Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nguyen, Kathy v R [2015] NSWCCA 209 Hearing dates: 28 April 2015 Decision date: 05 August 2015 Before: Hoeben CJ at CL at [1] Hall J at [2] McCallum J at [84] Decision: (1) The applicant be granted leave to appeal. (2) The aggregate sentence imposed upon the applicant by the Sydney District Court on 6 September 2013, be set aside. (3) The applicant be re-sentenced to an aggregate term of imprisonment of 10 years and 9 months, to include a non-parole period of 7 years 7 months, to commence on 19 April 2012 and to expire on 18 November 2019 and a balance of term of 3 years 2 months to commence on 19 November 2019 and to expire on 18 January 2023. (4) The first date upon which the applicant will be eligible to parole will be 19 November 2019. Catchwords: CRIMINAL LAW – Application to appeal against sentence on two grounds – Pleas of guilty entered to three drug supply offences – Principle of parity – Whether sentence imposed gave rise to a justified sense of – Whether marked disparity between sentence imposed on applicant and sentence imposed on co-offender – Whether the starting point for the applicant's sentence was too high in comparison to her co-offender – Co-offender was sentenced for different offences and charges on a Form 1 – No error demonstrated in sentencing judge's determination of starting points – First ground dismissed – Whether discount of 12.5% for applicant's plea of guilty gave rise to justified sense of grievance in circumstances where co-offender had received discount of 17.5% for his plea – Disparity arose in discounts for guilty pleas – Applicant entitled to equivalent discount of 17.5% – Second ground of appeal allowed – Sentence quashed – Applicant re-sentenced to reflect appropriate discount Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act 1985 Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Green v The Queen [2011] 244 CLR 462 Hallak v R [2014] NSWCCA 48 Lowe v R (1984) 154 CLR 606 R v Araya [2005] NSWCCA 283 R v Newman [2004] NSWCCA 113 R v Scott [2003] NSWCCA 286 R v Thomson; R v Houlton [2000] NSWCCA 309, 49 NSWLR 383 Tuvunivono v R [2013] NSWCCA 176 Category: Principal judgment Parties: Kathy Nguyen (Applicant) Regina (Crown) Representation: Counsel: D Jordan SC; B Barrow (Applicant) S Dowling SC (Crown) Solicitors: Benjamin & Leonardo Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/127387 Decision under appeal Court or tribunal: District Court Date of Decision: 6 September 2013 Before: Blackmore DCJ File Number(s): 2012/127387 Judgment 1. HOEBEN CJ at CL: I agree with Hall J. 2. HALL J: The applicant, Kathy Nguyen, seeks leave to appeal in respect of a sentence imposed upon her by the District Court (Blackmore DCJ) on 6 September 2013. On that date, in accordance with s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence in respect of three prohibited drug offences was imposed of 11 years and 4 months imprisonment comprising a non-parole period of 8 years with an additional parole period of 3 years and 4 months. The aggregate sentence imposed on the applicant was backdated to commence on 19 April 2012, the date upon which she was arrested in Western Australia. 3. The non-parole period of 8 years represents approximately 70.5% of the total aggregate term. The applicant will be eligible for release to parole on 18 April 2020. 4. The applicant pleaded guilty to the following offences: Count 1: Supply not less than the commercial quantity of methylamphetamine on 3 August 2011 (s 25(2) Drugs Misuse and Trafficking Act 1985, maximum penalty: 20 years imprisonment, standard non-parole period of 10 years). Count 2: Supply not less than the commercial quantity of methylamphetamine on 25 August 2011 (s 25(2) Drugs Misuse and Trafficking Act 1985, maximum penalty: 20 years imprisonment, standard non-parole period of 10 years). Count 3: Supply pseudoephedrine on 25 August 2011 (s 25(1) Drugs Misuse and Trafficking Act 1985, maximum penalty: 15 years). 1. The sentencing judge indicated the sentences that would have been imposed, had separate sentences been imposed instead of an aggregate sentence, which were as follows: 1. A total sentence of 7 years and 6 months imprisonment comprising a non-parole period of 5 years with an additional term of 2 years 6 months (Count 1). 2. A total sentence of 9 years imprisonment, comprising a non-parole period of 6 years with an additional term of 3 years (Count 2). 3. A fixed term of 2 years imprisonment (Count 3). Ground of Appeal 1. The ground of appeal relied upon by the applicant was in the following terms: 1) The applicant has a justifiable sense of grievance because there is a marked disparity between her sentence and the sentence imposed on a co-offender, Brendon Tran. The disparity is manifest in two ways: a) The starting point for the sentence imposed on the applicant was too high because it failed to properly reflect additional, objectively serious, offences committed by Tran and also failed to reflect the applicant's more compelling subjective circumstances. b) The applicant received a utilitarian discount for her guilty plea of 12.5%. In contrast, Tran received a utilitarian discount for his guilty plea of 17.5%. The lesser discount on the applicant's sentence was not explained by the sentencing judge and was not justified by any material difference in the proceedings. 1. The applicant's co-offender, Tran, was sentenced by Blackmore DCJ, along with another related offender, Lan Ngoc Ly. The sentence that was imposed on Tran is the basis relied upon for the applicant's contention in this application in relation to disparity of sentences. The Proceedings on Sentence 1. The sentence proceedings took place on 9 August 2013. Agreed Facts (Exhibit A) were tendered which set out the relevant facts in relation to each of the offences. 