R v CHAMINGS - [2009] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CHAMINGS
[2009] SASC 82
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Layton)
3 April 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS
Appeal against sentence for four heroin offences and two counts of unlawful possession - appellant charged on information with two others - only some of the charges were joint charges - sentenced as a street trader - effective sentence of four years six months imprisonment with a non-parole period of two years - appellant complains that sentence manifestly excessive in that he was lower in the hierarchy than another offender and should have been, but was not, treated more leniently - none of the appellant's offences were committed jointly with that other offender - different sentencing judges adopted the same starting point for appellant and the other offender of five years imprisonment - appellant further complains he was to be sentenced for fewer offences than the other offender.
Held: sentence not manifestly excessive - sentencing judges each proceeded, as invited, on basis that offenders were street traders and sentenced accordingly - on facts as put to both courts there was no relevant difference in appellant's and other offender's culpability - appeal dismissed.
Criminal Law Sentencing Act 1988 (SA), s 18A; Controlled Substances Act s 32(1), referred to.
R v MacGowan (1986) 42 SASR 580, applied.
Postiglione v The Queen (1997) 189 CLR 295, discussed.
Lowe v The Queen (1984) 154 CLR 606, considered.

R v CHAMINGS
[2009] SASC 82
Court of Criminal Appeal: Vanstone, White and Layton JJ

VANSTONE J: This an appeal against a sentence imposed in the District Court after pleas of guilty to three counts of taking part in the sale of heroin, one of possessing heroin for sale and two summary offences of unlawful possession, relating to money amounting to $3,228, acknowledged to be the proceeds of heroin sales. The judge took a starting point of five years imprisonment, allowed six months for the eleventh hour pleas, and fixed a non-parole period of two years.
The sole ground of appeal is: “the sentence is manifestly excessive in respect of the disparity in sentence between the appellant and co-accused”. Put slightly differently, the appellant’s complaint is that the same starting point was used for his sentence and for that of another offender, one Tran, whose role was more significant. The appellant contends his sentence should have reflected that difference. His complaint is confined to a comparison of the respective starting points.
He relies upon the parity principle. In essence that provides that persons sentenced for the same crime or crimes should, if other things are equal, receive comparable sentences; but material differences in their conduct and antecedents should be reflected: R v Lowe (1984) 154 CLR 606 per Gibbs CJ at 609, Wilson J agreeing, and Brennan J at 617; R v MacGowan (1986) 42 SASR 580, 582-3; R v Nguyen [2009] SASC 63.
In my view this appeal proceeds on three false premises. To explain why, it is necessary to say more about the facts. The appellant argues that his role in the heroin trade was that of a street trader. He was part of a group of persons who were servicing various clients, selling amounts of heroin in quantities usually worth between about $100 and $1,100. He argues that he was on the lowest rung of the heroin trade. The appellant put to the sentencing judge that his role was subservient to that of the co-offender, Tran, who was also dealt with in the District Court for offences of a similar nature. The submission was that the appellant took his instructions from Tran in relation to how to execute arrangements made by Tran to sell heroin. He argues that for this reason his sentence should have been less than that of Tran.
Tran, the appellant and a woman, Tan, were originally presented to the District Court on the same information. Another co-offender, Vo, also appeared at that time, having been committed for sentence, after pleading guilty in the Magistrates Court. On the occasion of Tran’s first arraignment before another judge, he pleaded guilty to four counts of selling heroin and two counts of taking part in the sale of heroin. The offences were six sales of heroin to an undercover police officer. The appellant was not charged with any of these offences. Importantly, it was not put to that judge in submissions that Tran was anything other than a street trader. The judge was told that the offending occurred in the context of a certain police operation targeting street-level traders and using undercover operatives.
In sentencing Tran, the judge took a starting point of five years imprisonment, reduced it by one year and three months on account of the pleas of guilty and then allowed credit to the extent of three months to reflect time in custody. In relation to the head sentence of three years and six months, the judge fixed a non-parole period of eighteen months.
Some months later the appellant’s matter was about to go to trial before another judge. Instead, pleas were entered. The suggestion was made by his counsel in submissions that the appellant played a role subservient to that of Tran. It was implicit, rather than explicit, that the submission should lead to a sentence at a lower level than that of Tran. Indeed, it was specifically put to the judge that the appellant should be “sentenced on the basis that he has a street level involvement in this offending”.
