Ho v R

[2013] NSWCCA 174

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ho v R [2013] NSWCCA 174

Hearing dates:

1 July 2013

Decision date:

29 July 2013

Before:

Emmett JA at [1]
Fullerton J at [6]
Schmidt J at [7]

Decision:

1. Leave to appeal out of time is granted.

2. Leave to appeal is granted.

3. The appeal is dismissed.

Catchwords:

CRIMINAL LAW - application for leave to appeal against sentence - application for leave to appeal out of time - whether error in determining non-parole period which offended the parity principle - special circumstances - leave to appeal out of time granted - leave to appeal granted - appeal dismissed

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Regulation 2008
Drug 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] NSWCCA 518; (2002) 56 NSWLR 146
Baghdadi v R [2012] NSWCCA 212
Caristo v R [2011] NSWCCA 7
England v R [2009] NSWCCA 274
Jiang v R [2010] NSWCCA 277
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
Lau v R [2010] NSWCCA 43
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Ceissman [2004] NSWCCA 466
R v Cramp [2004] NSWCCA 264
R v Do [2005] NSWCCA 209
R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90
R v Fidow [2004] NSWCCA 172
R v Thomas [2007] NSWCCA 269
R v Wahabzadah [2001] NSWCCA 253
Sevastopoulos v R [2011] NSWCCA 201
Tatana v R [2006] NSWCCA 398

Category:

Principal judgment

Parties:

Hue Pham Ho (Applicant)
Regina (Respondent)

Representation:

Counsel:
F D Coyne (Applicant)
J Girdham SC (Respondent)
Solicitors:
Matthew Hammond Solicitors (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s):

2011/62211

Publication restriction:

None

 Decision under appeal 

Date of Decision:

2012-07-27 00:00:00

Before:

Arnott DCJ

File Number(s):

2011/00062211

Judgment

1. EMMETT JA: This proceeding is an application for leave to appeal against sentence imposed on the applicant by the District Court on 27 July 2012. The applicant pleaded guilty to one count of supplying a commercial quantity of a prohibited drug and one count of knowingly allowing premises to be used as drug premises, exposing a child to prohibited drugs. The offences are created by the Drug Misuse and Trafficking Act 1985. The applicant was sentenced to a term of imprisonment of nine years, comprising a non-parole period of six years and a balance of term of three years. The only ground of appeal pressed was that the sentencing judge erred in determining the non-parole period on the basis that the sentence offended the parity principle.

1. The applicant pleaded guilty to the offences in the Local Court and a co-offender was dealt with on the same day, who also pleaded guilty to the offences with which he was charged. Both the applicant and the co-offender received a 25% discount for early pleas of guilty.

1. The applicant faced the more serious charges. The charges reflected her role as a broker, as distinct from the co-offender, whose role was that of a courier. The applicant contended that the disparity between the respective ratios of the non-parole period to the total term of her sentence and the co-offender's sentence left her with a justifiable sense of grievance and that the sentencing judge erred in that regard.

1. I have read the proposed reasons of Schmidt J in draft form. I agree with her Honour that the sentences imposed on the applicant and the co-offender reflect the differences in the degree of their culpability for the conduct for which they were sentenced and that the result does not reveal error on the part of the sentencing judge. Rather, the result reflects the differences in the respective circumstances of the applicant and the co-offender.

1. I agree, for the reasons proposed by Schmidt J, that leave to appeal out of time should be granted, that leave to appeal against the sentence be granted and that the appeal be dismissed.

1. FULLERTON J: I agree with Schmidt J.

1. SCHMIDT J: Hue Pham Ho seeks leave to appeal against the sentence imposed upon her by Arnott DCJ on 27 July 2012. She had pleaded guilty to one count of supplying a commercial quantity of a prohibited drug, namely 352.2 grams of heroin, under s 25(2) of the Drug Misuse And Trafficking Act 1985 and one count of knowingly allowing premises to be used as drug premises, exposing a child to prohibited drugs under s 36Y(2) of that Act.

1. In sentencing Ms Ho his Honour also took into account four charges on a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999, namely:

• Two charges of knowingly dealing with proceeds of crime intending to conceal, $25,000 Australian currency and $10,623 US currency, pursuant to s 193B(1)(b) of the Crimes Act 1900, the maximum penalties for which were 20 years imprisonment.

• One charge of deal with property suspected to be proceeds of crime, $66,500.25 under s 193C(1) of the Crimes Act the maximum penalty for which was 2 years imprisonment.

• One charge of owner/occupier knowingly allowing premises to be used as drug premises, exposing a child prohibited drugs under s 36Y(2) of the Drug Misuse And Trafficking Act penalty for which was 12 months imprisonment.

