Cao v Regina; Phan v Regina; Nguyen v Regina

[2009] NSWCCA 273

New South Wales
Court of Criminal Appeal

CITATION:	Cao v Regina; Phan v Regina; Nguyen v Regina [2009] NSWCCA 273
HEARING DATE(S):	8 September 2009
JUDGMENT DATE:	11 November 2009
JUDGMENT OF:	Macfarlan JA at 1; Howie J at 2; Hislop J at 3
DECISION:	(1) Leave to appeal granted; (2) Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – sentence – conspiracy to import heroin – factual dispute as to quantify of heroin imported – parity of sentences – sentences not manifestly excessive
LEGISLATION CITED:	Crimes Act 1914 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Crampton v The Queen [2000] HCA 60; (2001) 206 CLR 161 Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 Markarian v R [2005] HCA 25; (2005) 215 ALR 213 N v R; AP v R [2009] NSWCCA 108 R v Bell [1999] NSWCCA 423 R v Boney [2001] NSWCCA 432 R v Holder [1983] 3 NSWLR 245 R v Lee [2000] NSWCCA 234 R v Palu (2002) 134 A Crim R 174 R v Steele (NSWCCA, 17 April 1997, unreported) R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340; 108 A Crim R 531 Regina v Jack Chick Chen [2003] NSWCCA 328 Regina v Togias [2001] NSWCCA 522; 127 A Crim R 23 Wong v R [2001] HCA 64; (2001) 207 CLR 584
PARTIES:	Peter CAO; Ana Thu PHAN; Thi Rot NGUYEN (Applicants) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/15370; 2007/15205; 2007/11830
COUNSEL:	A Francis (Applicant Cao) M Wigney SC (Applicant Phan) H Dhanji (Applicant Nguyen) P Roberts (Regina)
SOLICITORS:	Peter Murphy (Applicants) Commonwealth Director of Public Prosecutions (Regina)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0021; 07/110021; 07/11/0160
LOWER COURT JUDICIAL OFFICER:	Hock DCJ
LOWER COURT DATE OF DECISION:	22 February 2008

- 1 -

2007/15370
2007/15205
2007/11830

MACFARLAN JA
HOWIE J
HISLOP J

11 November 2009

Peter CAO v Regina

Ana PHAN v Regina

Thi Rot NGUYEN v Regina

Judgment

1 MACFARLAN JA: I agree with Hislop J.

2 HOWIE J: I agree with Hislop J.

:

Introduction

The applicants Cao and Phan were each charged on indictment that:

“Between about 1 April 2005 and about 10 May 2006 at Sydney, New South Wales and elsewhere, [the Applicant] did conspire with [certain named persons] and divers others, to import into Australia goods to which section 233B of the Customs Act 1901 applied, namely, prohibited imports consisting of a quantity of heroin, being not less than the commercial quantity applicable to heroin, contrary to section 233B(1)(a)(iii) Customs Act 1901 & section 11.5 Criminal Code 1995.”

The maximum penalty for the offence is life imprisonment and/or a fine of $825,000.

4 The applicant Nguyen was similarly charged though only in respect of the period “Between about 1 November 2005 and about 10 May 2006”.

5 None of the three applicants had any prior convictions. Each pleaded guilty as charged. Cao was sentenced to 24 years imprisonment to commence on 10 May 2006 with a non-parole period of 14 years 6 months to commence on 10 May 2006 and to expire on 9 November 2020. Phan was sentenced to 18 years imprisonment to commence on 10 May 2006 with a non-parole period of 11 years to commence on 10 May 2006 and expire on 9 May 2017. Nguyen was sentenced to 15 years imprisonment to commence on 10 May 2006 with a non-parole period of 8 years 6 months to commence on 10 May 2006 and expire on 9 November 2014.

6 The background to these offences, as outlined in the remarks on sentence, was that Cao, Phan and Cao’s brother, Vu Khahn Nguyen, all of whom were residents of Sydney, organised a series of importations of heroin into Australia from Vietnam during 2005 and 2006. The group used Vietnamese-Australians as couriers to bring into Australia suitcases with heroin concealed inside on their return flights from Vietnam. The main point of entry for these importations was Perth International Airport. The police investigation into the syndicate commenced in October 2005, and interception of the mobile phones used by various syndicate members commenced on 11 November 2005. Police ultimately identified six importations of heroin which had been organised by the syndicate. The evidence established that they occurred on:

12 November 2005, the courier being Kim Ut Ly;

16 November 2005, the courier being Vinh Phat Tan;

20 December 2005, the courier being Duc An Tran;

5 February 2006, the courier being Kim Anh Ly;

28 February 2006, the courier being Thi Thanh Ng Ho;

18 April 2006, the courier being Vinh Phat Tan.

7 Each of the applicants has sought leave to appeal against sentence. Each alleges that her Honour erred by overstating the quantity of heroin imported and that the sentence was manifestly excessive.

