Nguyen v The Queen

[2011] VSCA 32

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0741

PHUONG BICH NGUYEN

v

THE QUEEN

S APCR 2010 0074

PHOUSADETH PHOMMALYSACK

v

THE QUEEN

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JUDGES	MAXWELL P and REDLICH JA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 November 2010
DATE OF JUDGMENT	16 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 32
JUDGMENT APPEALED FROM	R v Nguyen (Unreported, County Court of Victoria, Judge Douglas, 13 July 2009); R v Phommalysack (Unreported, County Court of Victoria, Judge Howard, 9 March 2010)

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CRIMINAL LAW – Appeal – Sentence – Importation of commercial quantity of border-controlled drug – Possession of commercial quantity of imported drug – Significance for sentencing of quantities imported – Importation involved quantities many times the applicable commercial quantity – Sentencing range – Need for national consistency in sentencing for federal offences – R v Nguyen; R v Pham [2010] NSWCCA 238; DPP (Cth) v  De La Rosa [2010] NSWCCA 194 followed.

CRIMINAL LAW – Appeal – Sentence – Discount for promise of future cooperation – Nature of appellate review of quantum of discount – Whether reviewable for specific error – Appeal court not reviewing sentence on merits – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1914 (Cth) s 21E.

CRIMINAL LAW – Appeal – Sentence – Judge’s perception of increased prevalence of offence – Whether finding supported by evidence – Whether treated as aggravating factor – Drug-addicted offender – Whether open to judge to treat addiction as aggravating seriousness of drug importation offences – No different sentence should be imposed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant (Nguyen)	Mr C B Boyce	Slades & Parsons
For the Appellant (Phommalysack)	Mr T Kassimatis	Valos Black & Assocs
For the Crown	Mr R Pirrie	Commonwealth Director of Public Prosecutions

MAXWELL P:

1 These appeals concern sentences imposed on two participants in a very large drug importation. They raise important questions about the applicable sentencing range for the importation (and subsequent possession) of drugs in quantities which represent many times the applicable commercial quantity. The first appeal also raises a question about appellate review of sentencing discounts for future cooperation declared under s 21E of the Crimes Act 1914 (Cth).

2  Where a commercial quantity of a drug is imported, the maximum penalty for importation and for possession is life imprisonment.[1]  Self-evidently, therefore, the offence is to be viewed as being of the utmost seriousness.  The sentencing regime being quantity-based,[2] the scale of the importation will be a very significant factor in sentencing.[3]  Ordinarily, the larger the quantity imported, the more serious will be the offence (other things being equal).[4] 

[1]Criminal Code Act 1995 (Cth) ss 307.1 and 307.5.

[2]Adams v The Queen (2008) 234 CLR 143; R v Nguyen;  R v Pham [2010] NSWCCA 238, [70] (‘Nguyen and  Pham’).

[3]Chan, Lo & Nguyen v Regina [2010] NSWCCA 153, [114]–[115] (‘Chan’).

[4]See [34] below:  propositions 4 and 5.  See also Markarian v The Queen (2005) 228 CLR 357, 372–3.

3  Here, the importation involved three drugs, and in each case the quantity imported represented many multiples of the applicable commercial quantity of the drug in question, as follows:

·methamphetamine (ice):  21.8 kilograms (equivalent to 29 times the commercial quantity, or ’29 x CQ’[5]);

·MDMA (ecstasy):  6.3 kilograms (equivalent to 12.6 times the commercial quantity, or ’12.6 x CQ’);  and

·cocaine:  29.1 kilograms (equivalent to 14.5 times the commercial quantity, or ’14.5 x CQ’).

[5]This abbreviation is used throughout these reasons to denote the number of multiples of a commercial quantity of a drug.

4  The street value of the drugs was enormous.  In sentencing the second appellant (‘Pom’),[6] Judge Howard said:

In round figures, there was imported 158.5 kg of a substance containing 55 kg of pure drugs with a maximum street value of $98.5m.  Using the lowest wholesale valuations which totalled $10.8m and the highest retail valuations which added up to $98.5m, the potential profit margin was $87.7m or a staggering 812%.  It is unclear how much was paid for the drugs by the organisers in the first place, presumably very much less than the wholesale figures I have mentioned.  On any view, this was a major and disturbing criminal enterprise.  Indeed, many in the community would consider it the type of criminality which justifies the need for the maximum sentences available.

[6]According to the sentencing reasons, this was a name by which the appellant was known.

5  The first appellant (‘PBN’)[7] pleaded guilty to one count of attempted importation and one count of attempted possession of the drugs.  She was sentenced to 10 years’ imprisonment on the importation count, and seven years on the possession count.  The total effective sentence was 12 years’ imprisonment, and a minimum of eight years was fixed.

[7]The abbreviation is not used for reasons of anonymity but for ease of reference.

6  As will appear, PBN provided assistance to the authorities and undertook to provide further assistance.  In addition to a complaint about the inadequacy of the sentencing discount for cooperation, she contends that the sentence imposed was manifestly excessive.  Hence it becomes necessary to consider the applicable sentencing range.[8]

[8]R v MacNeil-Brown;  R v Piggott (2008) 20 VR 677, 680 [9].

7  Pom pleaded guilty to a single count, of attempting to possess the imported drugs.  He was sentenced to 12 years’ imprisonment, with a minimum of nine years.  He makes no complaint of manifest excess, but identifies three matters each of which is said to constitute specific sentencing error.

Factual background

8  The facts are, essentially, unremarkable.  The drugs were concealed inside goods shipped in a container.  The goods in question were ‘foot spas’, packed into cardboard boxes.  The drugs were in packages concealed in the base of numerous foot spas.

9  PBN became involved through a person referred to throughout the proceeding as ‘Auntie Phung’, to whom PBN owed money.  The debt was said by Auntie Phung to be $27,000.  PBN agreed that, in order to repay the debt, she would assist Auntie Phung and her boyfriend with the drug shipment.  She was told that her role would be to help arrange the documents and the storage of the drug shipment and that other people would be opening the shipment and distributing the drugs.  Her remuneration was to be $25,000.

10  Subsequently, PBN:

·arranged for the lease of a factory where the container would be delivered and unpacked;

·liaised with customs brokers to arrange customs clearance for the container, and delivery of the container to the factory;

·liaised with those who were to purchase the drugs and traffick them; 

·attended at the factory and signed for the delivery of the container;  and

·attended at the factory when the unpacking of the boxes commenced.

Throughout, PBN maintained close contact with Auntie Phung, and acted in accordance with her specific instructions.

11  Following the arrival of the container, PBN requested an additional payment for her work from Auntie Phung.  After an argument, it was agreed that PBN would receive an additional $5,000, on the basis that she was to pay back an additional $7,000.

12  Pom was not involved in the importation, nor responsible for it.  His task was to collect and transport the drugs from Melbourne to Sydney.  He acted on behalf of a man known as ‘Tan’, who was one of two traffickers from Sydney who had arranged to purchase and distribute a large portion of the drugs.  Tan recruited Pom in Sydney, to come to Melbourne to collect his portion of the drugs and return them to him in Sydney.

13  Pom said that he was paid $10,000 up front to collect the drugs.  He was told that he would receive a further $40,000 on his return to Sydney with the drugs.  He knew he was to pick up illegal narcotics, although he did not know precisely what drugs they were.  It was left to Pom to make the necessary arrangements to carry out his task.  On his own initiative, he recruited two further persons.  One was a mechanic who was to assist with the secreting of the drugs inside the doors of a car.  The other was the mechanic’s girlfriend, who hired a car for this purpose as Pom did not hold a current licence.  These three drove from Sydney to Melbourne, and stayed in accommodation paid for by Pom. 

14  Following their arrival in Melbourne, Pom met with the trafficker, Tan, who introduced him to PBN and told her that Pom was there to collect the drugs the following day.  He did not want to go near the factory himself. 

15  Following the arrival of the container at the factory, Pom went to the factory, where he met PBN.  He was accompanied by the mechanic.  They drove inside the factory so that Pom could inspect the container.  This involved introducing PBN to the mechanic, whom she had not previously met and knew nothing about.  Pom told PBN that the mechanic was there to put the drugs into the car. 

