Lieu v The Queen
[2016] VSCA 277
•23 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0171
| SUKY LIEU | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH, BEACH and KAYE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 November 2016 |
| DATE OF JUDGMENT | 23 November 2016 |
| MEDIUM NEUTRAL CITATION | [2016] VSCA 277 |
| JUDGMENT APPEALED FROM | DPP v Lieu (Unreported, County Court of Victoria, Judge Coish, 26 June 2015) |
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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – One count each of trafficking a commercial quantity of a border controlled drug and conspiracy to import a commercial quantity of a border controlled drug – Principal offender in respect of two substantial drug businesses – Plea of guilty – Sentence of 25 years’ imprisonment with a non-parole period of 18 years – Whether sentence manifestly excessive – Use of ‘comparable cases’ – Sentence not outside range – Application refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr T Marsh | Victoria Legal Aid |
| For the Respondent | Mr L K Crowley | Mr M Pedley, Solicitor for Public Prosecutions (Cth) |
REDLICH JA:
I have had the benefit of reading in draft the joint reasons of Beach and Kaye JJA and agree that leave to appeal should be refused for the reasons they have given.
The applicant placed significant reliance on ‘comparable cases’ in support of the submission that the sentences imposed on him were manifestly excessive. The principles relating to the use of comparable cases have been discussed in a number of decisions of the High Court in Wong v The Queen;[1] Hili v The Queen;[2] Green v The Queen;[3] Zirilli v The Queen;[4] Barbaro v The Queen[5] and Rv Pham.[6]As Green, Barbaro and Pham followed after this Court’s decision in Hudson v The Queen[7], and as I discern that these decisions give a greater and also different emphasis to the importance of the role of comparable cases in the sentencing task, it is, I think, preferable to refer to the most current exposition of those principles in the High Court as summarised in Director of Public Prosecutions (Cth) v Thomas[8] rather than rely upon the earlier examination of principle as discussed in the joint reasons in Hudson in which I participated.
[1](2001) 207 CLR 584, 591 [6] (Gleeson CJ) (‘Wong’).
[2](2010) 242 CLR 520, 534 [44], 535 [48]–[49] (‘Hili’).
[3](2011) 244 CLR 462 (‘Green’).
[4](2014) 253 CLR 58, 74 [40]–[41].
[5](2014) 253 CLR 58 (‘Barbaro’).
[6](2015) 325 ALR 400 (‘Pham’).
[7](2010) 30 VR 610 (‘Hudson’).
[8][2016] VSCA 237, [171]–[187] (‘Thomas’).
In Thomas, the Court said:
It is convenient to commence with some brief consideration of the important function which the High Court has said comparable cases play in the task of sentencing. The joint reasons of French CJ, Crennan and Kiefel JJ in Green v R quoted with approval the passage from the joint reasons in Wong that ‘equal justice requires identity of outcome in cases that are relevantly identical’ and ‘requires different outcomes in cases that are different in some relevant respect’. Gleeson CJ had emphasised in Wong that in order to ensure systematic fairness and reasonable consistency, ‘[l]ike cases should be treated in like manner’. The emphasis upon reasonable consistency was approved by the joint judgment in Hili, noting that the search for that consistency requires that sentencing judges must have regard to what has been done in comparable cases. They attached considerable significance to the sentencing patterns disclosed by the history of comparable or relevant cases, as they resulted from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. The statement of Gleeson CJ in Wong was again repeated with approval in the joint reasons in Elias v R.
French CJ, Keane and Nettle JJ stated in R v Pham that comparable cases served a twofold purpose: the first, that such decisions ‘provide guidance as to the identification and application of relevant sentencing principles’; the second, to decide whether they yield ‘discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence’. Bell and Gageler JJ were to further observe in Pham that the ‘reasonable consistency’ to which the joint reasons in Hili refer is consistency with respect to sentencing outcomes.
These observations were summarised in the recent decision of this Court in Nguyen v R, where Redlich JA (with whom Tate and Whelan JJA relevantly agreed), referring to the two purposes stated in Pham, said:
These purposes advance the requirement of reasonable consistency. They advance the underlying value of equality under the law and the search for unifying principles. By the requirement that a discretionary decision must be made in conformity with well settled principles, the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.
Every sentence is of course the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. For that reason it is sometimes emphasised that sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished. But that said, past sentences do provide guidance to sentencing judges, and to appellate courts. As the joint judgment stated in Hili, Barbaro v R and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed.
Following Pham the Queensland Court of Appeal in R v Onyebuchi; Ex parte Director of Public Prosecutions (Cth) reaffirmed the importance of identifying comparable cases and sentencing patterns so as to permit the identification of like features and achieve consistency in the application of the relevant legal principles. [9]
[9]Ibid [173]-[177] (citations omitted).
As the Crown sought to rely upon a schedule of cases before the sentencing judge and on appeal, I should refer also to what was said in Thomas about the use of schedules:
Something then should be said about the production of schedules or tables of cases on a plea, particularly by the prosecution. The joint judgment in Barbaro stated that ‘[i]f a sentencing judge is properly informed about … the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range. Conversely, if the judge is not sufficiently informed about such matters the judge will not have been assisted in carrying out the sentencing task in accordance with proper principle. In Matthews v R, Warren CJ, Nettle and Redlich JJA confirmed that nothing said in Barbaro changed any pre-existing duty of the prosecutor to assist the court by the making of submissions as to comparable and relevant cases. Similarly in R v Ogden, the Queensland Court of Appeal said it was part of the prosecutor’s duty to assist the sentencing judge by supplying comparable sentencing decisions in order that the sentencing judge take them into account for guidance or as a ‘yardstick’ against which to examine the proposed sentence.