8 Additionally, Nguyen has asserted that she has a justifiable sense of grievance as a result of a lack of parity with the sentences imposed on her co-offenders and in particular, those imposed on Anh Dung Vu and Kim Anh Ly. Cao alleges a lack of parity with the sentence imposed upon Phan.

Background and roles of the applicants

Cao

9 Cao was born in 1975. He is the partner of Phan. He was educated in Vietnam until nine years of age and subsequently attended school in Australia. He left school after completing year nine of high school to work as a tailor in the family business. In 2002 he separated from his wife, with whom he has three children of primary school age. He had a problem with gambling, which he attributed as the reason for the breakdown of his marriage and for his initial involvement in this offence. His motivation was greed. The applicant expressed his remorse and in particular his sorrow for involving other members of his family. Her Honour accepted he genuinely regretted involving his two sisters and brother-in-law. Her Honour considered it difficult to assess his prospects for rehabilitation given the inevitably lengthy period he must remain in custody, but considered they would appear to be reasonable. Her Honour allowed a 25 per cent discount for an early plea.

10 Her Honour described the role of the applicants, Cao and Phan, as follows:

“[Cao and Phan] were principals in this criminal enterprise. Each of them recruited couriers, financed the couriers airfares, expenses, and fees for the importation, liaised with the man Bay Chanh in Vietnam, who on behalf of the syndicate oversaw the couriers activities and their payment while they were in Vietnam, helped organise one of the other syndicate members to meet the couriers on their arrival in Perth, and to escort the suitcases to Sydney, organised two people to meet the courier Tan, who was expected to arrive in Darwin on 18 April 2006, maintained regular phone contact with the couriers while they were in Vietnam, maintained regular telephone contact with those who had been sent to meet the couriers on their arrival, and had telephone contact with people about the supply of the drugs and the payment of money. Peter Cao had other responsibilities in that he instructed Bay Chanh when to collect the suitcases with the heroin concealed inside from the supplier, Tan (the uncle) and to hand it over to the couriers, just prior to their return to Australia. He did not liaise personally with the uncle who supplied and concealed the heroin in the suitcases, rather Mr Cao liaised with his brother-in-law, Mr Vu, who in turn had direct contact with the man referred to as Uncle. In this way Mr Cao kept himself at arms length from the supplier and from the risks that direct contact would entail. He and Vu Khahn would then on-supply the heroin to various purchasers in Sydney.”

Phan

11 This applicant was born in 1957. She came to Australia from Vietnam in 1990 and is an Australian citizen. She has been married three times and has seven children (none by Cao), as well as caring for two grandchildren aged six and seven whose mother is serving a term of life imprisonment in Vietnam for drug offences. Her Honour said that to the limited extent she was able to do so, she had taken into account the hardship the children will suffer by their mother and grandmother being in prison. The applicant’s sentence was discounted 25 per cent by reason of an early plea.

Nguyen

12 This applicant was born in 1979. She is the sister of Cao. She arrived in Australia in 1985 and attended school from year three, leaving in year ten and then working in the family business as a machinist. She has two children who are in the care of their maternal grandparents. The care of the grandchildren is difficult as neither grandparent is in good health and they are aged 65 and 68 respectively. Her Honour allowed 15 per cent discount for her plea of guilty which had been entered at a relatively late stage.

13 Her Honour described her role in the following terms:

“[She] was involved in the importations of December 2005, 5 and 28 February, and 18 April 2006, a total of approximately five kilograms of pure heroin. Her role was to meet the couriers on their arrival in Perth. Specifically she travelled to Perth to meet Vu Khahn and Tran on their arrival from Vietnam on 20 December 2005. With Vu Khahn she oversaw Tran’s trip to Sydney on 20 December 2005 with the imported heroin. She accompanied the courier Ho to Perth in January 2006 to assist Ms Ho’s passport application and the purchase of airline tickets and necessary visas for Ho and her children to travel to Vietnam. She travelled to Perth with her husband Vu, to meet the courier Kim Ahn Ly. She oversaw Kim Ahn Ly’s trip to Sydney of 5 February 2006 with the imported heroin. She travelled to Sydney with her sister My Hanh to meet the courier Ms Ho on 27 February 2006. She relayed instructions from Peter Cao to her husband Mr Vu. She remained in regular telephone contact with the offender Cao and Phan and carried out their instructions. She also kept her husband, Mr Vu, appraised of developments. She could accurately be described as a trusted lieutenant, or second-in-charge of the principals, Peter Cao and Ana Phan.”

