had been involved in delivering the smaller quantity to the applicant, giving rise to the second charge. Lo had entered Australia on a tourist visa on 9 July 2003 and was involved in the delivery of the heroin to the applicant some six weeks later. Lo had claimed that he met Lam a few days after arriving in Sydney and commenced working for him but it was only two days prior to his arrest that he became aware that Lam was involved in the supply of heroin. McLoughlin DCJ did not accept Lo's evidence concerning his lack of knowledge about the heroin supplying being undertaken by his co-offenders. Nor did his Honour accept that Lo's remuneration for his involvement was merely a return trip from Hong Kong, although his Honour was unable to draw any conclusions as to what Lo might have hoped to gain. McLoughlin DCJ accepted that, on the evidence before him, Lo could not be considered pivotal, that he did not supply any specific knowledge or expertise to the venture and his role could have been filled by any one of a number of people. His Honour did not accept, however, that such involvement as he had was at the lower end of the scale. Lo had been found in a vehicle in which there was a plastic bag containing 1406.07 grams of heroin with a purity ranging between 65.6% to 71%. He had been observed meeting another person in a vehicle, received the bag and carry it to the vehicle in which he was apprehended. On the same day, he was involved in delivering the smaller quantity to the applicant. Subjectively, Lo had been working in Hong Kong although he had become unemployed in 1997 and built up debts whilst he was supported by his family and friends. He was sentenced on the basis that he had no prior convictions. Lo was 45 years of age. McLoughlin DCJ accepted that Lo had a minor involvement in the organisation of the heroin supply transactions "but was willing to place himself in the lead role in the physical aspects of receipt, holding and passing on by supplying". McLoughlin DCJ concluded that Lo was unlikely to re-offend and had reasonable prospects of rehabilitation but made no finding as to remorse or contrition. He noted that Lo had not provided any assistance to law enforcement authorities. He considered that Lo was "a foot soldier" whose "role was that of a controlled courier". 16 In sentencing the applicant the learned judge said – "It is difficult to make an assessment of the relative culpabilities of the offender and Lo and Wang, a further co-offender. The role occupied by the offender clearly involved a degree of planning and arrangement. So much can be seen from the conversations recorded by the police, and a degree of sophistication, given the amount of money being held by him. Given the amount of heroin found…and the amount of money found in the flat, I find that the offender had a significant role in the placement of supply." 17 It was submitted by Mr Dhanji that the learned sentencing judge did not make any finding that the applicant was more or less culpable than Lo. I do not think that this submission is correct. In the passage to which I have referred, it seems to me that her Honour contrasted the applicant and Lo in at least two respects: the applicant's offence involved a degree of planning and arrangement and also a degree of sophistication. So far as Lo is concerned, he simply did what he was told and, in so far as he was a courier, he was being "controlled" at the time. This is quite different from the applicant who, plainly, was trusted not only with a substantial quantity of drugs but also with a great deal of money. Consistently with the facts agreed and accepted by her Honour I think it must follow that the large sum in excess of $300,000 in the applicant's possession was related to the transaction for which he was convicted and not to a separate transaction. 18 McLoughlin DCJ seems to have taken as his starting point the standard non-parole period of ten years applying to an offence falling within the middle of the range of objective seriousness, then reduced it by 25% to reflect the utilitarian value of Lo's plea and then further reduced the resulting seven years six months period to six years because of his role and prior good conduct then further reducing the non-parole period to four years having regard to the applicant's prospects of rehabilitation. This mode of sentencing is fundamentally flawed. Firstly, it applies the utilitarian discount for a plea of guilty at the wrong end of the process. The discount should be applied after all other relevant sentencing elements have been taken into account so that the discount reduces the sentence below that which would otherwise have been imposed. By reducing the sentence at the commencement of the sentencing assessment, McLoughlin DCJ awarded a reduction which was significantly greater than that which would have been appropriate had his Honour commenced where it appears he would have with a non-parole period of six years and six months. It is also wrong in principle to separate out objective and subjective features in terms of assigning to each a particular term of years. I make these observations simply to indicate that, in making the comparison necessary for the disposition of this appeal, I do not wish it to be thought that I accept the approach adopted by McLoughlin DCJ as appropriate and by way of explaining why I do not think that it would be correct for this Court to analyse the applicant's sentence for the purposes of comparison with that of Lo by applying that process to the applicant's sentence. 19 It is important to note, of course, that Lo came to be sentenced for two charges of supplying heroin, of which one was the supply of a large commercial quantity attracting a standard non-parole period of fifteen years. The particular significance of this is not so much that Lo was punished for two offences and therefore was, overall, more culpable than the applicant but that the effect of the sentencing regime applying to him was that two years of the four year non-parole period imposed for the offence with which the applicant was involved was to be served concurrently. 20 In addition to the differing roles of the applicant and Lo – the former being somewhat more significant I think than that of the latter – the applicant's sentence included an element for the Form 1 offences. These offences were not trivial. The drug offences and the fact that three quantities were such as to deem them as being in the applicant's possession for supply would probably have resulted in a custodial sentence, though perhaps not a long one, if he had been separately prosecuted for them. These offences do increase to some degree the applicant's overall criminality and are an additional point of difference between him and Lo in respect of their sentences relating to their dealing with the 834.9 grams of heroin. The serious offence relating to the large amount of cash was taken into account as one of the objective features of the substantive offence, namely that the applicant was the intermediary for both purchaser and supplier. It was not suggested by the prosecution that the large amount of cash reflected some other substantial dealing or illegal activity. It seems to me that the way in which the matter was dealt with below and should be here is that the