Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: PHAM v R [2014] NSWCCA 115 Hearing dates: 01/04/2014 Decision date: 26 June 2014 Before: Hoeben CJ at CL at [1] Adams J at [64] Hall J at [65] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - two counts of supply a commercial quantity of a prohibited drug - whether sentencing judge relied upon cases infected by "Muldrock error" - no "Muldrock error" in reasoning of sentencing judge - whether sentence manifestly excessive - sentence while heavy not unreasonable or plainly unjust - no basis established for interfering with discretion of sentencing judge - leave to appeal granted but appeal dismissed. Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) - s 25(2), Cases Cited: Aoun v R [2011] NSWCCA 284 Butler v R [2012] NSWCCA 23 Collier v R [2012] NSWCCA 213 Dang v R [2014] NSWCCA 47 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Efstathiadis v R [2009] NSWCCA 319 Essex v R [2013] NSWCCA 11 Hill v R [2012] NSWCCA 265 Hsu v R [2012] NSWCCA 248 Lipton v R [2010] NSWCCA 175 Ly v R [2008] NSWCCA 262 Muldrock v R [2011] HCA 39; 244 CLR 120 Parris v R [2013] NSWCCA 5 Paxton v R [2011] NSWCCA 242 R v Ehrlich [2012] NSWCCA 38 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Regina v Howard [2004] NSWCCA 348 Wienand v R [2013] NSWCCA 202 Category: Principal judgment Parties: Huy Pham - Applicant Regina - Respondent Crown Representation: Counsel: T Game SC - Applicant S Herbert - Respondent Crown Solicitors: Hanna Legal - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2012/54472 Decision under appeal Date of Decision: 2013-06-21 00:00:00 Before: Blackmore SC DCJ File Number(s): 2012/54472 Judgment 1HOEBEN CJ at CL: Offences and sentence The applicant was sentenced by Judge Blackmore SC in the Sydney District Court on 21 June 2013 in respect of the following offences for which he had entered a plea of guilty in the Local Court. Count 1 - Supply a commercial quantity of a prohibited drug, namely MDMA (quantity 299.2 grams), contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for 20 years and which carries a standard non-parole period of 10 years. Count 2 - Supply a large commercial quantity of a prohibited drug, namely cocaine (1000.8 grams), contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for life and which carries a standard non-parole period of 15 years. 2There was a Form 1 matter of supplying an indictable quantity of a prohibited drug, namely Methorphan, taken into account on sentence for count 2. 3The sentences imposed by Blackmore SC DCJ were: Count 1 - Imprisonment with a non-parole period of 3 years, commencing 17 February 2002 and expiring 16 February 2013 with a balance of term of 2 years expiring 16 February 2017. Count 2 - Imprisonment with a non-parole period of 7 years, commencing 17 February 2013 and expiring 16 February 2020 with a balance of term of 4 years expiring 16 February 2024. 4The total effective sentence was imprisonment with a non-parole period of 8 years and a balance of term of 4 years, such sentence to commence 17 February 2012 and expire 16 February 2024. Factual Background 5Strike Force Bootleg was established by the Regional Enforcement Squad Surry Hills to investigate the supply of prohibited drugs by Le Vuong and her associates, Huy Thanh, Fong Dang and Thanh Li. A warrant was granted to authorise an undercover operative (UCO), to be supplied with prohibited drugs by those offenders. Five different telephone services used by Vuong were monitored. The communications showed that Vuong was using coded conversations with the applicant to source and supply prohibited drugs, namely MDMA, on 2 February 2012. 6From 23 January 2012 the UCO established telephone contact with Vuong who advised that she had quantities of ecstasy tablets available for purchase. On 31 January 2012 Vuong telephoned the applicant and discussed obtaining "lollies" (MDMA) for the UCO. On 1 February 2012 Vuong telephoned the applicant to order 1000 "eggs" for the next day and asked about sourcing 500 eggs for the Friday. 7On 2 February 2012 Vuong telephoned the applicant to ask if he had prepared "one" egg. The applicant advised Vuong that the source had to travel some distance and that overseas stock was too expensive. In a later conversation the applicant and Vuong agreed on the price of $11 per tablet and they made arrangements for the supply to take place that day. 8Later that day, the UCO was supplied with 1,058 ecstasy tablets by Vuong, the applicant and Dang. The price paid was $13,500. The tablets were analysed to be 229.2 grams of MDMA with a purity of 4 - 17 percent. The UCO was also given a small sample of cocaine by Vuong. 9These were the circumstances of the offence in count 1. 10On 7 February 2012 Vuong told the UCO by telephone that she could supply her with one kilogram of cocaine. They met the following day and discussed the purchase of the one kilogram of cocaine and 1000 ecstasy tablets. The UCO said that she could buy the drugs on Friday, 17 February 2012 if the price were right. 11Between 8 February and 17 February 2012 there was considerable communication between Vuong and the applicant via telephone and SMS. On 16 February 2012 the applicant told Vuong that he did not have "the stuff" because he was waiting for a telephone call. Later that night, the applicant confirmed "everything is good I have some - I have SMS you already both can be delivered". The applicant told Vuong that he could not promise that the supply could be organised by 8am "but I will try my best". The price discussed for the kilogram of cocaine was between $235,000 and $245,000. 