1. For the s 36Y(2)(a) offence, which carried a maximum penalty of 14 months for a first offence and 6 years for subsequent offences, Ms Ho was sentenced to a fixed term of imprisonment of one month, commencing 24 February 2011 and expiring on 23 March 2011. For the s 25(2) offence, which carried a maximum penalty of 20 years, Ms Ho was sentenced to a total sentence of 9 years, comprising a non-parole period of 6 years imprisonment, commencing 24 March 2011 and expiring on 23 March 2017, with a balance of term of 3 years to expire on 23 March 2020.

1. The application for leave to appeal dated 19 February 2013 was filed out of time. There was no affidavit explaining the delay of six months between sentence and the filing of the application. The Crown's formal position was that the proposed ground of appeal was without merit and accordingly, the extension sought should be refused and the application dismissed. In the circumstances, for reasons which follow, in my view the extension of time and leave to appeal should be granted, but the appeal dismissed.

1. Ms Ho pressed only one ground of appeal, namely, that his Honour had erred in determining the non-parole period, which offended the parity principle.

1. Section 44 of the Crimes (Sentencing Procedure) Act requires that a non-parole period be not less than three-quarters of the term of the sentence imposed, unless special circumstances are found for it being less. In Ms Ho's case his Honour found that special circumstances existed. The ratio of the non-parole period to the total term imposed was 67%.

1. The appeal was pressed in circumstances where Ms Ho had pleaded guilty to the offences charged in the Local Court. The sentence hearing proceeded on 20 June 2012. That day her two co-offenders were also dealt with. They had also pleaded guilty in the Local Court to the offences with which they were charged. There was no complaint as to his Honour's conclusion as to the objective seriousness, or the total sentences imposed upon them. All three offenders received a 25% discount for their early plea.

1. Ms Ho faced the more serious supply charge (being supply of a commercial quantity under s 25(2) of the Drug Misuse and Trafficking Act 1985), reflective of her role as a broker, as opposed to that of the co-offender, Kaiqui Situ, whose role was that of a courier of drugs supplied on her behalf.

1. Mr Situ was sentenced for five offences of supplying a prohibited drug under s 25(1) of the Drug Misuse And Trafficking Act, namely quantities of heroin between 7 and 82.5 grams. Those offences each carried a maximum penalty of 15 years. He was sentenced to a total term of 6 years, comprising a non-parole period of 3 years imprisonment, with a balance of term of 3 years.

1. In Mr Situ's case his Honour concluded that he should have an additional discount of 5% from his total sentence, on account of the assistance he had given to authorities. His Honour also found special circumstances in his case, with the result, however, that a ratio of 50% of the non-parole period to the total term was applied. There is no Crown appeal from that finding.

1. It was the disparity in the respective ratios between non-parole period and balance of term which followed from the finding of special circumstances in the case of these two offenders, which gave rise to Ms Ho's appeal. It was argued for Ms Ho that the result of the sentencing exercise had left her with a justifiable sense of grievance, there being no justification in her personal circumstances relative to Mr Situ's to warrant such a disparity.

1. There was no dispute between the parties as to the applicable law. A finding of special circumstances reflects the personal characteristics of an offender, which will commonly differ between co-offenders. As Howie J discussed in R v Wahabzadah [2001] NSWCCA 253 at [16], disparity only arises when the difference between the two sentences cannot be justified by a difference in the degree of the culpability of the offenders, or in their personal circumstances. A breach of the parity principle will not have occurred "simply because different non-parole periods are specified for different co-offenders because of different findings as to the existence, or extent, of special circumstances" (at [15] - see also R v Do [2005] NSWCCA 209, Tatana v R [2006] NSWCCA 398, Lau v R [2010] NSWCCA 43 and Sevastopoulos v Regina [2011] NSWCCA 201).

1. Where, however, the personal circumstances of co-offenders are relevantly indistinguishable, but different findings as to special circumstances are reached, a justifiable sense of grievance as to the relationship between a non-parole period and overall sentence may result (see Lau v R at [15] - [17]).

1. Ms Ho's case was that there was nothing in the co-offender's personal circumstances which could justify the disparity in the ratios which his Honour arrived at.

1. The Crown's case was that Ms Ho's offending was more serious than that of Mr Situ. That was reflected in his Honour's findings as to the objective seriousness of their offences, the sentences imposed and the non-parole periods specified. The proper application of the law required the non-parole period imposed on Ms Ho to reflect the criminality of her offending and to adequately denunciate the offences she had committed. In the circumstances, no error was involved in his Honour's conclusions.

1. The conclusions reached by his Honour as to special circumstances in Ms Ho's case were:

"I find special circumstances given the offender's need for rehabilitation and supervision in the community, in view of her drug and gambling problems, her past lack of employment and the absence of a positive social network of friends and family."

