Pham v R

[2010] NSWCCA 208

New South Wales
Court of Criminal Appeal

CITATION:	Pham v R [2010] NSWCCA 208
HEARING DATE(S):	2 September 2010
JUDGMENT DATE:	17 September 2010
JUDGMENT OF:	Macfarlan JA at 1; Simpson J at 2; Hall J at 51
DECISION:	Leave to appeal granted, appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – particular offences – drug offences - knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug - CRIMINAL LAW – application for leave to appeal against sentence – whether error in finding no evidence of real contrition or remorse – whether error in assessment of objective criminality – whether failure to take into account nature of drug as precursor – whether failure to provide reasons for finding that matter fell into middle range of objective seriousness for purpose of application of standard non-parole period – no error found
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
CATEGORY:	Principal judgment
CASES CITED:	Adams v The Queen [2008] HCA 15; 234 CLR 143 R v Baleisuva [2004] NSWCCA 344 R v Butters [2010] NSWCCA 1 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168
PARTIES:	Kim Thanh Pham (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/14562
COUNSEL:	P J Hamill SC/M G Coroneos (Applicant) J A Girdham (Respondent)
SOLICITORS:	Hanby & Associates (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/14562
LOWER COURT JUDICIAL OFFICER:	Frearson DCJ
LOWER COURT DATE OF DECISION:	24 July 2009

2008/14562

MACFARLAN JA
SIMPSON J
HALL J

17 September 2010

Kim Thanh PHAM v R

Judgment

1 MACFARLAN JA: I agree with Simpson J

2 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court on 24 July 2009, following his plea of guilty to a single charge of knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug (pseudoephedrine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”). By s 33(3)(a) of that Act the applicant was exposed to a maximum penalty of life imprisonment. By Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of 15 years is applicable to the offence.

3 Frearson DCJ sentenced the applicant to imprisonment for 10 years, with a non-parole period of 6 years. The applicant contends that two errors can be identified in the sentencing process, as evidenced in the Remarks on Sentence, and that these errors affected the outcome adversely to him. He does not contend that the sentence is, of itself, manifestly excessive: he contends rather, that, if the judge had correctly approached the sentencing task, the resultant sentence would have been less.

The facts

4 Although evidence of the facts was put before the Court by way of an agreed Statement of Facts, the applicant was not prepared to acknowledge the identity of co-offenders named therein, and expressly withheld admission as to their identities.

5 The indictment alleged that the offence was committed on 14 June 2007. For about two weeks prior to that, the applicant, who lived in Brisbane, was engaged in negotiating with a co-offender (to whom I will refer as X). Telephone intercept evidence established that the applicant was actively involved in the planning for the offence. He flew to Sydney on a number of occasions; he organised a third man (to whom I will refer as Y) to travel to Sydney to collect the drug, and transport it to the Gold Coast by car. On 10 June the applicant flew to Sydney and booked into a hotel. Over the next four days he was in regular contact with the co-offenders, arranging the collection and delivery of the drug. They communicated in coded language. The applicant went to the home of the co-offender X, and inspected the drug to ascertain its quality.

6 On 13 June the applicant met the co-offender Y at the airport and, with him, hired a motor vehicle. The following day he met co-offenders X and Y, and another. The applicant drove the hired car to the hotel into which he had booked. He met Y. Y drove off in the vehicle, with the drug on board. Y drove north on the Pacific Highway but was stopped by police at Wyong where the vehicle was searched. The drug was in 10 heat sealed bags, in the form of small pink granules. On analysis, there proved to be 10.124 kilograms of pseudoephedrine, with an average purity of about 30 percent. Pseudoephedrine is a precursor for the manufacture of methylamphetamine. 10.124 kilograms of pseudoephedrine was capable of manufacturing about 2.7 kilograms of pure methylamphetamine.

7 For his part in this enterprise, the applicant was to be paid $20,000.

8 On 14 June the applicant went to Sydney airport, intending to fly to Brisbane, with another co-offender. They were arrested at the terminal.

The applicant declined to participate in an interview.

9 The Statement of Facts contained an express acknowledgment by the applicant that “this was not an isolated incident”.

The applicant’s personal circumstances

10 Evidence of the applicant’s personal circumstances was given by way of a Pre-Sentence Report, prepared by an officer of the Queensland Probation and Parole Service, and a report by a psychologist, Ms Jessie Santos. The applicant did not give evidence in the sentencing proceedings. From the two reports, the following emerged.

