Nguyen v The State of Western Australia - [2009] WASCA 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: NGUYEN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 81

CORAM: OWEN JA
BUSS JA
MILLER JA

HEARD: 2 APRIL 2009

DELIVERED : 7 MAY 2009

FILE NO/S: CACR 137 of 2008

BETWEEN: TIEN CHUNG NGUYEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MACKNAY DCJ
File No  :IND 710 of 2007, IND 1757 of 2007

Catchwords:

Criminal law - Sentencing - Possession with intent to sell or supply of methylamphetamine, heroin and ecstasy - Aggregate sentence of 6 years - Whether parity in sentencing with cooffender - Respective roles of appellant and cooffender - Whether aggregate sentence manifestly excessive

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 34(2)

Result:

Appeal dismissed on ground 1
Leave to appeal refused on ground 2

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr S D Freitag
Respondent: Mr G J Huggins

Solicitors:

Appellant: AKN & Associates
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Billing v The State of Western Australia [No 2] [2008] WASCA 11
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Chief Executive Officer of the Department of Corrective Services v Jackson [2009] WASCA 51
Gutteridge v The Queen (Unreported, WASCA, Library No 940410, 5 August 1994)
Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260
Lowe v The Queen (1984) 154 CLR 606
Nguyen Giac v The Queen [2008] NSWCCA 280
Nguyen v The Queen [2005] NSWCCA 448
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Djukic [2001] VSCA 226
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v QMN [2004] VSCA 32
R v Rushby [1999] NSWCCA 104
R v Ryan [1999] NSWCCA 432
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Tran [2008] WASCA 183
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

OWEN JA: For the reasons to be published by Miller JA I agree that the appeal should be dismissed on ground 1 and leave to appeal should be refused on ground 2.
BUSS JA: I agree with Miller JA.
MILLER JA: The appellant was sentenced in the District Court at Perth, on 17 September 2008, to an aggregate sentence of 6 years' imprisonment. He was ordered to be eligible for parole.
The appellant seeks leave to appeal from that sentence on two grounds. On the first ground, he was granted leave to appeal on 10 December 2008. On the second ground, the question of leave has been referred to this court for determination. The grounds of appeal raise two questions. The first is whether the sentence imposed upon the appellant was in parity with that imposed upon a co‑offender. The second is whether the sentence was, in any event, manifestly excessive having regard to the appellant's age, antecedents and poor health.

Indictments

The appellant was indicted on 710 of 2007 on two counts. They were that, on 28 November 2006, at Girrawheen (1) he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another and (2) he had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another. Each offence was an offence against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
Indictment 1757 of 2007 alleged two offences. The first was that, on 28 November 2006, at Girrawheen the appellant had in his possession a prohibited drug, namely MDMA, with intent to sell or supply it to another. The second was that, on the same date and at the same place, he supplied a prohibited drug, namely methylamphetamine, to another. The first count alleged an offence against s 6(1)(a) of the Misuse of Drugs Act 1981 and the second an offence against s 6(1)(c) of that Act.
The matters the subject of indictment 710 of 2007 had been the subject of guilty pleas on the fast‑track on 13 September 2007. Those guilty pleas were entered in the District Court and the appellant was committed for sentence in the District Court. On the appellant's committal for sentence, the pleas of guilty were adjourned for

determination until after the hearing of the appellant's trial in relation to indictment 1757 of 2007.

The appellant pleaded not guilty to the offences the subject of indictment 1757 of 2007, but, on the first count, admitted to possession of the MDMA. He denied possession with intent to sell or supply the drug to another.
The trial of indictment 1757 of 2007 took place between 18 and 22 August 2008. The appellant was convicted on count 1 on that indictment, but acquitted on count 2. Count 2 was the more serious of the two offences, because the allegation was that the appellant had supplied 1.213 kg of methylamphetamine to another.