2. On 3 August 2011, the co-offender Tran and the applicant met in Sydney. Tran primarily resided in Perth but also had an apartment in Sydney. The conversations between Tran and the applicant were recorded by a listening device. The conversations are set out in detail in the Facts on Sentence. The conversations contemplated the supply and trafficking of prohibited drugs between Sydney and Perth. The outcome was that an agreement was reached that Tran would purchase half a kilogram of methylamphetamine and a sample of another drug from the applicant. Tran and the applicant discussed the business of selling and transporting the drugs, methods for contacting each other throughout the transaction and the use of "workers" to assist in the arrangement. The Facts on Sentence extracted parts of the recorded conversations between the applicant and Tran. 3. The next day Tran was observed leaving his apartment in Sydney and travelling to the airport and boarding a plane to Perth. Subsequently 244.5 grams of N N-dimethylamphetamine was located in Tran's Sydney apartment. Twenty-seven grams of the same drug was located in Tran's Perth residence. A further 121.4 grams of methylamphetamine was located at Tran's Perth residence. It was not disputed by the applicant that she had supplied the methylamphetamine to Tran. 4. Tran again travelled to Sydney and met with Nguyen on 24 August 2011. Again, their conversations were recorded by a listening device. On this occasion Tran and the applicant discussed commercial quantities of high purity drugs to be sourced by the applicant and transported to Western Australia for supply by Tran. 5. During this meeting Tran paid the applicant $240 000 cash in return for almost one kilogram of crystal methylamphetamine supplied by her. The applicant also supplied Tran with 89.3 grams of pseudoephedrine. At approximately 11pm a third person, Ly, arrived at Tran's apartment. Tran and the applicant instructed Ly on how to conceal drugs on her person. 6. The recorded conversations between the applicant and Tran demonstrate the role each of them was to play in the applicant's supply of the methylamphetamine and pseudoephedrine to Tran: Facts on Sentence at [16]. 7. The next morning Tran and Ly departed in a taxi to the airport. The taxi was intercepted by the police who searched Tran and Ly and found two bags of crystal methylamphetamine in Tran's possession, as well as 89.3 grams of pseudoephedrine and other items. A number of sealed plastic bags containing crystal methylamphetamine were found strapped to Ly's person. The combined weight of the methylamphetamine found on Tran and Ly was 977 grams. 8. Both Tran and Ly were interviewed. Tran, in his ERISP, stated that the drug was supplied to him by the applicant to be transported to Perth. Sentencing of Tran 1. Tran was sentenced prior to the applicant by Blackmore DCJ, namely, on 31 May 2013 following his pleas of guilty. He was sentenced in respect of the following offences: 1. Supplying a commercial quantity of methylamphetamine (977.7 grams) on 25 August 2011. 2. Two counts of possession of prohibited weapons on 25 August 2011, being a .38 pistol and a sawn off shot-gun, each located by police after a search of his Haymarket unit. 1. It is noted that Count 1 on the Tran indictment corresponded with Count 2 on the applicant's indictment. 2. As noted in the Outline of Submissions for the Applicant at [27], the firearm offences in Counts 2 and 3 on the Tran indictment involved significant additional criminality which was not charged against the applicant. 3. Tran additionally asked the Court to take into account three further offences of supplying prohibited drugs on a Form 1 on sentence. These offences were: 1. Supplying a commercial quantity of N, N-Dimethylamphetamine (about 500 grams) on 3 August 2011. 2. Supplying a prohibited drug (methylamphetamine) on 3 August 2011. 3. Supplying a prohibited drug (89.3 grams of pseudoephedrine) on 26 August 2011. 1. As also noted in the Outline of Submissions for the Applicant, each offence on the Form 1 involved conduct that was also charged against the applicant, although there were differences in the approach taken in respect of prosecutions. In that respect it was noted at [28] of the Outline of Submissions that: "i) Although there was some inconsistency in the quantities referred to, it appears that Offences 1 and 2 on the Form 1 correspond with Count 1 on the applicant's indictment. ii) Offence 3 on the Form 1 corresponded with Count 3 on the applicant's indictment." 1. In his Honour's Remarks on Sentence in Tran's case, his Honour observed at p 8 that "The Form 1 offences tend to prove that the offender is in fact a significant dealer in drugs…this offence is well above the middle of the range of seriousness for such offences". His Honour found that the firearms offences were within the middle range of seriousness. 2. His Honour turned to Tran's subjective case which was said to be "limited": ROS (Tran) before making the following observations at pp 7-8: "This is the first offence for the offender. I note that there are pleas of guilty in the matter. Perhaps of more significance is the fact that the offender has signed an undertaking to give evidence against a co-offender. He has also given additional information to the police about that individual that led to her being charged and has resulted ultimately in a plea of guilty in her case. It is submitted that his assistance to authorities has been of the highest order. I have read the statements provided and considered the other evidence in the case with regard to this assistance. I do not propose to outline it in any more detail. It is assistance of a very high order." 