The identification of ‘like’ or comparable cases, and their importance to the instinctive synthesis, is clear enough, but if a table or schedule is to be employed to that end, it is essential that the content of the table or schedule offer considerably more than numerical information about those sentences in past cases. The point being made by the joint judgment in Hili is that numerical equivalence has no utility when it says nothing about why sentences were fixed as they were. Quoting De La Rosa, which in turn cited Wong, the joint judgment further said that a table recording sentences imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal.
In addition to providing sufficient information about the features of each case to enable a judge to determine the degree to which it may be viewed as comparable, the prosecution must make plain the purpose for which each particular case is relied upon. Is it a comparable case or is its relevance that it is so different that the sentence there imposed would not lie within a sound exercise of the discretion in the present case? We shall return to the importance of parties distinguishing between those cases set out in a table that are said to be comparable and those which are not.
In Director of Public Prosecutions (Cth) v Phan, the Court of Appeal (and County Court below) had received a table which contained a number of inaccuracies. Ashley JA, with whom Tate and Santamaria JJA agreed, noted that tables should be in a readily accessible form. His Honour said:
Counsel for the Crown initially seemed to suggest that it was for defence counsel or the judge to work out what criticism could be made of the schedule; something which could be done by reading the decisions. But I do not accept that this is so. The Commonwealth Crown ought be a model litigant. It is not satisfactory that a busy sentencing judge should be provided with a schedule which is inaccurate in part and unhelpful in part.
Comparable cases, presented in a tabulated form or schedule, can be of great assistance to judges, but only if they contain that necessary information. Their function is to provide a sound basis from which the judge may determine whether there is a relevant sentencing pattern to be discerned from the history of sentences available. Where, as in the present case, the table does not on its face illuminate the relevance of the cases listed, the table will be of limited assistance. This is precisely what Maxwell P had in mind in Director of Public Prosecutions v Frewstal Pty Ltd when stating that information about comparable cases must be confined to cases which are properly described as relevant comparators (whether because they are materially the same or because they are instructively different), and sufficient information must be provided to enable the judge to make meaningful comparisons.
None of this is to suggest that the sentencing judge is confined to the material furnished by the parties in discharging the responsibility of striving for reasonable consistency when fixing a sentence. In order to achieve systematic fairness, a sentencing judge, with or without the assistance of the parties, must inform themselves as to any relevant history of sentencing patterns within which a sound exercise of the sentencing discretion may be made. [10]
[10]Ibid [178]-[183].
Applying these principles, the comparable cases relied upon by the parties do not demonstrate that the impugned sentence fell beyond the range of sentences open to the sentencing judge in a sound exercise of the sentencing discretion.
BEACH JA
KAYE JA:
The applicant pleaded guilty to one charge of trafficking a commercial quantity of a controlled drug contrary to subsection 302.2(1) of the Criminal Code 1995 (Cth), and to one charge of conspiracy to commit an offence of importing a commercial quantity of a border controlled drug contrary to subsection 11.5(1) and subsection 307.1(1) of the Criminal Code 1995 (Cth). Following a plea, the applicant was sentenced as follows:
CHARGE MAXIMUM SENTENCE CUMULATION 1. Life 20 years Base 2. Life 16 years 5 years Total effective sentence 25 years’ imprisonment Non-parole period 18 years Pre-sentence detention 828 days Section 6AAA declaration TES: Life
NPP: 25 years
The applicant seeks leave to appeal on the grounds that the individual sentences imposed on charges 1 and 2, the order for cumulation and the resulting total effective sentence, and the non-parole period, are each manifestly excessive.
The offending
In essence, the two charges, to which the applicant pleaded guilty, concerned the involvement by the applicant, over a twelve month period, as a principal in the conduct of two substantial illegal drug businesses, operating out of Melbourne but with international connections. The applicant ran each of those businesses as a commercial concern and he did so purely for financial profit. In the course of the investigation of the applicant’s activities, the Australian Federal Police obtained telephone intercept and surveillance device warrants in relation to the applicant and others. Those investigations revealed that the applicant utilised in excess of 60 telephones and SIM cards for the purposes of his businesses. The applicant and other syndicate members regularly spoke in code during telephone conversations, and used multiple telephone numbers, usually subscribed in false names, in an endeavour to evade detection. At the time of the offending, the applicant was the director of a grocery business that was located in St Albans, Victoria.
The applicant’s first illegal drug business (that was the subject of charge 1) involved trafficking various types and quantities of controlled drugs, namely, methamphetamine and methoxy-methamphetamine (‘PMMA’) (which is a drug analogue of methamphetamine). The offending took place between 6 April 2012 and 8 December 2012.
Through Hong Kong based associates, the applicant was able to access and obtain supplies of drugs in Melbourne. In particular, the applicant arranged with an overseas supplier, who he referred to as John, to purchase and access significant quantities of those controlled drugs, which would then be ‘warehoused’ in Sydney. As and when the drugs became available in Sydney, the applicant in Melbourne, would liaise with his Hong Kong associates to coordinate the handover and supply of the drugs. Those tasks would be then undertaken by respective ‘underlings’ after arrangements for a deal had been crystallised. The applicant would arrange for payment for the drugs and provided cash amounts to others who then transferred the funds overseas. At the Sydney end of the business, the Hong Kong principals would arrange for the drugs to be retrieved from a safe house location. The applicant would direct a courier to travel to New South Wales to collect the drugs with a view to them being transported to Melbourne for sale and distribution. The applicant was involved in determining the method of transport of the drugs from Sydney to Melbourne, and the concealment of those drugs, adapting various methods to avoid detection of them. He monitored the progress of each consignment of drugs and reported back to the overseas supplier.
