Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen [2013] NSWCCA 136 Hearing dates: 10/05/2013 Decision date: 07 June 2013 Before: Macfarlan JA at [1] Fullerton J at [2] Adamson J at [54] Decision: 1. Crown appeal against sentence for Aaron Geoffrey Tran is dismissed. 2. Crown appeal against sentence for Peter Nguyen Tran is dismissed. 3. Crown appeal against sentence for Hoang Duy Nguyen is dismissed. Catchwords: CRIMINAL LAW - Crown appeal against sentence - offences relating to importation of commercial quantity of heroin - whether sentences manifestly inadequate Legislation Cited: Crimes Act 1914 (Cth) Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Criminal Code Act 1995 (Cth) Cases Cited: DPP (Vic) v Azizi (County Court of Victoria, Taft J, 16 September 2011, unreported) DPP (Vic) v Christos (County Court of Victoria, Taft J, 16 September 2011, unreported) DPP (Vic) v Quy Hung Truong (County Court of Victoria, Montgomery J, 2 April 2012, unreported) Dinsdale v R [2000] HCA 54; 202 CLR 321; 115 A Crim R 558 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1 Govindaraju v R [2011] NSWCCA 255 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; 214 A Crim R 152 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520; 204 A Crim R 434 Kuti v R [2012] NSWCCA 43 Le v R [2006] NSWCCA 136 Ng, Chin Swee v R [2010] NSWCCA 232 Pang v R [1999] NSWCCA 4; 105 A Crim R 474 R v Alasti-Faridani (District Court of NSW, McLoughlin DCJ, 10 February 2012, unreported) R v Bezan [2004] NSWCCA 342, 147 A Crim R 430 R v DW [2012] NSWCCA 66 R v Dede (District Court of NSW, Finnane DCJ, 17 February 2012, unreported) R v Firmin (Supreme Court of Queensland, Lyons J, 16 May 2012, unreported) R v Holland [2011] NSWCCA 65; 205 A Crim R 429 R v Karan (District Court of NSW, McLoughlin DCJ, 12 October 2012, unreported) R v Karan [2013] NSWCCA 53 R v Klein [2001] NSWCCA 120; 121 A Crim R 90 R v Kreimerman (District Court of NSW, Wells DCJ, 13 December 2011, unreported) R v Leroy [1984] 2 NSWLR 441 R v Mirzaee [2004] NSWCCA 315 R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Otto [2005] NSWCCA 333; 157 A Crim R 525 R v Pinero Asencio (District Court of NSW, Finnane DCJ, 17 February 2012, unreported) R v Riddell [2009] NSWCCA 96; 194 A Crim R 524 R v SC [2008] NSWCCA 29 R v Wong; R v Cheung (District Court of NSW, Williams DCJ, 20 April 2012, unreported) Seah v R [2011] NSWCCA 269 Speer v R [2004] NSWCCA 118 Thoung Nguyen v R [2012] 184 Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 Youssef v R [2011] NSWCCA 104 Category: Principal judgment Parties: The Crown Aaron Geoffrey Tran (1st Respondent) Peter Nguyen Tran (2nd Respondent) Hoang Duy Nguyen (3rd Respondent) Representation: Counsel: C O'Donnell (Crown) J O'Sullivan (1st Respondent) P Hamill SC (2nd Respondent) S Odgers SC (3rd Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Crown) WH Parsons & Associates (1st Respondent) Ly Lawyers (2nd Respondent) Murphy's Lawyers Inc (3rd Respondent) File Number(s): 2012/66507 2012/66508 2012/66580 Decision under appeal Date of Decision: 2012-10-19 00:00:00 Before: Walmsley DCJ File Number(s): 2012/66507 2012/66508 2012/66580 Judgment 1MACFARLAN JA: I agree with Fullerton J. 2FULLERTON J: On 19 October 2012 the respondents were sentenced by Walmsley DCJ for offences relating to the importation of a commercial quantity of 6.25 kilograms of pure heroin, contrary to s 307 of the Criminal Code Act 1995 (Cth) ("the Criminal Code"). In accordance with the schedule contained in s 307.5(1) of the Criminal Code, the commercial quantity of heroin is 1.5 kilograms. The estimated wholesale value of the heroin was $2.5 million with the street value estimated to be between $6.25 million and $7.21 million. 3After applying a discount of 25 per cent for the early pleas of guilty the following sentences were imposed against a statutory maximum of life imprisonment: (1)For the offence of attempting to possess a commercial quantity of an unlawful imported border controlled drug, namely heroin, the first respondent, Aaron Tran was sentenced to a term of imprisonment of 4 years and 6 months and to be released after serving 2 years and 9 months pursuant to a recognisance release order in the amount of $100 to be of good behaviour for 1 year and 9 months. (2)For the offence of importing a commercial quantity of a border controlled drug, namely heroin, the second respondent, Peter Tran was sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months. (3)For the offence of importing a commercial quantity of a border controlled drug, namely heroin, the third respondent, Hoang Nguyen was sentenced to a term of imprisonment of 9 years with a non-parole period of 5 years and 6 months. 4Each sentence was ordered to date from 28 February 2012, being the date the respondents were refused bail following their arrest. 5The Crown appeals the sentences imposed on each of the respondents as manifestly inadequate pursuant to s 5D of the Criminal Appeal Act 1912. 6The Crown did not submit that his Honour failed to have appropriate regard to the principles applicable to sentencing for offences relating to the importation of drugs (as to which see R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 per Johnson J at [70]-[72] with whom Macfarlan JA and RA Hulme J agreed). Neither did the Crown submit that his Honour had made any factual errors, whether in respect of the roles attributed to the respondents or their descending order of seniority (with Nguyen appointed the most senior and Aaron Tran the most junior), or the weight his Honour afforded their subjective circumstances. Rather, the Crown submitted that each of the sentences is so markedly outside the range of an available sentence for the offending for which the individual respondent stood to be sentenced as to reveal latent error productive of a sentence that was in each case "unreasonable or plainly unjust". 