Co‑offenders

Between the date of the appellant's pleas of guilty on indictment 710 of 2007 and his conviction on indictment 1757 of 2007, two co‑offenders were dealt with. The first was Van Bi Tran (Tran), who pleaded guilty to an indictment which alleged that, on or about 28 November 2006, at Girrawheen, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. He was dealt with by Sweeney DCJ on 25 January 2008, when he was sentenced to imprisonment for 3 years 3 months with eligibility for parole. Thi Nga Bui (Bui) pleaded guilty to an indictment which alleged three counts which mirrored the two counts on indictment 710 of 2007 and the first count on indictment 1757 of 2007. Bui pleaded guilty to offences which occurred on 28 November 2006 at Girrawheen, namely that (1) she had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, (2) that she had in her possession a prohibited drug, namely heroin, with intent to sell or supply it to another, (3) that she had in her possession a prohibited drug, namely MDMA, with intent to sell or supply it to another. She was dealt with by Kennedy CJDC on 9 April 2008 and sentenced to an aggregate term of 5 years 4 months' imprisonment. The sentences were:
Count 1:the MDMA offence: 8 months' imprisonment;
Count 2:the methylamphetamine offence: 4 years 10 months' imprisonment; and
Count 3:the heroin offence: 2 years 10 months' imprisonment.
Kennedy CJDC made the sentence on count 1 concurrent with each of the other sentences and ordered that the sentence on count 3 was to commence after Bui had completed 2 years 6 months on the sentence on count 2. This led Kennedy CJDC to say that the effective sentence was 5 years 4 months and that, with eligibility for parole, Bui would be eligible for release after serving 3 years 4 months.
On 22 May 2008, Kennedy CJDC corrected this sentence. The sentences on each count remained as they were, as did the aggregate term of 5 years 4 months, but her Honour said that the non‑parole period should have been 3 years 11 months, rather than 3 years 4 months. Kennedy CJDC also observed that although she had previously backdated the sentence to 12 August 2007, it had become apparent that, in fact, the sentence could have been backdated to 9 December 2006. Her Honour then said that, in sentencing Bui on 9 April 2008, she had taken into account the time that Bui had spent in custody and, in the circumstances, she was not prepared to backdate the sentence to 9 December 2006. She was, however, prepared to backdate it a further three months, so that it was to commence on 12 May 2007 instead of 12 August 2007.
The statement by Kennedy CJDC that Bui's sentence could have been backdated to 9 December 2006 is incorrect. Bui had been in custody since 12 November 2006 solely in relation to the offences in question and, as a result, her Honour could have backdated the sentence to that date.

Sentencing of appellant

The appellant was dealt with before Macknay DCJ (the sentencing judge) on 17 September 2008, when the aggregate sentence of 6 years was imposed.
A disturbing aspect of the proceedings is that each of the three offenders was dealt with by a different District Court judge. Each of the offenders had committed offences which were, in part, common to each other and clearly it would have been far more appropriate for one judge to have dealt with each of them. There are numerous judicial pronouncements to the effect that this is highly desirable: see, Lowe v The Queen (1984) 154 CLR 606, 622 (Dawson J); Gutteridge v The Queen (Unreported, WASCA, Library No 940410, 5 August 1994) 15 (Kennedy, Rowland & Ipp JJ); R v Rushby [1999] NSWCCA 104 [16] (Barr J), [36] (McInerney AJ); R v Djukic [2001] VSCA 226 [28] (Vincent JA); R v Ryan [1999] NSWCCA 432 [28] (Sully J); Nguyen v The Queen [2005] NSWCCA 448 [27] (Barr J); and R v QMN [2004] VSCA 32 [28] (Smith AJA).