During the period of offending alleged in charge 1, five separate handovers of drugs occurred. Each of them was detected after the police intercepted the applicant’s couriers in the process of transporting the drugs back to Melbourne. On each occasion, the applicant had intended that the drugs would be received by him, or by others acting at his direction, and then they would be prepared and sold in Melbourne.
The full details of each of the five consignments of drugs, were set out in the summary of facts that formed the basis of the plea hearing in respect of charge 1. The first consignment, on 7 April 2012, involved 4.47 kilograms pure quantity methylamphetamine, with a street value of $5,989,400. The second consignment, on 24 May 2012, involved 3.6 kilograms pure quantity methylamphetamine, with a street value of $4,988,300. The third consignment, on 2 July 2012, consisted of 449.3 grams pure quantity PMMA, with a street value of $449,300. The fourth consignment, on 25 July 2012, involved 3.1 kilograms pure quantity PMMA, with a street value of $3,167,100. The fifth and final consignment, on 8 December 2012, involved 2.688 kilograms pure quantity methylamphetamine. No potential street value was assigned to that quantity of drugs, but, as the sentencing judge observed, the value would have been a very large amount.
Thus, the total amount of the drugs involved in the trafficking alleged in charge 1 involved 10.758 kilograms pure methylamphetamine, and 3.55 kilograms pure PMMA, over an eight month period. The total street value of those drugs was in excess of $14,595,000. As part of the offending, the applicant directed some of the funds, derived from the trafficking, to be remitted to overseas suppliers. Between March 2012 and March 2013, a total amount of $1,207,500, was remitted overseas by 19 separate money transfers.
The second charge alleged that between 16 August 2012 and 20 March 2013, the applicant and others, including Van Thi Hong Nguyen (‘Nguyen’), An Lanh Vo (‘Vo’) and Thi Quyen Le (‘Le’) conspired to import a commercial quantity of a border controlled drug, namely heroin, into Australia from Vietnam. Pursuant to that conspiracy, heroin was to be imported on an ongoing basis, as and when it was available to the Vietnamese suppliers and sought by the Australian buyers. Pursuant to the conspiracy, various importations, using recruited couriers to bring the drugs into Australia, were planned and carried out. The applicant and Vo were the principal Australian based participants in the conspiracy. As and when required, they would communicate with each other about the placement of ‘orders’ and arrangements for the supply of heroin in Vietnam, with the intention that the heroin would be subsequently imported into Australia by couriers when it was available. In anticipation of those intended importations, Vo would provide money to the applicant, so that arrangements could be made by him to confirm and pay for the supply of the heroin in Vietnam. Vo also arranged for and organised the couriers who were to travel back from Vietnam to Australia with the concealed heroin. Once an order for the supply of heroin had been placed, Vo and the applicant would remain in contact about the progress of the order, the arrangements for the delivery of the heroin to those couriers in Vietnam, and the anticipated return of the couriers to Australia.
It was the role of Nguyen to source the supply of heroin in Vietnam for the applicant and Vo. In effect, Nguyen acted as an intermediary between the buyers of the heroin in Australia (the applicant and Vo) and the suppliers of the heroin in Vietnam. It was the role of the applicant to liaise with Nguyen and provide orders to her for the supply of the heroin. Although Nguyen and Vo knew of each other, they primarily acted independently of each other, while the applicant was the conduit between them. In that way the applicant’s role involved (inter alia) arranging for the ordering, supply and importation of the drugs with Nguyen.
At least four couriers were arranged by Vo to carry the drugs in concealed quantities into Australia. In communications between them, the applicant and Nguyen used a code to refer to the importation of heroin, referring to it as ‘borrowing and hiring cars’. That code was used by them to discuss the sourcing of heroin from Cambodia and Vietnam. Similarly codes were used to discuss money payment and amounts, using terminology such as ‘documents’, ‘letters’ and ‘papers’.
The applicant was actively involved in the furtherance of the conspiracy. He participated in numerous coded telephone conversations with Vo in which she placed orders for heroin. The applicant provided her with updates as to the supply of heroin, and they discussed arrangements for the retrieval of heroin in Vietnam and its passage to Australia, and they also discussed the availability of couriers. In addition, the applicant participated in numerous coded telephone conversations with Nguyen to place the orders for heroin, and to discuss the supply, delays and problems that had arisen in respect of the supply of the heroin. On occasion the applicant met in person with Vo and Nguyen for the handover of money and for the purpose of discussing arrangements for the orders and supply. He received at least $35,000 from Vo as down payment for the first importation, and he received other unidentified amounts from Vo for the supply of heroin for the subsequent importations. In addition, the applicant met in person with Nguyen and gave her $50,000 deposit money for the first importation in three tranches. Subsequently, he received the return of $20,000 of those deposit monies from Nguyen, after the first planned importation had failed. The applicant met in person with Vo to return the deposit monies after that failed importation, on that occasion returning approximately $35,000 to Vo.
In total, the four couriers, arranged by Vo, imported 1497.7 grams of heroin pursuant to the conspiracy. A commercial quantity of heroin is a pure amount of 1.5 kilograms and above. Although an amount slightly less than that was imported, the quantities sought and ordered pursuant to the conspiracy were in excess of a commercial quantity. Thus, the applicant pleaded guilty to, and was sentenced, on the basis of his entry into an agreement to import heroin in a commercial quantity.
On 20 March 2013, police executed a search warrant at the applicant’s residence and located $450,000 in cash, 15 mobile telephones, a bundle of SIM cards, numerous pieces of high value diamond and gold jewellery and watches, and two ‘hides’ within the ceiling of the premises. The applicant participated in a record of interview, in which he claimed that the money located at his home address was his wife’s money that was the proceeds of sales at the grocery business.