In my view it is now not open to him to argue that, because of Tran’s sentence, his own starting point should have been lower than the five years selected. The cases concerned with disparity of sentence are not of particular relevance here.
The false premises to which I earlier referred are these. First, there were no joint charges. For that reason alone, Tran’s sentence is not of direct relevance. The two men were in the same business, but were not before the court on the same charges. Looking at the matter more generally, it is true, as counsel highlighted, that Tran pleaded guilty to six drug offences as against four here, but both men admitted a background of trading and the appellant’s unlawful possession charges demonstrated substantial separate trades.
Secondly, on the facts as presented to each court, Tran and the appellant were street traders. Each was sentenced on that basis and the starting point for each sentence was the same. In effect, the appellant is asking this Court to build into Tran’s sentence a fiction, namely that he was sentenced on the basis that he was something above a street trader, and then to reduce the appellant’s sentence to a level below Tran’s. The process we are asked to follow is illogical.
Finally, the distinction which counsel sought to draw before us as to the roles of the two men is not, in the circumstances of this case, significant. It is clear from Tran’s convictions that he was also involved in direct selling at a street level. That he also passed on to the appellant instructions as to effecting sales, does not, in my mind, change the character of his role. More striking were the similarities, including that both men committed offences over a similar period, both acknowledged a course of conduct and both claimed addiction to heroin. As well, each had a compelling personal reason for descending to heroin abuse.
No complaint was made about the sentence imposed apart from the issue of parity.
For these reasons I would dismiss the appeal.
WHITE J: This is an appeal against a sentence imposed in the District Court.
The appellant pleaded guilty to three offences of taking part in the sale of heroin[1] and to one offence of possessing heroin for sale.[2] The sentencing Judge took as the starting point for a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) a sentence of five years imprisonment. After allowing a reduction of six months for a late plea of guilty, and one week for time spent in custody, the Judge imposed a sentence of 4 years 5 months and 3 weeks, with a non-parole period of 1 year 11 months and 1 week.
[1] Section 32(1)(d) of the Controlled Substances Act 1984 (SA) (CSA).
[2] Section 32(1)(e) of the CSA.
The appellant had also pleaded guilty to two Counts of unlawful possession[3] resulting from his possession of monies derived from the sale by him of heroin. The Judge imposed convictions on those two Counts without further penalty.
[3] Section 41(1) of the Summary Offences Act 1953 (SA).
The appellant was charged on an Information with two others. The Information alleged that the co-accused Michelle Tan and the appellant had committed three offences of taking part in the sale of heroin together; that Ms Tan and the third co-accused Danh Tran had committed two offences of taking part in the sale of heroin together; and that Mr Tran had, by himself, committed four offences of selling heroin. [4]
[4] Section 32(1)(c) of the CSA.
Mr Tran pleaded guilty to the offences involving him at his first arraignment. He was sentenced by Judge Clayton on 14 March 2008. At the same arraignment, the appellant and Ms Tan pleaded not guilty to all offences involving them. However, very shortly before the commencement of their trial on 4 August 2008, each of the appellant and Ms Tan pleaded guilty. Both were sentenced at the same time.
In relation to Ms Tan, the sentencing Judge took the same starting point of five years as he had in relation to the appellant. After giving Ms Tan the same reduction as the appellant for the late plea of guilty, and credit for 3 months which she had spent in custody, the Judge imposed a sentence of imprisonment for 4 years and 3 months with a non-parole period of 1 year and 9 months.
In sentencing Mr Tran on 14 March 2008, Judge Clayton had also taken a starting point of five years for a single sentence under s 18A of the CLSA. He reduced that starting point by 25 percent on account of his early pleas of guilty, and by a further 3 months for the time spent by Mr Tran in custody and on home detention bail. Judge Clayton them imposed a single sentence of imprisonment for 3 years and 6 months and fixed a non-parole period of 18 months.
In short, a starting point of 5 years imprisonment was adopted in each case. The structure of Ms Tan and of Mr Tran’s sentences was the same as that imposed on the appellant. The difference in the sentences actually imposed on them is attributable to the different timing of their respective pleas of guilty and to the different periods which each had spent in custody or on home detention bail.
