R v Mauai

[2005] NSWCCA 207

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Do [2005]  NSWCCA 209

FILE NUMBER(S):
2005/400

HEARING DATE(S):               03/06/2005

JUDGMENT DATE: 09/06/2005

PARTIES:
Regina v Duc Vien Do

JUDGMENT OF:       Studdert J Howie J Latham J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          02/11/0972

LOWER COURT JUDICIAL OFFICER:     Shillington ADCJ

COUNSEL:
Crown - W. Dawe QC
Applicant - P. Boulten SC

SOLICITORS:
S. Kavanagh - Crown
T. Pham - Applicant

CATCHWORDS:
Criminal Law - Sentencing - issue of parity between co-offenders where different criminality and a finding of special circumstances in the case of the co-offender.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 - ss 25(2), 33(3)

DECISION:
Application for leave to appeal is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/400

STUDDERT J
HOWIE J
LATHAM J

THURSDAY 9 JUNE 2005

REGINA v DUC VIEN DO

Judgment

1. STUDDERT J: I agree with Howie J.

2. HOWIE J: The applicant was convicted after trial on two counts of supplying a prohibited drug in an amount being not less than the large commercial quantity. Each offence was contrary to s 25(2) of the Drug Misuse and Trafficking Act and the maximum penalty prescribed for such an offence is relevantly life imprisonment; see s 33(3) of the Act. The two charges arose from the same set of circumstances but one charge related to the drug heroin and the other to the drug cocaine.

3. As a consequence of these convictions Judge Shillington (the Judge) sentenced the applicant to a total sentence of imprisonment for 12 years with a non-parole period of 9 years. Those sentences commenced on 6 February 2002 and the applicant is eligible to be released to parole on 5 February 2011.

4. There were two other persons sentenced by the Judge for similar offences arising from the set of facts as those that applied to the applicant. They were both brothers of the applicant. Quyen Duc Do pleaded guilty to two offences under s 25(2) and was sentenced to imprisonment for 16 years with a non-parole period of 12 years. Quynh Duc Do, known as Danny, was convicted after trial of two offences under s 25(2) and was sentenced to imprisonment for 8 years with a non-parole period of 4 years. There were a number of other persons convicted and sentenced for related offences but it is unnecessary to detail those sentences.

5. The applicant contends that this Court should reduce his sentence on the basis that there is a disparity between the sentence imposed upon him and that imposed upon Danny Do and because his Honour erred in failing to find special circumstances in the applicant’s case justifying a reduction in the non-parole period.

6. The Crown case at trial was that the three brothers and a fourth man, Tam Van Nguyen, were involved in the supply of heroin and cocaine from premises in Fairfield between November 2001 and February 2002. Put briefly it was alleged that they were engaged in a process of buying heroin and cocaine in a pure form, breaking it down with industrial sugar, re-blocking the drug and then selling it through a number of runners in both block form and as powder. The money obtained as a result of the sale of the drugs was laundered in some cases by the use of cheques obtained as the proceeds of winnings on poker machines. The Crown relied upon a large number of listening device tapes and surveillance evidence to prove that the four men were involved in the business of supplying drugs in a joint enterprise. At the time of their arrest, the syndicate, as it was described in the Crown facts, had available to it over a kilogram of heroin. The Crown estimated that over the period of the charges, the syndicate dealt with 6 kilograms of heroin and 1.5 kilograms of cocaine. The large commercial quantity for both heroin and cocaine is 1 kilogram.

7. It was the Crown case that the major offender was Quynh Duc Do and he was sentenced on the basis that he was the head of the syndicate and the person primarily responsible for the day to day operation of the business. This explains why his sentence was the longest notwithstanding that he pleaded guilty to the two charges. However, it was alleged that for a period of two weeks from 13 January to 26 January 2002, while his brothers were in Vietnam, the appellant managed the business in the absence of Quynh. Further, the Judge found from the listening device and surveillance material that the applicant was “actively involved in the business”. His Honour described him as being “a significant person in the venture” and found that this was confirmed by the role he undertook while his brothers were overseas.

8. On the other hand the Judge concluded that Danny Do was the least involved of the three and that his role was “a passive one”, not participating in the preparation of the drugs for sale but rather he “seemed to discuss drug dealings and the laundering of money”. Although the Crown facts had assigned a higher role to this offender, alleging that he provided samples to customers and was present assisting his brothers in the daily operations of the business, that does not appear to be the way that he was sentenced.

9. The fourth person, Tam Van Nguyen, was found to be the least involved in the business and described by the Crown as the “general dog’s body”. His primary role was to store drugs at his premises and act as a runner.