On 14 January 2014, the applicant was committed to stand trial in the County Court of Victoria in relation to various drug trafficking, importation and money laundering offences. Various other co-accused were also committed for trial in respect of a number of related offences.
On 13 April 2015, the applicant appeared in the County Court at Melbourne, together with his co-accused, Nguyen and Le, for the commencement of the first of his trials, involving the conspiracy to import heroin. At that time, the applicant also faced two further trials, that had not been given final listings, for indictments charging drug trafficking and money laundering offences. In the course of pre-trial argument, negotiations took place between the applicant and the respondent, as a result of which the charges against the applicant were resolved on the basis that he plead guilty to the importation conspiracy offence and a single rolled up ‘between dates’ trafficking charge. Consequently, on 28 April 2015, the applicant was arraigned on a plea indictment and pleaded guilty to the two charges. On 19 June 2015, a plea hearing was held, and on 26 June, he was sentenced in the manner earlier described.
The plea
At the hearing of the plea, the prosecution submitted that the applicant had the role of a principal in respect of each of the two businesses. In respect of the trafficking charge, it was submitted that the applicant’s role in the trafficking offence was multi-faceted. He was involved at the highest level of the Melbourne part of an international trafficking organisation. As such, the applicant was responsible for liaising with the overseas principals and suppliers when he required the drugs in Melbourne, he arranged for payment for those drugs, he arranged for the drugs to be collected in Sydney, and he organised and directed people to undertake the tasks of transporting the drugs from Sydney to Melbourne. The applicant was involved in determining the method of transport and concealment of the drugs, and he monitored the progress of each consignment of drugs, and reported back to the overseas supplier.
The prosecution submitted that the applicant was involved in the conspiracy as a principal. In that capacity, he participated in numerous coded telephone conversations with Vo regarding the orders for heroin, he participated in numerous coded telephone conversations with Nguyen to place the orders for heroin, and to discuss details of the supply of the heroin to Australia. In addition, the applicant met in person with Vo and Nguyen for the handover of money, he received money from Vo as a down payment for the first importation, and he received other unidentified amounts from Vo for the supply of heroin. The applicant also met in person with Nguyen and gave her deposit monies totalling $50,000. It was contended that in that way the applicant was more culpable and occupied a higher position in the hierarchy in the conspiracy than Nguyen.
In response, counsel for the applicant, realistically, accepted that the two charges to which the applicant pleaded guilty were very serious. However, it was submitted that the plea of guilty by the applicant had substantially utilitarian benefits.
By way of background, the applicant was born in Vietnam in 1964. During his childhood he was exposed to the traumas of the Vietnam War. When he was 12 years of age (in 1976) the applicant and some of his family members were caught by authorities attempting to flee Vietnam. As a consequence their home was confiscated by the government. Subsequently the applicant, his brother and their father managed to flee Vietnam by boat. After spending one year in a Malaysian refugee camp, the applicant, his father and brother were accepted as refugees in Australia. Later the applicant’s mother and his sisters also migrated to Australia. The applicant was married, and had three children. After the failure of that relationship, he commenced a relationship with his current partner, in which they have one son, who at the time of sentence was 12 years of age. As earlier stated, the applicant and his partner operated a small Asian grocery business in St Albans.
On the plea, a report by Mr Ian Mackinnon, a forensic consultant psychologist, was tendered. Mr Mackinnon found that there was no evidence that the applicant had any psychological disorder. His functional intelligence fell within the normal adult range. The applicant expressed appropriate remorse at having committed the offences, acknowledging that illicit drugs are a blight on the Vietnamese community and on the wider community.
Previous conviction
The applicant had one previous conviction. In April 2004 he was convicted in the County Court on a charge of theft and sentenced to a term of imprisonment of 12 months. On appeal to this Court, the sentence was varied to 12 months’ imprisonment with a minimum non-parole period of six months.
Reasons for sentence
In his reasons for sentence, the judge accepted the submission made by the prosecution that the applicant’s role in the trafficking offence was multi-faceted, in that he was the Melbourne based member of an international trafficking organisation and he was involved at the highest level in terms of the domestic operation of the business. In respect to the conspiracy charge, the judge was satisfied that the applicant was more than a ‘broker’ between Vo and Nguyen, and that he was a principal with Vo in the conspiracy to import heroin from Vietnam to Australia. The judge accepted the prosecution analysis of the structure of the conspiracy as being analogous to a wheel, with the applicant and Vo being at the hub of the wheel. The judge was satisfied that the applicant and Vo were responsible for initiating and driving the conspiracy to import heroin.
The judge accepted the submission made on behalf of the applicant that the trafficking charge was the more serious of the two charges. The trafficking enterprise was very large, extensive and significant. His Honour was also satisfied that the objective nature and scope of the conspiracy was extensive.
The judge noted that while the applicant had pleaded guilty at a late stage to the conspiracy charge, he had pleaded guilty at a relatively early stage to the trafficking charge. He accepted that the pleas of guilty had a significant utilitarian value and that they facilitated the administration of justice. In addition the judge accepted, from the plea of guilty, and the material put before him, that the applicant was genuinely remorseful.
The judge also noted the personal matters relating to the applicant, which were outlined in the plea. In particular, the judge stated that the applicant had had a difficult childhood as a result of the war in the Vietnam, that after arriving in Australia he had had a number of jobs before acquiring the green grocery business in St Albans. The judge also noted that the applicant had made a number of donations to various charities.
The judge noted the applicant’s previous conviction in April 2004 in respect of a charge of theft. The judge noted that general deterrence was of considerable importance in a case such as this, and that specific deterrence was also relevant having regard to the applicant’s previous conviction and the extensive criminality involved in the present offending.