1. His Honour determined that the appropriate starting point for Tran's sentence was 14 years. He proceeded to impose an aggregate sentence on the basis of a combined 42.5% discount for Tran's guilty pleas and assistance to authorities: ROS (Tran) at p 9. Tran was accordingly sentenced for a total 8 years imprisonment comprising a non-parole period of 5 years, 9 months and a balance of term of 2 years, 3 months. Submissions on the Applicant's Sentence 1. During the sentence hearing, on the question of the applicant's role in the offences, it was submitted on her behalf that she was "a middle-person", whose role was above that of a courier but below that of a principal and whose role was certainly less than that of Mr Tran: T 9 August 2013 at p 4:25-30. 2. For the Crown it was submitted that the applicant was to be seen as 'an equal participant' with Tran. It was submitted that: "…They [Tran and the applicant] are to be seen as equals for these reasons. When you go through the details of what is said by Nguyen during the recorded messages on 3 and 4 August and 24 and 25 August, Tran is not calling the shots any more than Nguyen is, they are equals. Nguyen is the one who supplies the drugs, and if there is any question about whether she was procured or what level of procurement from Tran there existed on 3 August, there can be no question about that sort of thing from 24 and 25 August. Nguyen is in the thick of it as much as Tran, and for the purposes of what she is being sentenced on they are equals in the Crown's submission" (T 9 August 2013 at p 7:25-35). 1. The applicant did not give evidence at the sentence hearing. She had been interviewed by Mr Watson-Munro, Consultant Forensic Psychologist, who provided a report dated 12 June 2013 (Exhibit 1) which was tendered at the sentence hearing. Submissions were made on behalf of the applicant as to her subjective circumstances and particularly her drug and gambling problems on the basis of this report: T 9 August 2013 at pp 5-6, 9-10. Attention was drawn to the fact that the applicant was a single mother with three young children, that she was a first time offender and that there was evidence in the report of both a gambling addiction and a drug addiction: T 9 August 2013 at p 6. It was submitted that she had been in serious debt at the time of offending and that she had a very strong incentive to rehabilitate and not to re-offend: T 9 August 2013 at p 6. A letter from the applicant's oldest son was also tendered at the sentence hearing and became Exhibit 2. 2. As to the applicant's subjective case, the Crown submitted that the report of Mr Watson-Munro could not mitigate the penalty to be imposed to any significant degree by reason of the diagnoses referred to in that report. In particular, the Crown observed the diagnoses of Major Depression, Anxiety Disorder, Substance Abuse Disorder and gambling addiction, could not be said to have had any bearing on the applicant's decision to commit the offences: T 9 August 2013 at p 8. 3. No submission was made by the Crown at the hearing as to the discount to be awarded for the plea of guilty. Remarks on Sentence 1. The sentencing judge stated that the offences committed by the applicant were "very serious": ROS at p 3. 2. His Honour observed: "… they demonstrate drug dealing at a high level, they involve the transportation of drugs over state lines. The quantities involved are also high. The facts reveal that the purity level of the drugs was high as well. All in all, the offender's involvement in these offences shows that she was a major drug dealer and supplier of reasonably large quantities of drugs. The quantity of the supplies was such that they were above the middle range of seriousness for the two major offences. I note the pleas of guilty in both cases and therefore find that the standard non-parole period does not have to be applied here. However, the standard non-parole period remains as a guide to the sort of penalty that should be applied. The offender has no criminal record. She is entitled to some additional leniency on sentences, based on her prior good character." (ROS at p 3). 1. His Honour noted that the applicant was a 34 year old Vietnamese woman. At the time of the offences she was 32 years of age. She had three children, the eldest of whom was then 14 years. 2. His Honour also had regard to other subjective factors. The applicant provided Mr Watson-Munro with a history that she had commenced using the drug "ice" as a means of combating her depression. She claimed in the history to him that she became involved in the enterprise in question of selling drugs as a result of her gambling debts. In addition, his Honour noted that she said that she had been offered $10,000 to become involved. His Honour in that respect observed: "… to my mind, the facts of the case clearly put a lie to that statement. The offender was well and truly acquainted with the methodology of drug dealing, including the transporting of drugs. I do not know how she became involved initially, but however that was, she had by the time of these offences become a large-scale dealer in drugs." (ROS at p 4) 1. His Honour further observed that she had claimed that she had gambled to excess and used drugs but he considered that such factors: "… must necessarily represent relatively minor considerations when dealing with offences of the seriousness of these particular offences. These offences are ones for which general deterrence requires significant sentences to be imposed." (ROS at p 4) 1. His Honour accepted that the offender was remorseful as to her offending. He