7It was also submitted by the Crown that the marked inadequacy of each of the three sentences was a likely consequence of Peter Tran being sentenced first, and to have derived from his Honour's acceptance of counsel's submission that Peter Tran should be treated as falling within the fourth category of offenders described by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1 at [215] when, on a proper assessment of his role, he was within the third category of offenders described at [213]. The Crown submitted that categorising Peter Tran's offending in this way led to his Honour setting an unjustly low benchmark and, since he calibrated the other two sentences against that benchmark with the objective of achieving parity, the sentences for Aaron Tran and Nguyen were infected with error. 8On the appeal, counsel for the Crown accepted that if the Court is not persuaded that the sentence imposed upon Peter Tran is manifestly inadequate (in the sense that it was unjustly or unreasonably low, whether because of a wrong application of principle or when compared with other sentences relied upon by the Crown) then the Crown appeal against the sentences imposed on his co-offenders should also fail. 9I regard that concession as properly made given the way the Crown chose to argue the appeal. However, it does not necessarily follow that were the Crown to make good its challenge to the sentence imposed on Peter Tran that the appeal against the sentences imposed on Aaron Tran or Nguyen (or either of them) should succeed. Each of the respondents is entitled to have the Crown appeal against their sentence considered in accordance with the principled approach most recently affirmed in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; 214 A Crim R 152, where the majority (French CJ, Crennan and Keifel JJ) at [1] restated that the primary purpose of Crown appeals is to "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons", with the Court retaining its residual discretion (qualified by s 68A of the Crimes (Appeal and Review) Act 2001) to decline to intervene despite the sentence under consideration being found to be erroneously lenient. The evidence on sentence 10An agreed statement of facts was tendered in the joint sentencing hearing. Each of the respondents tendered a report from either a forensic psychiatrist or a forensic psychologist. Peter Tran called evidence from his family members. Various testimonials were also tendered. Of the respondents, only Aaron Tran gave evidence. 11The offences related to the importation of heroin concealed in a consignment of four wooden crates airfreighted from Vietnam, the contents of which were declared to be "statue, vase and bathroom accessories". 12On 22 February 2012 the consignment arrived in Australia. On 24 February 2012, following the detection by customs of drugs in three of the four crates, the consignment was the subject of a controlled delivery authority issued to the Australian Federal Police. 13On 27 February 2012 the consignment was delivered to Peter Tran's home in Campsie where each of the three respondents removed the crates from the delivery truck and placed them in the carport. 14The following day the crates were transported to Nguyen's house by Peter Tran and Aaron Tran on the instructions of an unidentified female. Peter Tran telephoned Nguyen and said, "I think your mum wants us to clean it tonight". When police executed a search warrant at Nguyen's home later that night the internal wooden partitioning used to conceal the heroin in the crates had been removed and the substituted inert powder had been separated from the partitions of wood. A heat-sealing device and two sets of electronic scales were found inside the premises. 15Various conversations passing between each of the respondents were surreptitiously recorded by listening devices during the unpacking process where the weight of the drug, the composition of the inert substance and the anticipated financial benefit the respondents expected to receive from the importation was discussed. 16Following their arrest each of the respondents participated in an ERISP and made full admissions. 17Nguyen told police that he became involved in the importation when he was asked by a man who he met at a Kings Cross night club six months earlier, who he knew only as "Anh", if he wanted to make some easy money. Nguyen agreed that he thought the job would involve narcotics and that he was offered a large sum of money. (There was no evidence as to what amount of money was offered.) He took delivery of some mobile phones from the man and was told to get rid of them after he had used them. He arranged for the consignment from Vietnam to be delivered to Peter Tran (and sought and obtained his details for that purpose) because he did not want to use his own address. He asked Peter Tran to bring the consignment to his place as he had a van. He said that both Peter Tran and Aaron Tran assisted in unpacking the consignment. He said he removed one of the packages and, when white powder leaked out, he placed the package in a heat-sealed bag awaiting further instructions from the man at the nightclub. 18In summary, Peter Tran admitted to receiving the consignment as consignee, conveying it to Nguyen's house and being present when it was opened. Other evidence established that he arranged for the payment of the freight and customs duties and that he spoke on two occasions to a person in Vietnam about the consignment. He kept in touch with Nguyen concerning the payment of freight and import duties. He signed the delivery docket as the nominated consignee when the crates were delivered. 19Aaron Tran admitted to assisting Peter Tran to move the crates into Tran's garage on 27 February 2012 and to transport them to Nguyen's home the following day. He also admitted to assisting Tran and Nguyen to open the crates and remove the items but claimed that he then went into a different room. He said that when he saw the internal partitioning in the crates he suspected illegality. The assessment of objective seriousness 20For the purposes of sentence, and without demur from the legal representatives for each of the respondents, his Honour accepted the Crown's submissions as to the roles each of them played in the importation. He considered the roles played by each of Peter Tran and Nguyen as essential and important, with Nguyen performing the major role and Peter Tran a lesser but significant role. He found that Aaron Tran had played the least important role of the three, a role of considerably less importance than the roles performed by his co-offenders and one that was not crucial to the success of the enterprise. 