Dung Vu

14 Vu was born in 1973 in South Vietnam. He married the Applicant Nguyen in January 2000. He led a fairly simple life in Vietnam, his parents being vegetable sellers at the market and he worked at their stall. He came to Australia in 2001. His marriage is apparently completely broken down. Her Honour found his prospects of rehabilitation were reasonable. He was charged with the same offence as Nguyen. He pleaded not guilty, went to trial and was found guilty. He was sentenced to 16 years imprisonment commencing on 12 December 2006 and expiring on 11 December 2022 with a non-parole period of 9 years and 6 months commencing on 12 December 2006 and expiring on 11 June 2016.

15 His role in the conspiracy, as found by her Honour, was:

“On the evidence presented in his trial which the jury must have accepted, this offender’s role in the agreement was to liaise directly with the heroin supplier and the person who concealed it in suitcases in Vietnam, a man variously referred to as Ong Lun, Than, Shortie, Mr Shortie, or ‘the uncle’ in the trial and the telephone intercepts. In late November 2005 the offender travelled to Vietnam and in fact he met with the supplier there. Thereafter he was the only person who passed on messages and received messages from him. That fact was established by means of telephone intercepts which were in existence on a large number of phones held by the various offenders. Some of the messages themselves were intercepted by the offender used his wife’s telephone on which there was a lawfully obtained telephone intercept. The offender’s own mobile phone or phones were never intercepted and the evidence in the trial established that he regularly changed his SIM card. The offender also travelled from Australia to Thailand from 24 January to 1 February 2006. He accompanied his wife when she went to meet the courier, Kim Ahn Ly in early February 2006. Quite clearly he had a crucial role in this criminal enterprise to import large quantities of heroin into Australia. His involvement related to the same importations as his wife, a total of approximately five kilos of pure heroin. While he has a different role to play from that of his wife I find that his level of responsibility is equal to hers, that of a trusted lieutenant. He was the person the principals, Cao and Phan entrusted to be the direct contact with the supplier of heroin in Vietnam.”

Kim Ahn Ly

16 This offender was born in Vietnam in 1969. She had limited education, leaving school at 14. She came to Australia in 1989 and spent two years in a refugee camp. She has four children, the eldest of whom is 18 years old and remains in Western Australia. She also has a 14 year old daughter and the other two children, a girl aged six and a boy aged eight months. This offender pleaded guilty to two counts on an indictment. Count 1 was that between about 1 September 2005 and about 20 November 2005, she conspired with named others to import not less than the trafficable quantity of heroin into Australia. Count 2 was that between about 6 January 2006 and about 20 February 2006, she conspired with named others to import a marketable quantity of heroin to Australia.

17 Her role in the conspiracy, as found by her Honour, was:

“… she was the syndicate’s Perth contact as she was a resident of Western Australia. She went with Vu Khahn to meet the couriers Kim Ut Ly and Vinh Phat Tan when they arrived at Perth International Airport on 12 November and 16 November 2005 respectively. She remained in regular telephone contact with Peter Cao and Ana Phan and carried out their instructions. When Kim Ut Ly failed to emerge from the arrivals lounge she made a number of enquiries until she located her. She provided her home for Vu Khahn to repair the suitcase containing heroin that had been damaged by customs officers when they drilled into it searching unsuccessfully for heroin. Vu Khahn also took the suitcase of heroin that had been brought in by Tan to her home. She took the heroin brought in by Kim Ut Ly to Sydney by train as instructed by Peter Cao and Ana Phan, travelling with her husband and child on 16 November 2005, arriving in Sydney on 19 November.

In respect of count 2, this offender travelled to Vietnam in January 2006 on behalf of the syndicate and returned with heroin concealed in at least one suitcase on 5 February 2006. On the same day, she conveyed the heroin to Sydney. From the intercepted phone calls, it appears that she was paid $10,000 in addition to expenses in respect of this importation. In respect of the first count, she is to be sentenced on the basis that she was trusted to carry out in Perth the instructions and requirements of the syndicate heads who were based in Sydney. As to count 2, she is to be sentenced on the basis that she was a courier bringing more than the marketable quantity of heroin into Australia, approximately one kilogram.”