16  The following morning, the unpacking of the container began.  (The container had earlier been intercepted by the authorities and the drugs replaced with inert powder).  The packages of ‘drugs’ were retrieved, and were counted by PBN.  In the course of the morning, Pom arrived in his hire car with his two accomplices.  Together with the mechanic, Pom commenced to strip the door trims from each of the four doors of the hire car.  The drugs were lying exposed and PBN directed Pom as to which packages were to be taken and hidden in the car.

17  Pom examined some powder from the bags of drugs which had been unpacked.  Not long after, he announced that the drugs were fake.  Almost immediately, the police raided the premises and arrested the six people who were then present.

18  At the time of the arrests, the container was fully unpacked.  Some of the cardboard boxes were still to be opened.  A number of the foot spas had been broken open to reveal many packages.  At least two of the four door trims had been removed, and Pom’s travel bags were in the boot of the vehicle.  Apparently no ‘drugs’ had been placed in the car.  Pom told police that, once the car was packed with the drugs, he had intended to drive straight back to Sydney.

The respective roles of the appellants

19  In sentencing PBN, the sentencing judge said of her role in the importation:

As to your role, it is not in dispute that you were not a principal.  The Crown case is that the assistance you gave to one of the principals, Thi Kin Phung Nguyen, whom you referred to as ‘Auntie Phung’ was integral to the carrying out of the importation.  I will refer to this woman as ‘Auntie Phung’ during the sentencing remarks.

You were a direct link to Auntie Phung and communicated with her during each step involved in clearing the container containing the drugs through Australian Customs and the delivery of the container to the factory where it was found by the Australian Federal Police.  You also dealt directly with Manh A Le and Hung Van Luong who were also involved in the importation.

I have set out the circumstances in relation to these offences which is not in issue, in particular the assistance you gave to Auntie Phung and the other principals.  Your counsel described you as a mere foot soldier and the Crown has described you as an integral facilitator of the importation.  I agree with the Crown’s description as you had a direct involvement over a considerable period.  Throughout the period, you communicated directly with Auntie Phung, directly communicated with other principals as well as others involved at the same level as you and actively assisted in the leasing of the factory for the storage of the drug shipment.

Once the container arrived in Australia, you assisted in the delivery of the container to the factory that had been leased, by making arrangements with the customs brokers to whom you provided all necessary documentation to ensure the container was cleared through customs, and arranged for payment to be made through Luong and Li.  You also helped in the unpacking of the container.

Further, I agree with the Crown that it is significant that your directions were directly from Auntie Phung and that you and she were in continual contact throughout the period and in fact you were living at her premises.  As well you were in direct contact to those whom the drugs were going to be sold for them to traffic, namely Ba So Hai and a man referred to as Tuan.

20  On the appeal, it was contended that the judge had overstated PBN’s role.  The submission was as follows:

The appellant exercised no independent control or judgment nor did she devise any arrangements.  She was closely supervised and instructed at all times by Phung.  The appellant was not indispensable but provided a means by which Phung could distance herself from the importation and distribution of the drugs.  Like a courier, if the appellant had not performed her function, someone else could and would have been found.

21  I would reject this submission.  It is clear from what has already been said about the part played by PBN that the judge’s findings as to her role were entirely justified.  That another person might have performed that role is beside the point.

22  As to the part played by Pom, Judge Howard said:

You played a significant, enduring and serious role in this criminal enterprise.  In summary, you agreed to go from Sydney to Melbourne to pick up a very substantial quantity of illegal narcotics and return them to a particular person in Sydney.  You did this for a substantial sum of money.  You were left to your own devices as to how you would achieve this result.  Inventively, you decided to hire a vehicle in someone else’s name and determined to hide the drugs behind each of the four door trims.  You recruited your friend Trinh to assist in this task because he was a mechanic and someone who could also provide security for you on the return trip to Sydney.  You used his girlfriend, Wong, to hire the car in her name, thereby avoiding your exposure to the hire car company.  You paid for the hire car.  You agreed to pay $10,000 to Trinh for his assistance, and presumably that of Wong’s.  You brought the vehicle and those two people to Melbourne.  You arranged and paid for the accommodation for the three of you whilst in Melbourne.

…

You played the additional role of testing some of the “drugs” and then revealed to all those present that they were fake.  Of course, this would have immediately alerted the others to the fact that, in all likelihood, the scheme was known to police who had substituted fake drugs.  But for the fact that police were nearby and ready to pounce, all of you could have escaped with the benefit of your warning to them.

There can be no doubt that your conduct reveals you were a trusted member of the inner circle of conspirators.  You were relied upon by [PBN] and others who were reporting back to the principals.  You made creative and executive decisions in furtherance of the scheme.  You played an energetic role and made a significant contribution to the success of the enterprise.  I am satisfied that any description of you as a “mere courier” or “just a driver” is a wholly inadequate characterisation of your offending.

There was no challenge to any of these findings on the appeal.

Personal circumstances

PBN

23  The sentencing judge accepted that PBN did not offend for greed, nor because of a drug habit, but because of the debt she owed to Auntie Phung.  Her Honour inferred that there was some ‘unstated intimidation’ by Auntie Phung. 

24  PBN was born in Vietnam in 1976.  She was aged 34 at the date of sentence.  She came to Australia in 1992.  She left school in year 10, left home, and lived with friends, working in a number of jobs.  She had an abusive relationship, in the course of which she had a son.  There was no contact with the father of the child.  The judge accepted that separation from the son, who was 13 at the time of sentence, was very difficult for PBN. 

25  PBN has no prior convictions.  The judge accepted that, until this offending, she was a person of otherwise good character, and that her prospects of rehabilitation were very good.  She pleaded guilty ‘from a relatively early time’. 

Pom

26  Pom was born in Laos and had come to Australia in 1993.  He was 25 at the time of sentence.  He left school, and home, in the course of Year 9, after which he ‘started associating with wayward youths and spent much time living on the streets, or in unstable accommodation.’  When Pom was 16 or 17, he began to use marijuana and ecstasy.  Whilst under the influence of those drugs, he committed an armed robbery at a service station with another youth who was in the possession of a knife.  For this offence, he was placed on probation for 15 months by the Children’s Court in New South Wales.

27  He subsequently worked for four years at a Sydney fish market.  During that period, he became addicted to crystal methamphetamine (ice).  He stopped work and, for the 12 months leading up to the offence, developed a significant gambling habit.  He described himself as ‘a very heavy and addicted gambler’ by the time of the offending, by which time he had amassed gambling debts.

28  Pom pleaded guilty at the earliest available opportunity.  He made significant admissions when interviewed.  The judge was satisfied that he was remorseful and that he had taken significant steps toward rehabilitation since being incarcerated.  He had no prior convictions for drug offences.

The applicable sentencing range

29  In response to the Court’s request for assistance on the applicable sentencing range, counsel for PBN prepared a helpful written submission in which he drew attention to five decisions of the New South Wales Court of Criminal Appeal, all very recent[9] and all dealing with sentencing for participation in large importations of drugs, or for the (attempted) possession of the imported drugs.  As counsel rightly pointed out, these decisions contain a wealth of detailed consideration of the applicable sentencing principles and of current sentencing practice, and of the importance of consistency in sentencing.

[9]Ng v R [2010] NSWCCA 232 (14 October 2010); Chan [2010] NSWCCA 153 (22 October 2010); Nguyen and Pham [2010] NSWCCA 238 (22 October 2010); R (Cth) v Cheung;  R (Cth) v Choi [2010] NSWCCA 244 (28 October 2010); DPP (Cth) v De La Rosa [2010] NSWCCA 194, [193] (‘De La Rosa’).

30  These are, of course, federal offences and there must, so far as possible, be national consistency in sentencing.[10]  To that end, the New South Wales decisions provide invaluable guidance.  (It is surprising that such an important group of recent, relevant appellate decisions was not the subject of submissions from either side until the Court sought assistance on the applicable sentencing range.  Nor should it have fallen solely, or even primarily, to counsel for PBN to analyse the significance of those decisions for these appeals.  After all, the Crown was a party to each of the appeals and might reasonably have been expected to have filed a supplementary submission dealing with them.)