21In addition to the roles the respondents performed in the importation (and in Aaron Tran's case in attempting to obtain possession of the drugs), for the purposes of assessing the objective seriousness of the offending under s 16A of the Crimes Act 1914 (Cth), the sentencing judge also took into account the following features, affording them each relative weight in that exercise: (a) The quantity of the drug, described as "relatively large"; (b) Each of the respondents was motivated by financial gain, with Nguyen telling police he had been offered a large sum of money and Peter Tran reporting to a psychologist that he expected to receive $10,000. (His Honour apparently rejected the account given by Aaron Tran to a psychiatrist that he was not offered any money for his part in the enterprise.) His Honour was not satisfied that anticipated returns revealed anything further about the relative roles of the respondents; (c) The need for general and specific deterrence to sound in the imposition of significant sentences commensurate with the offences involving the importation of a commercial quantity of heroin and the personal circumstances of the respondents; (d) The respondents' early pleas of guilty; and (e) That neither of the respondents had a criminal history. Since there was no evidence that their clear earlier record had led to their recruitment for involvement in the enterprise, each was entitled to some leniency on account of their good character (see R v Leroy [1984] 2 NSWLR 441 at 446-7; Pang v R [1999] NSWCCA 4; 105 A Crim R 474; R v Klein [2001] NSWCCA 120; 121 A Crim R 90). The subjective circumstances of the respondents in summary Hoang Duy Nguyen 22The following subjective features were take into account in Nguyen's favour on sentence: (a) His youth - 20 years of age at the time of offending; (b) His remorse; (c) His dependency on cocaine and cannabis at the time of the offending; and (d) His good prospects of rehabilitation. 23His Honour noted that Nguyen had not given evidence at the sentence hearing. For that reason he treated with caution statements Nguyen made to Tim Watson-Munro, psychologist, whose report was tendered, concerning his insight into the harmful effect of narcotics; his own pre-incarceration drug use; and his acceptance of culpability without the attribution of blame to others. Nevertheless his Honour accepted, with some hesitation, that Nguyen was remorseful and that his offending was out of character. Peter Tran 24In the case of Peter Tran the following circumstances were taken into account as established by the evidence: (a) His youth - 20 years of age at the time of offending; (b) His cocaine use in the months leading up to the offending; (c) His lack of knowledge of the actual quantity of heroin in the crates; (d) His history of employment as a courier driver after leaving school at Year 10; (e) His family support; (f) His statement to the psychologist that he regretted his involvement and expressed shame at the impact on his family; and (g) His good prospects of rehabilitation. 25His Honour noted that Peter Tran had not given evidence at the sentence hearing. He therefore also treated with caution statements he made to Bradley Jones, psychologist, whose report was tendered. His Honour was satisfied, however, that the history given to the psychologist was consistent with the evidence of Peter Tran's sister and brother-in-law. His Honour found these witnesses to be impressive and credible. Aaron Tran 26In Aaron Tran's case the sentencing judge took into account the following subjective features as established by the evidence: (a) His youth - 20 years of age at the time of offending; (b) His remorse; (c) His good school and work record; (d) His impressive references; (e) His close family ties; (f) His dependence on cocaine at the time of the offending in the context of the death of his father and the termination of a long-standing relationship with his girlfriend; and g) His good prospects of rehabilitation given his level of education, his history of employment and his family support. 27His Honour noted that Aaron Tran gave evidence at the sentence hearing and that it was not suggested to him in cross-examination that his statements to Dr Nielssen, psychiatrist, were untrue. These statements related to his being recruited by Peter Tran on the day the crates were taken to Nguyen's house, and that he had known Peter Tran from high school but at the time of the offence had only recently resumed a friendship with him through their shared use of cocaine. The sentences imposed (in the order in which they were imposed) Peter Tran 28In sentencing Peter Tran his Honour said: [30] I accept Mr Hanley's submission on [Peter Tran's] behalf that the quantity of drug ought be seen as a factor to take account of but not such as should determine the sentence. I am satisfied too that though he knew he was involved in a drug enterprise, he was not aware of the quantity of the drug he was involved with, as shown by some of the exclamations by him to fellow offenders as recorded by the police. [31] I accept Mr Hanley's submission that the evidence shows his part in the matter was not to exercise any decision making functions. Rather he took instructions. I accept that his position was lower than that of Mr Nguyen. I have made findings about that, and I accept that he appeared to get instructions from Mr Nguyen to an extent. I do not forget that he had some contact with others in Vietnam, but that does not detract from that finding. I find also that the fact he appeared to have some trouble raising the $3,000 needed for freight and like expenses, does suggest he was not at a high level and that his part was somewhat lacking in sophistication. As he allowed his name to be used, and handed over a copy of his driving licence, I am satisfied he had a lower level of involvement. Mr Hanley conceded that his role was however important, and more so than that of Mr Aaron Tran. [32] Mr Hanley submitted that though I should see De La Rosa as not binding, it is a decision which can be used as guidance and he drew my attention to McClellan CJ at CL's categories and suggested that I