Ma and Pham v R

[2007] NSWCCA 240

New South Wales
Court of Criminal Appeal

CITATION:	MA and PHAM v R [2007] NSWCCA 240
HEARING DATE(S):	2 April 2007
JUDGMENT DATE:	8 August 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J at 2; Hoeben J at 104
DECISION:	Leave to appeal granted; Appeal dismissed
PARTIES:	Regina Eric MA Quang Sang PHAM
FILE NUMBER(S):	CCA 2007/66; 2007/320
COUNSEL:	Crown: W Dawe QC Appellant Ma: D Wetmore Appellant Pham: Mr Turnbull
SOLICITORS:	Crown: S Kavanagh Appellant Ma: Morgan Ardino Appellant Pham: SE O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0236
LOWER COURT JUDICIAL OFFICER:	Morgan DCJ

- 29 -

2007/66
2007/320

McCLELLAN CJ AT CL
HULME J
HOEBEN J

Wednesday 8 August 2007

Eric MA v R

Quang Sang PHAM v R

Judgment

1 McCLELLAN CJ AT CL: I agree with Hulme J.

2 HULME J: According to the remarks on sentence of Judge Morgan from whose sentences these proceedings are brought, on 20 June 2005 the above named Applicants together with Saul Ngao, Damien Hughes and Molika Heng were arraigned on a charge that between 17 September and 19 November 2003 they did knowingly take part in the supply of heroin in an amount not less than a commercial quantity. Each offender pleaded not guilty. Before a jury was empanelled, Judge Morgan was asked to rule on the admissibility of some telephone intercept evidence. Her Honour concluded that the evidence was admissible following which all offenders with the exception of Molika Heng pleaded guilty.

3 On 7 July 2005 a jury convicted Ms Heng and on 11 November 2005 Judge Morgan sentenced her to imprisonment for a total term of 12 years, including a non-parole period of 8 years, both periods to commence on 4 November 2003. Sentencing proceedings for the remaining four offenders commenced on 2 December 2005. There were delays; those proceedings concluded on 3 March 2006 and her Honour sentenced the offenders on 13 April 2006. The sentences imposed were:-

In the case of Ma, imprisonment for a non-parole period of 7 years and a total term of 10½ years from 19 November 2003;
In the case of Ngao, imprisonment for a non-parole period of 7 years and a total term of 10½ years from 20 August 2004;
In the case of Pham, imprisonment for a non-parole period of 5½ years and a total term of 9 years from 19 November 2003; and
In the case of Hughes, imprisonment for a non-parole period of 5½ years and a total term of 9 years from 19 August 2004.

4 The offences arose pursuant to s25 of the Drug (Misuse and Trafficking) Act which, in combination with a schedule to the Act, renders it an offence to supply or be knowingly concerned in the supply of heroin. By reason of that schedule and s33 of the Act, the maximum penalty of imprisonment for the supply or knowing involvement in the supply of 250 grams or more but less than 1 kilogram is 20 years, but if the quantity exceeds 1 kilogram, it is imprisonment for life. Pursuant to s54B et seq. of the Crimes (Sentencing Procedure) Act, a standard non-parole period of 10 years has been laid down for an offence under s25 of the Drug (Misuse and Trafficking) Act.

5 In arriving at the sentences she imposed her Honour took into account in the case of all offenders other than Ms Heng, 3 offences of organising, conducting and assisting in drug premises, those premises being three at which operations had been conducted. These offences arose under s14(1) of the Police Powers (Drug Premises) Act 2001.

6 In fact, on 21 June 2005, the offenders other than Molika Heng were re-indicted on a charge of “supply” rather than “knowingly take part”. Judge Morgan’s remarks when sentencing Molica Heng suggest that she also may have been re-indicted for in those remarks the charge against Ms Heng is stated as covering the period 17 September to 5 November rather than the longer period referred to in the indictment of 20 June. However, any difference in the charges was not a matter relied on in argument in this Court.

7 Ma and Pham have appealed. The grounds of appeal are:-

In the case of Ma:-
1. The sentencing judge erred in not relevantly applying the parity principle when considering the aggravating and mitigating factors relevant to the Applicant and a co-offender.
2. The sentence is manifestly excessive.
In the case of Pham:-
1. Her Honour erred in her determination of the objective seriousness of the Applicant’s offence.
2. The learned sentencing judge failed to have proper regard to the circumstances personal to the Applicant when determining an appropriate sentence.
3. The sentencing judge erred in failing to have any or proper regard to the principle of parity when determining an appropriate sentence.
4. The sentence is manifestly excessive.

8 The circumstances of the offending were as follows. During the period covered by the charge, the offenders were participants in a joint criminal enterprise described by Judge Morgan as “well planned and organised” – a description to which there was no challenge - actively involved in the distribution of heroin in the Liverpool area. A number of premises were used at different times. The main premises were at 34 Kemp Street, Bonnyrigg, which was leased by Ms Heng from 25 December 2002 and heroin was regularly supplied from those premises. Other premises used at Warwick Farm were raided by police on 14 October but the enterprise then simply moved to two motels nearby. On 4 November 2003 police raided the premises at Bonnyrigg and arrested Ms Heng and some persons other than the 4 males mentioned. However, the enterprise continued and the 4 males to whom I have referred were arrested in the course of further police operations on 19 November 2003. They have been in custody since.

9 The enterprise operated a morning and afternoon shift. Customers would ring a mobile phone number and arrangements would be made to meet at one or other of the premises or in and around the Westfield Shopping Centre at Liverpool. Generally the quantities supplied to customers were between 0.15 and 3.5 grams, the amounts charged for these quantities being respectively $40 and $900. The offenders would also accept property in exchange for heroin. On one occasion Ngao was recorded negotiating for the sale of one ounce.