12On 17 February 2012 numerous calls and text messages were exchanged between Vuong and the applicant to arrange the supply of the ecstasy tablets and the one kilogram of cocaine. At 11am Vuong got into the applicant's car in Bankstown and they drove to the Pyrmont area. They entered the UCO's hotel room in Pyrmont. After the UCO showed the applicant and Vuong $13,350 in cash, the applicant said to a person on the telephone "I've checked the paperwork it's all there, yeah quickly all right". Vuong told the applicant to hurry up the supplier. The applicant told the UCO "I go get egg, I go get egg" then left the hotel room. 13At 12.10pm the applicant returned to the hotel room with a large open bag of chips, containing a resealable bag of tablets. He handed this bag to the UCO saying that there were 550 tablets inside. The bag contained 483 tablets analysed to be 134.6 grams of Methorphan. This is the offence on the Form 1. 14At 12.42pm Vuong and the applicant left the hotel room. At 1.31am Vuong returned and told the UCO that there was a delay due to one of the supplier's car having a flat tyre. The applicant met Dang and Li a short distance away from the hotel. Dang carried a McDonalds bag as he walked to meet the applicant and Li. 15At 1.42pm the applicant, Dang and Li entered the hotel room. The McDonalds bag was placed on a table in the lounge room. Vuong unpacked the McDonalds bag and told Dang and Li to leave the room. The McDonalds bag contained two heat-sealed plastic bags containing powder. This powder was later analysed and found to be 1000.8 grams of cocaine with a purity of 63 percent. 16At 1.45pm police entered the hotel room and arrested Vuong and the applicant. Dang and Li were also arrested. These were the circumstances of the offence in count 2. Sentence proceedings 17In relation to objective seriousness, his Honour said: "The facts reveal a very serious case of drug dealing to a substantial extent. The Courts have maintained a consistent approach providing condign sentences for such cases. The seriousness of the offending can also be gauged by the maximum penalties attaching to their commission. In relation to the offence of supplying a large commercial quantity of prohibited drugs the penalty that attaches is the highest possible maximum penalty that the law provides. When the facts of each of the cases are addressed individually in my view neither could be said to fall within the middle range of objective seriousness and standard non-parole period need not be applied. In each case the offenders have pleaded guilty. Having said that the standard non parole periods remain a guide to the sort of penalties that should be applied." (ROS 10.4) 18His Honour assessed the position of Vuong and Pham in the distribution hierarchy as being similar and significant, although their roles were different. His Honour noted that while Pham might have been closer to the original supplier, he was not the supplier. His Honour saw Vuong as the person who was obtaining the customers and in a sense, taking more direct risks. He assessed the level of participation of both as being within the middle range. His Honour said: "Because Pham appears to be closer to the ultimate supplier he might be regarded as having a more significant role, but the differences in their roles are not very great." (ROS 11.1) 19In relation to the applicant's subjective case, his Honour noted that he had a relatively minor criminal record. He was aged 39, came from Vietnam and was married with four children. He and his family escaped Vietnam and were in a refugee camp in Thailand for a number of years before coming to Australia. Two of his children suffered from autism, one quite seriously. 20The applicant had developed a serious drug addiction and was also abusing alcohol. At the time of the offending, the applicant was living separately from his wife. Despite this, the couple appeared to run a successful business at the Flemington Markets where they had a stall. This business provided financially for the couple and their children. 21His Honour rejected the proposition that the applicant's family background demonstrated extraordinary hardship, thereby requiring a moderation in his sentence. His Honour was prepared, however, to take the hardship into account but not on the basis that it was extraordinary. 22Despite some depression and his alcohol and drug dependency, his Honour formed the opinion that the applicant had been reasonably successful in that he had always worked, adequately provided for his family and maintained a successful business. For those reasons, his Honour found that his prospects of rehabilitation were very good. By reason of the hardship aspects of the applicant's subjective case, his Honour was prepared to find special circumstances. 