The facts of the appellant's offences

The facts in relation to the offences to which the appellant pleaded guilty were stated by the prosecutor on 17 September 2008. They revealed that, on the evening of 28 November 2006, the appellant and Bui were at 2 Clover Square, Girrawheen, which was an address used by them for the purpose of conducting drug transactions. It appears to have been solely a 'drug house' and was not otherwise occupied. Both the appellant and Bui had exclusive use of the premises. Both had keys to the front door. Bui normally resided with her husband and family in Mirrabooka and the appellant normally resided with his family in Sydney.
The appellant flew from Sydney to Perth early on the day of 28 November 2006. He caught a taxi directly from the airport to 2 Clover Square, Girrawheen. He was there at about 8.20 pm when investigators from the Organised Crime Squad executed a search warrant.
When the appellant was searched, investigators located five individual packages containing a total of 138.8 g of methylamphetamine. The drug was in a plastic shopping bag, which was inside the front pocket of the appellant's shorts. A search of the main bedroom of the premises located a package wrapped in grey insulation tape on a table in the centre of the room. The package was found to contain 55.8 g of heroin. Investigators also located a number of MDMA tablets.
In a kitchen cupboard within the house, investigators found a number of boxes of plastic sandwich bags which were identical to those containing the methylamphetamine in the appellant's pocket. There were also electronic scales found in the kitchen. They had traces of illicit drugs upon them. The appellant was found to be in possession of $2,110 in cash.

Sentencing hearing

The appellant was represented by counsel before the sentencing judge. Counsel drew attention to the appellant's medical conditions and to a number of ailments he had. They were described as 'principally ... problems with his back, with his brain and also some gastric issues' (ts 5). Counsel provided the sentencing judge with a number of materials which dealt with the appellant's medical condition. I will refer further to his condition.
Counsel for the appellant endeavoured to differentiate the appellant's position from that of Bui. He submitted that Bui's sentence is higher than would be appropriate for the appellant. One of the reasons for this was the appellant's medical condition.
The sentencing judge questioned the basis upon which Bui was sentenced, pointing out that Kennedy CJDC had described Bui as 'like a shopfront' and making reference to the fact that the appellant had made a statutory declaration in which he took full responsibility for the drugs (ts 7).
Counsel for the appellant submitted that the evidence heard at the trial of the appellant would suggest strongly that both Bui and the appellant were on the same level in the 'enterprise'. He said:
The State played a number of ... telephone intercepts to the jury - or to the court. Effectively they were read out rather than played, perhaps is a better way of describing it, but they indicated - and it was the State's position that both Mr Nguyen and Ms Bui directed Mr Tran in relation to the supply of various drugs over the course of a period of time. Well, obviously Mr Nguyen was in Sydney and Ms Bui was in Perth, but it was suggested, really, I think, as part of the State case that the two of them acted together and used Tran in some way as part of their operation, but a lesser part of their operation.
Obviously the jury didn't agree with the State in relation to the 1.2 kilos of methylamphetamine, but in relation to other matters, the State case was clearly, I would have thought, on the intercepts that both Ms Bui and Mr Nguyen had a similar role in terms of directing Tran and acquiring the drugs back from Tran, that he hung onto. (ts 7)
The prosecutor submitted to the sentencing judge that it was the appellant who actually arranged for the delivery of drugs to occur. The prosecution did not suggest that the appellant had physically brought those drugs into Perth on the day in question, but it was submitted that the appellant had shown involvement in the drug trade, by travelling between Sydney and Perth to take part in it. It was submitted that the appellant played an active role in the drug distribution and ought to be sentenced to a heavier penalty than Bui.
Counsel for the appellant left it to the sentencing judge to reach a conclusion on the evidence which he had heard at trial. He said:
If your Honour takes the view that you are not with the defence on this issue and you say that you accept that my client is on a slightly higher rung than Ms Bui, then the defence would say to your Honour that the personal circumstances and the other factors then weigh on your Honour's decision to bring the sentence down under that imposed on Ms Bui. (ts 12)