10 The role of Hughes and Pham was that of street level suppliers and runners who received money, heroin and accommodation for their participation. Ngao and Ma were, according to the Statement of Agreed Facts, “on a scale higher as highly active and organised managers who amongst other things arranged the purchase of the larger amounts of heroin for on-supply”. Ngao would usually work with Hughes during the morning shift and Ma would usually work with Pham during the afternoon shift.

11 When the properties being used, particularly those at Warwick Farm and Bonnyrigg, were raided, parcels of small and significantly larger quantities of heroin, scales, plastic bags, razor blades and other indicia of the parcelling of heroin for retail sale were found.

12 During the period covered by the charge, many of the activities of the offenders were monitored by police by way of telephone intercepts, purchase of heroin, and camera and other surveillance. Some of the surveillance recordings of the Bonnyrigg premises indicated that:-

“Between 8.00am and 8.00pm on 9 October 2003 approximately 135 persons attended the premises.
Between 8.00pm on 12 October and 8.00am on 13 October approximately 44 persons attended the premises.
Between 7.00am and 8.00pm on 17 October approximately 170 persons attended the premises.”

13 It seems likely that not all of these persons were customers but it is not difficult to infer that the vast majority were.

14 The Statement of Agreed Facts recorded:-

“Conservatively if 130 persons attended on a daily basis and were supplied with a minimum of 0.15 grams of heroin over the 31 days of surveillance, the total amount of heroin supplied would be in excess of 600 grams.
…
The total amount supplied by the syndicate between 19 September 2003 and 19 November 2003 was well into the high range of commercial quantity.”

15 The levels of purity of the drugs received by the police as the result of purchases from, or raids on, the enterprise with which the offenders were involved were found to be 26%, 29.5%, 30% (3 instances), 31% (2 instances) and 33.5% (2 instances).

16 I turn to the circumstances of each offender. Her Honour’s accounts of their situations were lengthy, varying from 7 to 11 pages so what I say, although sufficient for present purposes, is but a relatively brief summary.

17 Ma was born on 7 June 1983. His antecedents report shows convictions for offences in 2001 and 2002 of being on, entering or leaving drug premises (for which, on 16 April 2002, he was given a 12 months bond) and for having goods in custody and also for dealing with stolen property. In May 2003 he was convicted for possession of a prohibited drug and fined. Reports before her Honour, confirmed by Ma’s evidence, indicated he also had a record while a juvenile for supplying heroin. His evidence was that there was only one such offence although there were no further details of it.

18 Ma left school in year 9, he started using heroin when aged about 15 and became a heavy heroin user. He received a Naltrexone implant in March 2003 but seems to have resumed heroin use not long thereafter. He was the son of Ms Heng. He gave evidence that his participation in the subject offence was to support his habit and told the author of the Pre-Sentence Report that he was spending approximately $1,000 per day on heroin. In his ERISP he accounted for the funds used to buy various things such as food, phone, a TV and car by saying that his mother or grandmother had provided funds and in evidence given during the sentence proceedings said that he contributed but limited amounts towards food and rent. He has never worked in the normal sense of that word but was in receipt of Centrelink payments.

19 Ma gave evidence that from a month after being arrested he had been on protection in consequence of threats made to him. He said that this meant he was only out of his cell 2 hours a day and hardly had access to any educational facilities or drug and alcohol counselling. Notwithstanding a number of answers to the effect stated, he also agreed that he had access to some programs. Apart from evidence that he had been threatened, details of the reasons and need for being on protection were scant and there was no evidence on which one could base any reliable estimate as to how long that situation was likely to last.

20 Her Honour considered that in light of Ma’s age, realisation of the effect that drugs had had upon his life and expressions of remorse, he had “good” prospects of rehabilitation.

21 Ngao was born on 8 December 1983. The only offence apparent on his antecedents’ report is one of having goods in custody committed in 2000. However other evidence shows that in September 2002 he was sentenced to 5 months imprisonment for supplying a prohibited drug and another charge of goods in custody and in August 2003 was sentenced to 250 hours community service for a further offence of supplying a prohibited drug. After his arrest on the present charge a sentence of 16 months (including a non-parole period of 12 months) from 20 November 2003 was substituted for the community service order. The previous existence of that order means that Ngao was on conditional liberty at the time of the offence with which this Court is concerned – Cikekdag (2004) 150 A Crim R 299 at [52 – 3], [57].

22 Ngao left school in year 9 aged 15. He commenced marijuana use at about that age and then graduated to heroin. Although he has been abstinent for limited periods since, generally he has been a heavy heroin user. Her Honour recorded that Ngao had been drug-free since his arrest; appeared to have some insight into the consequences of his drug use and an understanding that he needed counselling; and had expressed remorse. She concluded that Ngao had “reasonable” prospects of rehabilitation. Ngao asserted that his sole reason and reward for participating in the offence was for the heroin he received.

23 Her Honour indicated that she had chosen 20 August 2004 as the commencement date of Ngao’s sentence because of the sentence previously imposed commencing on 20 November 2003, thus making the sentence she imposed concurrent with it to the extent of 3 months of its non-parole period and the whole of its balance of term.

24 Pham was born on 26 May 1981. His prior convictions include, in 1999 being carried in a conveyance taken without the consent of the owner and breaking, entering and stealing; in 2001 an offence of entering prescribed premises without lawful excuse; and, more importantly, in May 2003 of supplying a small quantity of a prohibited drug, possession of a prohibited drug and having goods in custody. In respect of the first of these three last mentioned charges he was placed on a 2 years bond. He also was thus on conditional liberty at the time of the subject offence. He admitted to the author of his Pre-Sentence Report owing some $4,000 in unpaid fines.