23The applicant received a discount of 25 percent for his plea of guilty. In relation to his Honour's start point for sentencing, his Honour said: "Given the seriousness of the offending had these cases gone to trial and both the offenders been convicted then paying due regard to their respective roles and the subjective circumstances attaching to each a sentence of at least sixteen years of imprisonment would have applied in each case." (ROS 13.9) 24Before passing sentence, his Honour said: "The offences in reality form part of one business of drug dealing. In that regard the sentences to be imposed can be largely concurrent. In as much as I have not referred to in detail to s 21A of the Crimes (Sentencing Procedure) Act and the factors outlined therein, I note that I have taken those factors into account on sentence. I have also taken the standard non-parole periods into account in setting a sentence." (ROS 14.3) APPEAL Ground 1 - The sentencing judge erred in accepting as providing appropriate comparable sentences those the subject of two decisions of this Court given prior to the High Court decision in Muldrock v R [2011] HCA 39; 244 CLR 120. 25The applicant submitted that because his Honour did not explain how he arrived at an "overall" sentence of 16 years as a start point, he must have relied upon two decision to which he was referred in argument which were Ly v R [2008] NSWCCA 262 and Efstathiadis v R [2009] NSWCCA 319. The applicant submitted that the Crown had placed reliance on those cases in both written and oral submissions and that they were the only cases to which the Crown specifically referred. 26The applicant submitted that nowhere in submissions, either from the Crown or defence, was it pointed out that these cases were decided before the High Court decision in Muldrock and were therefore potentially infected by error. The applicant submitted that an examination of Ly showed that the outcome was heavily influenced by an erroneous view of the application of the standard non-parole provisions. The applicant submitted that there was the same erroneous emphasis in Efstathiadis. 27The applicant submitted that having regard to the erroneous reasoning in those cases, it was not appropriate to rely on their outcomes as providing an appropriate range for this case. The applicant queried whether, in any event, it was appropriate to consider such a limited number of cases in this way when seeking to establish an appropriate range of sentencing. The applicant referred to R v Ehrlich [2012] NSWCCA 38 where Adams J observed (at [50]) that because the cases he had reviewed were pre-Muldrock and therefore decided by reference to principles subsequently found to be erroneous, "the resulting sentences must therefore be treated with more than usual caution". The applicant submitted that while Adams J was not supported in that expression of opinion by the other judges, his observation was plainly correct. 28The applicant submitted that the erroneous reliance upon Ly and Efstathiadis was sufficient to establish the first ground of appeal and accordingly this Court was able to re-sentence without the need for him to establish the second ground of appeal. Consideration 29This ground of appeal is bold. It seeks to argue that in some unspecified way, the exercise of the sentencing discretion by the primary judge was infected by Muldrock error. It does so not by reference to what the primary judge said in his sentence judgment but because he may have had in mind the sentences imposed in Efstathiadis v R and Ly v R when sentencing in this case. This ground of appeal is without foundation and should be rejected. 30At no stage in his judgment did the primary judge refer to the decisions in Efstathiadis v R or Ly v R. The sentence proceedings were heard over a number of days. On the first day, the primary judge raised with counsel that given the very serious series of offences, it was a possibility that his client could receive a non-parole period exceeding 10 years. On 7 June 2013 when the matter was next before the court, the Crown provided brief written submissions to the primary judge which for the first time referred to the decisions in Efstathiadis v R and Ly v R. In the course of an exchange with both counsel for the defence on that day, his Honour accepted that there were aspects which distinguished those cases from the case before him. 31The fact that there was no reference to either case in the sentence judgment is consistent with his Honour not finding either to be particularly persuasive or relevant. In that regard, the observation by Spigelman CJ (with whom Grove J and Smart AJ agreed) in Regina v Howard [2004] NSWCCA 348 is pertinent: "47 This is a reference to some observations made by his Honour in the course of argument. Those particular observations are not repeated in his remarks on sentence. The particular matters do not appear to have been taken into account in any adverse way. A trial judge is entitled to put propositions during the course of argument and to modify those propositions, either as a result of submissions or in the light of further consideration of the relevant material." 32It has not been suggested, nor could it be, that the primary judge gave the standard non-parole period primary or determinative significance in the formulation of sentence nor did his Honour adopt a two stage approach. 33In any event, simply demonstrating that a sentencing judge followed R v Way [2004] NSWCCA 131; 60 NSWLR 168 before the decision in Muldrock will not of itself be sufficient to demonstrate error (Essex v R [2013] NSWCCA 11 at [30]; Butler v R [2012] NSWCCA 23 at [26]). The critical issue is whether, guided by the jurisprudence before Muldrock, the primary judge used the standard non-parole period as a mandatory starting point or gave it determinative significance. 