Sentencing of appellant

The sentencing judge made reference to the facts and then pointed out that the proceedings in the District Court had 'had a fairly convoluted history' (ts 16). His Honour traced the circumstances in which each of the three offenders had been charged and detailed how each had been dealt with.
When dealing with the sentences to be imposed upon the appellant for the three counts on which he had been convicted, his Honour noted that the methylamphetamine ranged in purity between 52% and 55% and the heroin had a purity of 59%. His Honour noted also that, in a statutory declaration made on 23 April 2007, the appellant had said that he took full responsibility for the drugs and that Bui had nothing to do with it. This, however, had to be read in the light of Bui's subsequent pleas of guilty in which she acknowledged that she was part of the enterprise.
The sentencing judge made reference to Kennedy CJDC's observations when she sentenced Bui. Her Honour had found that Bui's role was to speak to people 'effectively like a shopfront for people at the casino' (ts 17). Her Honour said, 'People would speak to you, you would then ring Tran or Nguyen would ring Tran and arrangements would be made for deliveries to take place' (ts 17).
The sentencing judge noted also that Kennedy CJDC was of the opinion that Bui was not at the top of the tree and that that 'dubious distinction' might fall to the appellant (ts 17). Bui, however, had been convicted for a third time of possession of drugs with intent to sell or supply and she was on parole at the time of commission of her offences. Her pleas of guilty were not early pleas.
The sentencing judge made reference to the submissions which had been made on behalf of the appellant about his health. He concluded that the appellant had chronic back pain, chronic intermittent headaches, and other medical conditions in relation to which he was in need of, and received, a number of medications for pain management.
The sentencing judge took account of references from the appellant's family and other medical material. He referred also to a pre‑sentence report and a psychiatric report. The psychiatric report recounted a history of prior accidents and medical conditions. It indicated that the appellant had difficulties with short‑term memory functioning, poor insight into the serious impact of his substance abuse on his mental health and impairment of his judgment. He had cognitive difficulties as a result of two previous brain haemorrhages.
The sentencing judge was conscious of the need for parity between the sentence to be imposed upon the appellant and that which was imposed upon Bui. His Honour accepted that the appellant had pleaded guilty at the earliest possible opportunity (that is, to the offences the subject of indictment 710 of 2007) and indicated that credit would be given for those pleas. His Honour then made reference to Bui:
[M]s Bui had a far inferior record, yours being limited to a few traffic offences, that you had pleaded guilty at an early time, whereas Ms Bui pleaded late in the day and that some regard ought be had to your health position and that all of those things mean that you - parity required that you receive a lesser sentence than Ms Bui.
On the other hand, the learned prosecutor has said to me today that all things are not equal in the present matter; that Ms Bui was a shopfront, if you like, whereas there appears to have been some arrangement in which on occasion at least you had arranged delivery of drugs to Perth and you would travel to Perth to participate in the spread of illicit drugs in Perth and the learned prosecutor submitted to me that I ought impose a slightly heavier sentence in your case and that the demands of parity would be met in the event that I proceeded in that way. (ts 19)
The conclusion reached by the sentencing judge was as follows:
Here, Mr Nguyen, you were in possession of commercial quantities of two dangerous substances, methylamphetamine and heroin. In each case the substances were of a high purity. There was also the indicia of drug trafficking. It is the case that you have had a longstanding drug problem and I would accept that you might well have been a person using drugs at the time. However, the circumstances of your possession and the telephone intercept would indicate that the prime purpose of your involvement in the drug trade was a commercial one. The quantities and purity involved and your preparedness to come from New South Wales to participate are all indicative of that.
In my view, the State is correct in its submission that as between the two of you, you were or, as her Honour the Chief Judge put it, did have the dubious distinction of being the leader. That being the case, I consider that when you come to be sentenced, prima facie a heavier effective sentence ought be passed on you. (ts 19)
The sentencing judge took account of the appellant's personal health issues. He noted also the age of the appellant (53 years). After taking into account all relevant matters 'including the need to arrive at parity', the sentencing judge imposed the following sentences (ts 20):
Indictment 710 of 2007:
Count 1:the methylamphetamine offence: 5 years 6 months' imprisonment
Count 2:the heroin offence: 3 years' imprisonment
Indictment 1757 of 2007:
Count 1 - the MDMA offence: 8 months' imprisonment
The sentencing judge directed that the sentence imposed on indictment 1757 of 2007 be served concurrently with the sentence imposed on the first count on indictment 710 of 2007. His Honour directed that the sentence imposed on the heroin count (indictment 710 of 2007 count 2) should commence 3 years after the commencement of the sentence in relation to the methylamphetamine count. His Honour said that 'the intent' was that the appellant should serve 4 years' imprisonment (ts 20). In other words, he was to be sentenced to 6 years' imprisonment with a non‑parole period of 4 years.