Submissions
Counsel for the applicant accepted that, in light of the amount of drugs involved in each charge, it was necessary that the applicant be sentenced to substantial and lengthy terms of imprisonment. Nevertheless, he submitted that the sentences imposed on the applicant were manifestly excessive. In support of that proposition, counsel primarily relied on comparable cases which, he contended, demonstrated that the sentences imposed on the applicant fell wholly outside the range of sentences that were available for the offending for which the applicant was sentenced.
In particular counsel placed significant reliance on the sentence imposed in Barbaro v The Queen; Zirilli v The Queen on co-offender Zirilli.[11] Counsel described that sentence as a ‘landmark’ case, as it concerned the involvement by Zirilli at a high level of a drug trafficking enterprise that was of enormous magnitude. He pointed out that the amount of drugs involved in the offending in which Zirilli was implicated ‘dwarfed’ the quantities that were the subject of the applicant’s offending, yet (counsel contended) the applicant and Zirilli received almost identical terms of imprisonment. Counsel submitted that the criminality of Zirilli was substantially greater than that of the applicant in the trafficking charge, but that difference was not reflected by a material difference in the sentences imposed on the applicant as compared with that imposed on Zirilli.
[11](2014) 253 CLR 58 (‘Zirilli’).
In addition, counsel also relied on the sentences passed on the other offenders involved in the same criminal enterprise as Zirilli, namely Karam v The Queen,[12] Higgs v The Queen,[13] and Director of Public Proseuctions (Cth) v Karam & Ors.[14] Counsel also referred to the sentences that were imposed in Nguyen v The Queen; Phommalysack v The Queen,[15] Kev v The Queen; Sok v The Queen[16] and Dao v The Queen; Tran v The Queen.[17]
[12][2015] VSCA 50.
[13][2015] VSCA 223.
[14][2013] VSC 133.
[15](2011) 31 VR 673 (‘Phommalysack’).
[16][2015] VSCA 232 (‘Kev’).
[17][2014] VSCA 93 (‘Dao’).
In response, counsel for the respondent submitted that, contrary to principle, the applicant sought to make good his ground of appeal by focusing primarily on the quantity or weight of the drugs involved in the present case, and comparing or contrasting them with those involved in the so-called ‘comparable cases’ (and, in particular, in the case of Zirilli) on which the applicant relied. Counsel pointed out that while the quantity of drugs in charge 1 comprised 19 times the commercial quantity threshold, such a calculation did not take into account the fact that the applicant’s trafficking was committed as part of an ongoing business enterprise, of which he was the principal, which comprised five separate shipments of drugs. Similarly, while the quantity of drugs actually intercepted in respect of the offending in charge 2 was just under the commercial quantity threshold, the ongoing conspiracy involved the importation of a commercial quantity of heroin on a continuing basis, evidenced by a large number of overt acts committed by the applicant and his co-conspirators. In each case, the applicant was extensively involved in devising and implementing wide scale significant illegal drug enterprises.
Counsel for the respondent pointed out that unlike in Zirilli, the applicant was a principal in each of his two drug enterprises. He was the driving force, and the person who recruited, instructed and directed others. In that way he was at a higher level in the hierarchy of the enterprise than that occupied by Zirilli.
In that respect, counsel for the respondent pointed to the multifaceted role of the applicant, particularly in the drug trafficking enterprise of which he was the Melbourne based principal. In particular, he pointed out that the applicant was involved in arranging for the importation of the drugs to Sydney, for the handover of those drugs in Sydney to intermediaries, and for organising couriers who were to travel to Sydney to collect those drugs. It was the applicant who was responsible for remitting overseas a large sum of money in payment of those drugs.
Counsel for the respondent further pointed out that the decisions of this Court in Phommalysack and Kev, relied on by the applicant, could not demonstrate that the sentences imposed on the applicant are manifestly excessive. In each of those cases, the court dismissed appeals by the offender, rejecting a submission that the sentences imposed at first instance were manifestly excessive. Further, in the present case, the applicant was sentenced in respect of two separate drug enterprises, which was different to the cases relied on by the applicant.
Counsel for the respondent also referred to a table of comparative cases, that had been placed before the sentencing judge by the respondent. Three of these cases involved sentences imposed in respect of the same drug importing and trafficking enterprise, namely, Lee v The Queen;[18] Hong Phong Le v The Queen (Cth)[19] and R v Khanh Hoang Tran.[20] In addition counsel referred to the sentence imposed on three offenders in the cases of Cao v The Queen; Pham v The Queen; Nguyen v The Queen.[21] Counsel also referred to the sentences imposed on the co-offenders involved in the trafficking offence.[22]
[18][2012] NSWCCA 123.
[19][2010] NSWCCA 285 (‘Le’).
[20]Unreported, District Court of New South Wales, Solomon DCJ, 11 December 2009 (‘Tran’).
[21][2009] NSWCCA 273.
[22]DPP v Van Nam Thai (Unreported, District Court of New South Wales, 18 December 2014); DPP v To Kieu Nhi Ly (Unreported, District Court of New South Wales, 18 December 2014); DPP v Jamie Harris (Unreported, District Court of New South Wales, 29 August 2014); DPP v Hai Haong To [2014] VCC 1109; DPP v Hoang Nam Duong [2013] VCC 2066; DPP v Van Son Thieu (Unreported, District Court of New South Wales, 25 November 2013); DPP v Anh Thai Pham [2013] NSWDC 166; DPP v Minh Phuoc Nguyen-Huynh [2012] VCC 1742.