The Appeal
There is a single ground of appeal. The appellant submits that the sentence imposed on him was manifestly excessive solely because of the disparity between the sentence imposed on Mr Tran, on the one hand, and his own sentence, on the other. He accepts that the sentence imposed on him, when considered by itself, and without reference to the sentence imposed on Mr Tran, was appropriate.
There is no appeal by Ms Tan against the sentence imposed on her. Nor does the appellant complain of any disparity between his sentence and that imposed on Ms Tan.
As will be seen, I do not consider that there is any relevant disparity in the sentences imposed on Mr Tran and the appellant.
The Circumstances of the Offending
The offences committed by each of the co-accused involved street level dealing of relatively small amounts of heroin.
In late 2006, the police suspected Mr Tran and Ms Tan of selling heroin. They established an undercover investigation.
In the course of the investigation, the police detected Ms Tan telephoning the appellant on each of 31 October 2006, 11 November 2006 and 2 December 2006 to arrange the sale of heroin to purchasers who had, prior to those calls being made, contacted Ms Tan. The appellant then completed each sale. That conduct of the appellant and Ms Tan comprised the three offences of taking part in the sale of heroin. The amount involved in each sale appears to have been of the order of one or two grams of heroin.
The offence of possessing heroin for sale was committed by the appellant on 6 December 2006. The police found five balloons of heroin (containing in total 1.25 grams of heroin) in the fuse box of his car. He also had more than $3,200 in cash at his home.
As part of the police undercover operation into the activities of Ms Tan and Mr Tran, a police officer telephoned Mr Tran on 10 November 2006 and enquired about purchasing some heroin. Mr Tran then spoke to Ms Tan, who in turn arranged for a fourth person, Mr Vo, to make the delivery (on the same day) to the undercover operative. The telephone conversation between the police officer and Mr Tran, and the subsequent arrangement between Mr Tran and Ms Tan, constituted the offence of taking part in the sale of heroin which they committed together on 10 November 2006.
On 13 November 2006, the same undercover operative telephoned Mr Tran enquiring about the purchase of further heroin. Mr Tran passed the call to Ms Tan who then made arrangements for the delivery of the heroin. On this occasion, the delivery was made by Mr Tran. This conduct constituted the second offence by Mr Tran and Ms Tan of taking part in the sale of heroin.
On four subsequent occasions during November 2006, the undercover police officer telephoned Mr Tran concerning the purchase of heroin. On each occasion, Mr Tran personally supplied heroin to the undercover police officer at a meeting place suggested by Mr Tran, and received payment from him for that heroin. With two exceptions, all the sales made by or through Mr Tran were of 0.2 grams of heroin. Each of the two exceptions were sales of 3.5 grams (eight balls). Mr Tran received $1,200 for each of the 3.5 gram sales and $100 for each of the 0.2 gram sales.
The maximum penalty for each of the offences (apart from the offences of unlawful possession) committed by each of the appellant, Ms Tan and Mr Tran was a fine of $200,000, or imprisonment for 25 years, or both.
The Issues on Appeal
The appellant accepted that the structure of the sentence imposed by Judge Clayton on Mr Tran, and of each of the sentences imposed by the sentencing Judge on Ms Tan and himself, was the same. As noted earlier, in each case, the Judge had taken a sentence of 5 years imprisonment as the starting point for a single sentence imposed under s 18A of the CLSA. In each case, the Judge then made a reduction on account of the pleas of guilty, and gave credit for the time spent in custody by each. Mr Tran was given a higher reduction for his pleas of guilty because he pleaded guilty at the first arraignment whereas the appellant and Ms Tan did not do so until the day on which their trial was to commence.
The appellant submitted that the disparity arose from the fact that the same starting point of five years had been used despite the fact that Mr Tran was sentenced for six offences (two of taking part in the sale of heroin and four of selling heroin), whereas he was sentenced for four offences (three of taking part in the sale of heroin and one of possessing heroin for sale).
The appellant also submitted that his culpability was less than that of Mr Tran. He submitted that the evidence showed that Mr Tran was at a higher level in the hierarchy involved in selling heroin because he (the appellant) was acting on Mr Tran’s behalf and pursuant to his instructions.