18 The maximum penalty for these offences was imprisonment for 25 years and/or a fine of $550,000. The trafficable or marketable quantity was 2 grams of pure heroin. This offender pleaded guilty on the third day of her trial. Her sentences were reduced by 10 per cent for the pleas. She was convicted in respect of both counts and was sentenced, as to the first count, to imprisonment for 8 years to commence on 24 July 2006 and expire on 23 July 2014. As to count 2 she was sentenced to imprisonment for 8 years to commence on 24 July 2008 and expire on 23 July 2016. A single non-parole period of 5 years to date from 24 July 2006 and expire on 23 July 2011 was set. Her Honour found:

“The youngest child was born when the offender was in custody and was removed from her after a few days. Naturally this is a matter of great distress to her and she would like to be included in the mothers and children program which allows children to remain with their mothers up until school age. The offender is not able to be included in such a program until she is sentenced. I heard evidence from Ms Belinda McInnes who has been the co-ordinator of this program for six years. She was not able to speculate about what decision would be made about the offender’s application but there had been no problems with the offender’s conduct while in prison. Ms McInnes did say that if the offender’s non-parole period exceeded six years the process would be ‘a lot more difficult’. While I cannot impose a non-parole period on that basis alone, it is a relevant factor. The evidence establishes that the offender’s partner is having difficulty coping with the three children in Sydney, a city unfamiliar to him. He is ‘struggling as a single parent’. That is not surprising as he has the sole care of an eight month old baby and two other school aged children, both of whom are apparently reacting to the absence of their mother and to the move from their previous home in Perth. I find the hardship occasioned to this family by the offender’s imprisonment to be so exceptional that I am able to take it into account on sentence.”


Consideration

Ground 1: Her Honour erred by overstating the quantity of heroin imported – Cao and Phan

19 The police successfully intercepted only the last two of the six identified importations. The amount of pure heroin involved in those importations was said by the Crown to be 1.9 kilograms and 862 grams respectively. The Crown was unable to establish by direct evidence the amount of heroin imported on the first four occasions.

20 Her Honour, in her remarks on sentence, said the:

“… first two offenders, Peter Cao and Ana Phan were responsible for the six identified importation into Australia involving approximately seven kilograms of pure heroin over the five month period, November 2005 to April 2006.”

21 The applicants submitted her Honour’s finding that the importations involved approximately 7 kilograms of pure heroin was a finding of fact which was not open to her on the available evidence. It was further submitted that the error was one of significance as the size of an importation is a relevant factor to which sentencing courts must have regard: Wong v R [2001] HCA 64; (2001) 207 CLR 584, at [67], R v Lee [2000] NSWCCA 234 at [23]. Her Honour’s error required correction by this Court.

22 The source of her Honour’s finding as to the amount of pure heroin involved in the importations appears to have been the written submissions of the Crown, which were tendered at the sentencing hearing, and which asserted:

“Cao and Phan arranged at least six separate importations of heroin from Vietnam into Australia and the estimated amount of pure heroin imported was approximately 7 kilograms:

(i) 12 November 2005 – conservatively estimated at 1 kilogram (one suitcase brought in by Kim Ut Ly);

(ii) 15 November 2005 – conservatively estimated at 1 kilogram (one suitcase brought in by Vinh Phat Tan;

(iii) 20 December 2005 – conservatively estimated at 1 kilogram (one suitcase brought in by Duc An Tran;

(iv) 5 February 2006 – conservatively estimated at 1 kilogram (one suitcase brought in by Kim Anh Ly;

(v) 28 February 2006 – Ho’s 2 suitcases seized and found to contain 1.9 kilograms (pure); and

(vi) 18 April 2006 – Tan’s suitcase seized and found to contain 862 grams (pure).”

23 The only evidence on this issue which was indisputably before the sentencing judge was the summary of facts which had been prepared by the Crown and accepted by the applicants. The relevant parts of the summary of facts were:

(a) Paragraph 33 which stated:

“Both of the November importations had been successful in that the couriers, Kim Ut Ly and Vinh Phat Tan were not intercepted by the authorities and the group obtained the imported heroin. It is believed that each courier carried one suitcase within each of which an amount of heroin was concealed. It appears (from the couriers who were subsequently intercepted by the authorities) that the amount of heroin concealed within each suitcase would have been about 1 kilogram of heroin (of about 75% purity).”

(b) Paragraph 102 which stated, in respect of the second last importation, that:

“[On 28 February 2006] [a]fter alighting from Singapore flight SQ221, Thi Nga Thanh HO, was searched by Australian Customs officers and a quantity of heroin was located. Ho was then arrested.”