[10]De La Rosa [2010] NSWCCA 194, [193] (McClellan CJ at CL) and the cases there cited; see also [117]–[124] (Basten JA).

31  Counsel for the Crown drew attention to two 2010 sentences, both imposed by Judge Punshon of the County Court, on participants in the same major drug importation.  For ease of reference, I have summarised in Table A, appended to these reasons, the sentencing outcomes in the New South Wales appeal cases[11] and the two County Court decisions referred to.  (The table also includes the influential New South Wales decision in R v Lee[12] and three decisions of this Court on sentencing for importation offences.)

[11]De La Rosa is not included, because the offender was sentenced for importing a marketable, rather than a commercial, quantity.

[12][2007] NSWCCA 234 (‘Lee’).

32  Counsel for the Crown also supplied to the Court a table listing more than 150 individual sentences imposed in Victoria in the period October 2004 – September 2010 for Commonwealth drug importation offences.  For reasons stated below,[13] a table of this kind is of very limited utility.

[13]See [38].

General principles

33  In the most recent of the New South Wales decisions, Nguyen and Pham,[14] the Court of Criminal Appeal (Johnson J, with whom MacFarlane JA and R A Hulme J agreed) distilled from the authorities a number of propositions applicable to sentencing for drug importation offences.  Once again, this summary is of great assistance to courts dealing with these federal offences.  The propositions substantially accord with the course of decisions in Victoria. 

[14][2010] NSWCCA 238.

34  For the assistance of sentencing judges, the propositions set out in Nguyen and Pham are as follows:[15]

[15]Ibid [72]. The original citations are omitted. They are fully set out in the judgment of Johnson J. I have added some further citations where appropriate. Propositions 1 and 6 have been supplemented by reference to De La Rosa.

1.        The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation.  Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.[16]

[16]De La Rosa [2010] NSWCCA 194, [255].

2.        Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court.

3.        It is the criminality involved in the importation which must be identified.  The fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.

4.        Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported. 

5.        Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type.[17]  In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.

[17]Chan [2010] NSWCCA 153, [114]–[115].

6.        As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit.  (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.[18])

[18]De La Rosa [2010] NSWCCA 194, [261].

7.        The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.

8.        The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment. 

9.        Involvement at any level in a drug importation offence must necessarily attract a significant sentence.  Otherwise the interests of general deterrence are not served. 

10.      The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.

11.      Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.

12.      Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.

13.      Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.

35  In De La Rosa,[19] McClellan CJ at CL identified the following as key reference points for sentencing (and for comparing sentences) in cases such as these:

[19][2010] NSWCCA 194, [267].

·    quantity;

·    role;

·    reward;

·    assistance to authorities;

·    criminal history;  and

·    prospects of rehabilitation.

36  His Honour reviewed a large number of sentencing decisions, which he grouped into the categories set out in the table below.  It should be emphasised that this classification was intended to be descriptive of current sentencing practice and hence to promote consistency of sentencing in future.[20]  His Honour was not purporting to lay down quantitative sentencing guidelines.[21]  (The Court of Criminal Appeal subsequently made use of this categorisation in Nguyen and Pham.[22])

[20]Ibid [197].

[21]Cf Wong vThe Queen;  Leung v The Queen (2001) 207 CLR 584 (‘Wong and Leung’).

[22][2010] NSWCCA 238, [109].

Import commercial quantity Customs Act 1901 (Cth) s 233B and Criminal Code Act 1995 (Cth) s 307.1		Range of sentences imposed
		Head sentence	Non-parole period
Group 1	High quantity (tens or hundreds of kilograms);  high value (tens of millions of dollars);  large reward (hundreds of thousands of dollars) although finding of reward not required;  not guilty plea in half of cases;  no assistance;  no remorse; mastermind, principal or part of organising committee;  high degree of responsibility	25y to life	8y 6m–30y
Group 2	High quantity;  high value;  guilty plea; principal, member of upper management or ‘essential’ role with moderate to very high level of responsibility;  reward in tens of thousands of dollars although finding of reward not indicative	18–24y 6m	10–16y
Group 3	Quantity generally below 7 kg;  mid-range role; discount for assistance, cooperation; plea not indicative	8–15y	4–11y
Group 4	No prior convictions;  good antecedents; quantity not indicative;  plea not indicative although discount provided for early plea; role not indicative although generally part of syndicate	6y 3m–8y	3–4y 6m

37  To have current sentencing practice distilled in this accessible fashion is of the greatest assistance.  It should certainly be conducive to consistency.  I gratefully acknowledge McClellan CJ’s very considerable labour in reviewing more than 80 sentencing decisions,[23] which enabled his Honour to produce this classification of sentencing decisions based on clusters of key features.

[23]Ibid [194]–[196].

38  The utility of this table highlights the shortcomings of the table of sentences which the Crown provided to the Court in these appeals.  In relation to each offender, the Crown’s table states only the offence, the quantity of the drug, the sentence imposed and any relevant prior convictions.  There is no indication or the role played by the offender in the importation, or of the reward (if any) received or anticipated.  So far as quantity is concerned, the table includes, without differentiation, sentencing for offences involving commercial quantities and for offences involving marketable quantities, to which different sentencing practices apply.  In the case of commercial quantity offences, the table only gives the raw quantity of the drug in question, not the relevant multiples of a commercial quantity which are necessary in order for meaningful comparisons to be drawn.  And, unlike the national table provided to the New South Wales Court of Criminal Appeal in Lee,[24] the table is confined to Victorian decisions.

[24][2007] NSWCCA 234.

39  It would be of far greater assistance to sentencing courts, and to this Court on appeal, if the Commonwealth Director identified comparable cases (from across Australia) which can be used as a reference point for sentencing (or appellate review of sentencing) in a particular case.[25]

[25]As to the use of comparable cases, see Hudson v The Queen; DPP v Hudson [2010] VSCA 332;  Hasan v The Queen [2010] VSCA 352.

FIRST APPELLANT (PBN)

Ground 1:  cooperation discount

40  Following her arrest, PBN cooperated with the Australian Federal Police.  She made a statement and gave an undertaking to give assistance in the future.  As customarily occurs, the informant provided the Court with a confidential letter, known as a ‘letter of assistance’, which described the nature of PBN’s cooperation. 

41  Judge Douglas noted that the informant assessed the information provided as being ‘important and accurate’.  Her Honour continued:

The information, the accuracy of which has been confirmed, included matters about which the police did not know.  Accordingly you have provided both past and promised future cooperation in that you have undertaken to give evidence in relation to co-offenders who are awaiting their committal.

Pursuant to s 16A sub-s (2h) of the Crimes Act 1914 (Cth), I take into account the cooperation you have given. I am not required to identify the extent of the reduction for past cooperation. Further your promise of future cooperation is also relevant for sentencing purposes pursuant to s 21E Crimes Act 1914 (Cth). The reduction in sentence which I propose to make for your future assistance that has been promised I will quantify in compliance with that section.

I take into account as a matter of significance the assistance you provided to the Australian Federal Police which I will refer to as past cooperation.  I also take into account in your favour the undertaking you have given to the court and to the police to provide evidence in relation to the co-offenders.  Investigations such as this in relation to the importation of illicit substances are very difficult for investigators who do not have the assistance, as in many crimes, of a victim reporting the crime.  The investigators must rely on methods of investigation including listening devices, telephone intercepts, undercover police officers and cooperation from people such as you.  The success of these investigations and the obtaining of evidence against individuals frequently depends to a considerable extent on the assistance given by co-offenders.

In your case I am satisfied that the information you provided was accurate and importantly some of the information was not known to the investigators.  It is important that you have agreed to continue your assistance and give evidence against the co-offenders.  In these sorts of cases such as importing drugs or trafficking drugs, it is often difficult for investigators to identify the principals and to obtain evidence in relation to them as they are generally at arm’s length to any of the transactions and deliberately place others between themselves and the commission of the offence so as to avoid detection.  Consequently it is a matter of public policy that judges show clearly that those who cooperate with the Australian Federal Police and any State police to the extent you have will have a lesser sentence than those who do not.