Legal principles — Sentencing for the offending
The principles applicable to the offences to which the applicant pleaded guilty are well established, and need not be rehearsed at length. Essentially, the determination of the seriousness of the offending is informed by a range of factors, including the role of the offender, the position of the offender in the drug trafficking (or importing) hierarchy, the nature and extent of the offender’s involvement in the enterprise, the sophistication of the enterprise, and the amount of drugs involved, or intended to be involved, in the enterprise.[23] In describing the role of the offender in the hierarchy, it is important that any shorthand label attaching to that role does not obscure the nature and extent of the actions and involvement of the offender.[24]
[23]See e.g. Tyler v The Queen; R v Chalmers (2007) 173 A Crim R 458, 471–473 [78]–[89] (Simpson J, with whom Spigelman CJ and Harrison J agreed); Pham v The Queen; Tang v The Queen [2012] VSCA 101, [4] (Redlich JA); DPP (Cth) v Estrada; DPP (Cth) v Yuan; DPP (Cth) v Byun (2015) 45 VR 286, 298-299, [44]–[46] (Priest and Beach JJA, King AJA).
[24]R v Olbrich (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
In determining the seriousness of the offence, the weight or amount of the drugs involved is a factor of some importance. That circumstance is relevant to determining the dimension of the enterprise in which the offender is involved, and the amount of profit that was expected from the enterprise, which generally constitutes the primary if not sole motive for the offending. The weight or amount of the drugs involved might also indicate that the enterprise, in which the offender has been involved, was far reaching, and sophisticated. On the other hand, that factor, per se, is not necessarily the primary or overriding factor in determining the gravity of the offending under consideration.[25]
[25]Wong v The Queen (2001) 207 CLR 584, 609 [67] (Gaudron, Gummow and Hayne JJ); R v Pham (2015) 325 ALR 400, 410 [45] (Bell and Gageler JJ).
It is well recognised that in cases such as this significant weight is attached to the principle of general deterrence. The difficulty of detecting importation offences, and the great and far reaching social consequences stemming from the proliferation of illicit drugs in the community, are factors which support the importance of the concept of general deterrence in sentencing for such offences. In particular, it is recognised that, in light of the very large profits that motivate importation and trafficking offences, it is important that the sentence imposed by the courts ‘… must signal to would be traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment … ‘.[26] On the other hand, the previous good character, and personal circumstances, of an offender in drug trafficking or importation offences are generally attributed less weight as a mitigating factor.[27]
[26]R v Nguyen (2010) 205 A Crim R 106, 127 [72(i)] (Johnson J, with whom MacFarlane JA and RA Hulme J agreed); R v Chen (2002) 130 A Crim R 300, 382-383 [286].
[27]R v Nguyen (2010) 205 A Crim R 106, 127 [72(j)]; Dao v The Queen; Tran v The Queen (2014) 240 A Crim R 574, 580 [9] (Nettle JA); Tsang v DPP (Cth) (2011) 35 VR 240, 274-275 [162] (Nettle and Neave JJA, Sifris AJA).
The essential criminality involved in a conspiracy charge lies in the joining by an offender in a secret combination with others to commit an offence. However, it is well accepted that, in assessing the degree of criminality involved in the offender’s participation in the conspiracy, it is necessary also to take into account the overt acts of the offender that reflect the content and duration of the offender’s involvement in the conspiracy.[28]
[28]Savvas v The Queen (1995) 183 CLR 1, 6–7.
The applicant has placed significant reliance on so-called ‘comparable cases’ in support of the submission that the sentences imposed on him were manifestly excessive. The principles relating to the use of comparable cases have been discussed in a number of recent cases, including the decisions of the High Court in Wong,[29] Hili,[30] Zirilli,[31] and Pham.[32] They have also been considered in a number of decisions of this Court including Hudson[33] and, more recently, Nguyen v The Queen[34] and Thomas.[35]
[29](2001) 207 CLR 584, 591 [6] (Gleeson CJ).
[30](2010) 242 CLR 520, 534 [44], 535 [48]–[49].
[31](2014) 253 CLR 58, 74 [40]–[41].
[32](2015) 325 ALR 400, 405-406 [26]–[28] (French CJ, Keane and Nettle JJ).
[33](2010) 30 VR 610.
[34][2016] VSCA 198, [71]–[72] (Redlich JA).
[35][2016] VSCA 237, [171]–[187].
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.
In Hili,[36] the plurality[37] stated:
Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. …
The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Part 1B of the Crimes Act. When it is said that the search is for ‘reasonable consistency’, what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. …
Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. … Care must be taken, however, in using what has been done in other cases. …
A history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. … The range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’.[38]
[36](2010) 242 CLR 520.
[37](French CJ, Gummow, Hayne, Crennan and Kiefel and Bell JJ).
[38]Ibid, 535–537 [48]–[54] (citations omitted).
In similar terms, in Hudson,[39] this Court[40] stated the relevant principles as follows: [41]
[28]Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.
[29]‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this Court. They may however be used in search of unifying principles. That was not the use to which counsel sought to employ them here.
[30]Before both the sentencing judge and this Court, cases said to fall within the same category were examined in some detail to demonstrate which cases were or were not a fair comparison with the present case. That analysis, it was submitted, warranted the conclusion that a sentence of no more than 30 years was the correct non-parole period.
[31]A detailed examination of ‘like’ cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished. Where principles of parity do not apply, they are not to be regarded as some sort of ’benchmark’ which is determinative of the sentence to be imposed. To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matters personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases.
[32]To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a ‘like’ case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of ‘like’ cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.
[33]It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in ‘micro detail’, as such an approach will ordinarily be indicative of an intent to use the case as providing something more than a guide to a range.
[39](2010) 30 VR 610. See also DPP (Cth) v Estrada; DPP (Cth) v Yuan; DPP (Cth) v Byun (2015) 45 VR 286, 296-7 [39]; Robb v The Queen [2016] VSCA 125, [88]; Singh v The Queen [2014] VSCA 250 [33].