1. The conclusions reached by his Honour in Mr Situ's case were:

"I find special circumstances given the offender's long-standing drug problem and his lack of employment over the last ten years. There is a clear need for rehabilitation and supervision of the community in view of these matters."

1. There was no explanation as to why in Ms Ho's case a ratio of 67% between non-parole period and balance of term was imposed, while in Mr Situ's case the ratio was 50%. The explanation lies in the consequences of the application of those ratios to the sentences imposed in each case. The result was that both Ms Ho and Mr Situ will be eligible for extended supervision on parole for a period of 3 years, after they have served their respective non-parole periods. In Ms Ho's case that will be after a mandatory period of imprisonment of 6 years and 1 month and in Mr Situ's case, after a mandatory period of imprisonment of 3 years.

1. The conclusion that they should each be eligible to a period of extended supervision on parole for 3 years rested, no doubt, in the similarity of the evidence upon which they each relied for a finding of special circumstances, namely the necessity for them to be assisted in their rehabilitation and for supervision in the process.

1. Evidence as to Ms Ho's personal circumstances (some only which were relevant to a finding of special circumstances) came from a psychologist's report, tendered without objection. It was there observed that she had limited command of English and had been interviewed with the assistance of an interpreter. She was then aged 45 years, having come to Australia to reside with her Australian - Vietnamese husband in 1995 or 1996. He had lied to her about his circumstances. She had no family in Australia, other than her husband's family, with whom she did not get along. They had separated shortly after the birth of her daughter, when he became physically abusive. After their separation she had struggled financially and had been forced to return to him. There had been ongoing domestic violence. She had conceived another child, who was born in custody, as the result, she believed, of a sexual assault while drug affected. She was allowed to contact her children only once per year by DOCS.

1. Ms Ho had been educated to the equivalent of only year 7 in Vietnam. In Australia she had worked as a dishwasher until the birth of her daughter. Ms Ho was introduced to heroin in 1997 to 1998 and had developed a dependence which soon led to her dealing in drugs to support her addiction. She was charged with aggravated offences in 2002, 2004 and 2005. She had participated in the Drug Court program in 2006. Her drug use had resumed subsequently. She also had a long-standing gambling problem.

1. Ms Ho was subjected to intelligence testing, her score placing her within the low-range for non-verbal intelligence, consistent with the presentation and history of education and employment. She was found to have developed symptoms of depression, for which she had not received treatment in the past, but had used heroin to self medicate. She had abstained from substances since incarceration and reported a desire to cease gambling. Formal treatment was recommended. The lack of any pro-social support network within her life was considered a matter of concern. Severe symptoms of depression, stress and anxiety were observed. Treatment for substance dependence, gambling and mental health difficulties, avoiding antisocial associates and obtaining suitable community-based support post-release, employment and accommodation was considered to be required, as was close monitoring and support from the probation and parole service.

1. Mr Situ gave evidence with the assistance of an interpreter. He was not cross-examined. He was born in China and was then aged almost 50 years. He had suffered ill health in China for some 20 years, having there contracted hepatitis and a stomach ulcer. He had completed high school in China and then worked in manufacturing for 12 years, before running his own business, making shoes, for three years. He was married and had migrated to Australia in 1995, with the sponsorship of his elder sister. He then undertook various casual work. He had separated from his wife in 1999 and had no children. He lived with his 90-year-old mother, but had no contact with his siblings, as the result of his incarceration.

1. Mr Situ commenced using heroin in 1997. In 1999 he tried to stop, after a court case, with the assistance of a doctor. In 2009 he commenced using heroin again, when he was unable to find work. He had been working on and off, to that point, for some 10 years. He was on a methadone program in prison, but had not yet undertaken a drug course, which he wished to pursue. He proposed to seek further assistance once released.

1. It is in those circumstances that, in my view, it must be concluded that Ms Ho's case was not made out.

1. The consequences of a finding of special circumstances under s 44(2) are often expressed in terms of the extent to which the statutory ratio is disturbed, but it is the consequences of that finding, in terms of the extent of the period of supervision on parole to which the offender is being given access, after serving a minimum term of imprisonment, to which attention must be paid if error is later asserted.

1. Such a finding is a discretionary finding on the facts found (see R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25 at [103]; Caristo v R [2011] NSWCCA 7 at [28]). It is a finding with which this Court will be slow to intervene and then usually only if the non-parole period imposed is manifestly inadequate or excessive (see R v Cramp [2004] NSWCCA 264 at [36]; R v Fidow [2004] NSWCCA 172 at [19]; Jiang v R [2010] NSWCCA 277 at [83]). In setting a balance of term when such a finding is made, disproportionate weight must not be given to the subjective circumstances of the offender (see R v Ceissman [2004] NSWCCA 466 at [25]; R v Thomas [2007] NSWCCA 269) and care must be taken to ensure against double counting (see Langbein v R [2013] NSWCCA 88 at [54]).