25 Pham completed his higher school certificate and has worked for something for the order of 12 months during the ensuing years. He commenced using heroin at about aged 16 and, although apparently stopping for a period in 2001-2, he continued use of it until his arrest. He reported a history of gambling on poker machines in an attempt to make money to support his addiction. He had not used heroin again prior to being sentenced. He told the author of his pre-sentence report that his own drug addiction was his main priority at the time of his offending and to a psychologist whose report was tendered that his offending was prompted by his need for drugs.

26 He was employed for most of his time in custody since 19 November 2003. He has been attending drug and alcohol counselling and undertaken study. In August 2004 he was sentenced to imprisonment of 4 months on a charge of possessing a mobile phone SIM card while an inmate.

27 Her Honour concluded that he had a supportive family, had shown genuine remorse for his involvement and had “good” prospects of rehabilitation.

28 Hughes was born on 15 March 1983. His antecedents report includes eight offences of breaking, entering and stealing and two of goods in custody prior to 2002. In that year he was charged with at least three offences of larceny, three involving a stolen conveyance and something over thirty offences of breaking, entering and stealing. Initially these matters were dealt with by being removed to the Drug Court but at the time of the offence with which this Court was concerned, he was in his words, “on the run” from the Drug Court program.

29 Ultimately, in June 2004, he was sentenced for these offences together with 2 more, viz. supplying a prohibited drug and with having goods in custody in respect of which he was charged in May 2003. For most, whether charged or taken into account, he was sentenced to imprisonment for 3 years including a non-parole period of 12 months both such periods to commence on 19 November 2003. For the offence of supplying a prohibited drug he was sentenced to 12 months imprisonment including a non-parole period of 6 months both such periods to commence on 19 November 2004. A consequence of the offences for which he was charged in May 2003 is that he was on bail at the time of the commission of the offence the subject of this application for leave to appeal.

30 Hughes left school in year 9 at the age of 16 having been, he said, introduced to the use of heroin when aged 13. Although employed and abstinent for limited periods he seems to have remained a heroin user since. To a psychologist he said his initial use was because it gave him a feeling of numbness and took away the pain and anger he experienced in relation to his parent’s divorce. It was said that their marriage was characterised by alcohol abuse and violence but the break-up affected Hughes deeply.

31 The Probation and Parole officer who prepared the pre-sentence report said that Hughes had some mental health issues and the psychologist said he suffered from, inter alia, post-traumatic stress disorder, generalised anxiety disorder and major depressive disorder. Her Honour accepted that Hughes’ expression of remorse was genuine, adding “in this respect I also have regard to the plea of guilty entered on 21 June 2005”.

32 Since incarceration he also had undertaken courses and been employed within the prisons.

33 His family were found to be supportive. Her Honour made no findings as to Hughes’ prospects of rehabilitation although the tenor of her remarks on a number of occasions suggests that she had no positively adverse view in this area.

34 Her Honour indicated that she had chosen 19 August 2004 as the commencement date of Hughes’ sentence because of the sentence imposed on him to commence on 19 November 2003 thus making the sentence she imposed partly concurrent with the sentence imposed on him for the break, enter and steal offence and wholly concurrent with the supply prohibited drug offences.

35 Given the parity issue raised on behalf of Pham, it is also necessary to consider the situation of Ms Heng. As has been said, the charge against her covered only the period of 17 September to 4 November when she was arrested during a raid on the premises at Bonnyrigg. She was the lessee of those premises which was apparently her home and that of her 6 children, the youngest of whom was, at the time, aged about 6. Judge Morgan found that Ms Heng played a lesser – at one stage her Honour said a “much lesser” - role than her co-offenders did, mentioning that “her inability to assert authority over her eldest children … resulted in their domination of the family home and its activities”. Her Honour found also that, although Ms Heng had participated in the sale of drugs at the Bonnyrigg premises, there were no telephone calls in which she participated.

36 Judge Morgan accepted that Ms Heng had never used illicit drugs and considered that Ms Heng was a seller of drugs for profit. She had some prior convictions although, apart from one for supplying heroin in 2000 for which she received a s9 bond, the details of these are not apparent in the appeal papers. Information concerning that one offence with which her Honour was provided in the course of sentencing Ms Heng suggests that that offending may have been in the course of an enterprise similar, but on a smaller scale, to that with which the Court is presently concerned. Of course, that material is not evidence against the Applicants here.

37 Her Honour found that none of the mitigating factors listed in s21A of the Crimes (Sentencing Procedure) Act were present in Ms Heng’s case and concluded that she was unable to make any finding as to Ms Heng’s prospects of rehabilitation.

38 In the course of her remarks, her Honour made some other observations to which reference should be made. Her Honour recognised that the offence charged attracted a standard non-parole period of 10 years and the relevance of that fact as determined in R v Way (2004) 60 NSWLR 168 and R v AJP [2004] 150 A Crim R 575. As to the relative seriousness of the offences, her Honour said:-

“In assessing whether this offence falls within the middle range of objective seriousness I have regard to the quantity of heroin supplied, which as I have accepted was in the high range for a commercial quantity. As well the purity of the heroin supplied to the undercover police officers as well as the heroin located during the execution of search warrants ranged from between thirty to thirty-three point five percent which I accept was a high level of purity. The business was operated on a twenty-four hour a day basis and the offenders continued to disseminate the drug into the Liverpool area despite police raids on their premises and the arrest of co-offenders. Having regard to all of these matters I assess the offence as falling within the middle of the range of objective seriousness.”