observed that her three young children would be separated for many years to come. He accepted that her prospects of rehabilitation were good. 2. The sentencing judge clearly turned his mind to the question of parity between the applicant and Mr Tran. He rejected the submission that her role in the relevant drug offences was less than that played by Mr Tran, stating that: "… from my reading of the facts she was at least an equal player with Mr Tran in relation to these offences … In that regard, the role of the offender is comparable to that of Mr Tran." (ROS at p 4) 1. His Honour referred to the sentence he had imposed on Tran and noted that the starting point prior to applying discounts in relation to Tran had been 14 years imprisonment. This was in circumstances where Tran had been sentenced "for some additional matters of some seriousness" and had some matters dealt with on a Form 1: ROS at p 5. 2. It was stated by His Honour in relation to the applicant that "…having regard to the facts of this case and taking into account Mr Tran's sentence, had these matters gone to trial a sentence of at least 13 years' imprisonment would have been applied": ROS at p 5. Thirteen years was thus used as the starting point. His Honour indicated that the sentence was to be reduced by 12.5% to reflect the utilitarian benefit of the applicant's plea of guilty: ROS at p 5. 3. As the above discussion indicates, relevant factors in the applicant's subjective case were taken into account by the sentencing judge, including in particular, on the finding made of special circumstances. Special circumstances were found by reason of the fact that it was the applicant's first time in custody, prison was difficult for her and her children wanted her home as soon as possible. Additionally, she had a gambling addiction which it was considered might be amenable to treatment on release: ROS at p 5. 4. His Honour emphasised again, at the conclusion of his Remarks, the very serious nature of the offences for which the applicant was sentenced: ROS at p 6. Submissions on Appeal Applicant's Submissions 1. The applicant's submissions were based on what was contended to be a marked disparity between the sentence imposed on the applicant and the sentence imposed on her co-offender Tran. 2. Mr D Jordan SC of counsel, who appeared in this Court with Mr D Barrow of counsel on behalf of the applicant, prepared a document which helpfully set out the relevant procedural history of the proceedings concerning the applicant and the proceedings concerning Tran. The document, as discussed below, is of assistance in relation to Ground 1(b). 3. It was submitted for the applicant that it is clear that Tran was sentenced on the basis of a substantially greater level of criminal conduct than that of the applicant. Though Tran was not sentenced directly for the offences taken into account on the Form 1, it was observed that they must still have been taken into account in determining the sentence of Count 1 on Tran's indictment. Given the seriousness of the Form 1 offences, this ought to have resulted in a significant increase in the sentence imposed for that principal offence: Outline of Submissions for the Applicant at [33]-[34]. Further, the applicant pointed to the seriousness of the firearms offences with which Tran was charged and submitted that the additional criminality of these offences must have been taken into account by the judge in determining his sentence: Outline of Submissions for the Applicant at [36]. 4. It was additionally submitted that the applicant's subjective case was much more compelling than Tran's, she having experienced social disadvantage, addiction problems which were said to have impaired her judgment and financial problems which were said to have motivated her criminal activity: Outline of Submissions for the Applicant at [38]. 5. It was submitted in the Applicant's Outline of Submissions that: "39. The starting point for the sentence imposed on the applicant was 13 years, only one year less than the 14 year starting point for Tran's sentence. In all of the circumstances, this one year difference does not properly reflect the significantly greater extent of Tran's offending and the applicant's more compelling subjective case. 40. Consequently, the sentence imposed on the applicant involves marked disparity and gives rise to a justifiable sense of grievance on the part of the applicant: Green & Quinn v The Queen (2011) 244 CLR 462 at [30]-[32]; Yousif v R [2014] NSWCCA 180 at [26]-[28]." 1. In oral submissions before this Court, Senior Counsel for the applicant acknowledged that the comparison, for the purposes of parity, could not be "direct" because of the differences in the way the indictments against Tran and the applicant had been framed: T 28 April 2015 at pp 3-4. It was nonetheless submitted that Tran was being sentenced for "significant additional criminality" and, for that reason, the starting point for the sentence imposed on the applicant was too high. 2. It was additionally submitted that: "In the circumstances, accepting as we do, that it is not a direct comparison, accepting that the entirety of the applicant's criminality was also dealt with for Tran and, in addition, there were two firearms offences which…his Honour indicates, were made more serious because they are firearms possessed by a drug dealer and which his Honour assessed at the mid-level of seriousness for those kinds of offences which attract a 14 year maximum penalty, when you take that matter into account, that significant additional criminality begins to give rise to a marked disparity and a justifiable sense of grievance" (T 28 April 2015 at p 5: 4-12.) 