might put this in group four, with a plea of guilty and a drug range of one to thirty kilograms, with a lesser role and good antecedents. He put to me that an appropriate range for head sentences would be in the region of 6.25 to 8 years, with a non-parole period of 3 to 4½ years. He put to me that the non-parole period should be less than three quarters of the head sentence given that this is his first time in custody, given his youth, and given his health. [33] In general terms I accept his submissions. [His Honour then referred to Peter Tran's subjective circumstances summarised at [24] of this judgment.] [34] I propose to begin with a sentence of 10 years. I would deduct 25 per cent to arrive at 7 years and 6 months. By reason of what I regard as strong subjective matters, such as youth, rehabilitation prospects, and this being his first offence, I would propose a non-parole period of 4 years and 6 months. Hoang Duy Nguyen 29In sentencing Nguyen, his Honour accepted that he had played an essential, important and trusted role in the importation by arranging for Peter Tran to provide his name and address as consignee; arranging for the drugs to be delivered to Peter Tran's address after the consignment cleared customs and thereafter arranging for them to be delivered to his premises for unpacking and for ultimate supply those who would disseminate the drugs. 30After considering a submission from Nguyen's counsel that his client was not in a managerial or decision-making position but answerable to others, and after considering and accepting the views of Simpson J in Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at [75] that the higher the position a person holds in the hierarchy of participants in a drug importation the greater the distance they are able to maintain from physical contact with the drugs themselves (and that those in managerial roles are usually able to achieve that distance - an observation which his Honour considered had application to all three respondents), he found that Nguyen recruited Peter Tran to distance himself from potential exposure at the point of receipt of drugs and, for that reason alone, he had a role greater than Peter Tran, but that thereafter his role in unpacking the drugs was shared with the other two respondents. 31In sentencing Nguyen, his Honour commenced with a sentence of 12 years which, after application of the discount for the plea of guilty, resulted in a head sentence of 9 years with a non-parole period of 5 years and 6 months. Aaron Tran 32As to the role played by Aaron Tran (and after rejecting the Crown's characterisation of his role as important or crucial) his Honour said: ...It is clear ... that [Aaron Tran's] part was minor compared with that of the other two. His offending also was over a short period. No skill or knowledge was required of him. He has strong subjective factors. He has close family ties. The Crown conceded [that he] had come late into the picture, although she emphasised that his was still a significant role. That is a submission which, as I have noted, I do not accept entirely. 33His Honour accepted Aaron Tran's evidence that he was shocked when the crates were opened and otherwise found him to be an impressive witness. 34In sentencing Aaron Tran, his Honour commenced with a sentence of 6 years which, after application of the discount for the plea of guilty, resulted in a sentence of 4 years and 6 months and a non-parole period of 2 years and 9 months. Was the sentencing judge's reference to the fourth category of offenders identified in De La Rosa at [215] when sentencing Peter Tran productive of error? 35In a number of cases since De La Rosa was decided, this Court has held that limited assistance is to be gained by an applicant for leave to appeal against sentence endeavouring to position themselves in one or other of the categories of drug offender described by McClellan CJ at CL at respectively [207]-[215] in the case of commercial quantities of border controlled drugs and [216]-[223] for marketable quantities (see the cases referred to by Davies J in Thoung Nguyen v R [2012] 184 at [38]). What has been repeatedly emphasised in those cases is that the grouping of offenders into categories in De La Rosa by reference to common characteristics (so far as McClellan CJ at CL was able to identify them) was for general guidance and assistance to sentencing judges and not for use as a guideline judgment. 36In R v Holland [2011] NSWCCA 65; 205 A Crim R 429 (a Crown appeal against the inadequacy of a sentence imposed for the importation of a commercial quantity of cocaine about which I will have something to say later in this judgment), McClellan CJ at CL at [3] said of his judgment in De la Rosa that it would be wrong to sentence an offender by attempting to discern the "category" into which they might fit and then imposing a sentence appropriate for an offence which happens to share the characteristics common to that category. In Holland Schmidt J at [52] (Buddin J agreeing) warned against a Crown appeal being mounted on the basis that the sentence under challenge fell outside the range applicable to offenders in one or other of the categories identified in De La Rosa. 37In his remarks on sentence, the sentencing judge in the present case made express reference to De la Rosa and Holland in such a way as to leave no room for doubt that he was well appraised of the restricted use of the categories identified by McClellan CJ at CL in De La Rosa at [207]-[215] specific to the importation of commercial quantities of drugs in the imposition of sentence. (I note that both De La Rosa and Holland were referred to in the Crown's written submissions on sentence.) 38It would appear from what his Honour said at [32] and [33] of his remarks on sentence (set out in [28] of this judgment) that counsel for Peter Tran urged his Honour to treat his client as within the fourth category of offenders identified in De La Rosa. In his oral submissions, however, counsel accepted that the point of distinction between the third and fourth categories in De La Rosa is not fixed. 