The statement by the sentencing judge that the non‑parole period would be 4 years was incorrect. In declaring the appellant eligible for release on parole (which is implicit in the sentencing judge's statements about parole), the sentencing judge aggregated the head sentences for the purpose of calculating parole. This was an error, as aggregation was incorrect: see Chief Executive Officer of the Department of Corrective Services v Jackson [2009] WASCA 51. The correct period that the appellant was called upon to serve before eligibility for parole was 4 years 6 months, not 4 years.
There is, however, no ground of appeal that relates to this. Nor could there be such a ground. At the time the appellant was sentenced, it was inappropriate for the court to take into account the period that would actually be served on parole. That is, it was inappropriate to fashion the head sentence to take account of that period: see Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585.
If the appellant wishes to have the sentencing judge's statement about parole corrected, it will be necessary for him to return to the District Court for that purpose: Sentencing Act1995 (WA) s 34(2) In any event, the statement of a sentencing judge under s 34(2) is merely a non‑binding advisory opinion: see Jackson The statement of the minimum term does not form part of the sentence [12] (McLure JA, Buss & Miller JJA agreeing).

Sentencing of Bui

Bui was sentenced by Kennedy CJDC on 9 April 2008. She had pleaded guilty on 31 January 2008. This was long after her arrest on 28 November 2006.
The sentencing judge noted that Bui had been in custody between the date of her arrest and 22 January 2008, during which time she had maintained pleas of not guilty. The case was set down for trial during that period, but a number of disclosure issues arose and one trial date was adjourned. Bui was released on bail on 22 January 2008 in order that she could give instructions to her counsel. This led to her pleas of guilty on the three counts on the indictment she faced. Bui then went back into custody.
Kennedy CJDC said that the facts revealed that Bui was an associate of the appellant, who was, in turn, a resident of Sydney. Both Bui and the appellant befriended Tran at the Burswood Casino and, over a period of time, drugs were brought into the State by the appellant, and kept at an address in Girrawheen which was the home of Tran. Drug dealing was done at premises rented by the appellant at Clover Square, Girrawheen. When the appellant came to Perth, Bui attended at those premises and cooked for the appellant. He and the co‑offenders communicated by mobile telephone.
Kennedy CJDC said that, on 28 November 2006, the appellant delivered to the house at Clover Square, the drugs which were the subject of the charges to which Bui had pleaded guilty. Her Honour then recounted the facts to which I have already referred. She said that, after listening to telephone intercepts, Bui's counsel had conceded that Bui's role was one of 'effectively facilitating sales' (ts 175).
Kennedy CJDC said that Bui had pleaded guilty on the basis that she was a party to the offence. Her Honour described Bui's role in the following terms:
You pleaded on the basis that you were a party to the offence, your role being to speak to people and you were effectively like a shop front for people at the casino. People would speak to you, you would then ring Tran or Nguyen would ring Tran and arrangements would be made for deliveries to take place. Generally the transactions were between Tran and/or Nguyen and the recipients of the drugs. The wider picture is immediately before these events took place, Mr Tran came into possession of 1.2 kilos of methylamphetamine and was charged in relation to that. (ts 175)
Kennedy CJDC accepted that part of the delay in relation to Bui's case was a late change of prosecutor and consideration by the prosecution of a charge of conspiracy. Her Honour made reference to Tran's conviction, sentence and to the basis upon which he was sentenced. Her Honour also made reference to the appellant having appeared before her on 31 January 2008, when he pleaded not guilty to the matters the subject of indictment 1757 of 2007. Her Honour noted also that the prosecution had appealed Tran's sentence, but she felt that there was no need for her to delay Bui's sentence until after the hearing of that appeal. (The appeal in The State of Western Australia v Tran [2008] WASCA 183 was, by a majority, dismissed).