The material supporting these submissions was limited. In the course of his sentencing submissions, counsel for the appellant submitted that it was Mr Tran who had introduced the appellant to heroin and, in particular, to the selling of heroin. The sentencing Judge was told that Mr Tran had given the appellant “street level deals” and would instruct him about the details for delivery of each transaction. The appellant would then deliver the drugs in exchange for money, would take that money home, and keep it in his safe at home.
The sentencing Judge seems to have accepted these submissions. After referring to a difficult period in the appellant’s life, the Judge said:
During that time you got to know Danh Tran who introduced you to heroin and you found that by smoking it you got some relief from thinking about what had happened. Your heroin habit grew from there. In the end you did not have enough money to support it so you began to sell for Danh Tran and that is what led to this offending. (emphasis added)
However, it was not suggested to the sentencing Judge that there was a difference in the respective culpabilities of the appellant and of Mr Tran. In particular, it was not submitted to the sentencing Judge that the appellant should be sentenced as a subordinate, or that he should receive a lesser sentence than had Mr Tran.
Resolution of Appeal
The underlying principles concerning disparities in sentences of co‑offenders are not in issue. Like cases ought to be treated alike.[5] Equal justice requires that, as between co‑offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance”.[6]
[5] Lowe v The Queen (1984) 154 CLR 606 at 610; Postiglione v The Queen (1997) 189 CLR 295 at 301.
[6] Ibid.
In R v MacGowan[7] King CJ referred to Lowe v The Queen[8] and stated the underlying principle in the following terms:
Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal…[9]
King CJ also emphasised that when different judges are sentencing co‑offenders, the sentences should be proportionate to the respective degrees of culpability and the individual circumstances of the co-offenders. A sentencing judge should identify any relevant distinctions between the circumstances of the co-offenders and should give reasons explaining any disparity between the sentence which he or she imposes and the earlier sentence imposed on a co‑offender.[10]
[7] (1986) 42 SASR 580.
[8] (1984) 154 CLR 606.
[9] R v MacGowan (1986) 42 SASR 580 at 582-3.
[10] Ibid at 583.
As to the circumstances in which the Court of Criminal Appeal will interfere on appeal in a case of disparity, King CJ said:
Marked disparity of sentences imposed upon co-offenders by different judges is a ground upon which the Court of Criminal Appeal may intervene…If both sentences are within the maximum authorised by law and are within the range of sentences properly open on the facts of the case, the Court of Criminal Appeal is not bound to intervene. In such circumstances disparity, although a ground for interference, will not necessarily lead the Court of Criminal Appeal to interfere. It is a matter for the discretion of the Court. There may be considerations against interference. The protection of the public may require the higher sentence to stand. The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest. But in the absence of strong countervailing considerations, the Court of Criminal Appeal will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case.[11]
[11] Ibid.

I do not understand the later decision of the High Court in Postiglione v The Queen[12] to alter the position summarised by King CJ. Indeed, in Postiglione Dawson and Gaudron JJ suggested that if a marked disparity between sentences did exist giving rise to a justifiable sense of grievance, a sentence which was otherwise appropriate and within the permissible range of sentencing options should be reduced.[13] However, that does not mean that a sentence should be reduced in order to avoid disparity if the reduction would result in a sentence which is manifestly inadequate when compared with the level of criminality of the conduct involved.[14]
[12] (1997) 189 CLR 295.
[13] Ibid at 301.
[14] Lowe v The Queen (1984) 154 CLR 606 at 617.
In my opinion, it should not be held in this case that there is a disparity in the sentences such as to warrant this Court’s intervention.
It is true that Mr Tran was sentenced for six offences and the appellant for four. However, each of their offences can properly be seen to be part of a single course of conduct in which each engaged. Mr Tran committed more offences in the course of his conduct but it was nevertheless a single course of conduct, and one which was not dissimilar to that of the appellant.
There are circumstances in which the different roles played by those engaged in the sale and distribution of illicit drugs are important. The cases involving the so called ‘mere courier’ may be one example. But in the present case it is plain that the appellant was more than a mere courier. He was actively involved in the sale process. This is evidenced by the five balloons of heroin found in his possession on 6 December 2006. It is also evidenced by his possession of more than $3,200 in cash derived from the sale of heroin. As counsel acknowledged, such a sum of money is likely to have been the proceeds of many individual sales of small quantities of heroin.