39 Earlier, her Honour had said that she considered the seriousness of the offence was compounded by the fact that the offenders persisted with their operations after the police had raided their premises.

40 Having regard to the offenders’ pleas and other matters which she identified, her Honour thought it appropriate not to impose the standard non-parole period, to find special circumstances and to vary the relativity between the non-parole and balance of term. Her Honour found also that the offenders were entitled to some leniency for the delay in sentencing that had occurred and said that to reflect the pleas of guilty, the expressions of remorse and the date of (by which I understand “the delay in”) sentence she intended to reduce the head sentences by 3 years from those that she would have imposed had the matter proceeded to trial.

41 The history of that delay is as follows. After the pleas of guilty on 21 June 2005, counsel for the male offenders requested pre-sentence reports, these were ordered and counsel having requested that sentencing occur as soon as possible the matters were listed before another judge. The pre-sentence reports were then not available and the matter adjourned. On the next occasion the judge before whom the proceedings came took the view that as Judge Morgan would be sentencing Ms Heng, whose trial had by then concluded, her Honour should also deal with the 4 males. Because of the unavailability of her Honour and some of the lawyers the matter was delayed then until 2 December when sentencing proceedings commenced. They did not conclude then or on 12 December to which they were adjourned. Because of other commitments of her Honour and one or other of the lawyers involved, proceedings were adjourned until 3 March when the hearing concluded. As has been said, her Honour pronounced sentence on 13 April 2006.

Ma’s Appeal Ground 1
The sentencing judge erred in not relevantly applying the parity principle when considering the aggravating and mitigating factors relevant to the Applicant and a co-offender.

42 The comparison relied on under this ground was with Ngao. It was not suggested that there was any difference in their objective criminality but it was submitted that having regard to the aggravating and mitigating factors relevant to each, the sentence imposed on Ma should have been less than that imposed on Ngao.

43 Reliance was placed on the fact that Ngao had 2 prior charges for supplying a prohibited drug and had been sentenced to imprisonment; that Ngao was on conditional liberty at the time of offending; and that Ma had been, and still was, in protective custody.

44 The first of these is of no significance for present purposes. Ma also had been convicted, albeit on the evidence on only one occasion and as a juvenile, of supplying a prohibited drug. Both had chosen not to learn from their punishment and, given the magnitude of the selling in which each was engaged and which led to the proceedings before Judge Morgan, the fact that there was a difference of one in their prior convictions for selling was insignificant.

45 The evidence as to Ma’s conditions of imprisonment is of some weight in his favour on this ground but because of the absence of information from which any reliable assessment could be made for the future, that weight is limited. Furthermore, this Court can take judicial notice of the fact that the effect of being “on protection” varies greatly from gaol to gaol and circumstances on remand are generally different from those that apply after sentence.

46 Of more weight is the fact that Ngao was, and Ma was not, on conditional liberty at the time of the subject offence. This Court has, on innumerable occasions, indicated that the commission of offences while on conditional liberty is a seriously aggravating factor. Her Honour referred to Ngao being in that situation at the relevant time and took it into account in his case as she should have done. There being nothing otherwise to argue for Ma’s sentence being higher than Ngao’s, there should have been some appreciable difference between their sentences.

47 The principles of parity are directed towards “marked” or “manifest” unjustified differences between offenders whose situations are similar – see Lowe v R (1984) 154 CLR 606 at 611, 613, 615, 617, 618, 624. Sentencing is not an exact science and there is nothing in the doctrine that requires fine adjustments for minor differences between the circumstances of offenders. However, such is the added seriousness of offending while on conditional liberty, that a difference in the sentences to reflect that factor would in my view be such as to fall within the concept “marked”. Furthermore, although it is doubtful that Ma’s conditions of incarceration standing alone would have justified some difference in sentence, those conditions do tend in the same direction as the factor of Ngao’s conditional liberty.

48 Whether these conclusions should lead to the allowing of Ma’s application is a matter that can conveniently be left until other factors are considered.

Ma’s Appeal Ground 2

The sentence is manifestly excessive.

49 This ground should also be deferred and dealt with after consideration of Pham’s grounds of appeal.

Pham’s Appeal Ground 1
Her Honour erred in her determination of the objective seriousness of the Applicant’s offence.

50 In support of this ground it was submitted that her Honour erred in stating that the drugs supplied had a “high level of purity”. Reference was made to R v Attallah [2005] NSWCCA 227 at [221] where James J, with the concurrence of Buddin and Rothman JJ observed:-

“I do not consider that it was open to her Honour to find that the heroin or cocaine supplied was “of a high degree of purity” (s61(2)(c)). The only evidence about the degree of purity of the drugs supplied referred to by her Honour in her remarks on sentence was evidence about the purity of deals of cocaine found on the appellant on 9 November 2000 (degree of purity 38 per cent), of cocaine found in the kitchen of the brothel on 9 November 2000 (39 per cent) and deals of cocaine found on Elkhoury on 9 November 2000 (50 per cent). There was no evidence which would have permitted a determination of whether these degrees of purity should be regarded as “high” degrees of purity. Her Honour did not refer to any evidence at all about the degree of purity of the heroin the appellant had supplied. It is to be borne in mind that the appellant was conducting a retail operation supplying to ultimate users and that the degree of purity of the drugs supplied by him was likely to be much less than the degree of purity of drugs supplied at higher levels in the distribution system.”