The quantity of heroin located was not stated.

(c) Paragraph 127 which stated, in respect of the last importation intercepted, “[Tan’s] luggage was searched by Customs and 1.109 kg of heroin (gross) was located”.

24 Included in the documents before this Court were the sentencing remarks of McKechnie J in proceedings against Ho. The remarks on sentence commenced:

“On 17 July this year you pleaded guilty to importing a commercial quantity of heroin into Australia. The gross weight of heroin powder was 2638.9 grams with an average purity of 72.75 per cent and a weight of 1.9 kilograms pure heroin.”

25 This Court also had before it the sentencing remarks of Hughes DCJ in the sentence proceedings against Tan. His Honour recorded a plea of guilty by the offender to importing 862 grams of pure heroin, 1,109.2 grams gross.

26 An initial question on appeal was whether the sentencing remarks of McKechnie J and Hughes DCJ were in evidence before the sentencing judge. There is no doubt that her Honour received the sentencing remarks (Tr 22.11.07 p 59) and that she had regard to them in determining sentence.

27 The Crown contended that the sentencing remarks formed part of Exhibit A at the sentencing hearing. However, Exhibit A had been lost.

28 On the evidence before me, I am unable to accept that the sentencing remarks formed part of Exhibit A, as:

(a) they were not among the documents described as included in Exhibit A at the time of the tender nor were they described at that time as documents to be included in the tender at a later time;

(b) her Honour did not receive the documents until 21 November 2007;

(c) there was no evidence the sentencing remarks were subsequently added to Exhibit A.

29 There was no evidence the sentencing remarks were formally tendered, or that there was a formal agreement as to the amounts of pure heroin imported by Ho and Tan.

30 However, counsel for the applicants (who was not counsel on appeal) was aware of the sentencing remarks (Tr 22.11.07 p 59) and of the Crown’s submissions which made specific reference to the amounts of pure heroin involved in the last two importations (Tr 13.12.07 p 9).

31 The following exchanges occurred at the sentencing hearing:

(a) “[COUNSEL]: We were talking about approximately a kilo on each time, it was more or less, sometimes above, sometimes a bit below, but generally that was about the estimation, not the – and I am talking about the impure quantity …

HER HONOUR: We don’t really know, I mean we have Ms Ho’s quantity which was over the commercial quantity, at the bottom of the commercial quantity range but a number of importations of course we just simply don’t know so the Crown has alleged, what do they call it now, marketable, not trafficable, the marketable quantity.”

(b) “[COUNSEL]: Your Honour may be moved to look at the decision in Western Australian decision [sic] in relation to Ms Ho (?).

HER HONOUR: Ms Ho, certainly gives me some assistance in respect of the couriers in terms of parity issues. Starting point was 15 years for what we sometimes describe as a bare courier.

[COUNSEL]: Yes your Honour, it’s a decision that I would not suggest to you that a great deal of time should be spent of considering that. I think the figure is perhaps a little high … In the other case of Tan the starting point I think is 10 years according to Judge Hughes and that may be a more realistic point from which to start.”

32 It is clear from those comments that counsel for the applicants was aware of the quantity of the importations made by Ho and Tan and he regarded that information as forming part of the material to which he and the Court were entitled to have regard. He expressly dealt with the Crown’s written submissions, but raised no objection to para 12 thereof, which expressly relied upon the actual quantities imported on the last two occasions.

33 In my opinion, it is clear that the sentencing hearing was conducted on the basis that the parties and the Court would have regard to the amounts of pure heroin imported by Ho on 28 February 2006 and by Tan on 18 April 2006.

34 The Crown submitted that the importation by Ho involved 1.9 kilograms of pure heroin and the importation by Tan on 18 April 2006 involved 862 grams of pure heroin. The average of the pure heroin contained in each of the three suitcases involved in those importations was 915 grams. If the average importation was 915 grams, then the total importation was 6,405 grams, which was within the range of her Honour’s approximation. If her Honour’s approximation of the total amount of heroin imported in the six known importations was considered to be an error, it was an error which was of little or no consequence to the sentencing of the applicants.

35 Counsel for Cao submitted that this Court should rely only upon the agreed facts and inferences therefrom and should find the amount of pure heroin imported was 4.5 kilograms, ie, 750 grams multiplied by six.