34Finally, it is by no means clear that the decisions in Efstathiadis v R and Ly v R were affected by Muldrock error. In Ly Hislop J (with whom Beazley JA and Harrison J agreed) when dismissing an applicant's appeal against sentence said: "31 In the end result, the non parole period imposed was 8 years, reflecting a starting point before the discount for the plea of 25 percent of 10 years and 8 months compared to the 15 year standard non parole period. The applicant also received a finding of special circumstances and the non parole period was 66.7 percent of the total term. There was therefore a clear allowance made for the applicant's subjective features, including his plea." 35The mere reference to the standard non parole period is not indicative of error, particularly as occurred in Ly, Hislop J was using it as a guidepost or reference point. 36In Efstathiadis v R, McClellan CJ at CL (with whom Howie and Fullerton JJ agreed) said: "19 The applicant's submissions are not entirely clear. The written submissions are not entirely clear and it may be that there is confusion between the non-parole period and the total term. A submission was made that the starting point for the overall sentence which, having regard to the discount for the plea, must have been 15 years and 6 months, is greater than the standard non-parole period of 15 years. His Honour actually set a non-parole period of 10 years which is 66% of the standard period. Having regard to his Honour's finding as to the objective seriousness of the offence, the time of the guilty plea and the lack of positive matters in the applicant's subjective circumstances, the non-parole period which his Honour imposed was within the available range." 37That review of factors in the case does not reveal Muldrock error. There is a reference to the standard non parole period, but not in an impermissible way. 38It follows that even if his Honour had relied in whole or in part on Efstathiadis v R and Ly v R, that was not indicative of error. It is a well known fact to which the High Court adverted in Muldrock, that after the commencement of standard non-parole periods, sentences generally were likely to increase. The cautionary warning by Adams J in Ehrlich, given the purpose of his Honour's analysis in that case, does not mean that cases decided after Way but before Muldrock should not be taken into account in post Muldrock sentence proceedings. Ground 2 - The sentences are manifestly excessive. 39The applicant noted that in terms of culpability there were two actual supply offences. The first was 299.2 grams of MDMA, being a commercial quantity of that drug (.125 kgs is a commercial quantity). The second offence was 1000.8 grams of cocaine being a large commercial quantity of that drug (1 kg is a large commercial quantity). The applicant submitted that in terms of quantum the amount of the first offence was mid way between a commercial and large quantity and the amount in the second offence was just over the large commercial quantity threshold. The applicant noted that the primary judge found that the offending did not fall within the midrange of objective seriousness, but below that level. 40The applicant relied upon what he said was a strong subjective case, i.e. a relatively minor criminal record, a serious drug and alcohol addiction, very good prospects of rehabilitation, four children of whom two were autistic, and that the needs of those children would have to be met by the applicant's wife while he was in prison. 41The applicant submitted that so far as a range could be ascertained from more recent decisions, those cases did not support the existence of a range which would allow the sentences here to be regarded as the product of a legitimate exercise of the sentencing discretion. In support of that proposition, the applicant referred to the decisions of Wienand v R [2013] NSWCCA 202 and Hill v R [2012] NSWCCA 265. In Wienand the drug was methylamphetamine and the amount was 1848 grams. The starting point for the sentence was 10 years and 8 months with a non parole period of 7 years and 4 months. After adjustment for the early plea of guilty, the sentence was 8 years with a non-parole period of 5 years and 6 months. 42Hill was a co-offender of Wienand. In the District Court the start point was 12 years with a non-parole period of 8 years. After adjustment for the guilty plea (25 percent) and for past and future assistance (25 percent) the sentence became 6 years with a non-parole period of 4 years. On appeal that sentence was reduced to 3 years with a non-parole period of 2 years. 43The applicant relied upon Ehrlich where the quantity of methylamphetamine was 1.615 kgs and where the offender was sentenced after a combined discount of 35 percent to an overall term of 6 years and 6 months with a non parole period of 4 years and 10 months. 44Other cases relied upon by the applicant were Lipton v R [2010] NSWCCA 175 and Parris v R [2013] NSWCCA 5. Although Lipton came before the Court of Criminal Appeal on a different point, in the District Court the offender was sentenced for two offences, i.e. a large commercial quantity of cocaine (1.09 kgs) and a large commercial quantity of MDMA (.58 kgs). There was a 25 percent discount for a plea of guilty and culpability was reduced by the activities of an undercover officer luring him into a bigger league than that in which he had previously been involved. The sentences were a non parole period of 4 years with a balance of term of 3 ½ years for the first count and a non parole period of 3 years on the second count, with a balance of term of 2 years. The second sentence commenced 6 months before the first, making for an overall non parole period of 4 ½ years with a balance of term of 3 ½ years. 