39Characteristics of an offender in the fourth category in De La Rosa at [217] of the judgment include performing a role variously described by McClellan CJ at CL as an instigator, overseer, collector and courier; where the quantity of drugs imported ranged from 1 kilogram to 30 kilograms; and where many offenders had good antecedents and no prior convictions. Head sentences ranged from 6 years 3 months through to 8 years, and non-parole periods from around 3 years to 4 years 6 months (with cases roughly split between those in which the offenders pleaded guilty and those in which they were convicted after trial). The third category of offender is described at [216] of the judgment as having a mid range role between that of principal and courier; where the pure quantity of the imported drug is below 7 kilograms and where head sentences ranged from 8 years to 15 years and non-parole periods between 4 years and 11 years (with a number of sentences involving pleas of guilty). The second category of offender described at [211] of the judgment played roles described as "essential;" and "vital" with high levels of responsibility but not principals, anticipating rewards in the realm of tens of thousands of dollars for their participation. Head sentences range from 18 years to 24 years and 6 months and non-parole periods between 10 and 16 years, most of which were imposed after a plea of guilty. The difference between the sentences in the third category (noticeably less than those in the second category) being explained by a combination of the pure quantity of the drug being less than 7 kilograms and discounts for assistance. 40The Crown submitted that the guidance given in De La Rosa would place Aaron Tran in the fourth group, Peter Tran in approximately the middle of the third group and Nguyen closer to the top of the third group, or in the second group. The Crown submitted that categorised in this way, each of the sentences were plainly inadequate. I have already referred to Schmidt J's criticism (at [52] in Holland) where error in the exercise of a judge's sentencing discretion, said to be productive of either an inadequate or an excessive sentence, is sought to be established on the basis that the sentence imposed fell outside the range identified as applying to the categories in De La Rosa, even in those cases where an offender might be seen as falling squarely within one category and not another. Her Honour went on to note at [61] in Holland that the difficulty the Crown was confronted with in that case in their reliance on the De La Rosa categories was the failure to identify any particular case within either the second or third categories that were relevantly comparable. The Crown in the present case did not undertake that exercise. 41Mr Hamill SC, who appeared for Peter Tran on the appeal but not on sentence, advanced the well founded submission that there is a broad spectrum of roles performed by offenders in both the third and fourth categories in De La Rosa, reflecting a continuum of criminal activity which does not stop at some notional point specific to the roles sentencing courts have come to use descriptively to differentiate between offenders in the one criminal enterprise. As the High Court emphasised in R v Olbrich [1999] HCA 54; 199 CLR 270 what is important in the assessment of the criminality of an offender is not the way an offender's role is described but what an offender actually did in effecting the importation or, in the case of an attempt to possess a border controlled drug, the steps taken by an offender in exercising control over the drug after it has been imported. 42On a fair reading of the remarks on sentence as they relate to Peter Tran, I am not persuaded that when the sentencing judge indicated his acceptance of counsel's submissions, that he was intending to indicate anything more than that he accepted, in "general terms", that the role Peter Tran played in the enterprise (that is, providing his details as consignee at Nguyen's request, facilitating receipt of the crates and their delivery to Nguyen and "recruiting Aaron Tran"), whilst important, was secondary to that of Nguyen who recruited him and that, when coupled with other features of the offending, including the amount of heroin involved, a role which should be given proper account in the assessment of objective seriousness under s 16A(1) of the Crimes Act (Cth). Moreover, to the extent that De La Rosa was utilised by his Honour in the way mandated by this Court in Holland and other cases (as I am satisfied it was), it would appear that Peter Tran received an effective sentence which was at the top of the wide range of sentences in the fourth category of offenders and at the bottom of an equally broad range in the third category. I am not persuaded that there is any discernible error in his Honour's approach to the sentencing of Peter Tran or that error infected the sentences of the other respondents in the way contended for by the Crown. Are the sentences otherwise manifestly excessive? 43To the extent that one of the tasks confronting this Court when the Crown brings an appeal against sentence based on the ground of manifest inadequacy is to consider whether there is a relevant range of sentences for the particular type of offending or offence under challenge (as to which see R v DW [2012] NSWCCA 66 at [38] per Basten JA), the Crown did not refer the Court to any case where a range of sentences was identified for offending of the kind encompassed by the offences for which the respondents were sentenced, or any case where an appropriate range of sentences was able to be clearly discerned such as might inform the question whether the sentences imposed on the respondents were demonstrably or markedly inadequate. 44The Crown's written submissions did, however, include reference to a number of decisions of this Court which, it was submitted, demonstrate that the sentence imposed on Peter Tran was within the range of sentences applicable to a courier of a low level commercial or a marketable quantity of heroin in contrast to his offending which involved in excess of four times the commercial quantity and where the role he performed was well above that of a courier. 