Kennedy CJDC observed that there was no mitigation to be found in Bui's record. The offences in question were her third convictions for possession with intent to sell or supply. On 24 July 2003, she was convicted of possession of heroin with intent to sell or supply and was sentenced to 6 years' imprisonment. She was declared to be a drug trafficker. On 4 February 2005, she was convicted of selling heroin and attempting to sell heroin. She was sentenced to 2 years 6 months' imprisonment. She was released to parole on 4 May 2006 and the offences the subject of the charges she was facing had occurred during that period of parole. When taken back into custody, she served out the breach of parole days, which expired on 3 August 2007. Her Honour then said:
You have spent a great deal of the last six or seven years in prison. You have wasted some of the best years of your life. Had you pleaded guilty earlier, it may well be that some of the subsequent sentence would have been made concurrent with those parole days and indeed, under the Sentencing Administration Act, that probably would have happened. Further, you would have got a substantial deduction for an early plea. You are 37 years of age and you have a gambling problem.
That gambling problem is no doubt severe and you must seek help while you are in prison. Nevertheless, it is also clear from the pre‑sentence report and the psychological assessment that there is a view amongst the experts who deal with you that your young life was deprived of anything that approaches entertainment or joy or happiness and you became immersed in the casino culture in which you got a great deal of fun and happiness and in the end, it was worth doing that for the risk of going to gaol. (ts 176)
The sentences imposed were those to which I have previously referred. As I have indicated, they were later corrected on 22 May 2008.

Appeal

The grounds of appeal are formulated in the following way.
Ground 1
The learned sentencing judge erred in imposing a sentence on the Appellant that was manifestly excessive in comparison to the sentence imposed on the co‑offender Thi Nga Bui ('Bui').
PARTICULARS
(a)The co-offender Bui had two relevant prior convictions for possession of heroin with intent to sell or supply and had twice been declared a drug trafficker, whereas the ~~applicant~~ Appellant had no relevant prior convictions.
(b)The co-offender Bui was on parole at the time the offences were committed.
(c)The Appellant pleaded guilty on the fast track to two matters whereas the co‑offender Bui entered a very late guilty plea.
(d)There was little to distinguish between the ~~applicant~~ Appellant and Bui in the hierarchy of distribution relating to the present offences.
(e)The disparity between the two sentences having regard to all the circumstances of the case is such as to leave the ~~applicant~~ Appellant with a genuine sense of grievance.
Ground 2
The learned sentencing judge erred by imposing i~~mposed~~ a total effective sentence that was manifestly excessive in that it did not adequately take into account ~~his~~ the Appellant's age, antecedents and poor health.
PARTICULARS
(a)The ~~applicant~~ Appellant was a 53 year old man at the time of sentence and faces a lengthy non‑parole period before eventual release.
(b)The ~~applicant~~ Appellant suffers from significant medical problems which will affect his life in custody and which may deteriorate significantly before his eventual release.
(c)The ~~applicant~~ Appellant was a refugee to Australia, had a good work history and no criminal record prior to these offences.
(d)The ~~applicant~~ Appellant had at the time of offending a problem with drug addiction, which contributed to his having committed the offences in question.
(e)The combination of these factors required a further adjustment of the total effective sentence beyond that allowed by the learned sentencing judge in accordance with the totality principle in order to reflect these aspects of the case.