51 Their Honours do not mention and presumably were not referred to the decision of Stanbouli (2003) 141 A Crim R 355 where, with the concurrence of Spigelman CJ and Carruthers AJ, I observed that “… the topic of heroin usage, price and purity comes often before the Courts and has been dealt with sufficiently often in published research material for judicial notice to be taken of it – c.f. R v Henry (1999) 46 NSWLR346 at 360-366, 399-403”. In remarking as I did, I ventured where the judges in McCourt (1993) 69 A Crim R 151 were perhaps unwilling, at least in 1993, to tread. However, regrettably, the experience of courts with drug offences is vastly greater now than it was then. So, I suspect, is the published material. That presently available includes: “NSW Drug Trends 2006; Findings From the Illicit Drug Reporting System (IDRS)” by E. Black et al, NDARC Technical Report No. 270 (University of New South Wales); “The Effect of a Reduction in Heroin Supply on Fatal and Non-Fatal Drug Overdoses in New South Wales, Australia”, by Degenhardt L. et al, (2005) 182 The Medical Journal of Australia; “Heroin Markets in Australia: Current Understandings and Future Possibilities”, by T J Moore et al, Drug Policy Modelling Project, Monograph 09, (Turning Point Alcohol and Drug Centre Inc).

52 Judge Morgan was thus entitled to take judicial notice of the purity of drugs commonly to be found in cases coming before the courts and to make a judgment of where, relative to the levels of purity commonly seen, the purity of the drugs in the case before her fell.

53 On the other hand, her Honour erred in stating that the purity of the heroin “ranged from between 30 to 33.5%”. While seven of the nine samples analysed fell into that range, there were also samples of a purity of 26% and 29.5%.

54 Furthermore, if judicial notice is to be taken of matters such as purity commonly experienced in the Courts, the particular matters must be such as to be, or be virtually – and for present purposes it is unnecessary to explore the difference - beyond argument. The publications to which I have referred indicate levels of:-

Heroin Markets in Australia (p21) 25%
The Effect of a Reduction… (p3) Around 25%-30%
NSW Drug Trends (p18) 30%

55 Her Honour’s finding that the purity of the drug in this case was “high” presumably means “significantly high”. Given the figures from the publications referred to and the purity of the drugs analysed in this case, her Honour erred in making the finding she did.

56 It was also submitted that in the way her Honour arrived at her decision as to the objective seriousness of the offence she erred because she neglected to take account of matters such as motivation and mens rea and the different roles of Ma and Ngao on the one hand and Pham and Hughes on the other. R v Way (2004) 60 NSWLR 168 at [85] et seq. was relied upon and that case does make it clear that in making any judgment as to the objective seriousness of an offence a judge is required to look at the matters referred to.

57 Although her Honour quoted a summary, taken from AJP (2004) 150 A Crim R 575, of what R v Way decided in the above respects, her findings and reasoning on the topic of the objective seriousness of the offence(s) here is contained in the passage I have quoted earlier. A consideration of that passage makes it clear that, in arriving at her assessment of “the offences as falling within the middle range of objective seriousness”, her Honour concentrated on the seriousness of the operation in which the offenders were engaged rather than considering the offenders individually in respect of their motivation, mens rea, actions and role. Accordingly her Honour’s method of arriving at her conclusion concerning objective seriousness was flawed.

58 It was further submitted that her Honour’s conclusion in the case of Pham was not consistent with her conclusion that Ms Heng’s offence was also in the mid-range of objective seriousness, particularly when regard was had to the fact the latter was found to be a dealer solely for profit and someone who had leased the premises used for supply, packing and storage. Given that the relativity between Pham and Ms Heng arises for consideration under the third of Pham’s grounds of appeal, and although that raises wider issues than the issue of the objective seriousness of their offences, it is more convenient to defer consideration of the topic until later in these reasons. It is sufficient for present purposes to say that, in addition to the matters mentioned there are others to be taken into account and I am not persuaded that, in terms of objective seriousness, Ms Heng’s offence was worse than Pham’s.

59 It remains under this ground to consider whether, notwithstanding error in Judge Morgan’s approach, Pham’s offence should be regarded as falling within the middle of the range of objective seriousness. In an early part of these reasons I have summarised the nature of the operation in which the offenders were engaged and Pham’s role in it: In short he was a street level supplier in a well organised business operation and so engaged day after day for 2 months and continuing in his activities notwithstanding interruption of the operation by the police some 2 weeks before he himself was arrested. His offending was as a participant in the supply of a quantity which was well into the high range of commercial quantities. His criminal actions were deliberate and frequent and his motivation his own need for drugs and, one may perhaps infer, basic living needs.

60 Although Pham’s role argues for his offence being regarded as below the middle of the range of objective seriousness, ultimately the conclusion at which I have arrived is that it is in the middle of that range. I am principally influenced towards that conclusion by: firstly, the fact that Pham’s offence was “supply” and although he was a lesser cog, he was as integral a part of what actually occurred as his superiors; secondly by the duration and extent of his activities; and thirdly, by the quantity involved.

61 This ground fails.

Pham’s Appeal Ground 2
The learned sentencing judge failed to have proper regard to the circumstances personal to the Applicant when determining an appropriate sentence.

62 The particular matters relied on in support of this ground were Pham’s youth; the fact that he had been employed for some time in the community; that this was his first time in custody; his rehabilitation in the 2½ years since his arrest including abstinence from drug use throughout this period; and the completion of a number of courses. Attention was directed to her Honour’s remarks during the course of submissions that “Your man is doing everything he possibly can whilst he has been in custody to assist himself” and “He was really quite impressive, your fellow, what he’s done.”

