Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dao v R [2011] NSWCCA 183 Hearing dates: 1/08/2011 Decision date: 17 August 2011 Before: McClellan CJ at CL at [1] Simpson J at [2] Fullerton J at [3] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - attempt to possess commercial quantity unlawfully imported border controlled drug - parity Legislation Cited: Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Cases Cited: England v R; Phanith v R [2009] NSWCCA 274 Postiglione v R [1997] HCA 26; 189 CLR 295 R v Olbrich [1999] HCA 54; 199 CLR 270 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Category: Principal judgment Parties: Viet Cuong Dao (Applicant) The Crown Representation: Counsel P Boulten SC (Applicant) R Bromwich SC (Crown) Solicitors AKN & Associates (Applicant) Director of Public Prosecutions (Cth) (Crown) File Number(s): 2008/18469 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-07-31 00:00:00 Before: Morgan DCJ File Number(s): 2008/11/1209 Judgment 1McCLELLAN CJ at CL : I agree with Fullerton J. 2SIMPSON J : I agree with Fullerton J. 3FULLERTON J : The applicant seeks leave to appeal against a sentence imposed by Morgan DCJ in the District Court on 31 July 2009 after adhering to a plea of guilty entered in the Local Court for attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely 22.3 kilograms of pure methamphetamine (commonly known as "ice"). The commercial threshold of the drug is fixed at 750 grams under the Criminal Code Act 1995 (Cth). The wholesale value of the consignment was between $4 M and $5 M with its street value between $10 M and $22 M. 4Against a maximum of life imprisonment and/or a fine of $825,000 the applicant was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years to date from 17 December 2007, the date of his arrest. 5The sole ground of appeal concerns whether the applicant has been left with a justifiable sense of grievance after two co-offenders, Manh Hung Ha and Duc Phuong Nguyen, were sentenced by Frearson DCJ following a trial in the District Court in June 2009. On 5 February 2010 his Honour sentenced Ha to imprisonment for 12 years and 6 months with a non-parole period of 7 years and 8 months and Nguyen to imprisonment for 12 years with a non-parole period of 7 years and 4 months. 6In summary, the applicant submitted that the different and greater levels of involvement of both Ha and Nguyen relative to his role is such that even accepting that his criminal record denied him any leniency, an undiscounted term of imprisonment of 13 years and 4 months is significantly and disproportionately higher than the terms of imprisonment imposed on his co-offenders and that he should be re-sentenced to redress the disparity. 7The Crown submitted that to the extent that there is any ascertainable difference between the roles the three offenders performed in their attempt to possess the drug (each being lower level participants in a criminal enterprise to import and distribute the drug), it is only slight and not such as to distinguish one offender from any other for sentencing purposes. 8The Crown submitted that the real point of distinction for sentencing purposes was their respective criminal records (or in the case of Ha the absence of any criminal record). The applicant's record was more significant than that of Nguyen including two offences of supplying a prohibited drug in 2000 and 2005, each of sufficient seriousness to attract full-time imprisonment. In 2001 Nguyen was convicted of supplying a prohibited drug for which he was given a suspended sentence. In the Crown's analysis, the applicant's criminal record had the effect of offsetting the discount that applied by reason of his plea of guilty such that when the sentences of all three offenders are considered there is no marked and unjustifiable discrepancy between them which warrants the intervention of this Court. 9There was a considerable body of common evidence in the two sentencing exercises. The drugs were detected in a shipment of candles from Vietnam. After the drugs were removed the cartons were reconstructed and released for a controlled delivery. Nguyen arranged for and collected the consignment under an assumed name in Ha's van which he then drove to a rendezvous with Ha and another man. The applicant drove Ha to the rendezvous in a car. Nguyen then handed control of the van containing the drugs to Ha and left with the other man. Nguyen was arrested soon after. 10Ha drove the van to his premises and parked it in the rear yard. The applicant drove the car to Ha's premises. Both men entered the premises from which a banging or tapping sound was heard consistent with the consignment being unpacked. This was followed by swearing, doubtless associated with the discovery that the drugs had been removed. After securing the premises Ha and the applicant drove away in convoy but in separate vehicles. They were arrested by police a short time later. 11Importantly, although Morgan DCJ sentenced the applicant by reference to agreed facts and Frearson DCJ sentenced Ha and Nugyen after a trial, save for the fact that in the trial Nguyen was positively identified as the person who negotiated for clearance of the consignment under an assumed name and the person who ultimately collected the consignment, it does not appear that his Honour had any greater insight into the roles Ha and Nguyen actually performed in attempting to possess the drugs than what her Honour was invited to accept was their role when sentencing the applicant. This aspect of the evidence at trial did however enable the Crown to submit on sentence that Nguyen's involvement was for a longer period of time than that of Ha, namely over days. It also grounded his Honour's finding that Nguyen played a pivotal role in securing access to the drugs after importation and that he acted in combination with others for that purpose. It did not however alter the fact that his Honour found Ha's role as the trusted custodian of the drugs was slightly higher than that of Nguyen. 12Although it is not material to the issue of parity, Frearson DCJ assessed the seriousness of the criminality of both Ha and Nguyen as within the low to middle end of the mid range of objective gravity. While this may have been a practical way of approaching the issue of sentence, it was not necessary to position the offenders relative to mid range offending for the purposes of the imposition of sentence for a Commonwealth offence under s 16A of the Crimes Act 1914 (Cth). I do not intend, however, to suggest by that observation that error has infected the sentences his Honour imposed. 