45The applicant submitted that those sentences suggested a range for this level of offender appreciably below that imposed in this case and substantiated the proposition that the sentence imposed here was manifestly excessive. Consideration 46The decision in Wienand provides little assistance. The focus in that case was on the issue of parity. There were four separate acts of supply between 4 November 2010 and 2 December 2010 which were charged as a single count of supplying a large commercial quantity. To the extent that the court turned its attention to the adequacy of the sentence imposed, it did no more than find that the sentence was not manifestly excessive. It said nothing about the extent to which the sentence indicated a range. The matter of Hill depended very much upon its own facts. It was the element of coercion in his subjective case which led to the significant reduction in his sentence. 47Having taken into account the reservation suggested by Adams J to the decisions in Ly v R and Efstathiadis v R (Muldrock error not having been identified in those cases), they are of some assistance. In Ly the quantity of drug was 1101 grams of methylamphetamine with three offences of goods in custody being taken into account on a Form 1. There was no evidence of the position occupied by Mr Ly in the supply organisation. He pleaded guilty and the details of the sentence imposed on him have already been set out (see [34] hereof). 48In Efstathiadis v R the quantity of drug was 1.9 kgs of methylamphetamine with a plea of guilty that was not entered at the earliest opportunity. While the offender was clearly a drug supplier, his position in the supply organisation could not be identified. The sentence imposed has already been referred to (see [36] hereof). 49In both cases the sentences were within a range similar to that imposed on the applicant. While the quantity of drug in each case was larger, each of Ly and Efstathiadis was involved in a single supply whereas the applicant was involved in two supplies. Unlike Ly and Efstathiadis the applicant's position in the drug supply hierarchy was known in that he was dealing more directly with the ultimate supplier than was his co-offender Vuong. 50The Crown identified a number of cases involving the supply of not less than a large commercial quantity of a prohibited drug which had been decided by this Court after Muldrock. It dealt with four cases in considerable detail and then provided a schedule of a further 10 cases which came within the same category. The purpose of that analysis was to demonstrate that to the extent that there was a range of sentences, which could be imposed for this kind of offence, the sentence imposed on this applicant was not outside that range. 51A case considered in some detail was Paxton v R [2011] NSWCCA 242. The applicant had a similar subjective case without the element of hardship. He pleaded guilty to three counts of supply and one count of receiving stolen goods. The quantity of drugs was significantly higher than the amount in this case, i.e. 8.467 kg of MDMA, 2.314 kg of methylamphetamine and 335.3 g of cocaine. He was a dealer in a variety of drugs for financial gain. 52His sentence for the supply of cocaine is of some assistance in that he was sentenced to imprisonment with a non parole period of 6 years and 6 months with a balance of term of 2 years and 2 months. Although his precise position in the drug supply hierarchy was not identified, he appears to have been a much larger supplier than was the applicant. However, his sentence was also commensurately larger, i.e. 13 years non parole with a balance of term of 6 years for the MDMA supply and 12 years non parole with a balance of term of 4 years for the methylamphetamine supply. His total effective sentence imposed following the appeal was imprisonment with a non-parole period of 21 years with a balance of term of 7 years. 53In Aoun v R [2011] NSWCCA 284 the applicant had a strong subjective case. His offending was not isolated and he was involved in a commercial supply of drugs for profit. In relation to the supply of a large commercial quantity of MDMA (3.36 kg) he was sentenced to imprisonment with a non parole period of 7 years with a balance of term of 5 years. For the supply of not less than a commercial quantity of cocaine (989.6 g) he was sentenced to imprisonment with a 7 year non parole period and a balance of term of 3 years and 3 months. 54In Collier v R [2012] NSWCCA 213 the offender had been supplying drugs to a drug network in northern NSW over a period of almost a year. She was involved in what was described as a high level sophisticated criminal organisation. Over that period, she had supplied in total over 1 kg of heroin and 1 kg of methylamphetamine. In relation to the supply of not less than a large commercial quantity of heroin, she was sentenced to a non parole period of 10 years 6 months with a balance of term of 4 years and 6 months and for the supply not less than a large commercial quantity of methylamphetamine she was sentenced to a non parole period of 9 years with a balance of term of 3 years. 