42 In accordance with s 21E of the Crimes Act 1914 (Cth), the judge declared that, but for the undertaking of future cooperation, PBN would have been sentenced to 14 years’ imprisonment, with a minimum of 10 years. As counsel for PBN pointed out on the appeal, the discount of two years for future cooperation represented 14 per cent of the notional (‘but for’) head sentence of 14 years. Given that PBN had undertaken to give evidence against the principal offender, the discount was said to be ‘manifestly inadequate and out of step with the high value placed on such assistance.’[26]

[26]Reference was made to R v Rostom [1996] 2 VR 97; R v Pividor & Dale [2002] VSCA 174; and R v D S (2005) 153 A Crim R 194.

43  Counsel for the Crown confirmed that PBN had subsequently given evidence – in accordance with her undertaking – at two separate committal hearings, one involving Auntie Phung.  The Crown’s submission, nevertheless, was that the cooperation discount disclosed no error:

There is no set informer discount or formula prescribed in law.  The factors relevant to the assessment of cooperation vary dramatically from case to case and are, for practical purposes, incapable of assessment by reference to some formula.[27]

[27]Reference was made to R v Johnston (2008) 186 A Crim R 345 (‘Johnston’);  and R v Kohunui [2009] VSCA 31, [25].

Is the quantum of the cooperation discount examinable for specific error?

44 The submission for PBN was that, where complaint is made about the discount for future cooperation declared in accordance with s 21E, the appeal court can – and therefore must – decide for itself whether the quantum of the discount was appropriate in the circumstances. Should the Court conclude that a higher discount should have been allowed, so it was argued, this would constitute specific sentencing error which – without more – would reopen the sentencing discretion.

45  In Scerri v The Queen[28] Buchanan JA and I cited the following passage from the Court’s earlier decision in R v Johnston:[29]

[28][2010] VSCA 287, [30] (‘Scerri’).

[29](2008) 186 A Crim R 345, 350 [19] (emphasis added).

Under a more perfect sentencing regime, the level of informer discount might be worked out as a matter of social policy and provided for expressly in legislation.  But as it is, sentencing judges must make do with their own conceptions of what is desirable.  Effectively, the only safeguard is the relatively rough and ready measure of manifest excessiveness or inadequacy as a ground of appeal.[30]

We concluded as follows:

In other words, as with the discount for the plea of guilty, a complaint about the discount for co-operation can only be addressed (absent any mistake of fact) as a particular of manifest excess.[31] 

[30]Ibid 350, [19] (emphasis added).

[31]Scerri [2010] VSCA 287, [30].

46  The Court having drawn the decision in Scerri to the attention of the parties to the present appeal, supplementary submissions were made identifying what were said to be instances of appellate courts treating the s 21E discount as examinable for specific error. I have reviewed the authorities referred to and there are certainly instances of appellate consideration which take this approach.[32]

[32]See, eg, Pang v The Queen (1999) 105 A Crim R 474, 477 [16] (Wood CJ at CL); R v Gladkowski (2000) 115 A Crim R 446, 447 [10] (‘Gladkowski’);  R v M [2005] NSWCCA 224, [28]; Kauwenberghs v R (2008) 186 A Crim R 197, 219 [102].

47  But the approach more conventionally adopted, particularly in this State, accords with what was said in Johnston,[33] as applied in Scerri.[34]  That is, the discount for future cooperation is treated, in accordance with orthodox principle, as a factor to be taken into account in the sentencing synthesis, and the adequacy of the discount is examinable only under cover of a ground contending that the sentence arrived at was manifestly excessive.[35]  As the New South Wales Court of Criminal Appeal put it:

[t]he question on appeal is not so much one of numeric value ascribed to the discount, as whether, after all the relevant matters have been taken into account, the sentence is appropriate.[36]

[33](2008) 186 A Crim R 345.

[34][2010] VSCA 287.

[35]R v Carey (1997) 97 A Crim R 552; R v Ngui and Tiong (2001) 1 VR 579, 584–5 [14]; R v D S (2005) 153 A Crim R 194, 201–202 [19]; R v Roche (2005) 188 FLR 336, 340 [12]–[15], 345 [42]–[44] (WACCA); R v Sahari (2007) 17 VR 269, 277–278 [22]–[23].

[36]Bui v R [2008] NSWCCA 343, [18] (Nettle AJA, who was sitting as an additional Judge of Appeal. McClellan CJ at CL and Simpson J agreed).

48  As Gleeson CJ pointed out 20 years ago in R v Gallagher,[37] an offender’s cooperation is but one element of ‘a complex of inter-related considerations’.  In a passage quoted more than once in recent years by the High Court and the New South Wales Court of Criminal Appeal, his Honour said:

Other considerations that enter into the matter include the remorse or contrition which may be demonstrated in a given case by cooperation with the authorities, and the more difficult time which an informer is likely to have during the period of incarceration as a result of having cooperated.  Those last-mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities.  In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected.  It was also said to be to his credit that he had good prospects of rehabilitation.  It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities.  It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.[38]

[37](1991) 23 NSWLR 220, 227–228.

[38]Ibid, cited in Wong and Leung (2001) 207 CLR 584, 612 [76]; R v Thomson;  R v Houlton (2000) 49 NSWLR 383, 400, [68];  R v M [2005] NSWCCA 224, [18]; and F S v The Queen (2009) 198 A Crim R 383, 390–1 [15].

49  Very recently, in Chan,[39] the New South Wales Court of Criminal Appeal (Kirby J, with whom Beazley JA and Johnson J agreed) expressed a view similar to that expressed in Johnston[40] and Scerri.[41]  In that case, the discount for past cooperation had been quantified at five per cent (although the judge was not required by the Act to do so).  It was submitted that the discount was inadequate.  Noting that this amounted to an attack on the weight given to one factor taken into account in the exercise of the sentencing discretion, the Court said that such a submission ‘inevitably encounters the difficulties described by Latham CJ in Lovell v Lovell,’[42] as follows:

The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order.  If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside.  Similarly, if relevant considerations are plainly ignored the same result follows.  But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge.  In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v Wakefield [1891] AC 173 at 179) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.[43]

[39][2010] NSWCCA 153, [66], [69].

[40](2008) 186 A Crim R 345.

[41][2010] VSCA 287.

[42](1950) 81 CLR 513, 519 (‘Lovell’).  As the Court of Criminal Appeal noted, the statement by Latham CJ has been repeatedly reaffirmed – see Mallet v Mallet (1984) 156 CLR 605, 614; and Dinsdale v The Queen (2000) 202 CLR 321, 330.

[43]Emphasis added.

50  In Chan,[44] the Court of Criminal Appeal said:

Here, it was not suggested and could not be suggested, that her Honour had failed to exercise her discretion.  She read the material and made an evaluation.  She was deliberately circumspect in her remarks.

… The assistance was late.  It was of no practical benefit, beyond intelligence.  No error has been demonstrated in the evaluation made by her Honour.

[44][2010] NSWCCA 153.

51  On this analysis, the contention advanced by PBN’s ground 1 – that the discount for future cooperation was inadequate – can only be considered under ground 2, which contends that the sentence imposed was manifestly excessive.   In other words, the question for the appeal court is whether it was reasonably open to the sentencing judge in the exercise of her discretion to impose the sentence and non-parole period which she did, proper weight being given to all relevant considerations including PBN’s past and future cooperation. 

52  This is an unsurprising conclusion.  As with the discount for a plea of guilty,[45] it would be a radical departure from the established principles governing sentence appeals for the appeal court to review, on the merits, the decision of the sentencing judge on one component of the sentencing synthesis.  Axiomatically, an appeal against sentence is an appeal from an exercise of discretion and is subject to the familiar limits on appellate intervention which apply to such a case.[46]  A sentence appeal is never a review on the merits.  It is not for the appeal judges to decide what they would have done had they been imposing sentence.  Rather, assuming no error as to the facts or the law, the question is whether the sentencing judge’s decision was reasonably open in the circumstances.

[45]Scerri [2010] VSCA 287, [23].

[46]House v The King (1936) CLR 499; Norbis v Norbis (1986) 161 CLR 513, 518; Dinsdale v The Queen (2000) 202 CLR 321, 324–5 [3]–[4].