36 Counsel for Phan submitted that the Court should rely upon a total importation of 4.5 kilograms, or, if the actual figures for the last two importations were coupled with each of the four earlier importations, being of 750 grams pure heroin, a total amount of 5.762 kilograms resulted, which was materially and substantially different from the approximately 7 kilograms found by her Honour.

37 In R v Palu (2002) 134 A Crim R 174 Howie J (with whom the other members of the Court agreed), at [21], said:

“… If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the courts which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP (1992) 28 NSWLR 593 at 606. All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court.”

38 In this matter the actual amounts of pure heroin imported in the first four importations are not capable of being established other than by inference. The amounts imported in the last two importations are known. They provided the best evidence as to the approximate amount of pure heroin imported on the first four occasions. In my opinion, it is appropriate to take the average of the contents of the three suitcases involved in the last two importations to arrive at the most likely estimate of the amounts of pure heroin imported in the first four importations.

39 The resulting figure of 6,405 grams is, in my opinion, within the range of her Honour’s approximation of 7 kilograms and no error has been demonstrated. Nor has any miscarriage of justice occurred, notwithstanding that her Honour’s calculation may have been reached by a somewhat different route than has now been taken. These grounds of appeal accordingly fail.

Nguyen

40 Nguyen was concerned only with the last four importations. Her Honour held that these importations involved importation of approximately 5 kilograms of pure heroin. It was submitted that this finding was a finding of fact which was not open to her Honour and that, on the available evidence, it was only open to her Honour to find that those importations involved a total of 3 kilograms of pure heroin, being 75 grams in each of four suitcases.

41 Nguyen was present in court with Cao and Phan on 19 November 2007 when Exhibit A, which included the Crown’s submissions, was tendered, and again on 22 February 2008 when she, Cao and Phan were sentenced. However, Nguyen’s sentencing hearing occurred on 21 November 2007. She was not present at the sentencing hearing of Cao and Phan on 22 November 2007, when her Honour first referred to having received the sentencing remarks of McKechnie J and Hughes DCJ.

42 The transcript of Nguyen’s sentencing hearing does not record any reference to the sentencing remarks in respect of Ho and Tan, or the amounts of pure heroin imported by them on 28 February 2006 and 18 April 2006 respectively.

43 However, Nguyen’s counsel had received the Crown’s submissions that contained reference to the importation by Ho and Tan and the total amount of pure heroin alleged to be imported by them. As he made no objection to these submissions (and they were referred to on a number of occasions, including by him), in my opinion, it should be concluded that Nguyen’s sentencing hearing was conducted on the basis that the court could have regard to the statements in the Crown’s submissions as to the actual amounts of pure heroin imported in the last two importations, without the necessity for formal proof of those amounts. If objection had been taken to this course, evidence relevant to the size of the shipments could have been led. In these circumstances and as there is no reason to believe that the statements in the Crown’s submissions were inaccurate, Nguyen should be treated as bound by the manner in which the case was conducted before the sentencing judge (see generally Crampton v The Queen [2000] HCA 60; (2001) 206 CLR 161 at [12]-[20]; [47]-[52]; [150], [165]; Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166).

44 Adopting the calculations made in respect of Cao and Phan, the total importation of pure heroin for the last four importations is 4,575 grams. This is within the range of approximately 5 kilograms adopted by her Honour.

45 In my opinion, no error or miscarriage of justice has resulted from her Honour’s finding of importation of approximately 5 kilograms. This ground of appeal fails.

Ground 2: Excessive

46 The sentencing judge held the enterprise was:

“… a sophisticated and successful criminal enterprise of great objective gravity. The only motivation appears to have been the opportunity to make large amounts of money easily. Even after the arrest of the courier, Ms Ho, in February 2006 the offenders were not deterred from their chosen path other than temporarily. Had their activities not been brought to a halt by their arrest in May 2006, no doubt they would have continued in their endeavours.”

47 The applicants submitted the sentences imposed were manifestly excessive. They sought to support that submission by reference to sentences imposed in earlier cases, including cases contained in the Schedule appended to the judgment of this Court in R v Lee. Senior counsel for Phan referred the Court to some additional cases which, as he observed, were not truly comparable.

48 There was also reference to the cases collected in the Schedule appended to R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340; 108 A Crim R 531. It was conceded, correctly in my opinion, that as those cases were concerned with couriers and low-level participants in importations they were of little assistance in the circumstances of the subject cases. This Court has also expressed doubts as to the continuing utility of those authorities: N v R; AP v R [2009] NSWCCA 108 at [38].