Ground 1

This ground raises the issue of parity between the sentence imposed upon the appellant and that imposed upon Bui.
As the particulars properly recite, Bui had previously been convicted twice for serious drug offences, but the appellant had no prior drug convictions. Further, Bui was on parole at the time the offences were committed. This aggravated the circumstances of her offending: see Nguyen Giac v The Queen [2008] NSWCCA 280 [29] (Hulme J). It is also the case that Bui's pleas of guilty were entered at a much later time than those of the appellant.
An issue which arises is where the appellant and Bui respectively stood in terms of the hierarchy of drug dealing. In this respect, the sentencing judge took the view that the appellant was at a higher level of involvement in drug dealing than Bui. His Honour took that view having regard to the evidence he had heard at the trial of the appellant on the charges the subject of indictment 1757 of 2007. Counsel for the appellant had argued for the contrary, but had accepted that, in the end, it was for the sentencing judge to reach his own conclusion on the issue.
The court was told at the hearing of the appeal that the telephone intercepts confirm that the appellant was responsible for bringing drugs into Western Australia.
On the other hand, there is substance in the submissions of senior counsel for the appellant to the effect that Bui's role in the drug dealing enterprise was integral to it. She was the person who apparently made contact with clients and, without her, the enterprise could not have succeeded.
In my opinion, the sentencing judge was entitled to conclude on the evidence that the appellant's involvement was greater than that of Bui. It is, however, important to appreciate that it is not an essential task to differentiate between offenders. In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, Gleeson CJ, Gaudron, Hayne and Callinan JJ said:
It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate. [14]
There is no doubt that Bui had a criminal record which was bad. By contrast, the appellant did not have a prior record of convictions for drug offences. The bad record of Bui could not aggravate her offences and could not justify greater punishment than she would otherwise have received, but it meant that there was little that could be said in mitigation for her. Bui's pleas of guilty were certainly entered very late. She was on parole at the time she committed the offences, and this was an aggravating feature. She was an important cog in the wheel of drug distribution in the enterprise in question.
The appellant was responsible for bringing the relevant drugs into Western Australia from Sydney. The house where the drugs were found was rented by him. As the learned sentencing judge noted (ts 19), the circumstances of the appellant's possession of the drugs in question indicate that the prime purpose of his involvement in the drug trade was a commercial one. The quantities and purity involved, and his preparedness to come from New South Wales to participate, are indicative of that. In his favour was the fact that he had no prior drug convictions, he had pleaded guilty to the matters the subject of indictment 710 of 2007 at the earliest opportunity and he had a number of health issues.
The principle requiring parity of sentencing between offenders is comprehensively dealt with in Lowe where Gibbs CJ said:
The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. (609)
See also Gibbs CJ at 609 ‑ 610, Mason J at 613 ‑ 614 and Dawson J at 623.
The general principle is to be read subject to the condition that the principle of parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offences in question: see Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12] (Steytler P).
It is also important to appreciate that the sentence imposed on Bui was one which substantially took account of the fact that she had already spent a significant period of time in custody in relation to the offences for which she was sentenced. The sentence of 5 years 4 months was not backdated to take account of the 6‑month period between 12 November 2006 (when Bui was taken into custody) and 12 May 2007 (being the date to which Bui's sentence was backdated).
The same judge should have dealt with both Bui and the appellant, but that did not occur. The respective sentences of 6 years (appellant) and 5 years 4 months (Bui) appear, at first glance, to be 8 months apart. However, when consideration is given to the fact that Bui served 6 months in custody awaiting sentence, solely because of the offences of which she was convicted, and without the sentence being backdated to take account of that period, any difference between the sentences narrows considerably.
In all the circumstances, I am unable to conclude that the sentences imposed upon the appellant, on the one hand, and Bui, on the other, are such as to give rise to a justifiable sense of grievance on the part of the appellant, or give the appearance that justice has not been done: see Lowe (623) (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 302 ‑ 303 (Dawson & Gaudron JJ).
I would dismiss ground 1.