53 The matter may be tested another way. Were it for this Court to decide for itself what the cooperation discount for PBN should have been, we might have decided that she was entitled to a greater discount than 14 per cent. It is equally possible, however, that we might have viewed the judge’s ‘starting-point’ of 14 years as too low,[47] and that a starting-point of (say) 16 years was appropriate, having regard to the objective criminality and the appellant’s role. If we then decided that a discount of 25 per cent was appropriate given the nature of PBN’s promised future cooperation, the Court would have arrived – by a different method – at exactly the same sentencing conclusion as the judge, namely, a head sentence of 12 years. In those circumstances, the appeal should properly be dismissed, because the conclusion arrived at by the judge was plainly open to her, even though (ex hypothesi) the members of the appeal court disagreed with her on particular components.[48]

[47]See, eg, R v Tan (1995) 78 A Crim R 300;  R v Carey [1998] 4 VR 13, 19; and F S v R (2009) 198 A Crim R 383, 393 [27], where views were expressed by appeal courts about the appropriateness of the ‘starting-point’.

[48]See R v Hodgson (2002) 84 SASR 168, 176 [30] (SACCA); R vW (2002) 129 A Crim R 400, 405 [29] (NSWCCA).

54 I have not overlooked the fact that, unlike the discount for a plea of guilty, practical significance may attach (beyond the immediate sentence reduction) to the discount for future cooperation or, more accurately, to the ‘but for’ sentence from which the discount is declared under s 21E to have been made. As Winneke P pointed out in R v Carey,[49] the ‘but for’ sentence becomes relevant if the promised cooperation is not forthcoming and the prosecuting authority approaches the Court to have the sentence increased.[50]  Important though this circumstance is, I do not regard it as requiring any different conclusion about the nature of appellate review of the quantum of the discount.

[49][1998] 4 VR 13, 16.

[50]Crimes Act 1914 (Cth) s 21E(2).

55  Factual error is, of course, in a different category.  Where a sentencing judge can be shown to have misapprehended the extent, nature or significance of the promised cooperation, such error will on ordinary principles reopen the sentencing discretion (unless the appeal court can be persuaded that the error was immaterial).  Scerri[51] is an example of this, where the judge was misinformed about the significance of the promised cooperation.[52]  In the present case, by contrast, there is no suggestion of factual error in the judge’s treatment of PBN’s promised cooperation.

[51][2010] VSCA 287.

[52]Ibid [31].

56  I turn to deal with the separate question of whether what PBN subsequently did in fulfilment of her undertaking was so different from what was contemplated at the time of sentence as to constitute new evidence which reopens the sentencing discretion.

Did subsequent events alter the significance of the assistance?

57  When informed that PBN had undertaken to give evidence against her co-offenders, the sentencing judge specifically enquired whether Auntie Phung was still at liberty.  The prosecutor confirmed that she had left Australia.  Hence, it would appear, the judge proceeded on the assumption that PBN would not be in the position of having to give evidence against Auntie Phung.

58  Her Honour then enquired whether PBN was ‘at risk at personal safety (sic) from these people’.  She noted that this was ‘an international criminal enterprise bringing in millions of dollars worth of drugs’.  The prosecutor conveyed the assessment of the informant which was that, so far as ‘the Australian  connection’ was concerned, there was not a high risk.  There was however ‘potentially of course an overseas connection and … the informant has indicated … the overseas connections may be such that they are a higher risk.’  The judge responded, ‘They are well-organised criminals’. 

59  Towards the end of the plea, defence counsel submitted, and the judge accepted, that the risk of retributive violence in prison needed to be factored into the discount for cooperation.[53]  As O’Bryan AJA said in R v Pividor & Dale:[54]

One aspect of the need for a discount is the risk the informer takes for his own safety whether in prison or at liberty and the circumstance that imprisonment will be more burdensome for the informer than would be the case for a normal inmate.

Counsel for PBN told the judge that ‘her assistance has related to the identification of people higher up in the chain and … she’s certainly expressed concern for her safety, particularly whilst in custody, and in relation to her family.’

[53]See Gladkowski (2000) 115 A Crim R 446, 447 [7].

[54][2002] VSCA 174, [30] (Winneke P and Chernov JA agreed).

60  As at the date of the appeal hearing, Auntie Phung had been arrested and PBN had given evidence against her at a committal hearing.  The initial submission for the Crown on the appeal was that this new development did not require any alteration to the sentence.  It was submitted that the judge had arrived at an appropriate sentence, full weight being given to the value of the cooperation and the associated risks.  When it was pointed out by Redlich JA that there appeared to have been a significant change in the risk to which PBN had exposed herself, and in the value of her assistance, counsel for the Crown conceded that her cooperation was, indeed, of the highest order.

61  There is, of course, scope for the Court of Appeal to receive ‘new evidence’ relevant to sentence, but only in very limited circumstances.[55]  There are powerful reasons why this must continue to be a very limited exception.  Otherwise, this Court will be continually asked to revisit, and reduce, sentences in the light of post-sentence developments.

[55]See R v Nguyen [2006] VSCA 184, [36]–[38] (Redlich JA, with whom Maxwell P and Neave JA agreed).

62  Ordinarily, a subsequent change in the assessed value of the offender’s assistance will not reopen the discretion.  As the New South Wales Court of Criminal Appeal said in F  S v The Queen:[56]

A sentencing judge is required to assess the value of assistance given and future assistance to be given.  For that purpose, the judge is entitled to take into account, as accurately as evidence allows at the time that the assessment is made, that adherence to the offender’s statement of assistance is required and departure from the statement, or from the undertaking to give assistance, may have repercussions, should an appeal by the Crown be instigated.  The value of assistance is not undermined by an ex post facto realisation that evidence has been required to be given more often, or less often, than was originally appreciated.  Nor does an eventual realisation (unavailable at the time of the sentence), that the assistance is of greater significance, result in error, or the capacity to quash the sentence on appeal.

[56](2009) 198 A Crim R 383, 393–394 [30] (Rothman J, with whom Campbell JA and Howie J agreed).

63  Nor, conversely, is an offender to be resentenced if, in the event, the undertaking to give evidence is not called upon.  As stated by this Court in R v Freeman:[57]

… [It] is the genuine co-operation of the person furnishing the assistance which is important, whether or not the information turns out in fact to have been effective.  The information must be such as could significantly assist the authorities.  Any such discount should not be lost, for example, by reason of the offender not having to give evidence because the person the subject of the information pleads guilty.

[57](2001) 120 A Crim R 398, 405 [37] (Coldrey AJA, with whom Brooking and Tadgell JJA agreed), applying R v Su [1997] 1 VR 1, 78–9.

64  In my view, it is not possible to calibrate with any meaningful precision the degree of risk to which a person in PBN’s position exposes herself by undertaking to give, and giving, evidence against co-offenders.  Irrespective of the identity of the co-offenders, the risk will almost always be substantial.  As Buchanan JA and I said in Scerri[58] (where the same issue arose in a different context):

[t]he fact that the appellant could give evidence implicating only GH, and not others higher in the trafficking enterprise, should not have had any significant effect on the discount to be given for his co-operation.  The appellant gave evidence of an important step in the production of amphetamine and – critically – exposed himself publicly as an informant, with all the attendant risks.[59]

[58][2010] VSCA 287.

[59]Ibid [34].

65  There will, of course, be cases where there is such a dramatic difference between what the sentencing judge understood the offender to be undertaking to do, and what the offender was subsequently called upon to do, that the appeal court will be constrained to treat that subsequent development as reopening the sentencing discretion.[60]  The present case does not fall into that exceptional category, in my view.

[60]See, for example, R v Rostom [1996] 2 VR 97, 101 (‘exceptional circumstances’); R v Pividor & Dale [2002] VSCA 174, [41]–[42].

66  I should add that, had I been persuaded that the subsequent events did reopen the sentencing discretion, I would have concluded that no different sentence should be imposed.[61]  For reasons which follow, I consider that the sentence imposed was well open to the sentencing judge, full value being given to the very significant cooperation which PBN has given.

[61]Crimes Act 1958 (Vic) s 568(4).

Ground 2:  double punishment

67  As noted earlier, PBN was sentenced on one count of attempted importation of the drugs and one count of attempted possession.  While properly conceding that the conduct – and the criminality – constituting the importation count was distinct from that constituting the possession count, counsel for PBN argued that the facts supporting the one must necessarily have been taken into account in fixing the sentence for the other.  That there had been ‘double punishment’ of this kind was said to be apparent from ‘the size of the individual sentences’ – 10 years and seven years respectively.