[40](Ashley, Redlich and Harper JJA).
[41](Citations omitted).
Legal principles — manifest excess
The issue in the present application is whether, taking into account those principles, the individual sentences imposed on charges 1 and 2, the order for cumulation, the total effective sentence, and the non-parole period, are each manifestly excessive.
In order to establish that ground, the applicant must demonstrate that the sentences imposed on him, for those offences, were ‘wholly outside the range of sentencing options’ that were available to the sentencing judge.[42] The determination of the appropriate sentence, in a particular case, is essentially the product of the exercise of a judicial discretion, involving the application of established principles in the instinctive synthesis that lies at the heart of the sentencing process. As such, judicial minds might, and commonly do, reasonably differ as to the appropriate sentence which should be imposed in any particular case. For those reasons, it is not sufficient for the applicant to persuade this Court that, in the circumstances, it would or might have imposed a lower sentence than that determined by the sentencing judge. Rather, as we have stated, the sentences must be shown by the applicant to be wholly outside the range of sentences available to the judge. In other words, the sentences must be demonstrated to be so excessive as to bespeak error by the judge in the exercise of the discretion, notwithstanding that no specific error can be identified from the reasons for sentence given by the judge.[43]
[42]See e.g. Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[43]House v The King (1936) 55 CLR 499, 505.
Analysis
The two offences, to which the applicant pleaded guilty, were particularly serious, each carrying a maximum life sentence. The offending by the applicant, that was the subject of the two charges, constituted serious instances of each of those two offences.
In respect of charge 1, the applicant fell to be sentenced as a high ranking principal in a significant drug trafficking enterprise, in which he played an active role. The applicant directed and supervised almost all of the operations of that enterprise. In particular, he was involved in organising for the drugs to be brought into New South Wales and to be warehoused there. He was then responsible for placing orders, arranging for the drugs to be removed from storage, and organising for couriers from Victoria to collect the drugs from New South Wales. The applicant was responsible for payment for each consignment. The whole enterprise was a reasonably sophisticated operation, involving planning and coordination between the applicant and his fellow principals in New South Wales and Hong Kong. The amount of drugs that were the subject of the charge comprised 19 times the commercial quantity threshold. The enterprise was ongoing, and involved five different shipments of drugs. On any view, the level of criminality of the applicant that was involved in his participation in the offending in charge 1 was very high indeed.
The criminality of the applicant in his participation in the conspiracy that was the subject of charge 2 was also high. The applicant was involved in that conspiracy as a directing principal of it, at a level slightly below that of Vo. The objective of the conspiracy, to import into Australia heroin in commercial quantities, involved a high degree of moral culpability. The conspiracy, in which the applicant participated, endured for seven months. It involved the importation of a commercial quantity of drugs into Australia, in a series of consignments. The applicant’s role, in the conspiracy, was central to the achievement of its objective. The judge accepted the prosecution’s analysis of the structure of the conspiracy as being analogous to a wheel, with the applicant and Vo being in the hub of the wheel. That characterisation of the role and participation of the applicant in the conspiracy was not challenged. Thus the applicant was responsible (with Vo) for initiating and propelling the conspiracy to import heroin into Australia.
In assessing the criminality of the applicant, it is important to bear in mind that each of the two enterprises in which the applicant was involved concerned the importation and trafficking of large quantities of illicit drugs. Substances of the kind that were the subject of the two charges are an abominable social evil. They have a devastating impact on lives, on families, and on communities. The importation and trafficking of drugs preys on the young, the weak, the impressionable and the vulnerable. It warps and degrades the standards of decent civilised behaviour. The two enterprises in which the applicant was involved were despicable, and conducted for no other reason than the pursuit of large profit.
It is for that reason that the legislature has fixed the maximum sentence, in each case, as that of life imprisonment. As noted in the authorities, sentencing considerations of general deterrence and denunciation are of foremost importance in cases such as these. Those who embark on enterprises, such as those involved in the two offences committed by the applicant, do so in expectation of deriving very significant profits. As we have already noted, it is the role of the courts to ensure that those persons are left in no doubt that when they are brought before the court for their crimes, they can expect little mercy. It is the duty of the court to impose sentences of sufficient severity that send a clear message to the community that conduct, such as that indulged in by the applicant, will not be tolerated. It is only in that way the law can alter the calculus which otherwise motivates persons, such as the applicant, to become involved in such enterprises.
The principal mitigating circumstance relied on by the applicant was his plea of guilty to each of the two charges. In cases such as this, a plea of guilty by an offender is of significant utilitarian value. Drug importation and drug trafficking charges are notoriously difficult and expensive to prosecute. Contested trials on those charges can occupy the time of the courts, and of the law enforcement officers, for a considerable period, and can be a substantial burden on the community. It is for those reasons that it is important that sentences imposed in cases such as this, after a plea of guilty, are such as to reflect the value of those pleas as mitigating circumstances.
Nevertheless, the degree of the criminality of the applicant in the offending, that was the subject of the two charges, was such that, notwithstanding his guilty pleas, we are not persuaded that the sentences imposed on the two charges, the order for cumulation, the total effective sentence or the minimum non-parole period are manifestly excessive. Certainly, the sentences imposed on the applicant were stern. However, in a case such as this, it was incumbent on the sentencing judge to impose sentences that were high, in order to adequately reflect the degree of criminality of the applicant in the offending, and to operate effectively as a deterrent in the manner that we have described. Taking those considerations into account, we are unpersuaded that the sentences imposed on the applicant were wholly outside of the range of sentences that were available to the judge in the facts of this case.