45Of the cases relied upon by the Crown only three were referred to by McClellan CJ at CL in De la Rosa (namely Otto, Speer and Riddell), each of which was in the third category, with the exception of Speer which his Honour noted may have been placed within the fourth category had the offender pleaded guilty at an early stage. The balance of the cases were decided by this Court after De La Rosa. They concerned, almost exclusively, sentences imposed after a plea of guilty had been entered and where the offender was found to be a courier. Those cases are as follows: In R v Otto [2005] NSWCCA 333; 157 A Crim R 525 the applicant pleaded guilty to importing 2.136 kilograms of cocaine contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). He acknowledged that he had been offered money to fly to Brazil, where he was fitted with a corset containing drugs and provided with a false passport before travelling to Australia, where he was apprehended. Hall J (with whom Hidden J agreed) found that the applicant was at a low level in the hierarchy well below that of a principal, but not a naïve courier who played no part at all in organising the importation. His sentence was reduced from 14 years imprisonment with a non-parole period of 8 years 6 months, to 10 years 6 months imprisonment with a non-parole period of 7 years, reflecting, in part, an acceptance by the Court of his entitlement to a larger discount for the plea of guilty. In Speer v R [2004] NSWCCA 118 the applicant was a courier who imported 2.54 kilograms of heroin. He had a gambling addiction and had agreed to import the drugs in order to clear his gambling debts. The sentencing judge found that he was unlikely to reoffend. After allowing a 10 per cent discount for a late plea, he was sentenced to a term of imprisonment of 16 years with a non-parole period of 10 years. On appeal the sentence was reduced to 9 years imprisonment with a non-parole period of 6 years. In R v Riddell [2009] NSWCCA 96; 194 A Crim R 524, which concerned the importation of 3.8 kilograms of cocaine, the respondent was a storeman who agreed to participate in the importation, having been threatened if he refused. Apart from a minor assault on his criminal record, he was a person of good character. After allowing a 25 per cent discount for an early plea, he was sentenced to a term of imprisonment of 9 years, with a non-parole period of 5 years. Following a successful Crown appeal, he was re-sentenced to an effective sentence of 11 years imprisonment with a non-parole period of 7 years. In Ng, Chin Swee v R [2010] NSWCCA 232 the Court dismissed an appeal against sentence for a courier of a commercial quantity of heroin on the grounds of manifest excess. The pure quantity of the heroin was 2.445 kilograms. The estimated street value of the heroin was between $293,400 and $1,711,500. The estimated wholesale value was between $857,500 and $960,400. After a discount for an early plea, the applicant was sentenced to a term of imprisonment of 11 years 3 months with a non-parole period of 7 years 3 months. In Youssef v R [2011] NSWCCA 104 a sentence of 7 years 8 months imprisonment with a non-parole period of 4 years and 8 months was held not to be manifestly excessive. The applicant in that case was a courier who pleaded guilty to importing 573.6 grams of heroin in his shoes from Thailand. In Thuong Nguyen v R [2012] NSWCCA 184 the Court dismissed an appeal against a sentence of 7 years imprisonment with a non-parole period of 4 years and 2 months for the importation of a marketable quantity of heroin as manifestly excessive. He was a courier who imported a marketable quantity of 274.7 grams of pure heroin and who pleaded guilty in the Local Court. In Seah v R [2011] NSWCCA 269 the Court dismissed an appeal against a sentence of 8 years imprisonment with a non-parole period of 5 years imposed on a courier who pleaded guilty in the Local Court to importing a marketable quantity of 423.6 grams of heroin. In Kuti v R [2012] NSWCCA 43 the Court dismissed an appeal against a sentence of 7 years 6 months imprisonment with a non-parole period of 4 years 6 months imposed on a courier who pleaded guilty in the Local Court to importing a marketable quantity of 452.6 grams of heroin. 46The Crown also relied upon the following cases as exemplifying the range of sentences for couriers or low level participants and the manifest inadequacy of the sentence imposed on Peter Tran: R v SC [2008] NSWCCA 29; Govindaraju v R [2011] NSWCCA 255; R v Mirzaee [2004] NSWCCA 315; Le v R [2006] NSWCCA 136; R v Bezan [2004] NSWCCA 342, 147 A Crim R 430. 47The Crown did not refer to Holland as bearing relevantly on the disposition of the Crown appeal. Whilst it is only one amongst a number of cases that might be used for comparative purposes, in my view it does provide some guidance. In that case the offender pleaded guilty in the NSW District Court to one count of aiding and abetting the importation of a commercial quantity of cocaine, namely 9.984kg, contrary to s 11.2 and s 307.1 of the Criminal Code. He was sentenced to 6 years and 8 months imprisonment with a non-parole period of 4 years. His involvement was assessed by the sentencing judge as being integral to the operation involving a level of participation beyond that of a person who transports the drugs. He had supplied a warehouse for the receipt of the consignment, had inspected the forklift in which the consignment was concealed and informed a contact that he was mailing the key to the warehouse having acquitted himself of his role in the enterprise on receipt of the consignment. The sentencing judge allowed a combined reduction of 45 per cent for his plea and assistance to the authorities. He was aged 57 and a Canadian national who had taken up residence in Australia for the express purpose of facilitating the importation. He had no prior criminal record and had committed the offences to discharge his substantial indebtedness. A Crown appeal against the inadequacy of the sentence was dismissed. The Court rejected the Crown's submission that the sentence failed to reflect the objective criminality in his offending having regard to the maximum penalty or that it resulted in an unjustified disparity with sentences imposed in comparable cases, in particular by reference to the categories in De La Rosa. 48On the appeal the Crown also referred the Court (albeit in passing) to a