63 Her Honour did not repeat these observations in her remarks on sentence but all the other topics except that Pham has not been incarcerated before were referred to in those remarks. Given the obvious care shown in describing the situation of all offenders, it is impossible to believe that her Honour was not also conscious of that further matter. Accordingly there is nothing expressed in her remarks to provide support for this ground. Whether the sentence imposed indicates that “proper regard” was not had to Pham’s personal circumstances is a matter that can be deferred until the fourth ground is considered.

Pham’s Appeal Ground 3
The sentencing judge erred in failing to have any or proper regard to the principle of parity when determining an appropriate sentence.

64 It was submitted that “When one undertakes a detailed analysis of the sentences of each of the co-offenders … it is apparent that the applicant has a justifiable sense of grievance when his sentence is compared with that of the co-offenders, taking into account their respective roles and other relevant circumstances”. Particular attention was paid to a comparison between Pham on the one hand and Hughes and Ms Heng on the other. It was pointed out that Ms Heng’s total sentence of 12 years was her Honour’s starting point prior to giving Pham and Hughes a discount of 3 years for matters that had nothing to do with Ms Heng.

65 In light of the description of their roles and positions in the Statement of Agreed Facts, there can be no doubt that Ma and Ngao deserved a more severe punishment than Pham. On the other hand, despite the difference in roles and the involvement of Ma and Ngao in the purchasing and managing sides of the enterprise, there is nothing to suggest that Pham was not as dedicated and involved as the other 2 in effecting the sales that occurred. Ma and Ngao did receive materially heavier sentences and although the difference could easily have been greater, I do not regard that difference as great enough to create a justifiable sense of grievance. In this connection it must not be forgotten that punishment by imprisonment is not simply proportional to the length of the term. Longer periods are liable to have a disproportionally greater impact on an offender’s life than shorter ones - see R v Sciberras [2006] NSWCCA 268 at [50]; R v Amurao [2005] NSWCCA 32 at [65].

66 So far as Ms Heng is concerned, reliance was placed on the fact that she was found to be a seller of drugs for profit and someone who had leased the premises used for supply, packing and storage. However, so far as the latter aspect is concerned, while the premises leased by Ms Heng were used for supply, packing and storage, they appear to have been the family home and there was nothing to suggest that they were obtained for the purpose of the enterprise that was conducted there (and elsewhere). It must also be recognised that the offending alleged against Ms Heng occurred over only a 6 weeks period compared with about 8 weeks in the case of Pham and the latter’s continuation of offending in the face of Ms Heng’s arrest represented a grossly contumelious disregard for the relevant law.

67 It was submitted that Ms Heng’s criminality was significantly worse in that Pham was a user/dealer at the lowest rung of the organisation while Ms Heng was a supplier “for profit”. Attention was directed to the remarks of Wood CJ at CL in R v Pham [2001] NSWCCA 307 at [46] that, where a street user/dealer is being dealt with, there is “room for a measure of clemency”.

68 To concentrate solely on the description of the offenders in the immediately preceding paragraph is to ignore other findings of Judge Morgan. Though recognising the factors there referred to, her Honour also found that Ms Heng played a lesser, or much lesser, role than the other offenders, found she had an inability to assert authority over her eldest children and that they dominated activities in the home. These, and other findings of her Honour were fairly open and bear significantly on Ms Heng’s criminality, both in its objective form and relative to the criminality of Pham, even though he be regarded as no higher than a street supplier. Thus it is that I said when considering Pham’s first ground of appeal that I was not persuaded that in terms of objective seriousness, Ms Heng’s offence was worse than Pham’s.

69 So far as the remarks of Wood CJ at CL in R v Pham [2001] NSWCCA 307 at [46] that, where a street user/dealer is being dealt with, there is “room for a measure of clemency” are concerned, his Honour did not suggest that all street user/dealers in all circumstances, were to be given leniency. In considering whether any particular one should, it is also necessary to have regard to what was said in R v Henry to which I refer below.

70 Reliance was also placed on the fact that Ms Heng had a prior conviction for supplying drugs, but so did Pham. Attention was drawn to Judge Morgan’s finding that Ms Heng had no mitigating factors operating in her favour and was not the subject of any favourable finding as to her prospects of rehabilitation, whereas Pham did receive positive findings in these areas. However it is clear that in Pham’s case these sorts of matters found reflection in the 3 years discount he was given.

71 Judge Morgan’s reduction of Pham’s head sentence by 3 years so as to arrive at the term imposed of 9 years represents a discount of 25%. Were such a discount applied to the 12 and 8 year terms in Ms Heng’s sentence, the result would be 9 and 6 years, the latter being above, though not much above, the 5½ years non-parole portion of Pham’s sentence. However, it must also be borne in mind that at the time of his offending Pham was, and Ms Heng was not, on conditional liberty. Remarks made above when considering Ma’s first ground of appeal, indicate that that fact justified some appreciable increase in Pham’s sentence beyond what it might otherwise have been.

72 When regard is had to these matters and particularly her Honour’s findings that Ms Heng played a lesser role than Pham, I am not persuaded that her Honour erred in the respect the subject of this ground.

73 It was also submitted that Pham had also been harshly dealt with by comparison with Hughes. It was pointed out that Hughes had a criminal record that was far worse than that of Pham and that at the time of the offence Hughes was in breach of a Drug Court program and gained a substantial benefit by having the commencing date of his sentence fixed so that a prior sentence of 12 months imprisonment including a non-parole period of 6 months commencing on 19 November 2004 for supplying prohibited drugs was wholly subsumed.

74 So far as this last mentioned matter is concerned, it must be borne in mind that Pham’s sentence completely subsumed the 4 months sentence commencing 18 August 2004 imposed on him for having a SIM card while a prison inmate.