1. It was submitted at the hearing that the applicant's subjective case was stronger than Tran's case "on any view": T 28 April 2014 at p 6: 10-50. 2. As to the difference in the sentencing judge's approach to the discounts to be applied for pleas of guilty by the applicant and Tran, the applicant submitted that both offenders' pleas were entered at relatively early stages in the proceedings. The following comparison was made in the Outline of Submissions for the Applicant: "42 A period of around 1 year and 9 months elapsed from the time Tran was charged to the time he was sentenced. He pleaded guilty approximately 1 year and 2 months after he was charged. 43 For the applicant, around 1 year and 5 months passed from the time she was charged to the time she was sentenced. She indicated that she was pleading guilty approximately 8 months after she was charged." 1. It was submitted that the applicant should have at least received the same discount of 17.5% received by Tran for the value of her guilty pleas: Outline of Submissions for the Applicant at [45]. If there was a valid reason for a distinction in the discounts applied, it should have been the applicant whose discount was larger, given that the utilitarian value of her plea would have been of greater value: Outline of Submissions for the Applicant at [44]. 2. In oral submissions it was stated that: "The justifiable sense of grievance is best founded in the absence of an explanation for what is, on the face of both remarks, a significant difference sounding in around about 6 months time in custody, by our calculations. That is not justified by the objective circumstances of the offence and, most importantly, with respect to his Honour, is not explained" (T 28 April 2015 at 12:15-20). 1. It was also submitted for the applicant that the difference in the discounts afforded may have been an unfortunate oversight: Outline of Submissions for the Applicant at [44]. Crown Submissions 1. In relation to Ground 1(a), which contends that the starting point for the sentences imposed by his Honour were too high, the Crown made four submissions as follows: 1. That the applicant's role was at least equal to that of Tran. It was noted that she was the supplier of the drugs and that she was, on the Agreed Facts, clearly able to supply Tran with "very significant amounts of drugs of very high purity": Crown Written Submissions at [18]. 2. That the distinction between the applicant having each supply offence charged separately on her indictment and Tran having the benefit of the other supply related offences being placed on a Form 1 amounts to a relevant difference in the sentences of the co-offenders: Crown Written Submissions at [19]. 3. That the starting points could not have been too high, given that higher starting points were open 'given the seriousness of the offending, the maximum penalties and the relevant standard non-parole periods as legislative guideposts.' Higher starting points for the sentences were clearly contemplated by the sentencing judge who said that the starting points would be "at least" 14 years for Tran and "at least" 13 years for the applicant. It was also noted by the Crown that Mr Tran had appealed his sentence to the Court of Criminal Appeal (Tran v R [2014] NSWCCA 85) where his sentence had been expressly found not to have been too high, with members of the Court observing that higher starting points would have been open: Crown Written Submissions at [20]. 4. That the subjective case advanced for the applicant at the sentencing hearing had been rejected by the sentencing judge. In the Crown's Written Submissions at [21] it was argued: "His Honour was plainly unimpressed with the arguments advanced by the applicant and repeated in this court that she had been 'led into' drug dealing at such a high level because of gambling and addiction in circumstances where she did not give evidence and where the agreed facts betrayed her deep involvement in and familiarity with large scale drug dealing." 1. In essence, the Crown's submission was that there was a relevant difference in the criminality of the applicant compared to Mr Tran as a result of their different roles, and this difference had been appropriately reflected by the sentencing judge in the different starting points adopted: Crown Written Submissions at [27]. 2. In relation to Ground 1(b), of the Grounds of Appeal, concerning the differences in the discounts awarded to Tran and the applicant for their respective guilty pleas, the Crown submitted that that there is no presumption or entitlement to a particular discount following a plea of guilty, and that the decision in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 does not have the effect of creating such a presumption: Crown Written Submissions at [23] referring to Hallak v R [2014] NSWCCA 48 at [21]; R v Scott [2003] NSWCCA 286 at [28]; R v Newman [2004] NSWCCA 113 at [12]; R v Araya [2005] NSWCCA 283 at [44] and Tuvunivono v R [2013] NSWCCA 176 at [60]. 3. The Crown emphasised the discretionary nature of the decision to afford a discount for a plea of guilty and submitted that a different discount being given to another offender, in circumstances where the other offender was charged with different offences, is not indicative of error in the exercise of that discretion. The Crown submitted that in light of the discretionary nature of the sentencing decision, the applicant's approach to the question of what discount should have been awarded was "too mathematical": Crown Written Submissions at [23]-[25]. 4. The Crown submitted that it was relevant that Tran had entered his plea in the Local Court whereas the applicant did not enter her plea until she had been committed for trial: Crown Written Submissions at [23]-[25]. 