schedule of comparative cases that had been relied upon by the Crown on sentence. The schedule was limited to cases decided at first instance in New South Wales, Victoria and Queensland involving importations of a commercial quantity of a border controlled drug. On close analysis, the schedule was wrong in some respects and lacked precision in others. After the Crown was invited to correct the errors in the schedule and ensure its accuracy, I have summarised the cases in a form which renders them sensible for comparative purposes and for inclusion in this judgment: In R v Kreimerman (District Court of NSW, Wells DCJ, 13 December 2011, unreported) the offender pleaded not guilty to one count of attempt to possess a commercial quantity of cocaine, namely 8.4 kilograms, contrary to s 11.1(1) and s 307.5(1) of the Criminal Code. After trial he was sentenced to 12 years imprisonment with a non-parole period of 7 years and 6 months. He was assessed as being an intermediate in a large scale, sophisticated and well resourced importation, holding a position of trust and responsibility. The total weight of the cocaine under the control of a co-offender was 33 kilograms with a purity of 68.2 per cent. The offender was to extract from that amount almost 13 kilograms (with a pure weight of 8.4 kilograms). He showed considerable remorse. The sentencing judge was satisfied he was unlikely to reoffend. In R v Dede (District Court of NSW, Finnane DCJ, 17 February 2012, unreported) the offender pleaded not guilty to one count of attempting to possess a commercial quantity of methamphetamine, namely 2.973 kilograms, contrary to s 11.1(1) and s 307.5(1) of the Criminal Code and one charge of dealing in the proceeds of crime contrary to s 400.6(1) of the Criminal Code. On count 1 the offender was sentenced to 15 years imprisonment with a non-parole period of 9 years. On count 2 he was sentenced to 3 years imprisonment to be served concurrently with the drug offence. The offender was assessed as being an intermediate in the importation having collected the consignment from a co-offender (Pinero Asencio) who imported it into Australia intending to sell the drug for profit. When arrested he directed police to $40,000 in cash obtained from other drug dealing operations. In R v Pinero Asencio (District Court of NSW, Finnane DCJ, 17 February 2012, unreported) the offender pleaded not guilty to one count of attempt to import a commercial quantity of methamphetamine, namely 2.973 kilograms, contrary to s 11.1(1) and s 307.1(1) of the Criminal Code. The offender was sentenced to 15 years imprisonment with a non-parole period of 9 years. She was assessed as being an intermediate in the importation, being more than a mere courier and taking part in an operation that involved her going to South Africa to ensure safe transit of the drugs. She expected to obtain a significant reward. She was 38 years old, had no previous convictions, a poor upbringing and limited education. In R v Alasti-Faridani (District Court of NSW, McLoughlin DCJ, 10 February 2012, unreported) the offender pleaded guilty to one count of attempt to possess a commercial quantity of cocaine, namely 3.173 kilograms, contrary to s 11.1(1) and s 307.5(1) of the Criminal Code. He was sentenced to 7 years and 4 months imprisonment with a non-parole period of 4 years and 10 months. He was assessed as having a significant mid level organisational role, coordinating receipt of the consignment from customs by others, arranging for their payment, and communicating with Canadian contacts. He was 27 years old. A 25 per cent discount was applied for an early plea which, together with assistance given to police, resulted in a discount of 40 per cent. In R v Karan (District Court of NSW, McLoughlin DCJ, 12 October 2012, unreported) the offender (a co-offender with Alasti-Faridani) pleaded guilty to aid and abet an attempt to possess the same commercial quantity of cocaine. He was sentenced to 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months. He was assessed as having a lesser organisational role than that of Alasti-Faridani in the importation. He had been recruited by Alasti-Faridani but subsequently recruited two other people to be named as consignees on the arrival of the consignment. He maintained communication with Alasti-Faridani throughout the operation and attended to the collection of the consignment. He was 27 years old. A 25 per cent discount was applied for the plea of guilty and his cooperation with the authorities. A Crown appeal against the inadequacy of the sentence was upheld. Adamson J (with whom Johnson and Harrison JJ agreed) held that before application of the discount of 15 per cent for assistance (reduced from 25 per cent), the objective criminality of the offender was not adequately reflected in a sentence with a starting point any less than 7 years (R v Karan [2013] NSWCCA 53). He was re-sentenced to 6 years imprisonment with a 4 year non-parole period. (Her Honour also noted there was no challenge by the Crown to the sentence imposed on Alasti-Faridani.) In R v Wong; R v Cheung (District Court of NSW, Williams DCJ, 20 April 2012, unreported) the offenders pleaded guilty to one count of importing a commercial quantity of methamphetamine, namely 3.121 kilograms, contrary to s 307.1(1) of the Criminal Code. Wong was sentenced to 7 years imprisonment with a non-parole period of 4 years. Cheung was sentenced to 7 years imprisonment with a non-parole period of 3 years and 8 months. Both were assessed as being couriers, customs officials at Sydney having detected the drugs concealed in hard-sided suitcases. Wong was a 24 year old male. Cheung was a 23 year old female. Cheung was said to have been naïve and vulnerable to the manipulation of others. Both offenders were found to be contrite and unlikely to reoffend. In DPP (Vic) v Christos (County Court of Victoria, Taft J, 16 September 2011, unreported) the offender pleaded not guilty to one count of attempt to possess a commercial quantity of heroin, namely 7.016 kilograms, contrary to s 11.1(1) and s 307.5(1) of the Criminal Code which was embedded in carpets. He was sentenced to 9 years imprisonment with a non-parole period of 6 years and 3 months. He was assessed as