68  This contention is without substance, in my view.  As the earlier account of PBN’s role makes clear, she was a significant participant in the importation and also in the events which followed.  Each was a very serious offence, deserving of a substantial sentence.

Ground 3:  manifest excess

69  In my opinion, the sentence imposed on PBN was well within the range reasonably open to the sentencing judge, full weight being given to her very significant cooperation and to the risks associated with it.[62]  Though not a principal, PBN played the key role in the critical phase of the enterprise – ensuring that the container was safely landed, delivered and unpacked.  She was, as the judge said, ‘an integral facilitator of the importation.’

[62]The range identified by the prosecutor on the plea was 10–14 years, with a non-parole period of 7–9 years.

70  And this was importation on a massive scale.  A notable feature of the present case is that each of the appellants faced single counts (importation/possession), each referable to the entire shipment of drugs.  In other cases, participants in drug importations have been sentenced on a series of separate counts, each count being referable to a different drug forming part of the imported shipment.  As appears from Table A, this is what occurred in the cases before Judge Punshon in 2010.[63]  Each offender faced three counts, referable respectively to (multiples of) a commercial quantity of cocaine (36 x CQ), methamphetamine (39 x CQ) and ecstasy (13 x CQ).  A sentence of 15 years was imposed on each individual count, with two years of the sentence on each of the second and third counts being cumulated on the first, giving a total effective sentence of 19 years’ imprisonment.

[63]See [31] above.

71  The same approach was adopted in the New South Wales Court of Criminal Appeal in Nguyen and Pham.[64]Nguyen was resentenced (on a Crown appeal) to 16 years for importing 13 x CQ of cocaine, and to 16 years for importing 17 x CQ of methamphetamine, which was part of the same shipment.  With cumulation of two years of the sentence on the second count, the total effective sentence was 18 years.

[64][2010] NSWCCA 238.

72  Had there been separate counts in the present case, some cumulation between counts would have been appropriate.  The counts here being referable, however, to the entire importation, it is necessary to have regard to the aggregate quantity of drugs imported.  As noted earlier, the shipment comprised 29 x CQ of methamphetamine, 12.6 x CQ of ecstasy and 14.5 x CQ of cocaine.  In aggregate, therefore, this was an importation of more than 56 x CQ of drugs. That is greatly in excess of any of the CQ multiples the subject of the individual counts referred to above, which attracted sentences of 15 years (Judge Punshon) and 16 years (NSWCCA).

73  Given PBN’s role, and the scale of the importation, the case fits fairly comfortably within Group 2 as identified by McClellan CJ in De La Rosa.[65]  Reference to his Honour’s table reveals that much higher sentences have been imposed on comparable offenders in comparable circumstances (cooperation discounts excluded).  It would seem, therefore, that this was a lenient sentence by national standards.

[65]See [36] above.

74  By way of example, the present case bears a real similarity to Lee,[66] where the importation was of 51 x CQ of heroin.  Like PBN, the offender

undertook all of the steps necessary for landing the two containers, arranging for them to be cleared through customs, renting the warehouse … and arranging for the delivery of the containers to the warehouse and for them to be unloaded there.  Later he arranged for them to be collected from the warehouse … moved to Sydney … to another warehouse rented by him in the name of the company and unloaded there.[67]

And, like PBN, the offender spoke frequently to a more senior person, to whom he reported, and who sent him funds to cover the costs incurred in landing and accommodating the containers.

[66][2007] NSWCCA 234.

[67]Ibid [9].

75  The Court of Criminal Appeal concluded that, although the offender was not ‘at the pinnacle of the organisation’, he was ‘in charge of the organisation of the importation in Australia and played a pivotal role in the enterprise’.[68]  Further

[a]lthough … others were responsible for masterminding the operation his own role was essential, extended over a significant period of time and involved the management of complex transactions culminating in the deposition of the containers with the drugs in a warehouse in Sydney.  On any view of the matter he carried out a senior management role of critical significance to the success of the enterprise.[69]

The Court concluded that, but for the fact that it was a Crown appeal against sentence, a non-parole period ‘significantly in excess of 20 years’ would have been appropriate.  Constrained to sentence ‘at the bottom of the available range’, the Court resentenced the offender to a total term of imprisonment of 28 years, with a non-parole period of 19 years and six months.[70]

[68]Ibid [17].

[69]Ibid [33].

[70]Ibid [38].

76  I would dismiss the appeal. 

SECOND APPELLANT (POM)

77  Pom contends that the sentencing judge fell into error in three specific respects.  I shall deal with each of them in turn.

Ground 1:  increased prevalence

78  Ground 1 of the appeal reads:

The learned sentencing judge erred by imposing sentence, in the absence of:

(a)       relevant evidence; or

(b)      submissions on behalf of the Director;

on the basis that ‘over many years there has been a continual and alarming increase of drug importations and the attendant quantities of drugs of dependence…’.

79  The sentencing judge considered the prevalence and harmfulness of the drug trade for the purpose of determining the weight to be accorded to denunciation, just punishment, protection of the community and general deterrence.  He referred to two Court of Appeal authorities[71] which emphasise the social evil of drug trafficking.  His Honour said that these two decisions, given 10 years apart, demonstrated that ‘not much has changed in 10 years in what the courts have said about offences of [this] kind’.  But, in his Honour’s view, the conduct of drug offenders had changed.  He said:

Regrettably, over many years now there has been a continual and alarming increase in the incidence of drug importations and the attendant quantities of drugs of dependence which are trafficked or attempted to be trafficked in our society.  This has often been associated with an apparent arrogance on the part of offenders as to the prospects of detection and a frightening disregard for the sentences handed down by, and the denunciation of, the courts.  Such are the profits to be made in this insidious business as was clearly the case here.  Such are the risks which offenders like you are prepared to take in the face of significant reward (which for a particular offender may be a relative concept).  Many in our community question the disturbing nature of this spiralling phenomenon and ask whether there are not better ways to deal with the problem, particularly on an individual level for those sad persons addicted to drugs and the debilitating and dysfunctional lifestyle which accompanies their addiction.  However, those like you, who are involved with sophisticated schemes designed to flood our community with drugs and make massive profits, must know that if they are tempted to act in this way, the courts will impose severe punishment upon them.  That message must be crystal clear.[72]

[71]R v Berisha & Ors [1999] VSCA 112, [39]; DPP v McInnes [2009] VSCA 144, [34].

[72]Emphasis added.

80  The appellant complains that there was no basis in the evidence or the submissions for the sentencing judge’s conclusion that there had been a ‘continuing and alarming increase’ in the incidence of drug importation.  Moreover, it was said, the error was material as it ‘must have led’ to the judge placing increased weight on matters such as denunciation, protection of the community and general deterrence.

81  In response, the Crown says that the sentencing judge’s comments must be taken in context.  That is, the judge was addressing the principle of general deterrence, and merely making a ‘general remark concerning a well-recognised problem in our society’.[73]  It is said that the remark flowed on from the passages quoted from Court of Appeal judgments.

[73]R v Paoletti [2003] VSCA 77, [22] (‘Paoletti’).  Reference was also made to Winch v The Queen [2010] VSCA 141, [38]–[40], in which comment was made regarding the prevalence of ‘glassing’.

82  Axiomatically, before prevalence can be taken into account for the purposes of sentencing, a judge must have ‘some reliable foundation’ for the conclusion that the offence is in fact (more) prevalent.[74]  And if the judge is minded to impose a more severe sentence on account of (increased) prevalence, then on ordinary natural justice principles the matter must be raised with counsel and an opportunity afforded for submissions to be made.[75]  In the present case, it would clearly have been preferable for the judge to have informed counsel that he perceived there to have been an increase in the prevalence of drug importation, and then to have invited submissions both on that question of fact and on its significance for sentencing in the case at hand.[76]

[74]         Paoletti [2003] VSCA 77, [20].

[75]R v Downie and Dandy [1998] 2 VR 517, 520.

[76]See DPP v Karazisis [2010] VSCA 350, [116]–[117].