5. In oral submissions for the Crown attention was drawn to the fact that the applicant's pleas of guilty were indicated on 17 December 2012 and that this would have been either the last day of the law term or very close to the last day and that the trial had been scheduled to commence on 14 January 2013. It was submitted that, in practice, in those circumstances it would have been necessary for the Crown to have already prepared the matter for trial before the last day of the law term in 2012. As such, the utilitarian value of the plea was quite low, because the plea was not timely, and had not saved the prosecuting authority any work: T 28 April 2015 at 9. 6. It was submitted for the Crown that it would be a curious result 'if differences in the exercise of that discretion to a minimal degree…could be then relied upon to base a legitimate sense of grievance in a parity decision given there are other differences between the subjective cases of the offenders and of course differences as to timing of plea and an explanation of differences in the value of the plea that was given': T 28 April 2015 at 11. 7. During the hearing before this Court it was conceded that the submission as to Tran having entered his plea in the Local Court was not accurate and the sentencing judge may have, in fact, acted on an incorrect factual basis in that regard (T 28 April 2014 at p 2). The correct position was set out in oral submissions by Senior Counsel for the applicant as follows: "(Tran) didn't finally adhere to any plea in the Local Court until 2 November. The trial matter is actually listed for arraignment, you will see, on three occasions: 7 September, on 28 September and on 12 October. It's well and truly in the trial list at that stage. I think it's a fair assessment to say that what's occurring here is that a not guilty charge is being used as some leverage in terms of negotiations as to the formal final form of the charges and a deal ultimately as to an indictment which ultimately was certainly more charitable, without any disrespect to the prosecutor's discretion…" (T 28 April 2015 at p 7:40-45) 1. As earlier noted, the applicant handed up a "Procedural History" of both offenders at the hearing on 28 April 2015 which set out the relevant agreed dates. From that document it is apparent that Ms Nguyen was arrested on 19 April 2012 and indicated her intention to enter pleas of guilty on 17 December 2012, approximately 8 months later. This resulted in the January trial date being vacated. Mr Tran was arrested on 26 August 2011. On 19 July 2012 he entered pleas of guilty to the firearms offences and three supply offences approximately 11 months later. However he maintained a plea of not guilty to the charge of supplying not less than the commercial quantity of methylamphetamine (which related to the events of 3-4 August 2011) until 2 November 2012. Consideration Ground 1(a) 1. The parity principle in sentencing is well-established. In essence, the rule is as stated in Lowe v R (1984) 154 CLR 606 where it was said at 623 per Dawson J that: "any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done." 1. In Lowe at 609, Gibbs CJ observed that: "it is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence have to be taken into account." 1. It is plain from the Remarks on Sentence as discussed above that in determining the sentence to be imposed on the applicant his Honour gave specific consideration to the question of parity of sentence as between Tran and the applicant. As his Honour's Remarks on Sentence record, he identified the comparative roles of both in relation to the drug charges and made a finding, after hearing submissions on the issue, that so far as those offences were concerned, the roles of the two were at least equal. On that basis, if the indictments had been limited to the drug offences a question of disparity may possibly have arisen. 2. However, the fact that Tran was being sentenced for additional offences, and had some offences included on a Form 1 rather than on his indictment, means that a straightforward comparison is not possible. The Form 1 offences, of course, were to be brought into account in accordance with accepted principles: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [42], [66]. 3. The sentencing judge determined that it was appropriate for the starting point in relation to the applicant to be one year less than the starting point for Tran's sentence. In reaching this conclusion there was a range of competing considerations to be evaluated and balanced in the exercise of the sentencing judge's discretion. These included the objective seriousness of the offences, the seriousness of the Form 1 offences on Tran's indictment, and the fact that they were being charged on a Form 1 rather than on the indictment, the relative strengths of each offenders' subjective cases and the additional criminality of Tran, as compared to the applicant, as a result of the firearms offences. 4. The fact that the charges brought against Tran and the applicant were not identical does not, of course, necessarily displace the application of the principal of parity: Green v The Queen [2011] 244 CLR 462 at [30]. In Green the following observations were made at [30] as to the principle in such cases: "Nevertheless, as Campbell JA recognized in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a Court of Criminal Appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle." 1. Accordingly, in the present case what the sentencing judge was required to determine was not simply a case in which there was a difference in the charges against the applicant and her co-offender Tran, but rather a case that involved the exercise of the prosecutorial decision to proceed with some charges on a Form 1 in Tran's case rather than on an indictment. Additionally, the firearm offences with which Tran was charged were, on the evidence, entirely separate from the conduct of the applicant. 