75 There is no doubt that Hughes’ appalling record argued for him being given a heavier sentence than Pham upon grounds referred to in Veen v R (No 2) (1987) 164 CLR 465 at 477:-

“The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”

76 On the other hand, albeit not to anything like the same degree, Pham’s own record showed such a “continuing attitude of disobedience”. It is an inevitable inference that Hughes’ offending was largely, if not wholly, inspired by his addiction and, although Judge Morgan does not explain why she made no differentiation between the length of the sentences imposed on Hughes and Pham, her Honour may well have taken the view that the extra 9 months Hughes had to serve compared with Pham was, given the commonality of cause, sufficient. In this regard it has to be borne in mind that the principal factor in sentencing both offenders must have been their objective criminality and, given the seriousness of their offending, that criminality was likely to dominate the sentencing process. In the result, and though I believe I would have imposed different sentences on Pham and Hughes, I am not satisfied that her Honour was not entitled to do what she did.

Pham’s Appeal Ground 4
The sentence is manifestly excessive.

77 In R v Peel (1971) 1 NSWLR 247 at 262 it was said that "In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug.".

78 The degree of Pham’s offending was gross. Judged by the quantities setting the limits for the offence his criminality was high. It was high also by reference to what he did. For the reward it brought Pham chose to indulge in deliberate criminality many times a day, day after day for 2 months and this in circumstances where he cannot but have been conscious of the damage that heroin does to those who use it and, in order to feed their addiction, the damage such persons do to others by stealing and other depredations. Without doubt he must have had a fair idea of the quantities in which he and the others were dealing.

79 I do not ignore the fact that Pham’s motivation seems clearly to have been to support his own drug addiction. There is nothing to suggest that he built up any assets, or enjoyed a good lifestyle. However, in R v Henry (1999) 46 NSWLR 346 at [193] et seq., [274], [278], and [331] this Court made clear that drug addiction is not, of itself, to be regarded as a mitigating factor. As the Chief Justice, in remarks that commanded the assent of at least Newman J and myself – see also [275] - observed:-

“The concept that committing crimes in order to obtain money to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of moneys to pay for some other, but legal, purpose is perverse.”

80 I acknowledge that the remarks in that case included qualifications to the broad proposition as to the potential for drug addiction to have some mitigating tendencies. However, I do not regard those qualifications as significant here.

81 On behalf of Pham, the Court’s attention was drawn to the decision in R v Malek (2002) 124 A Crim R 423 where this Court reduced a sentence of 8 years including a non-parole period of 4 years to a sentence of 6 years including a non-parole period of 2 years and 9 months.

82 This Court has on innumerable occasions decried attempts to argue against the severity of a sentence by reference to one or a few other cases, no doubt selected from the many there are because on that one or few occasions judges seem to have been lenient. In these circumstances, I do not intend to analyse R v Malek more than to say its circumstances were radically different from those of Pham.

83 The Court’s attention was also directed to the statistics for supplying a commercial quantity of heroin. It was pointed out that these indicated that Pham’s sentence fell into the highest end of the range of all sentences imposed for this offence, whether before or after the introduction of the standard non parole period. I have taken the statistics from January 2000 1999 to December 2006 - a later edition than that on which counsel relied - and they show that for the supply of a commercial quantity of heroin, and in the category “offence committed before 1 February 2003 (when the standard non-parole provisions came into force), all offenders, non-consecutive terms only” full terms imposed were:-

Of 46 offenders the highest sentence, imposed on one offender was 12 years, the next highest, imposed on 2 offenders was 10 years and the other sentences varied between 3 and 8 years.

84 The non-parole periods for offenders in that category were:-

Of 46 offenders the longest term was 8 years, imposed on 2 offenders, and the next highest, 6 years, was imposed on 2 offenders. The other non-parole periods varied between 1 and 5 years.

85 The statistics show that for the supply of a commercial quantity of heroin, and in the category “offence committed before 1 February 2003, plea guilty, non-consecutive terms only” full terms imposed were:-

Of 38 offenders the highest sentence, imposed on one offender was 12 years, the next highest, imposed on 2 offenders was 10 years and the other sentences varied between 3 and 8 years.

86 The non-parole periods for offenders in that category were:-

Of 38 offenders the longest term was 8 years, imposed on 2 offenders and the next highest 6 years imposed on 1 offender. The other non-parole periods varied between 1 and 5 years.

87 The statistics show that for the supply of a commercial quantity of heroin, and in the category “offence committed on or after 1 February 2003, all offenders, non-consecutive terms only” full terms of:-

Of 23 offenders there were 2 sentences of 12 years, 1 of 10 years, 3 of 9 years, 4 of 8 years, 5 of 7 years and the others ranged between 4 and 6 years.

88 The non-parole periods for offenders in that category were:-

Of 23 offenders, 2 had periods of 7 years, 5 had periods of 6 years, 2 had periods of 5 years and the others had periods varying between 2½ and 4½ years.

89 The statistics for those of that last mentioned group who pleaded guilty refer to 22 offenders. The only changes are a reduction from 4 to 3 of those on whom a total term of 8 years was imposed and a reduction from 5 to 4 of those on whom a non-parole period of 6 years was imposed.

90 It should probably be noted that in the preparation of the statistics data is rounded upwards to the next half-year, year or 2 years, depending on the basis upon which a particular set of statistics has been prepared. Reference to the Judicial Commission has confirmed that the sentences imposed on Ma, Ngao, Pham and Hughes are included in the statistics for offences after 1 February 2003. It follows that the sentences imposed on Ngao and Ma are the highest in the periods referred to.