11 The applicant was born in Vietnam in January 1975. At the time of the offence he was 35 years of age. He had a minimal criminal record, involving firearms offences committed in 1992, when he was about 17 years of age. He is the second of four children; his three siblings are in stable lifestyles and employment. When he was 6 years of age his family migrated to Australia, in order to escape the consequences of the Vietnam War. His father was at risk because he had served in the army. The family lived in a refugee camp for 18 months, before taking up residence in Queensland. The applicant now identifies as Australian.

12 His childhood was disturbed. The family suffered both financially and socially. His father was violent towards the applicant and to the applicant’s mother, and eventually left the family. At school the applicant was bullied and taunted. He did not do well academically. He is assessed as having low but adequate intelligence.

13 The applicant has had employment at various times (financially unrewarding) and has involved himself in a number of small businesses (with his mother), all unsuccessful. He attributed his involvement in the offence to financial pressure.

14 He is in a relationship which began about 10 years before he was sentenced, but which has not always been stable. At the time of sentencing the birth of his first child was imminent.

15 Relevantly to the grounds specified in the application, Ms Tara Bennett, who prepared the pre-sentence report, wrote:

“[The applicant] admits to some involvement in the offence … and recognises that he engaged in inappropriate and illegal conduct … [The applicant’s] account is not consistent with those set out in the Police Facts. Where the Police Facts outline significant involvement on the part of [the applicant], he advised that he had minor involvement in the supply of dangerous drugs. He simplified his involvement as being limited to transport drugs from one location to another … He stated that he engaged in this activity through the lure of quick money and admitted that he was motivated by greed and a perception that his hard work through legitimate means did not financially ‘get him ahead’ …

[The applicant] acknowledges his offending and appears to be remorseful for his actions.”

16 Ms Santos wrote:

“38 … [The applicant] indicated that he considered his behaviour as naïve as he did not consider the consequences of his actions as part of the drug trade, on society, or with respect to his wife and family. In discussing this, he expressed seemingly appropriate regret and remorse for his offending behaviour and he also demonstrated an understanding of the social reasons why being involved in the drug trade is both inappropriate and illegal.

…

44 [The applicant] expressed seemingly appropriate remorse for his offending, and he acknowledged the naivety of his behaviour with respect to this incident. Further, he reports to have taken steps to address his criminogenic needs through allegedly severing ties with his antisocial associates, and maintaining a positive personal routine consisting of consistent, and now, satisfying employment.”

The remarks on sentence

17 Frearson DCJ recounted the facts of the offence, and the applicant’s personal circumstances. He outlined the role played by the applicant as follows:

“… what he did was to travel between Queensland and New South Wales and engaged in meetings and negotiations with other participants and he negotiated the terms of the transaction in Sydney. He had a level of autonomy. There were coded conversations and there was a considerable sophistication of co-operation and the negotiations took place over some substantial period … It is clear he had interstate contacts and could secure a large quantity of drugs from those who trusted him and he displayed a detailed understanding of price and quality and his role in the negotiations is demonstrated from a mere reading of the facts. He was a negotiator, organiser, coordinator, quality controller and financial arranger … There was an extremely high level of planning and organisation.”

18 His Honour allowed, in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, a reduction in sentence of 25 percent for the utilitarian value of the plea of guilty. However, he did not regard the plea of guilty as a “manifestation of contrition”, and added:

“I do not find there is any evidence of real contrition that I can accept and the plea itself I find to be not much more than acceptance of the inevitable. I do not punish the offender for this, but he does not name his co-offenders and he is not prepared to and he is not even prepared to agree on the facts that the co-offenders are particular identities. I do not think it particularly matters in terms of objective gravity but it does demonstrate to me a lack of co-operation and it underlines what I think is my conclusion that he is not truly remorseful for his conduct.” (italics added)

19 He found the offence to be of a mid-range level of objective gravity, but, nevertheless, departed from the standard non-parole period because of the plea of guilty (R v Way [2004] NSWCCA 131; 60 NSWLR 168) and because, pursuant to s 44(2) of the Sentencing Procedure Act, he found special circumstances justifying a variation from the ratio between the non-parole period and the head sentence there specified. He proceeded to impose the sentence I have mentioned.

The application for leave to appeal

20 Two grounds of appeal were pleaded. They are:

“(1) The sentencing Judge erred in concluding that there was no evidence of real contrition and in finding the applicant is not truly remorseful for his conduct … on the basis that the applicant failed to acknowledge the identity of his co-offenders.