2. Taking into account the sentencing judge's findings, and the variations in the offences charged, I do not consider there exists a basis for a justifiable sense of grievance as to the disparity in the starting points determined for the sentences ultimately imposed on the applicant and Tran. There are a number of factors which could have justified the fact that the applicant's starting point was only one year less than Tran's, including the method of charging the offences on a Form 1 in Tran's case and his Honour's explicit rejection of aspects of the applicant's subjective case which may have otherwise been more compelling. I note, as well, that the material on the applicant's drug, alcohol, psychological history was restricted to the account in Mr Watson-Munro's report of 12 June 2013 (at p 3), the applicant not having given evidence at the sentence hearing. No error, in my opinion, has been established in the way in which the sentencing judge approached the exercise of his sentencing discretion. Ground 1(b) 1. Given the absence of reasons expressed in the Remarks of Sentence, the basis on which the sentencing judge differentiated between the discount afforded to Tran of 17.5% for what was referred to as a "late" plea of guilty and the discount of 12.5% afforded to the applicant is unknown. It is clear from the manner in which the ground of appeal has been framed that it is the disparity arising between the discounts which is said to give rise to appellable error. 2. Mr Jordan submitted that when the procedural history of each set of proceedings involving Tran and the applicant were examined, overall, the applicant's guilty pleas were at least of equivalent utilitarian value. He submitted that they were indicated more quickly and indicated without the qualification of an ongoing charge negotiation, which it was submitted had occurred in the proceedings concerning Tran. 3. Mr Jordan submitted that there was no justifiable basis for the applicant to receive a lesser discount for the utilitarian value of her guilty pleas than Tran. The difference in the discount, in particular the lesser discount determined for the applicant, could not be explained, it was submitted, by reference to the history of the proceedings. His Honour, it was stated, simply referred to the figure of 12.5% without explaining the discount when in the circumstances a clear explanation was required for the lesser discount. Without it, it was submitted, the parity principle, directed towards the appearance of equal justice, was said to apply. 4. The Crown submissions on this point have been detailed above at [54]-[58]. 5. The procedural history in relation to Tran in terms of the time that elapsed between the date of charge and his pleas of guilty does not, on analysis, in my opinion, indicate that Tran's position warranted a more favourable exercise of discretion (17.5%) over the position of the applicant (12%). (a) As to the applicant, Nguyen: 1. The period between date of charge (22 April 2012) and date when she was committed for trial to the District Court (23 July 2012) was quite short, approximately 3 months. 2. The period from date of charge to date when guilty pleas were indicated (17 December 2012) was a period of approximately 8 months. The period from date of charge to date of formal entry of guilty pleas on 12 April 2013, was a period of approximately 12 months. (b) As to the Co-Offender Tran: 1. The period between date of charge (26 August 2011) and his pleas of not guilty to the charge of supply not less than the commercial quantity of methylamphetamine on 3-4 August 2011 and his guilty pleas to two firearm offences and one offence of supply not less than the commercial quantity of methylamphetamine on 26 August 2011 was approximately 11 months. 2. Guilty pleas to all three charges (including on a Form 1 supply prohibited drug N, N, Dimethylamphetamine in not less than the commercial quantity on 3 August 2011) were entered by Tran on 2 November 2012, a period of approximately 1 year 5 months from date of charge. 1. The applicant's guilty pleas indicated within about 8 months after she was charged resulted in an estimated three-week trial due to have commenced on 14 January 2013, being vacated on about 17 December 2012. The timeline of the applicant's procedural history from the date of charge was considerably shorter than that of Tran. As discussed above, there appears to have been some negotiation between Tran's legal representatives and the Crown over a period of several months before guilty pleas to all charges were entered by him on 2 November 2012. 2. At the sentence hearing there was quite limited discussion of the applicant's entitlement to a discount for her guilty pleas. The transcript of 9 August 2013 records the following at pp 3-4: "MARR: Your Honour, there was a plea of guilty; late, but a plea of guilty, nonetheless, which is entitled to some discount. It was a plea in the District Court, a trial date had been set, I think for January this year, but that was vacated when new lawyers came into the matter, and then the plea of guilty was in April, I understand. HIS HONOUR: Well, according to the Crown facts, I don't know if you've got it here, she indicated a plea of guilty. I think it says 'he', but I think that means 'she', 'indicated a plea of guilty to the same indictment on the date of the trial on 14 January 2012. At that stage the matter was then listed for mention to settle the facts.' I haven't checked the file, I mean, I can have a look at the file, if you like? MARR: All right, my solicitor says when he came into it the Chief Judge vacated it on 17 December, so there was no trial in the end listed. HIS HONOUR: I checked it, it's important, there could be a difference in percentages. Given this is likely to be a relatively long sentence, those percentages can add up to something significant. Yes, that's right. There was an indication of plea on 17 December and the Chief Judge, as you said, vacated the trial date to 14 January, so, the Crown facts aren't entirely correct." 