possession of the cash was part and parcel of the transaction for which the applicant received his sentence. Lo had no responsibility for or possession of substantial quantities of cash in connection with his dealing with the heroin. Accordingly, the offences taken into account on the Form 1 are a significant feature differentiating the applicant from Lo. 21 Lo appealed to the Court of Criminal Appeal from his sentences, which were reduced: R v Hung Lo [2005] NSWCCA 436, (2005) 159 A Crim R 71. The errors identified by the Court were that McLoughlin DCJ had used the standard non-parole period as a "starting point" contrary to R v Way [2004] NSWCCA 131 at [131]; see also R v Sangalang [2005] NSW CCA 171. The other error was the failure of the learned sentencing judge to have regard to the partial accumulation of sentences as a special circumstance justifying the variation of the non-parole periods. Although his Honour had, in relation to each count, imposed a non-parole period which was significantly less than 75% of the head sentence, the effect of the accumulating orders was to create a overall non-parole period relative to the head sentence of 82%. The Court considered that the overall head sentence was within McLoughlin DCJ's sentencing discretion and did not justify intervention. However, it was necessary to adjust the non-parole periods, as to count 1, to have regard to the special circumstance of accumulation and, as to count 2, to vary the commencement date having regard to the changed non-parole period for count 1. The result was that although the overall sentence for count 2 remained unchanged, all but six months of it was subsumed by the sentence on count 1. The new sentences were, on count 2, a head sentence of six years with a non-parole period of two years commencing 21 August 2003 and on count 1 a head sentence of ten years with a non-period of six years six months dated from 21 February 2004. 22 Allthough it was appropriate for the learned sentencing judge to regard the applicant's objective culpability as somewhat greater than that of Lo, there were two significant subjective features in the applicant's case which were not present in Lo's case: first, the Cartwright considerations which justifiably gave him an additional 15% discount; and, secondly, the evidence of remorse and rehabilitation which was accepted by her Honour. It will be seen that the starting point for the applicant's sentence before the utilitarian discount was thirteen years four months compared to the starting point of eight years in Lo's case. This demonstrates to my mind that a question of parity of arises suggesting that the applicant's sentence was excessive. 23 Furthermore, it is important to bear in mind the significance of the substantial degree of concurrency allowed to Lo first by the sentencing judge but even more markedly by the Court of Criminal Appeal. In Postiglione v The Queen (1997) 189 CLR 295 Dawson and Gaudron JJ said (at 301-2, 303) – "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality…" … "The approach adopted by the Court of Criminal Appeal in this case treats or has the effect of treating the total period to be served in custody and, more particularly, the actual period to be served in consequence of the offences committed as irrelevant to the proportion which the sentences imposed on Postiglione and Savvas should bear to each other. In the circumstances of this case, the real punishment for both Savvas and Postiglione is the extra period which they must spend in prison. Due proportion cannot be determined without taking it into account." Kirby J said (343) – "The parity principle between co-offenders continues to operate as a consideration in sentencing notwithstanding the application of the totality principle to the offender." 24 It is not sensible to make a merely arithmetical comparison: Lo's sentence for the common offence cannot simply be regarded as six months long because of the concurrency of this sentence with the sentence that was imposed for the other supply. Nevertheless, this factor cannot be left out of account when dealing with the application of the principle in Lowe v The Queen (1984) 154 CLR 606. Even allowing for the greater objective culpability of the applicant's offending, there is a very substantial disparity between the sentence he received in respect of the same heroin which his co-offender was also convicted of supplying. Conclusion 25 Considering the matter realistically, the marked difference in the actual and effective sentences imposed on Lo and the applicant for their involvement with supplying the same quantity of heroin is such as to demonstrate that the applicant has a justifiable sense of grievance concerning the sentence which he received. The disparity operates in this case to reduce what, absent this factor, is an appropriate and by no means heavy sentence. The sentence I propose is the minimum that can, in my view, be imposed. A more lenient sentence, let alone a sentence that approached the effective sentence imposed on Lo would be a reproach to the administration of justice. 26 In all the circumstances, I would grant the appeal and quash the applicant's sentence. It seems to me that, in light of the applicant's psychological condition, his need for supervision, the public interest in his rehabilitation and the fact that this is his first time of imprisonment, special circumstances warrant departure from the statutory calculus. 27 Accordingly, I would grant leave to appeal, allow the appeal and substitute a non-parole period of four years and three months commencing 21 August 2003 and a balance of term of two years and nine months commencing 21 February 2007 and ending on 20 August 2009. The applicant will be eligible to be considered for parole on 20 November 2007. 28 HOWIE J: I have read in draft the judgment of Adams J. I agree with the order his Honour proposes for the reasons given by him. I would simply add that in my opinion this application is at the very cusp of this Court's discretion to intervene to alter an otherwise appropriate sentence on the basis of parity and the sentence proposed is verging on the inadequate despite the discounts allowed for the plea and assistance. ADDENDUM TO Judgment 1 BEAZLEY JA: I agree with Adams J. 2 ADAMS J: The appellant was sentenced to imprisonment for 8 years with a non-parole period of 5 years to commence on 21 August 2003 taking into account the offences on the Form 1. On appeal this sentence was reduced to 7 years with a non-parole period of 4 years and 3 months. 3 The new non-parole period of 4 years and 3 months commencing on 21 August 2003 and ending on 20 November 2007 was correctly stated in the judgment handed down on 30 August 2006. However, the dates both for the beginning and ending of the balance of term of 2 years and 9 months were wrongly stated. 4 The dates of the additional term therefore need to be varied. Accordingly, the following dates are substituted for the balance of term of 2 years and 9 months: a commencement date of 21 November 2007 and an end date of 20 August 2010. This sentence takes into account the matters on the Form 1. 5 HOWIE J: I agree. ********** 28/10/2008 - Addendum to judgment - Paragraph(s) 1-5 of addendum 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.