49 The difficulty faced by the applicants in this regard was that her Honour had found the roles of Cao and Phan were those of principals, whilst the role of Nguyen was that of second in charge. Few of the cases referred to were concerned with persons so high in the hierarchy. Senior counsel for Phan observed, “I have been unable to find anything which is a truly comparable case, that is, cases post the repeal of s 16G [of the Crimes Act 1914 (Cth)]”. It was accepted that her Honour could take into account that the importations in this case would have continued but for the arrest of the conspirators.

50 Two cases were reasonably comparable.

51 The first of these was Regina v Jack Chick Chen [2003] NSWCCA 328. Chen was either a principal or, at the least, a significant organiser in the hierarchy of a conspiracy to import heroin. 12.6 kilograms were imported in two air shipments. The imports would have continued but for the conspirators being arrested. A plea of guilty was entered. Chen was sentenced to a total of 31 years imprisonment with a non-parole period of 23 years. He received a discount of 20 per cent pursuant to s 16G.

52 The second of these was Lee. In Lee the offender had been charged with importing 76.3 kilograms of heroin in two shipping containers. He was in charge of the organisation in Australia, but not at the pinnacle. He pleaded not guilty but was convicted and on a Crown appeal, sentenced to a non-parole period of 18 years and 11 months with an additional term of 8 years and 6 months. This Court observed in that case, at [38]:

“There is little, apart from the fact that he has no prior criminal history, to ameliorate the sentence and that is of minimal significance. But for the fact that this is a Crown appeal a non-parole period significantly in excess of 20 years was appropriate.”

53 It was submitted that these cases were distinguishable, as the amount of heroin involved was much greater than that involved in the present case and the enterprises were more sophisticated.

54 However, as observed by the High Court in Wong v R at [67]-[69], the particular amount of narcotic involved can have significance in fixing the sentence to be imposed, but in many cases:

“… a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved.”

55 Sentencing involves a discretionary judgment. There is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime which applies: Markarian v R [2005] HCA 25; (2005) 215 ALR 213.

56 As there is no single correct sentence, it is necessary for the appeal court to evaluate the permissible range of sentence in the light of all the admissible considerations affecting the case in hand, and drawing upon its own accumulated knowledge and experience: R v Holder [1983] 3 NSWLR 245 at 254 in order to determine if the sentence imposed is so excessive as to manifest error.

57 As McClellan CJ at CL observed in Lee, at [37], in respect of the Schedule of Cases:

“If comparisons are confined to sentences imposed after the repeal of s 16G of the Crimes Act it can be seen that offenders who, although not at the pinnacle, were key organisers or critical to the success of the operation received head sentences in excess of 20 years and a number received life sentences. Non-parole periods are also significantly greater than the 11 years imposed on the respondent.”

58 An analysis of previous cases referred to does not cause me to conclude that the sentences for Cao and Phan were other than appropriate sentences for principals in a long-standing and ongoing conspiracy, the object of which was to make multiple importations of heroin. There is no conflict between these sentences and those imposed in earlier cases to which reference has been made. Similarly, the cases referred to do not cause me to conclude that the sentence imposed upon Nguyen was inappropriate. In my opinion, the sentences imposed upon the applicants have not been demonstrated to be manifestly excessive, particularly having regard to the fact that the offence attracts a maximum penalty of life imprisonment.

59 I reject this ground of appeal.

Ground 3: Parity

60 The principles developed as to parity in sentencing may be briefly stated as follows:

(a) “… the parity principle, as identified and explained in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it was otherwise appropriate and within the permissible range of sentencing options.” ( Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ)

(b) “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.” ( Lowe v R at 609 per Gibbs CJ)

(c) These principles apply both in relation to the head sentence and also in relation to non-parole periods: R v Bell [1999] NSWCCA 423 per Simpson J at [15].

(d) Where there is a degree of disparity such as to invite a reduction in the sentence imposed, it is not necessary for this court to intervene if the result of doing so is to produce a sentence disproportionate to the objectiveness of the criminality involved: R v Steele (NSWCCA, 17 April 1997, unreported); R v Boney [2001] NSWCCA 432 at [15].

Cao and Phan

61 The sentences imposed on Cao () and Phan () involve a disparity of six years in relation to the head sentence and three years six months in respect of the non-parole period.

62 Her Honour found that the objective gravity of Phan’s conduct was slightly less than Cao’s as he had overall control of the enterprise and that Phan had a more powerful subjective case because of her age and the needs of her children and grandchildren.