1. The sentencing judge raised a question as to why a plea had not been entered at an earlier stage (at T 6) and at T 7 the following is recorded: "HIS HONOUR: Maybe the only issue was where could they identify the offender, but I would have thought they probably had photographs as well, I've no idea. MARR: They did, yes, they knew where she lived. HIS HONOUR: That's a little bit hard to understand, but, anyway, she pleaded before trial, I'm prepared to find she's entitled, probably, I think, to 12.5%, rather than 10%. If it had been on the date of trial, she wouldn't have got more than 10%, maybe even less." 1. There does not appear to have been any further discussion of the applicant's guilty pleas and the discount to be allowed for them. There was no discussion of the discount of 17.5% given to Tran, it having only been noted at T 6 by Mr Marr who appeared for the applicant that Tran received a significant discount for assistance. 2. As observed in the applicant's written submissions, the Crown made no submissions on the discount to be applied to the applicant's pleas and it may have been that the difference in the discounts was an oversight which, unfortunately, was not brought to his Honour's attention by either the applicant's counsel or the Crown: Outline of Submissions for the Applicant at [44]. 3. Aside from the timing of the applicant's guilty pleas approximately 8 months after she was charged with the subject offences, it may be noted, as stated in submissions at the hearing in this Court, that the Crown case very largely depended upon the telephone intercept material: T 28 April 2015 at p 9. On behalf of the Crown it was stated that a good deal of pre-trial preparation would have consisted of the preparation of transcripts: T 28 April 2015 at pp 9-10. As to when in relation to the date the applicant indicated that she would enter her guilty pleas, the Crown's pre-trial preparation had been wholly or partially completed is unknown, a matter that has some relevance to the utilitarian value of the pleas. It is not something that this Court can speculate about in the absence of evidence. Additionally, the length of time devoted to the preparation of transcripts would, at least in part, depend upon the length of the conversations recorded. I note that "120 pages or more" of transcripts were referred to by Counsel for the applicant at a mention of the sentence proceedings on 14 June 2013: T 2. Whether such preparation work was also undertaken for the Crown case against Tran up to a particular point in the procedural history of these proceedings is unknown. 4. There being no identifiable basis upon which the difference in the discounts (12.5% as against 17.5%) can be explained or justified, and no reasons having been stated in the Remarks on Sentence, I consider that there is a difference in sentencing of a kind that amounts to an unjustifiable disparity constituting a ground for intervention. 5. In R v Thomson; R v Houlton [2000] NSWCCA 309, 49 NSWLR 383, this Court emphasised that the range of discounts for the utilitarian value of a guilty plea does not create a presumption or entitlement to a particular discount to reflect the utilitarian value of such a plea. However, the parity principle may have application where, as in this case, a co-offender has received a discount of 17.5% whilst another has received a lower discount (12.5%), and no reasons were provided which explain the disparity and there is no evident explanation or justification for the difference. In such circumstances the disparity may give rise to a justifiable sense of grievance. 6. A comparison of the relevant facts in this case, and the absence of reasons by the sentencing judge, in my opinion, establishes an unjustifiable disparity requiring this Court to intervene in order to increase the discount for the applicant's guilty plea from 12.5% to 17.5%. It will accordingly be necessary to set aside the aggregate sentence imposed on the applicant and to resentence her upon the same basis as determined by the sentencing judge but applying to it the abovementioned discount of 17.5%. Applying a discount of 17.5% to the starting point of 13 years results in a sentence of 10 years, 8 months and 21 days. In my opinion this sentence should be rounded up to 10 years and 9 months so that the discount applied does not exceed 17.5% (as would be the case if the 21 days were excluded.) Orders 1. I propose the following orders: 1. The applicant be granted leave to appeal. 2. The aggregate sentence imposed upon the applicant by the Sydney District Court on 6 September 2013, be set aside. 3. The applicant be re-sentenced to an aggregate term of imprisonment of 10 years and 9 months, to include a non-parole period of 7 years 7 months, to commence on 19 April 2012 and to expire on 18 November 2019 and a parole period of 3 years 2 months to commence on 19 November 2019 and to expire on 18 January 2023. 4. The first date upon which the applicant will be eligible to parole will be 19 November 2019. 1. McCALLUM J: I agree with Hall J. ********** 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: 05 August 2015