13Morgan DCJ did appoint the applicant to a position within a notional range of offending although she did find he was a low level participant. Relative to the agreed facts, and subject to acknowledging that a sentencing court is sometimes required to sentence upon incomplete evidence, her Honour focused upon what the applicant did in committing the offence, rather than attempting to identify with any precision his particular role, function or position in any hierarchy of offending relative to other offenders. This is consistent with the approach in R v Olbrich [1999] HCA 54; 199 CLR 270. In the result her Honour accepted that the evidence indicated that the applicant's role was at the lower end of the criminal organisation consistent with the fact that his involvement extended only for a matter of hours and was limited to driving Ha to the rendezvous and joining with him thereafter to assist in unpacking the cartons at his premises, clearly intended to be the first point from which the drugs would be distributed. She was satisfied that there was nothing in the evidence to suggest that the applicant was involved otherwise than in that capacity. She accepted that there was no evidence or suggestion that the applicant was involved in the importation of the drugs. His long-standing drug addiction confirmed her view that he was not a person who would occupy an important role in an organisation involved in the supply of drugs. 14The applicant submitted on the appeal that on the basis of those findings, and what was submitted to be the much greater level of criminal involvement of Nguyen and Ha, what is revealed is not simply an arguable or mere disparity between his sentence and that of his co-offenders but a serious disparity such that an impartial observer would genuinely feel that justice had not been done. 15On the appeal the Crown submitted that Ha's role was closer to that of the applicant than that of Nugyen given his physical actions on the day that the drugs were collected and his shared or joint custody of the drugs with Ha for the purposes of making them available for distribution. While this may be so it fails to grapple with her Honour's findings which, at least implicitly, distinguish Ha's role from that of the applicant on the basis that he was the person who had control of the drugs in the unpacking phase (given that it was his vehicle and his premises that were used for that purpose) and that the applicant was involved simply to assist him. That said, neither sentencing judge made any overt findings about differences in the objective criminality as between Nguyen and Ha on the one hand and the applicant on the other. In so far as the sentence imposed by Morgan DCJ is concerned this is hardly surprising given that the trial of the other offenders was pending at the time of sentence. Similarly, when sentencing Ha and Nugyen after trial, although Frearson DCJ referred to the applicant's sentence and acknowledged the operation of the parity principle, his primary focus was to sentence the offenders consistent with the evidence led at trial and to do so relative to each other. 16The marginal difference in the sentences imposed by his Honour appear to reflect his finding that Ha's role was slighter higher than that of Nguyen but that Nguyen had a criminal record where Ha had none. In other respects their subjective cases were not relevantly dissimilar from each other or from that of the applicant, aside from the applicant's criminal record which was more serious given his repeated drug offending. Both judges found that there was no satisfactory evidence of remorse or any acceptance of responsibility from any offender and only a marginal difference in their prospects of rehabilitation. Frearson DCJ found Nugyen's prospects to be fair to moderate in light of his criminal record and Ha's prospects reasonable. Morgan DCJ made no positive finding as to the applicant's prospects of rehabilitation preferring to regard them as guarded in light of his criminal record and his long-standing addiction to heroin. Both judges did however make express reference to the need for the sentences of the applicant and Nguyen to reflect specific deterrence, again because of their drug related antecedents. I note that Nguyen also had a heroin addiction. 17Given the differences in the parts played by the applicant and Ha in attempting to possess the imported drugs, and the fact that the applicant was found by Morgan DCJ, implicitly at least, to have occupied a lesser role than that of Ha (albeit an important role), the question starkly presented for the purposes of the appeal is whether the applicant's criminal record relative to that of Ha (and perhaps of Nguyen) is such as to have justified what would otherwise be manifest disparity in the applicant's sentence. 18Her Honour dealt with his record entirely appropriately citing Veen v R (No 2) [1988] HCA 14; 164 CLR 465. She noted that whilst his criminal convictions did not operate to increase the objective seriousness of his offending it may serve to indicate a more severe sentence is warranted to address the joint objectives of retribution, deterrence and the protection of society. While it is not entirely clear whether her Honour in fact increased the applicant's sentence for this reason it is certainly open to be viewed in this way. Consistent with the Crown's submission, if the sentence is viewed in this way the applicant's undiscounted term of imprisonment of 13 years and 4 months relative to the 12 years and 6 months Frearson DCJ imposed on Ha is justified or explained. By the same process of reasoning so is the sentence of Nguyen given his quite different contribution to the criminal enterprise and his criminal record which his Honour expressly treated solely as denying him any leniency. 19In applying the principles of appellate intervention where disparity is asserted by an applicant for leave to appeal against sentence, recently reviewed by Howie J in England v R ; Phanith v R [2009] NSWCCA 274 at [61]-[69] (a judgment with which both McClellan CJ at CL and I agreed), I am not persuaded that the applicant's sentence can be fairly described as "markedly" or "glaringly" or "seriously" disproportionate to that of Ha or Nguyen, or that viewed objectively his sentence could be said to give rise to a justifiable sense of grievance relative to that of his co-offenders. As Kirby J said in Postiglione v R [1997] HCA 26; 189 CLR 295 at 338: ...Mere disparity is not enough. What is needed is that the disparity engenders a "justifiable sense of grievance" on the part of the prisoner or "give the appearance that justice has not been done"108. It has been stated many times that the fact that the prisoner feels a sense of grievance is not determinative. Say what they may, appellate courts cannot "prevent an unjustified sense of grievance from arising in the minds of sentenced persons"109. But the object of the language chosen is to make it plain that some disparities, being inevitable, must be tolerated out of respect for the discretion of sentencing judges and a modest appreciation of the capacity of appellate courts to rectify discrepancies without causing new or different problems... 20In this case due acknowledgment should be afforded the careful and considered decision of both sentencing judges and due allowance for the exercise of their sentencing discretion which has resulted in sentences that are different but, in my view, not such as to result in unequal justice. 21The orders I propose are: 1. Leave to appeal is granted. 2. The appeal is dismissed. ********** 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: 22 August 2011