Further, we do not consider that the ‘comparable cases’ referred to by the applicant demonstrate that the sentences imposed in this case were manifestly excessive. Indeed, a review of those cases, and the cases referred to by the respondent, reinforce our conclusion that the sentences were within the range of those available to the judge in the present case.
As we have noted, the applicant relied heavily on the sentence imposed on the co-offender Zirilli in Director of Public Prosecutions (Cth) v Barbaro; Director of Public Prosecutions (Cth) v Zirilli.[44] In that case, Zirilli pleaded guilty to three offences, namely, conspiring (with Barbaro and others) to traffick a controlled drug (MDMA) in a commercial quantity, trafficking a substance (MDMA) in a commercial quantity, and attempting to possess cocaine in a commercial quantity. Zirilli was sentenced on charge 1 to 20 years’ imprisonment, on charge 2 to 15 years’ imprisonment, and on charge 3 to 13 years’ imprisonment. His total effective sentence was 26 years’ imprisonment, with a minimum non-parole period of 18 years. It is correct, as contended by counsel for the applicant, that the amount of drugs involved in that case was many times the volume of drugs involved in the two charges to which the applicant pleaded guilty. On the other hand, as the sentencing judge found, it was Barbaro who was at ‘the apex’ of the criminality.[45] The judge found that Zirilli’s involvement was lesser than that of Barbaro, stating:
The sentence must also reflect that you were Barbaro’s right hand man and trusted lieutenant, such as that he would send you to represent him in Europe in his dealings with the syndicate.[46]
[44][2012] VSC 47.
[45]Ibid [31].
[46]Ibid.
It is a matter for debate whether the criminality of a person (such as Zirilli), who was second in charge of an extremely large drug trafficking operation, is the same, greater than, or perhaps less than, the criminality of another person (such as the applicant) who is the guiding light and principal of a large (but significantly smaller) drug trafficking operation. That issue is one on which minds might reasonably differ. However, we do not consider that it could be maintained that the criminality of Zirilli was so much greater than that of the applicant that a comparison of the sentences imposed on Zirilli, with those imposed on the applicant, necessitates the conclusion that the sentences imposed on the applicant were wholly outside the range of those available to the sentencing judge. Further, it is relevant to observe that the sentences imposed on Zirilli were, on any view, well within the range of sentences available in that case. Zirilli appealed his sentence on the basis (inter alia) that the sentences were manifestly excessive. This Court gave short shrift to that proposition, characterising the sentences as being ‘entirely appropriate’.[47]
[47]Barbaro v The Queen; Zirilli v The Queen (2012) A Crim R 354, 371 [61].
The other so-called ‘comparable cases’ relied on by the applicant were of little assistance. In Kev,[48] the sentences imposed on each of the two applicants for importing a commercial quantity of a border controlled drug were 14 years and 9 months’ imprisonment. The case involved the importation of four parcels of heroin, in quantities greater than those involved in this case. However the sentencing judge was not able to determine the roles that each of the applicants had played in the importation of the heroin, other than to note that they occupied trusted and significant positions in a wider organisation. The principal issue on appeal related to the question of parity. This Court had little difficulty in rejecting the submission made on behalf of Sok that the sentence was manifestly excessive. The Court stated:
Far from being manifestly excessive, the sentence imposed was entirely appropriate.[49]
[48][2015] VSCA 232.
[49]Ibid [26].
In Phommalysack,[50] the first applicant pleaded guilty to one count of attempted importation and one count of attempted possession of drugs. She was sentenced to a total effective sentence of 12 years’ imprisonment. The second applicant pleaded guilty to one count of attempting to possess the imported drugs and was also sentenced to 12 years’ imprisonment. The amount of drugs involved in the importation represented many multiples of the applicable commercial quantity of the drug in question. However, in neither case was the applicant a principal in the operation. The first applicant provided assistance to the authorities and undertook to provide further assistance. In those circumstances, we do not regard the sentences in that case as being sufficiently comparable to the present case so as to support the submission that the sentences imposed on the applicant were wholly outside the range available to the judge.
[50](2011) 31 VR 673.
Nor do we consider that the sentences imposed in Dao v The Queen; Tran v The Queen;[51] provide support for the proposition that the sentences imposed on the applicant were wholly outside the available range. In that case the two appellants had pleaded guilty to one charge of trafficking in a quantity of a drug of dependence, heroin, of more than 30 times a large commercial quantity. They were each sentenced to 18 years’ imprisonment with non-parole periods of 13 years. The judge was not able to determine the position of the appellants in the business hierarchy of the drug trafficking enterprise in which they were involved, or how they came into possession of the drugs. While that meant that the appellants were not entitled to a mitigatory finding that they occupied a lowly position in the hierarchy, it could not be inferred that the appellants occupied a position akin to that of the applicant in the two drug trafficking enterprises in which he was involved in this case. In that way, the facts in Dao could only be said to be comparable to those in the present case in the most broad and general sense.
[51](2014) 240 A Crim R 574 (‘Dao’).
Finally, we have had regard to the table of comparative cases placed by the prosecution before the sentencing judge, and referred to by counsel for the respondent on this application. We consider that the sentences imposed in Le[52] and in Tran[53] were relevantly comparable to the sentences imposed on the applicant in the present case, taking into account the large discounts provided to the offenders in those cases for their undertakings to give future assistance to the authorities. At the least, the sentences imposed in those cases offset any limited assistance that the applicant might otherwise have derived from the cases relied on by him in this application.
[52][2010] NSWCCA 285.
[53]Unreported, District Court of New South Wales, Solomon DCJ, 11 December 2009.
Conclusion
For the foregoing reasons, we are not persuaded that the sentences imposed on the applicant were manifestly excessive. The application for leave to appeal will therefore be refused.
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