83  In W C B v The Queen,[77] a decision relied on by the appellant, it was argued that community concern about the prevalence of a particular offence could not be used to justify a sentence in excess of current practice, unless proof of increased prevalence was adduced.  The Court (Warren CJ and Redlich JA) accepted that a proven increase in prevalence might justify departure from sentencing practice in a rare case.  Their Honours concluded, however, that the sentencing judge was not in fact ‘motivated by a perception as to the prevalence of the offence,’ nor was any departure from current sentencing practices contemplated.  The Court noted that a sentencing judge may

take account of public attitudes to the type of crime in question and public concern about the prevalence of a type of crime or about its effects, and have regard in a general way to a public expectation that serious crime will attract severe punishment.[78]

[77][2010] VSCA 230.

[78]Ibid [34].

84  In the present case, the sentencing considerations to which his Honour’s remarks were addressed – general deterrence, denunciation and community protection – have consistently been treated as deserving of great weight in sentencing for these offences, as appears from the authorities to which he referred.  On the other hand, the making of such a definitive statement about increased prevalence is likely to have conveyed to Pom and those representing him that the sentencing decision had been influenced, adversely to Pom, by this consideration.

85  Before expressing my conclusion on this ground, I will deal with ground 2, which (in part) gives rise to the same difficulty.

Ground 2: addiction as an aggravating factor

86  Ground 2 of the appeal reads:

The learned sentencing judge erred by synthesizing, in a manner adverse to the interests of the applicant, his:

(a)       vulnerability and exploitation;

(b)      gambling and drug addictions;

(c)       lack of prior convictions for drug offending.

87  The following parts of the sentencing reasons are relevant:

I have already explained the reasons why I reject your submission that your legal liability should be reduced by reason of playing a limited role in the distribution scheme.  As to your moral culpability, the fact that you were a vulnerable person addicted to drugs and gambling is by no means a mitigating circumstance.  Indeed, you are precisely the sort of person who importers and dealers would exploit to facilitate the movement of a large quantity of drugs from one place to another.  That you had no convictions for drugs was a reason why you might not arouse suspicion from authorities.

…

Nor does the fact that you were addicted to drugs whilst you were committing this offence assume a great significance.  Yours is not a case of a person who only trafficked or attempted to traffick drugs so as to support their drug addiction, you operated for profit.  To adopt the words of one judge, you attempted to traffick in drugs “… for reasons of greed and in callous disregard of the grave harm that the offence does to its victims.”  You were involved way beyond what you might have required for your personal needs.  You knew exactly what you were doing, particularly that the drugs you were to collect and traffick would eventually be on-sold to consumers and addicts at a street level.  To the extent you understood their disabilities because of your own drug use, so much the worse is your offending.[79]

[79]Emphasis added. 

88  So far as the ground concerns what the judge said about Pom’s lack of prior drug convictions, it is without substance.  As noted earlier (see proposition 10),[80] his Honour’s approach is entirely orthodox.  Indeed the language used adheres closely to what was said in R v Berisha& Ors,[81] by Charles JA (with whom Tadgell and Buchanan JJA agreed), as follows:

That lack of prior criminality is of less than usual significance in drug offence cases is well-established, as all counsel accepted in argument.  The Court of Criminal Appeal in New South Wales said in Leroy (1984) 13 A Crim R 469, 474:

This Court and other criminal courts have said on many occasions that in the drug traffic in particular the circumstances that the accused has a clear earlier record will have less significance than in other fields of crime.  Very frequently, those selected to place themselves in the chain of drug trafficking … are selected because their records, their past and their lifestyles are not such as to attract suspicion.  It is this in particular which has led the courts to take, in the case of drug trafficking, a view which does not extend the same degree of leniency being extended to first offenders.

[80]See [34] above.

[81][1999] VSCA 112, [27].

89  Nor was it an error for his Honour to decline to treat as a mitigating circumstance Pom’s vulnerability by reason of his addiction to drugs and to gambling.[82]  His active participation, and recruitment of others to assist, reveal him to have been a person quite able to reason effectively, plan strategically and operate efficiently in pursuit of the financial reward which he was seeking in order to meet his own particular needs.  There was nothing in the material before the Court to suggest that his knowing involvement in this major drug importation was other than a calculated decision of the kind which attracts a full measure of criminal responsibility.

[82]R v Koumis (2008) 18 VR 434, 437–8 [53]–[57].

90  There is, however, more substance to the complaint about the judge’s comment that Pom’s offending was ‘so much the worse’ because he had personal experience of the ‘disabilities’ affecting drug-addicted people.  His Honour’s statement conveys the clear impression that he regarded Pom as more morally culpable, and hence deserving of more severe punishment, because of his personal experience of drug addiction.  As the prosecutor readily conceded on the appeal,  this was not a contention advanced by the prosecution on the plea, and the judge was therefore bound to invite submissions from the defence before he could have decided to treat it as an aggravating factor.[83]  This is particularly so given the novelty of the proposition that a person’s drug addiction should be treated as aggravating the seriousness of that person’s participation in an offence involving the manufacture or distribution of drugs.

[83]See, for example, R v Lowe [2009] VSCA 268; Humphries v The Queen [2010] VSCA 161, [10].

91  At the same time, for a sentencing judge to treat a matter as aggravating the seriousness of an offence is, in the absence of agreement between the parties, a significant step to take.[84]  This experienced sentencing judge gave lengthy and careful reasons for sentence, dealing in turn with all the relevant sentencing considerations.  He did not, in terms, characterise this as an aggravating feature.

[84]R v Storey [1998] 1 VR 359.

Conclusion on grounds 1 and 2

92  As appears from the above, I consider that there is real force in the appellant’s submission that, on the face of the sentencing reasons, the judge appears to have brought to bear, adversely to Pom, his views as to the increased prevalence of drug importation and as to Pom’s heightened culpability because of his personal experience of drug addiction.  In the end, however, I would reject these grounds, for two related reasons.

93  First, there is nothing in the sentence which the judge imposed which suggests, in any way, that the sentence was in fact more severe on account of either of these matters.  Secondly, even if it should be concluded that there was ‘an error in the sentence first imposed’, I am wholly unpersuaded that any different sentence should be imposed.[85] 

[85]Criminal Procedure Act 2009 (Vic) s 281(1)(b).

94  Given the important role played by Pom, the massive scale of the importation and the unavailability of any discount for cooperation, the sentence was entirely appropriate.  As with PBN, the sentence was lenient by national standards.

95  For completeness, I should add the following.   Shortly before the delivery of judgment, counsel for the respective appellants informed the Court that Ms Angela Wong, whose licence was used to obtain the hire car, has recently been sentenced in the County Court for the same offence.  She was sentenced to three years’ imprisonment, to be served wholly in the community by way of a recognisance order.  Quite properly, counsel also informed the Court that the view of the Crown was that this development was of no relevance to the matters under consideration in these appeals. 

96  As appears from the earlier description,[86] Ms Wong’s participation was instigated by Pom and was, relatively speaking, marginal.  It involved a much lesser degree of criminality, and properly attracted a far lower sentence.[87]

[86]See [13] above.

[87]Farrugia v The Queen [2011] VSCA 24, [8].

Ground 3:  ‘two-tiered sentencing’

97  When Judge Howard came to sentence Pom, PBN had already been sentenced by Judge Douglas.  Understandably in the circumstances, his Honour queried why the co-offenders were not being sentenced by the same judge.  There are obvious reasons why this is the preferred course.[88]  (In the present case, his Honour was told, it had proved to be impossible).

[88]Nguyen and Pham [2010] NSWCCA 238, [13].

98  Judge Howard was of course obliged to consider parity of treatment between the co-offenders.  The relevant parts of the sentencing reasons were in these terms:

I am satisfied that [PBN] was above you in the hierarchy, as best it may presently be gauged.  She was guilty of two offences whereas you are of only one.  Neither of you were principals, however each of you played a crucial role in the link between the importer and the ultimate distributor of the drugs.  I do consider that, leaving aside any question of assistance which [PBN] has provided to the authorities, your maximum sentence should be less than hers but, as the prosecution ultimately submitted, not greatly so.  Her sentence would have been 14 years with 10 years’ imprisonment given her plea of guilty and assistance by way of her statement and other matters, but without her undertaking to give evidence.  Without her plea, the sentence would have been 16 years with a minimum of 12 years.