10. The applicant was aged 25 at the date of sentence. He has no previous criminal record. He pleaded guilty on arraignment to two alternative counts on the indictment alleging that he supplied prohibited drugs in an amount of not less than the commercial quantity but the pleas were not accepted by the Crown in discharge of the indictment. The applicant gave evidence before the Judge to the effect that he actually supplied only 9 ounces of heroin and 7 grams of cocaine while his brothers were overseas and otherwise had no role to play in the business of supplying drugs. The Judge rejected this version and it was inconsistent with the jury verdicts.

11. There was a pre-sentence report in evidence that disclosed that the applicant’s family fled from Vietnam in 1984 and after a period of detention in Hong Kong came to Australia in 1987. At the age of 18 the applicant left school to help support the family financially due to the ill health of his mother, his father’s alcoholism and to care for his younger sister. In 2000 he travelled to Vietnam and married. His wife who was pregnant at the time subsequently gave birth to a child before the applicant returned to Australia. His wife and child live in Vietnam and he remains in contact through correspondence. The applicant used cannabis and amphetamines for a period prior to his arrest. He also reported having a gambling habit eventually costing him $2,000 to $3,000 per day at the date of his arrest. The officer felt that the applicant was insightful into his criminal conduct and that he had indicated remorse. He has support from his family.

12. A report from a psychologist added to the material contained by way of background in the pre-sentence report. In particular it reported that the applicant hoped that his wife and child would come to Australia when he was released from prison; that he had gambling debts amounting to $20,000; and that he had attempted to commit suicide by over-dosing on ecstasy tablets when he was aged 23. The psychologist expressed the opinion that the applicant had a low risk of re-offending but needed extensive rehabilitation for his alcohol and drug dependence and counselling generally and in order to address his gambling.

13. There were also in evidence certificates relating to courses undertaken by the applicant while in custody and testimonials as to his general good character and reputation.

14. The first ground of appeal is based upon what is asserted to be a disparity in the sentences imposed upon the applicant and those imposed upon Danny Do. Senior Counsel for the applicant, Mr Boulten SC, conceded that it was open for his Honour to make the finding that these two brothers played different roles in the syndicate and as a result the Judge was justified in imposing different sentences. But the submission is that the difference in the total sentences, being 12 years in the applicant’s case and 8 years in respect of Danny Do, is disproportionate to the differences in their roles. Reliance is placed upon the decision of this Court in R v Hauser (NSWCCA, unreported, 11 December 1997) to support the argument that disparity can arise in this way.

15. The difficulty facing the applicant is that the Judge was in the best position to reach a view as to the levels of their involvement in the conduct in which they were engaged and to quantify that difference in terms of imprisonment that each was to serve. It is clear that his Honour saw a marked difference in their criminality, finding that the applicant was actively involved in the business on a daily basis whereas he described the role of Danny as being passively involved. His Honour had been the trial judge and had no doubt heard the listening device material and seen the evidence of surveillance that indicated what the roles of the participants were in the joint venture. Minds might legitimately differ as to how that material should be interpreted in defining the roles played by the applicant and his brothers. Minds might also legitimately differ as to how that difference should be translated into the punishment to be imposed. The joint judgment in Markarian v The Queen [2005] HCA 25 at [27] emphasises the importance of the discretionary nature of the determination of sentence in a particular case, the fact that there is no single correct sentence, and the flexibility to be allowed to first instance judges to determine what a particular sentence should be.

16. It is submitted that the subjective circumstances of the applicant entitled him to a more favourable consideration than his brother and in particular reliance is placed upon the fact that the applicant had no criminal record whereas Danny Do had a record for traffic offences including a PCA and driving whilst disqualified. They were hardly matters that would have been of significance in sentencing for an offence of supplying drugs. Reliance was also placed upon the fact that the applicant gave evidence and expressed remorse where as his brother did not give evidence. However the main impact of the applicant’s evidence was to attempt to minimise his involvement in the offence and was rejected by the judge. I do not believe that there was anything in the conduct or background of the applicant that significantly impacted upon the assessment of the overall sentence as compared with that of his brother or that could possibly engender a reasonable sense of injustice arising from the difference in the sentence imposed upon his brother.

17. It is further submitted that disparity arises from the fact that, because his Honour failed to find special circumstances in the case of the applicant but did so in the case of his brother, the resulting non-parole periods are so disparate that the applicant has a justifiable sense of grievance that should be addressed by this Court. Reliance is placed in this regard on what was said by Simpson J in R v Bell [1999] NSWCCA 423. It is submitted that this decision is authority for the proposition that disparity can arise between the sentences imposed upon co-offenders simply because of a finding of special circumstances in one case but not in the other.