being an intermediate in the importation, having facilitated customs clearance and storage of the consignment. He was 58 years old and suffering from ill health. The sentencing judge was satisfied that he was unlikely to reoffend. In DPP (Vic) v Azizi (County Court of Victoria, Taft J, 16 September 2011, unreported) the offender (a co-offender with Christos) pleaded guilty to one count of attempt to possess the same commercial quantity of heroin, namely 7.016 kilograms, contrary to s 11.1(1) and s 307.5(1) of the Criminal Code. He was sentenced to 8 years and 9 months imprisonment with a non-parole period of 6 years and 3 months. The offender was assessed to occupy a position above that of Christos. He was recorded on telephone intercepts discussing the collection, payment and storage of the consignment with Christos and another co-offender and monitored the movement of the drug and was present when it was unpacked. He had discussions with unidentified people overseas about missing heroin. He was 33 years old. His plea attracted a discount of 1 year and 6 months [15 per cent]. Some degree of remorse was shown. In DPP (Vic) v Quy Hung Truong (County Court of Victoria, Montgomery J, 2 April 2012, unreported) the offender pleaded guilty to one count of importing a marketable quantity of heroin, namely 337.1 grams, one count of importing a commercial quantity of heroin, namely 4.788 kilograms and one count of attempt to possess a marketable quantity of methamphetamine, namely 7 grams, contrary to s 307.2(1), s 307.1(1) and s 11.1(1) and s 307.6(1) of the Criminal Code respectively. The offender was sentenced to 3 years imprisonment on count 1; 8 years imprisonment on count 2; and 12 months imprisonment on count 3. The effective overall sentence imposed was 10 years imprisonment with a non-parole period of 7 years. The offender was assessed as playing an integral or significant role in the importations. He and a co-accused arranged for a third party to import the heroin secreted within that person's legitimate consignment of seafood. The offender was 41 years old and pleaded guilty at the earliest reasonable opportunity. Some remorse was shown. He had good prospects of rehabilitation. In R v Firmin (Supreme Court of Queensland, Lyons J, 16 May 2012, unreported) the offender pleaded not guilty to one count of importing a commercial quantity of cocaine, namely 5.939 kilograms, contrary to s 11.1(1) and s 307.5(1) of the Criminal Code and was sentenced to 10 years imprisonment with a non-parole period of 5 years. The offender was assessed as being an intermediate in the importation. He was arrested receiving the consignment in a controlled delivery. The offender was 39 years old and had no previous criminal history. Although he had played a significant role, there was no evidence of his wider involvement. Consideration 49The principles applicable to a determination of a Crown appeal against the inadequacy of sentence are well settled. It bears restating, however, that before this Court intervenes and increases a sentence it is necessary to infer a failure to properly exercise the sentencing discretion reposing in the sentencing judge. This Court cannot merely substitute its opinion as to the appropriate sentence even where it would, or might, have imposed a heavier sentence (see Dinsdale v R [2000] HCA 54; 202 CLR 321; 115 A Crim R 558 at [22]). 50Having rejected the Crown submission that his Honour's approach to the sentence of Peter Tran was productive of error whether as a result of wrongly categorising his role referable to De La Rosa or for any other reason, and after giving close consideration to the range of sentences imposed in other cases as a measure or standard against which to review the sentences imposed in this case, I am compelled to the conclusion that the starting point of each of the sentences (respectively 12, 10 and 6 years), whilst lenient, perhaps even very lenient, was nonetheless within the range of sentences involving the importation of commercial quantities of border controlled drugs. 51In Hili v R; Jones v R [2010] HCA 45; 242 CLR 520; 204 A Crim R 434 (decided after De La Rosa) where at [48] the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed that consistency in sentencing "is not demonstrated by, and does not require, numerical equivalence". At [49] they went on to say that "[t]he consistency that is sought is consistency in the application of the relevant legal principles" and at [54] endorsed the use to be made of sentences that have been passed in other cases in accordance with the views of Simpson J in De La Rosa at [302]-[305] as follows: [54] ... in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned". 52Simpson J also observed in De La Rosa at [305] that the sentencing discretion is individual and must be exercised by the individual judge in respect of the individual offender. The sentence his Honour imposed on each of the respondents would appear to reflect the considerable weight given to their age, character and antecedents bearing, in turn, upon their prospects of rehabilitation. It cannot, however, be said that he failed to afford the roles they played in the importation appropriate consideration in the sentencing exercise (none of which equated to a level of responsibility and organisational skill commensurate with a principal or even a delegate of a principal, and in Aaron Tran's case an involvement at the very lowest level) or that the weight of the heroin was not a feature of the offending adding to its objective seriousness and justifying the imposition of a significant sentence of imprisonment. 53In short, I am not satisfied that the Crown has made good its challenge to the sentences imposed on any of the respondents as manifestly inadequate and, for that reason, the orders I propose are as follows: 1. Crown appeal against sentence for Aaron Geoffrey Tran is dismissed. 2. Crown appeal against sentence for Peter Nguyen Tran is dismissed. 3. Crown appeal against sentence for Hoang Duy Nguyen is dismissed. 54ADAMSON J: I agree with Fullerton J. ********** Amendments 11 June 2014 - Name of solicitor for 3rd respondent amended Amended paragraphs: Coversheet 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: 11 June 2014