91 Subliminal in the reference to the statistics and the observation that the sentences here fall into the highest end of the range is the proposition that that is indicative of error. The proposition must be rejected. As this Court has said on many occasions, the range extends to the maximum penalty set by Parliament and it is against that that an offender’s conduct must primarily be judged. Certainly, the statistics may at times inspire further reflection on the sentence in a particular case and perhaps give some limited guidance but, of themselves, they do not demonstrate error. Particularly is this so because, within each category, they provide no details of the cases reflected in them.

92 When regard is had to Pham’s criminality and circumstances, the non-parole period of 5½ years imposed on him, when compared with the statutory maximum of 20 years and the standard non-parole period of 10 years (recognising that in the circumstances here, this is only a guide), cannot be regarded as manifestly excessive. Indeed it cannot be regarded as other than lenient. His plea of guilty was after his trial had commenced and would normally attract a discount of no more than 10%. Although Judge Morgan accepted his expressions of remorse, this and his plea were only after Judge Morgan had determined some evidentiary issues adversely to Pham and his co-offenders. There was some delay in sentencing – something of the order of 6 months – but in totality I have the greatest difficulty in seeing that in combination these matters justified the reduction of 3 years in Pham’s head sentence that Judge Morgan said she allowed. Normal practices of sentencing mean that the corresponding reduction in the non-parole period would have been less than 3 years and although her Honour found special circumstances and that Pham needed a longer than normal period on parole, it is difficult to see how her Honour arrived at a non-parole period so far from the 10 years standard non-parole period.

93 I am also satisfied that the total sentence of 9 years imposed on Pham was not manifestly excessive. Although her Honour concluded that Pham had good prospects of rehabilitation he had, as has been said, prior convictions for drug offences and was on conditional liberty at the time. Her Honour was well entitled to conclude that in that situation the magnitude of Pham’s offending was such that a total sentence (before the 3 year discount) of 60% of the statutory maximum was appropriate.

94 Indeed, I would go further. Had I taken the view that Pham’s offence was somewhat under the middle of the range in objective seriousness, I would still not have reduced his sentence, dismissing his appeal pursuant to the provisions of s6(3) of the Criminal Appeal Act. I am satisfied that no lesser sentence should have been passed.

95 The sale of heroin is almost invariably to addicts who can only pay for most of the drugs they need by crimes committed on others. Daily the Courts see the ravages, if not destruction of the lives of the users of heroin (and other drugs) and the damage often caused to innocent victims in order to feed addictions. As I observed in Markarian (2003) 137 A Crim R at [23]:-

“Much, if not most of the work of the courts is taken up with the consequences of the ravages drugs, particularly heroin, inflict on those who take it and, by them, on society. The survey of imprisoned burglars reported in "The Stolen Goods Market in New South Wales" conducted by the New South Wales Bureau of Crime Statistics and Research indicated a median expenditure by heroin users of $1,500 per week and the need to steal goods worth a number of times this amount to feed their habit. On average each such offender is thus costing the community through property losses and the like $200,000 per year. And that says nothing about the violence other offenders resort to, or the waste of life and degradation heroin inflicts on the lives of the tens of thousands of persons it comes to dominate.”

96 Heavy penalties are required on those who, in the face of the statutory provisions, choose to further that damage and destruction by participation in the sorts of operations in which Pham was involved.

97 In R v Wong (1999) 48 NSWLR 340 at [361], the Chief Justice referred to the “exceptional threat to society that is posed by large scale drug use”. Public deterrence is one of the purposes of punishment, indeed in the area of drug dealing, one of the main purposes. The extent of drug dealing that still occurs indicates that the penalties to this time imposed by the courts have not been sufficient to largely deter it. Parliament’s provision of a standard non-parole period of 10 years, when compared with the previous level of sentences, indicates it holds the same view.

Ma’s Appeal Ground 2
The sentence is manifestly excessive.

98 Many of the observations made in considering Pham’s complaint that the sentence imposed on him was manifestly excessive apply in the case of Ma albeit it must not be forgotten that the sentence imposed on him, 10½ years including a non-parole period of 7 years, was higher than that imposed on Pham.

99 There are of course other differences. The most significant is Ma’s role as a “highly active and organised manager” and purchaser. Ma was extremely fortunate that Judge Morgan approached his sentencing upon the basis that his offence fell in the middle of the range of objective seriousness and, as I have said, I have the greatest difficulty in seeing any justification for a reduction as high as the 3 years that Judge Morgan said she allowed in the head sentence.

100 In Ma’s favour is the fact that in March 2003 he underwent a Naltrexone implant in an attempt to free himself of his addiction and the favourable prognosis that Judge Morgan made. It must also be recognised that, compared with those of many drug addicts, Ma’s previous court appearances have been few but they must have been sufficient to make him aware that, if caught again, his conduct would be looked upon with equanimity. Be that as it may, I am satisfied that Ma’s sentence is not manifestly excessive.

101 There remains the question whether this Court should reduce Ma’s sentence because her Honour did not reflect in the sentences imposed on Ma and Ngao the difference Ngao’s offending whilst on conditional liberty should have inspired. In my view it should not. Breach of the principles of parity results in this Court having a discretion whether to interfere but, as was said in R v Pan [2005] NSWCCA 114 and quoted in Lewins v R [2007] NSWCCA 189 at [7]: -

"Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at [15]. A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney , above, at [16]."

102 A sentence lower than that imposed on Ma would be disproportionate to the objective and subjective criminality involved in his offence, even taking into account the subjective findings favourable to him.

Orders

103 The length of the sentences under appeal are such that leave to appeal should be given but, for the reasons stated, the appeals fail. The appropriate orders in each case are :-

(i) Grant leave to appeal;
(ii) Dismiss the appeal.

104 HOEBEN J: I agree with Hulme J.

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