The evidence concerning Mr Tran’s offending indicates that he too was an intermediary at a low level in the heroin supply chain. A comparison of their individual activities which constituted their offences does not suggest a marked difference in their respective levels of culpability. I also note that Mr Tran, like the appellant, used his sale of heroin as a way of financing his own heroin habit.
An appropriate starting point for a single sentence should also take account of the personal circumstances of each offender. Neither Mr Tran nor the appellant had a relevant prior history. However, the materials concerning Mr Tran’s personal circumstances which were before Judge Clayton indicate that there was much in his background to excite sympathy. Mr Tran was born in Saigon in 1973, just before the end of the Vietnam War. He has never known his father, who was killed in 1974. Mr Tran grew up in Saigon until escaping in 1990 when he was 16. He did not complete his schooling. He described a childhood in Saigon marked by psychological abuse from his mother and from his school teachers.
After a period of about five years in a refugee camp in Indonesia, Mr Tran was returned by the authorities to Vietnam where he remained for two years. Eventually he was accepted for immigration to Australia and came to Adelaide in 1997. His English language and literacy skills are limited. In 2003, Mr Tran suffered serious injuries as a result of a car accident. Both in Vietnam and in the refugee camp in Indonesia, Mr Tran was exposed to regular traumatic experiences involving exposure to considerable violence. He is said to suffer from alcoholism and a post-traumatic stress disorder resulting from his refugee camp experiences.
There have been difficulties in the appellant’s background as well. After a long period of stable domestic and work life, the appellant was severely traumatised by the violent death of his sister’s partner in 2003. He then commenced using heroin and assisted in its sale as a means of financing his habit. I do not mean to underestimate the difficulties which the appellant has experienced. They are of a general kind suffered by many persons who commit these kind of offences. But it cannot be said that he has suffered the disadvantages in his life to which Mr Tran has been exposed. Even if Mr Tran’s offending was more culpable, an appropriate sentence for him had to take account of the personal circumstances which I have just summarised.
It is true that the sentencing Judge did not refer to the sentence imposed by Judge Clayton on Mr Tran. However, as noted earlier, it was not suggested to the Judge that the sentence imposed on Mr Tran should influence the sentence he was to impose on Ms Tan and on the appellant. When the Judge enquired of counsel what had happened to Mr Tran, he was told simply of the ultimate sentence which had been imposed on him, but nothing of the nature or circumstances of the offences to which Mr Tran had pleaded guilty, or of how Judge Clayton had reached his sentence. In particular, it was not suggested that the culpability of the appellant was less than that of Mr Tran, and it was not necessary for counsel for the Director of Public Prosecutions to address the issue.
It is also apparent that Judge Clayton sentenced Mr Tran on the basis that he was a person engaged in the street selling of heroin. It was not suggested to Judge Clayton that Mr Tran’s offending involved any greater culpability than that of a street dealer. In other words, this is not a case in which one co-offender was given the same sentence as that given to a co-offender who was sentenced on the basis that his offending was at a higher level of seriousness.
Having regard to these matters, and in particular to the similarities in the offending of Mr Tran and of the appellant, I am not satisfied that it can be said that there is a disparity in the sentences in this case, let alone such a marked disparity as to warrant this Court’s intervention.
Conclusion
For the reasons given above, my opinion is that the appeal should be dismissed.
LAYTON J: Having had the opportunity of reading the reasons for decision of Justice Vanstone and Justice White, I agree with them that the appeal should be dismissed.
The detail of the factual background to the appeal is set out in the reasons of White J. Both Judges identify the single issue on appeal being alleged disparity of sentence of the appellant as a consequence of the use of the same starting point for sentencing the appellant and a Mr Tran. Mr Tran had been sentenced at an earlier in point of time than the appellant, by a different judge of the District Court. I respectfully agree with Vanstone J that the cases on disparity of sentence were not of particular relevance in the circumstances, for reasons which her Honour identifies. Further, I agree that even if a parity approach was taken, for reasons which White J articulates, there was no resultant disparity brought about in the same starting point being used in the sentencing Mr Tran and the appellant.