(2) The sentencing Judge erred in his assessment of the objective criminality and in particular (i) failed to take into account the nature of the drug as a precursor and (ii) failed to expose his reasons for determining that the matter fell into the middle range of objective seriousness for the purpose of the application of the standard non-parole period.”

Ground 1

21 I have extracted above the passage in the Remarks on Sentence from which this ground is drawn.

22 On behalf of the applicant, it was submitted that two separate findings of fact can be isolated in the first passage quoted above ([18]). The first is that there was no evidence of remorse or contrition; the second, an affirmative finding that the applicant was not “truly remorseful”.

23 The first, as stated on behalf of the applicant, is incorrect. Although the applicant did not give evidence, there was evidence, in the Pre-Sentence Report and the psychologist’s report, of some level of remorse. It was not, of course, evidence that the sentencing judge was obliged to accept. It is not, however, strictly correct to say that he found there was “no evidence of remorse and contrition”; what his Honour said was that there was no evidence of real contrition “that I can accept”.

24 It is true that this is somewhat cryptic, but it may be taken as a rejection of the opinions offered by the authors of the reports. Those opinions were not supported by any evidence given by or on behalf of the applicant.

25 Moreover, close examination of the reports provides a possible explanation for his Honour’s approach. The observations, particularly in Ms Bennett’s report, are far from unequivocal. Ms Bennett noted that the applicant admitted “some involvement” but gave an account inconsistent with that contained in the Police Facts (which were agreed). She said that he described his offence as “minor” – contrary to the picture painted in the agreed facts. She said that he “simplified” his involvement as being “invited” to transport drugs. The agreed facts demonstrate that the applicant’s role was significantly greater than that of “transporter”. Ms Bennett’s report was prepared for sentencing in November 2008, almost 18 months after the offence and the applicant’s arrest, and therefore when he had had ample opportunity to reflect upon his conduct.

26 The same cannot be said of Ms Santos’ report, which is dated June 2009. There is nothing in that report that expressly casts doubt on the assessment of “seemingly appropriate remorse” (unless the word “seemingly” is taken to convey some doubt). Nevertheless, his Honour was not obliged to accept that assessment: see R v Butters [2010] NSWCCA 1, at [18]-[19].

27 I do accept that it was erroneous to treat the applicant’s reluctance to identify his co-offenders as relevant to, and indicative of the absence of, remorse and contrition. As was pointed out on his behalf, there are good and well-known reasons why participants in drug offences might display that reluctance: see R v Baleisuva [2004] NSWCCA 344.

28 While it was open to his Honour to be sceptical about the applicant’s remorse, it was not open to his Honour to find, affirmatively, that the applicant was not “truly remorseful”. The two propositions are different. Apart from the evidence in the reports, there was simply no basis on which to make a finding one way or another.

29 Remorse and contrition are matters traditionally taken into account in sentencing. They are taken into account because they are thought to be indicative of prospects of rehabilitation. However, it is rare that an offender who has been apprehended and who faces punishment is not remorseful and contrite. But remorse and contrition of themselves are not necessarily indicative of any attitude towards the offence, as distinct from apprehension and the prospect of punishment. Remorse and contrition referable to the likelihood (or inevitability) of punishment are not indicative of rehabilitation prospects.

30 In 2007, the Sentencing Procedure Act was amended (with effect from 1 January 2008, and, this Court was told by both counsel, operating retrospectively) so that remorse is to be taken into account as a mitigating factor in sentencing only if:

“( i ) the offender has provided evidence that he or she accepted responsibility for his or her actions, and

( ii ) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)” (s 21A(3)(i))

Because the drug was apprehended before it found its way onto the streets, there is no scope for the application of the second limb of s 21A(3)(i). No injury, loss or damage (except by way of costs incurred by law enforcement authorities and the criminal justice system) have been incurred, and there is no basis for reparation.

31 But the applicant did provide in the two reports some evidence that he had accepted responsibility for his actions. As I have said, the sentencing judge was not obliged to accept that evidence, and, in the light of the contrary indications in Ms Bennett’s report, there were valid reasons for scepticism.

32 It would, in my opinion, have been preferable if his Honour had given clear reasons for rejecting that evidence (if that is what he did). That would have avoided an inference, which is also available, that he simply overlooked it.

33 Despite the often ritual incantation of remorse and contrition as relevant to sentencing, it is seldom that they have any real bearing upon the sentencing outcome, except, as I have suggested, where they can be taken to indicate good prospects of rehabilitation.