1. A complaint of disparity accepts that the sentence imposed is otherwise appropriate (see England v R; Phanith v R [2009] NSWCCA 274 at [22]; Jimmy v R (2010) 269 ALR 115; [2010] NSWCCA 60 at [251].)

1. The parity principle was discussed in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301:

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [See Lowe v R (1984) 154 CLR 606 at 610-11; 54 ALR 193 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [Lowe v R (1984) 154 CLR 606 at 617-18; 54 ALR 193 per Brennan J]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen [(1984) 154 CLR 606; 54 ALR 193], 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" [Lowe v R (1984) 54 ALR 193 ; 154 CLR 606 especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

1. While disparity between non-parole periods which cannot be justified by differences in offenders' personal circumstances, can result in a justifiable sense of grievance, in this case, despite the different ratios adopted by his Honour, the non-parole periods actually imposed are not different. They are identical, reflective of his Honour's intention that Ms Ho and Mr Situ should have access to the same period on parole, given the similarity in their personal circumstances and the need for their supervision to ensure some transition into the community upon their release.

1. A period of 3 years on parole also reflects the impact of the Crimes (Administration of Sentences) Regulation 2008 (see Baghdadi v R [2012] NSWCCA 212 at [45] - [47]). Clause 228 of that Regulation imposes a practical limit of three years on the parole supervision which an offender such as Ms Ho may receive. Longer supervision is available in the case of a "serious offender" relevantly defined in s 3(1) of the Crimes (Administration of Sentences) Act 1999 as:

"(c) an offender who is serving a sentence (or one of a series of sentences of imprisonment) where the term of the sentence (or the combined terms of all of the sentences in the series) is such that the offender will not become eligible for release from custody, including release on parole, until he or she has spent at least 12 years in custody,"

1. That is not Ms Ho's situation. The sentences imposed on Ms Ho and Mr Situ otherwise reflect the differences in the degree of their culpability for the offending conduct for which they were each being sentenced. For her offending his Honour concluded that in total her sentence should be 9 years and 1 month and for Mr Situ's offending, a sentence of 6 years was imposed, with non-parole periods of 6 years and 1 month and 3 years, respectively.

1. That result does not reveal error. Rather, it reflects the relevant differences in the respective nature and seriousness of their offending.

1. Ms Ho was being sentenced for more serious offences than Mr Situ, reflective of their respective roles in the criminal enterprise in which they were both involved. On sentence Ms Ho also had four other offences taken into account on the Form 1, including two which had maximum penalties of 20 years. That necessarily had the result that the sentence imposed upon her had to be increased significantly. As discussed by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146:

"[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences ... These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another."

1. That well explains why Ms Ho was sentenced to a considerably longer non-parole period than was Mr Situ.

1. In those circumstances, if his Honour had applied the same ratio for the special circumstances he found in each case, that is a ratio of 50%, the result would have been that Ms Ho would have been sentenced to a non-parole period of 4 years and 7 months, with a balance of 4 years and 6 months. Such a non-parole period would not have properly reflected the nature and seriousness of her offending. To the contrary, it would plainly have been inadequate. It would also have provided a basis for complaint on Mr Situ's part, as to disparity.

1. Further, nothing in the evidence as to Ms Ho's personal circumstances provides a basis for the conclusion that a finding of special circumstances warranted a longer period of supervision on parole than that provided for in Mr Situ's sentence. A period of 4 years and 6 months would have been 1 year and 6 months longer than his Honour considered appropriate for Mr Situ. The evidence established no difference in their personal circumstances which would have warranted this disparate result. Given the effect of the Regulations, in terms of supervision such a result would also have been futile.

1. His Honour's conclusion that the special circumstances which the evidence established existed in the two cases were relevantly indistinguishable, was plainly correct. That well explains why a period on parole for 3 years was appropriate in both cases.

1. In the result, I am satisfied that his Honour's conclusion that special circumstances existed which warranted the exercise of the discretion granted by s 44 in Ms Ho's favour, can have left her with no justifiable sense of grievance. Both Ms Ho and Mr Situ will be entitled to be considered for release to parole at the expiration of their respective non-parole periods, if the Parole Authority is satisfied in accordance with the relevant statutory criteria that it is appropriate that they be released into the community for the extended period of supervision which his Honour considered that they each required, given their similar personal circumstances.

1. In the result, the orders I would propose are:

1. Leave to appeal out of time is granted.

2. Leave to appeal is granted.

3. The appeal is dismissed.

**********

Decision last updated: 29 July 2013