Ground 2

This ground contends that the sentence imposed upon the appellant was manifestly excessive. The particulars contend that the sentencing judge failed to take full account of the appellant's age, antecedents and poor health.
This ground was not strongly pressed in argument. Senior counsel for the appellant preferred to place more reliance upon ground 1 than ground 2.
The sentencing judge did, undoubtedly, take account of the appellant's age, antecedents and poor health. These matters were dealt with in some detail in a pre‑sentence report and various medical reports which were supplied to the sentencing judge. They revealed that the appellant had undergone two operations for brain haemorrhages, suffered spinal injuries in a motor accident and now suffers chronic back pain. It was said that he started using heroin and amphetamines as a coping strategy for this disability.
The psychiatric report revealed that the appellant did not suffer any major mental illness. Since his incarceration, he had not been referred to the visiting psychiatrist at Hakea Prison and he was on no psychotropic medications. There were no recommendations for further psychiatric follow‑up. In the event that he did require any psychiatric care, he could be referred to the State Forensic Mental Health Service visiting psychiatrist at the prison.
The psychiatric report revealed the appellant's main problem to be a significant history of polysubstance dependence. He had minimal insight into his illness and illicit substance abuse. It was thought that he would benefit from engaging in a substance abuse counselling programme.
The appellant's case‑file revealed that he had suffered two spontaneous brain haemorrhages which required operative management. He had been reviewed by the Prison Medical Service general practitioner, but was on no anti‑hypertensive medication.
The appellant was 53 years of age at the time of sentencing. He was divorced, but had two daughters aged approximately 19 and 8 years. The appellant came to Australia from Vietnam (via Hong Kong) in 1985 and he had lived in Melbourne before permanently moving to Sydney. The appellant said that he had bought a coffee shop (in Sydney) some three years prior to being charged with the offences of which he was convicted.
There was no evidence in the present case that imprisonment would have any adverse effect on the appellant's health. Had there been, there may have been a need for the sentence to be reduced (Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260 [24] (Steytler P)), but that does not appear to be the present case. The sentencing judge concluded, from the materials before him, that imprisonment would not have a great impact on the appellant's health issues. That conclusion was clearly open.
The sentences imposed upon the appellant fall within the range of sentences that could have been expected. Sentences of up to 10 years' imprisonment (in post‑transitional terms) can be expected for possession with intent to sell or supply of large quantities of methylamphetamine. The same can be said for heroin: see Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [40] (Miller AJA); Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [40] (Miller J), [49] (McLure JA).
In cases involving smaller quantities of methylamphetamine (between 3 and 65 g) sentences in post‑transitional terms have ranged between 2 and 5 years: Bosworth [41] (Miller AJA).
In the present case, the appellant had possession with intent to sell or supply of 138.8 g of methylamphetamine with a purity of 52% to 55% (a very high purity) and 55.8 g of heroin with a purity of 59% (again, a very high purity) and the sentences imposed for each of those offences were well within the range of sentences that could have been expected. The sentences took full account of the appellant's personal circumstances, including his health. Further, and in any event, the personal circumstances of the offender are less important in cases of this nature than they might otherwise be: see The State of Western Australia v Andela [2006] WASCA 77 [17] (McLure JA).
In my opinion, there is no substance in ground 2. I would refuse leave to appeal in relation to that ground.

Conclusion

In my opinion, the appeal should be dismissed on ground 1 and leave to appeal should be refused in relation to ground 2. The question of resentencing of the appellant, by reason of the error made by the sentencing judge in relation to the period the appellant must serve before eligibility for parole, is a matter for consideration in the District Court.