63 Cao submitted that the disparity was such as to promote a sense of justifiable grievance in him. It was submitted that whilst there may have been differences in the parts played by them, there was not a qualitative distinction in their criminality. It was accepted that whilst Phan possessed a more powerful subjective case, because of her age and the needs of her children and grandchildren those factors did not justify a differentiation in sentence of six years.

64 The issue is whether differences between the objective and subjective cases of these applicants are sufficient to explain and justify the disparity.

65 The differences between the objective and subjective situations of Cao and Phan were:

(a) Cao was the originator of the conspiracy.

(b) It was Cao who involved Phan in the illegal operations. He recruited her because of her financial need. Phan had very little contact with persons in Vietnam and no contact at all with the supplier.

(c) Cao involved his sisters and his brother-in-law in the conspiracy and, as a result, caused them to face lengthy prison terms.

(d) Cao, as her Honour observed, had additional responsibilities to those of Phan.

(e) Phan had a much stronger subjective case because of her age and the needs of her children and grandchildren.

66 In my opinion, once allowance is made for the differences between the situations of Cao and Phan, there is no marked disparity such as to give rise to a justifiable sense of grievance.

67 I reject this ground of appeal.

Nguyen and Vu

68 The sentence imposed on Nguyen was and on Vu, . There was a difference in the starting point for each sentence, Nguyen’s starting point being 17 years and 8 months, Vu’s being 16 years.

69 Nguyen submitted that the difference between her sentence and the sentence imposed upon Vu gave rise to a justifiable sense of grievance on her part.

70 It was submitted by Nguyen that Vu had a larger and more important role in the conspiracy than she did. It was submitted Vu dealt directly with the supplier and arranged for the heroin to be secreted in suitcases so that it could be imported. This was central to the conspiracy. The applicant’s role was that she travelled to Perth on three occasions to assist in the transport of heroin to Sydney. On one of these occasions Vu was also present. She assisted the courier Ho with travel arrangements, due to Ho’s difficulty with English and unfamiliarity with Perth.

71 The justification for the disparity is explained by the following comments of her Honour:

“(a) While [Vu] has a different role to play from that of his wife, I find that his level of responsibility is equal to hers, that of a trusted lieutenant.”

(b) While objectively I find [Vu’s] criminality equal to that of his wife, subjectively he is in a slightly better position. I accept that but for his marriage and his involvement with this family he was unlikely to have become involved in such an offence. He was a reasonably unsophisticated person living in Vietnam prior to his marriage. However, his motivation, apart from his family connections was greed, and there was evidence in the trial of his having acquired a BMW for more than $50,000.”

72 The issue is whether those differences were sufficient to explain and justify the starting point for the sentence of Nguyen as compared to the starting point for Vu’s sentence.

73 In my opinion, it was open to her Honour to conclude that Nguyen and Vu’s objective criminality was equal. Once that conclusion was reached and a deduction was made for the subjective factors identified by her Honour, it could not, in my opinion, be concluded that there was a marked disparity such as to give rise to a justifiable sense of grievance.

74 I reject this ground of appeal.

Nguyen and Kim Ahn Ly

75 Nguyen’s sentence was . Ly’s overall effective sentence was .

76 The applicants submitted that although the charges were different, the same version of facts was applicable. Notwithstanding the exceptional hardship found by her Honour, there remained a need for proportionality particularly as by reason of imprisonment, Nguyen’s two young children aged four and five were deprived of both parents, whereas Kim Ahn Ly’s partner was available to care for her children, although he was struggling with the task.

77 Her Honour did not, in her remarks on sentence, consider the question of parity between Nguyen and Ahn Ly.

78 It is apparent there were two significant differences between Nguyen and Ahn Ly, namely:

(a) Nguyen was further up the hierarchy than Ahn Ly. Nguyen was the next in charge after the principals, whereas Ahn Ly was a courier and the Perth contact.

(b) Ahn Ly had recently given birth to a child and her Honour concluded, as she was entitled to do, that this and other domestic matters constituted “exceptional hardship” and permitted her Honour to accord it substantial weight for the purpose of sentencing: Regina v Togias [2001] NSWCCA 522; 127 A Crim R 23.

79 In my opinion, once regard is had to the identified differences, there was no marked disparity such as to give rise to a justifiable sense of grievance.

80 Nguyen sought an extension of time in which to appeal and leave to appeal against her sentence. The application was not opposed and the circumstances are such that the Court considers it appropriate to and does grant the extension of time sought.

81 In my opinion, leave to appeal should be granted in respect of each applicant, but each appeal should be dismissed.

Orders

82 I propose the following orders in each case:

(1) Leave to appeal granted;

(2) Appeal dismissed.

**********