34 In this case, it does not appear to me that the applicant was in any way penalised by the erroneous reasoning. His Honour found that the applicant had a “low to moderate risk of re-offending in this particular way” and that he had “fair to good prospects” of rehabilitation. Even leaving aside the failure to take into account what was contained in the reports, these findings were as favourable to the applicant as could have been expected.

35 I am satisfied that this reasoning did not adversely affect the sentencing decision.

Ground 2

36 For the purposes of Pt 4 Div 1A of the Sentencing Procedure Act, the sentencing judge assessed the objective gravity of the offence as “mid-range”. He nevertheless departed very significantly from the standard non-parole period specified in the Table to that Division. He stated his intention of reducing the sentence by 25 percent in recognition of the plea of guilty.

37 As I have indicated above, the standard non-parole period is 15 years. Reduction of that period by 25 percent would yield a non-parole period of 11 years and 3 months. The starting point of the sentence imposed, after the 25 percent reduction is factored in, was a head sentence of 13 years and 4 months (ie 1 year and 8 months less than the standard non-parole period), with a non-parole period of 8 years (ie 7 years less than the standard non-parole period). In other words, the departure from the standard non-parole period contained, in addition to the plea of guilty reduction, a further reduction of 5 years and 3 months, or 35 percent, from the standard non-parole period. That is, as I have said, a very significant reduction, and one that is hardly explained.

38 Nevertheless, on behalf of the applicant it was contended that the sentence was excessive because the assessment of objective gravity as mid-range was erroneous.

39 The basis for this was a contention that the sentencing judge failed to take into account:

“… the fact that the substance … was a pre-cursor, i.e. a substance which would be used to produce another drug (methylamphetamine) and that there was nothing to suggest that the applicant had any role to play in the conversion of the drug into a form that could be sold into the illicit drug markeg.”

It was submitted that the applicant’s role was “very much preliminary” to any actual supply of methylamphetamine.

40 In my opinion the argument is misconceived. Schedule 1 of the DMT Act prescribes 5 kilograms of pseudoephedrine as the large commercial quantity.

41 The argument put on behalf of the applicant had at its foundation the proposition that pseudoephedrine, as a precursor, is less harmful than other drugs, for example, methylamphetamine, for which it is a precursor. As a proposition of fact, that may be accepted – at least, it may be accepted that the legislature so perceives. That conclusion emerges from the structure of the DMT Act, and, in particular, Sch 1 thereto.

42 Schedule 1 catalogues the drugs prohibited by the DMT Act, and prescribes the quantities of each named drug that constitute traffickable, small, indictable, commercial, and large commercial quantities. What amounts to each of those quantity levels varies widely, according to the perceived harmfulness of the drug.

43 Where 5.0 kilograms constitutes a large commercial quantity of pseudoephedrine, as little as 0.5 kilograms of methylamphetamine constitutes the large commercial quantity of that drug. Thus, supply of 0.5 kilograms or more of methylamphetamine exposes an offender to a penalty of life imprisonment; with respect to pseudoephedrine, an offender does not face that penalty unless and until he or she has dealt in 5 kilograms.

44 The point I am making is that the relative harmfulness of the drug has already been taken into account by the legislature in the determination of what constitutes the large commercial quantity of any drug, and is built into the penalties provided.

45 Having so differentiated by reference to harmfulness, the legislature has determined that the penalty for supply of the relevant quantities shall not vary according to the nature of the drug. This was the effect of the decision of the High Court in Adams v The Queen [2008] HCA 15; 234 CLR 143.

46 There is, accordingly, no substance to this complaint. It was clear that the offence with which the applicant was charged involved a specified drug, which was, indeed, an ingredient of another drug. However, pseudoephedrine is, itself, a prohibited drug and it was this with which the applicant was charged.

47 As to the second part of this ground, the asserted failure to expose reasons for determining that the offence was one of mid-range, I do not think the complaint can be sustained. The finding comes at the end of a lengthy passage in which the sentencing judge gave close attention to the applicant’s involvement, and the level of planning involved in the offence.

48 I would reject this ground of the application.

49 In my opinion neither ground of appeal ought to be upheld. I am satisfied that the sentence was appropriate, and I am not satisfied that any other sentence ought to have been imposed.

50 I would grant leave to appeal but dismiss the appeal.

51 HALL J: I agree with Simpson J.

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