18. Bell was considered by this Court in R v Wahabzadah [2001] NSWCCA 253. That was a case, like Bell, where the Court was constituted by two judges and, therefore, is not authority on matters of principle. In Wahabzadah the Court was constituted by Wood CJ at CL and myself. The applicant had relied upon Bell and the decision in R v Muavae [2000] NSWCCA 88 as supporting a similar argument as that raised in the present proceedings. During the course of my judgment, with which the Chief Judge at Common Law expressed his agreement, I stated:

    15 While I accept, as I must do, that the principle of parity applies in all aspects of a sentence, including the non-parole period, the principle is concerned with ameliorating a justifiable sense of grievance on the part of the offender. If a disparity is occasioned by the operation of the law, there can be no justifiable sense of grievance arising simply because a proper application of the law in two different cases has given two different results. Specifically, s 44 of the Crimes (Sentencing Procedure) Act mandates that a non-parole period be not less than three-quarters of the term of the sentence unless there are special circumstances for it being less. I do not believe that there is any breach of the principle of parity, simply because different non-parole periods are specified for different co-offenders because of different findings as to the existence, or extent, of special circumstances.

    16 There is nothing in either Lowe v The Queen (1984) 154 CLR 606 or Postiglioni v The Queen (1997) 189 CLR 295 to suggest otherwise. Quite the contrary, in the latter case even the majority of the High Court were of the view that there was no disparity by reason of the different non-parole periods specified between the two offenders. Disparity only arises when the difference between the two sentences cannot be justified by a difference in the degree of the culpability of the offenders or in their personal circumstances. A difference in a finding as to whether special circumstances exist is a difference in a finding as to the personal circumstances of the co-offenders, and, if justified on the material before the sentencing judge, there can be no basis in my view upon which any sense of injustice can arise either in the collective mind of the community or in the individual mind of a co-offender.

    17 It was submitted, on behalf of the applicant, that two decisions of this Court authorise appellate intervention where there is a disparity resulting from a difference in the finding of special circumstances even if the difference in the findings were justified. In my view, neither of those decisions are authority for such a proposition, but, if they were, I would not be prepared to follow them. But in both R v Bell [1999] NSWCCA 423 and R v Muavae [2000] NSWCCA 88 this Court only held that the personal circumstances of the appellant required a finding that special circumstances existed and the failure of the sentencing judge to do so was an error. In each case the disparity in the minimum terms of the sentences imposed upon the appellant and the co-offender simply highlighted the error that had been made.

19. I maintain the view that I expressed in those passages that generally disparity does not arise simply from the fact that a finding of special circumstances was made in respect of one co-offender but not in respect of the other. I am prepared to accept that there may be a case where, all relevant facts and circumstances being equal, a finding of special circumstances in the case of one offender but not in the other may give rise to a justifiable sense of grievance. But in the present case not all things were equal because of the different findings made in respect of the criminality of the two offenders and the appropriate head sentences.

20. In the present case there were subjective factors that would have entitled a judge to find special circumstances for the purposes of reducing the non-parole period. That could have only been on the basis that a longer non-parole period was required, because there was nothing in the material that indicated that there was some other reason to reduce the otherwise appropriate non-parole period. The fact that the applicant was young and serving his first sentence of imprisonment did not warrant a reduction in the non-parole period. Nor did the fact that he had a wife and child in Vietnam suggest that special circumstances should be found having regard to the fact that the applicant was married in 2000 and his child was born soon after. The statutory ratio resulted in a parole period of three years. That was an ample period of time for the applicant to receive whatever assistance he needed for his rehabilitation once released from prison.

21. I do not believe that the Judge was in error in not finding special circumstances in the applicant’s case. The fact that he found they existed in the brother’s case is not to the point. There are different considerations applying in determining whether special circumstances exist when dealing with a particular offender who is to be sentenced to a term of 8 years from those when determining whether special circumstances exist for a similar offender who is to be sentenced to a term of 12 years. As the head sentence increases, it is more likely that the statutory ratio will result in a parole period of sufficient length to provide for the necessary period of supervision and rehabilitative assistance and so make a finding of special circumstances less likely. Further, the more serious the criminality involved in a particular offence the less likely it will be that a reduced non-parole period will reflect that criminality and adequately denunciate the offence committed.

22. I do not believe that there was any error on the part of the sentencing judge or that there is any basis for this Court to exercise its discretion to interfere on the basis of the disparity in the sentences imposed. I would grant leave but dismiss the appeal.

23. LATHAM J: I agree with Howie J.

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LAST UPDATED:               09/06/2005