Accordingly, without taking account of any assistance from her, her sentence would have been something in the vicinity of 15 years with a minimum of 11 years and it is this figure which I use as the yard stick with which to compare your conduct with hers.  I will say a little more about this aspect shortly.

…

I said I would return to the question of parity with [PBN].  You committed one offence, she committed two, including aiding the importers in a crucial way.  You played a lesser role than she did but not significantly so.  But you gave no relevant assistance and no undertaking as she did.  Indeed, rather than assist you sought to mislead the investigators – and initially the Court – as to the important question of the identity of your contact and your involvement with him.  This conduct on her part warranted a significant discount for her and ultimately, I consider she was, because of it, entitled to a lesser minimum sentence than you are.

99  No complaint is made about the substance of what his Honour said, nor about any of the specific findings.  Nor does the appellant contend that the sentencing differential between himself and PBN was not reasonably justifiable.  Rather, the complaint is confined to the judge’s reasoning process.  Thus, the appellant submits that

when assessing the appellant’s role and synthesizing his culpability as against that of his co-offender [PBN], the Judge went beyond the parameters of what should have been the sound discretionary exercise of the instinctive synthesis.  By resorting to an exercise of calculating a nominal sentence for [PBN] – but for her discount for assistance – and then “us[ing] that as a yardstick” with which to assess the appellant’s culpability and to sentence him, the Judge fell into error.  The process … discloses the Judge’s ostensible abandonment of the instinctive synthesis which he was bound to exercise and a resort to two-tiered sentencing.

100  This ground, too, is without substance. The judge was seeking to ensure that the differences (and similarities) between the co-offenders were appropriately reflected in the sentence which he imposed on Pom.  Application of the principle of parity required no less.[89] Given that Pom had not cooperated, the ‘but for’ sentence declared in relation to PBN was obviously the correct starting-point for considerations of parity. It has long been established in this Court that the ‘but for’ exercise required by s 21E does not constitute impermissible ‘two-tier’ sentencing.[90]  The same principle applies here.

[89]Teng v R (2009) 22 VR 706, 710 [17].

[90]R v Tan (1995) 78 A Crim R 300, 303;  R v Carey [1998] 4 VR 13. See also F S v The Queen (2009) 198 A Crim R 383, 390 [12] (NSWCCA).

101  I would dismiss the appeal.

TABLE A

Sentences imposed – importation/possession of multiples of a commercial quantity of a border controlled drug

Case	Plea	Priors	Multiples of Commercial Quantity	Drug	Sentence on importation charge (yrs)	Sentence on possession charge (yrs)	TES	NPP	Role	Comment
Ng v The Queen [2010] NSWCCA 232 (14 October 2010)
Ng	G	Yes, but not for drugs	1.6	Heroin	11¼	11¼	7¼	·     Courier.  Unaware of scale or organisational details of importation; was aware of quantity.	·     Sentence ‘within range’
Chan, Lo Nguyen v The Queen [2010] NSWCCA 153 (22 October 2010)
Chan	G	-	13	Methamphetamine	12½	12½	7½	·     ‘middle man’	·     Sentences within range.
Lo	G	-			7½	7½	4½	·     ‘lower than courier’
Nguyen	G	-			10	10	6	·     ‘driver and lookout’
R v Nguyen; R v Pham [2010] NSWCCA 238 (22 October 2010)
Nguyen	G	-	13 17	Cocaine Methamphetamine	16 16(2)	18	12	·     ‘very important role’ (trial judge quoted at [32]) · both [Nguyen and Pham] were ‘key organisers’ [94].	·     sentences increased on Crown appeal.
Pham	G	-	13	Cocaine	15	15	10	· ‘critical and extensive role’ [86]. · both [Nguyen and Pham] were ‘key organisers’ [94]. ·     s 16BA schedule offence involving 17 x CQ of methamphetamine ‘taken into account’.
R v Cheung; R  v Choi [2010] NSWCCA 244 (28 October 2010)
Cheung	G	-	9	Methamphetamine	6	6	4	·     organised and carried out manufacture	·     equivalent Cth offence of ‘manufacturing’ ·     Sentences probably inadequate but Crown appeals dismissed because of delay.
Choi	G	Yes, but not drugs
R v Lee [2007] NSWCCA 234 (3 August 2007)
Lee	NG	-	51	Heroin	28	28	19½	·     organised importation into Australia, including delivery to warehouse and unpacking ·     ‘senior management role of critical significance’	·     sentence increased on Crown appeal.
R v Pham [2010] VCC 0935 (23 July 2010); R v Tang [2009] VCC 1609 (27 November 2009)
Pham	G	-	36 39 13	Cocaine; Methamphetamine; Ecstasy	15 15(2) 15(2)	19	14	·     ‘role in the enterprise was significant …both [Pham and Tang] played important and active role’ [34]
Tang	G	-	36 39 13	Cocaine; Methamphetamine; Ecstasy	15 15(2) 15(2)			·     ‘role in the importation was significant and undertaken for commercial motives’ [11]
R v Jain [2004] VSCA 20 (4 March 2004)
Jain	G	-	1	Heroin	10	10	7	·     Courier.  Unaware of scale or organisational details of importation; was aware of quantity.	·     NPP reduced from 8 to 7 ·     Sentence ‘within range’
R v Franco & Ors [2006] VSCA 302 (20 December 2006)
Franco	G	-	60	Cannabis	7	7	4	·     Recruited co-offenders [116]
Co-accused (x 4)	G	-			5½	5½	3	· Unpacked container – ‘participation was at the lowest level of the enterprise’ [114].
R v Ong (2007) 176 A Crim R 366 (28 September 2007)
Ong	NG	Yes - possess commercial quantity of heroin.	1¼	Heroin	15 (conspiracy to import)	15	10	·     Planned the importation	·     ‘extremely lenient’ but Crown appeal dismissed ·     offence committed on parole

REDLICH JA:

102 In the appeal of Nguyen, the Crown did not oppose the admission of fresh evidence of the further assistance given by the appellant. The Crown acknowledged that it had not been contemplated at the time of sentence that she would be required to give evidence against ‘Auntie Phung’. The Crown accepted that there was an attendant increase in risk in her doing so. It cannot be doubted that the s 21E allowance was far too little and the more so in light of the fresh evidence. The question remains whether the sentencing judge fixed a sentence that was higher than the sentence I consider should have been imposed.

103  In the case of Pom, even if it be assumed that the sentencing remarks expose sentencing error because they involve findings that could not reasonably have been anticipated by the appellant as they were not issues that inhered in the plea process,[91] the question arises whether the sentencing discretion should be reopened and a lesser sentence imposed.

[91]Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, 509; R v Lowe [2009] VSCA 268; DPP v  Humphries [2010] VSCA 161, [10]; DPP v Karazisis & Ors [2010] VSCA 350, [116]–[117].

104  When sentencing for Commonwealth offences it is necessary to achieve a broad level of conformity with the sentences imposed for like offending in other States as well as Victoria.  The cases cited during the course of the appeal proved most instructive as informing the range of sentences that are applicable for importation and possession of drugs in this order of criminality.  Utilising such comparable cases to inform the range of sentences available,[92] they dictate the conclusion that even if the sentencing discretion in the case of each appellant was to be reopened for any of the reasons asserted by them, I am unpersuaded that a different and less severe sentence is called for.  The sentences fixed are in my opinion, not only within the range of sentences that were reasonably open but fall toward the lower end of that range.

[92]Hudson v The Queen; DPP v Hudson [2010] VSCA 332.

105  For these and the other reasons advanced by Maxwell P, I agree that the appeals should be dismissed.

106  I would make only this additional observation.  The President has referred to the factors set out by the New South Wales Court of Appeal in Nguyen and Pham[93] which may be relevant in assessing the degree of criminality of an offender in offences of this nature.  Various applicable sentencing principles are also discussed.  They were not the subject of argument or reference during the present appeal.  I would therefore reserve for an occasion which requires their consideration, whether any of the matters enumerated at paragraph 34 of the President’s reasons should be qualified and if so to what extent. 

[93][2010] NSWCCA 238.

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