55In Hsu v R [2012] NSWCCA 248 the applicant had a very difficult upbringing and had been a drug addict since his teens. He was supplying drugs to two suppliers over a period of just over 3 weeks. He supplied 732.4 grams of MDMA. His position was characterised as that of a facilitator or commission agent. His offence was determined to be slightly below the middle range of objective seriousness. For the count of supply not less than a large commercial quantity of MDMA, he received a sentence with a non-parole period of 10 years with a balance of term of 3 years and 6 months. 56What is clear from those cases and the cases on the schedule is that the factual circumstances, both of the offending and of the subjective background of each of the offenders, cover a wide spectrum. None are the same. The only common element is that they were all suppliers of substantial quantities of prohibited drugs. By focusing only on the quantity of drugs supplied, some of the sentences were imposed for amounts similar to those for which the applicant was sentenced. The position of the various offenders in drug supply hierarchy, however, could either not be identified with precision or in some cases, was higher and in other cases lower than that occupied by the applicant. To the extent that those cases and the cases on the schedule are capable of indicating a range of sentences, the sentence imposed in this case is not outside that range. 57There are, however, considerable limitations in relying upon a series of individual cases to establish some kind of range of sentences. In that regard, the observations recently made by Adamson J (with whom Simpson and Davies JJ agreed) in Dang v R [2014] NSWCCA 47 are apposite: "55 Care must be taken in drawing direct comparisons between sentences passed, those to be passed and those which are, or have been, the subject of appeal: see generally, Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520 at [53]- [56] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Sentencing requires the exercise of discretion. The factors that are germane to the exercise of the discretion include deterrence, both general and specific, rehabilitation and punishment. The exercise of the discretion requires consideration of objective circumstances (the seriousness of the offending conduct) as well as subjective circumstances pertinent to the offender. The number of factors to be taken into account as either mitigating or aggravating under s 21A of the Crimes (Sentencing Procedure) Act 1999 provides an indication of the complexity of the exercise and the concomitant difficulty of identifying "comparable cases". Although it is orthodox for such cases to be identified for the benefit of the sentencing judge, they can be no more than a guide." 58Perhaps the most significant difficulty faced by the applicant in making out this ground of appeal are the principles conveniently set out in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 where Gleeson CJ and Hayne J said: "5 ... Thus, as was accepted in argument in this Court, the appeal to the Court of Criminal Appeal was based upon an allegation of manifest inadequacy rather than specific error. That is, the error assigned was of the third kind mentioned in House v The King. Only if this error was demonstrated was it open to the Court of Criminal Appeal to "pass such other sentence warranted in law ... in substitution" for the sentence passed at trial. 6 Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. ..." 59In the same case, Gaudron and Gummow JJ said: "57 ... In Lowndes v The Queen, this Court remarked that: "a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." 58 The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts. 59 As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried." 60It has not been shown that the primary judge erred in the exercise of his wide sentencing discretion. His finding was of a very serious case of drug dealing and that the role of the applicant was significant. His conclusion was: "In my view both offenders fall within the middle range of participation. Because Pham appears to be closer to the ultimate supplier he might be regarded as having a more significant role, but the differences in their roles are not very great." 61While his Honour did not emphasise them, the principles of general deterrence and denunciation of substantial drug supply loom large in this matter. His Honour gave appropriate weight to the applicant's subjective circumstances with particular reference to the difficulties likely to be encountered by his wife. No challenge has been made to his findings in that regard. 62For this ground of appeal to succeed, it had to be established by the applicant that the sentences imposed were "unreasonable or plainly unjust". That has not occurred. The primary judge correctly identified the objective seriousness of the applicant's offending and the resulting sentences are not out of step with that finding. I do not consider the sentence imposed to be outside the range within which the sentencing judge's discretion could be properly exercised. 63The orders which I propose are that leave to appeal be granted but that the appeal be dismissed. 64ADAMS: I agree with Hoeben CJ at CL. 65HALL J: I agree with the orders proposed by Hoeben CJ at CL and with his Honour's reasons. ********** 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: 26 June 2014