R v Nguyen

[2010] NSWCCA 331

New South Wales
Court of Criminal Appeal

CITATION:	R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331
HEARING DATE(S):	14 December 2010
JUDGMENT DATE:	21 December 2010
JUDGMENT OF:	Simpson J at 1; Hall J at 74; Garling J at 75
DECISION:	Crown appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – particular offences – drug offences – conspiracy to traffic marketable quantity of controlled drug (heroin and methamphetamine) – conspiracy to money launder - CRIMINAL LAW – Crown appeal – asserted manifest inadequacy – no error of principle or fact – whether sentence unreasonable or plainly unjust – nature of offence – conspiracy – comparable sentencing of other individuals involved in syndicate – role of offenders – no error in assessment by sentencing judge – parity principles not available to increase sentence – Crown appeal dismissed - CRIMINAL LAW – sentence – sentencing procedure – sentencing statistics – applicable range of sentences – consideration of comparable offences – comparable sentences under Commonwealth law – comparable sentences under state law – appropriate basis for comparison
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code Act 1995 Drug Misuse and Trafficking Act 1985
CATEGORY:	Principal judgment
CASES CITED:	Carroll v The Queen [2009] HCA 13 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Hili v The Queen; Jones v The Queen [2010] HCA 45 House v The King [1936] HCA 40; 55 CLR 499 Le v R (Cth) [2010] NSWCCA 285 Lowe v The Queen [1984] HCA 46; 154 CLR 606 Nguyen v R [2010] NSWCCA 132 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244 R v Guo [2010] NSWCCA 170 R v Li; Li v R [2010] NSWCCA 125 R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 Steer v R [2000] FCA 462; 171 ALR 463 Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
PARTIES:	2009/10935 Regina (Cth) (Appellant) John Viet Nguyen (Respondent) 2009/10940 Regina (Cth) (Appellant) Anthony Si Nguyen (Respondent)
FILE NUMBER(S):	CCA 2009/10935; 2009/10940
COUNSEL:	L Crowley (Appellant) P Stitz (Respondents)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Appellant) Australian Criminal Law Specialists (John Viet Nguyen) Jack Rigg Solicitors (Anthony Si Nguyen)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/10935; 2009/10940
LOWER COURT JUDICIAL OFFICER:	Sweeney DCJ
LOWER COURT DATE OF DECISION:	10 September 2010

2009/10935
2009/10940

SIMPSON J
HALL J
GARLING J

21 December 2010

R (Cth) v John Viet NGUYEN

R (Cth) v Anthony Si NGUYEN

Judgment

1 SIMPSON J: Between 30 March 2010 and 2 June 2010, the respondents, Anthony Si Nguyen and John Viet Nguyen, stood trial in the District Court on an indictment that charged each with:

● one count (brought under s 302.3(1) and s 11.5 of the Criminal Code Act 1995 (Cth) (“the Code”)), of conspiracy to traffic in a marketable quantity of controlled drugs (heroin and methamphetamine);

● one count (brought under s 400.4(2) and s 11.5 of the Code), of conspiracy to deal in the proceeds of crime (the offence shortly called money laundering) involving more than $100,000, in which the fault element alleged was recklessness.

The maximum penalty applicable to the drug trafficking offences, by reason of the quantity involved, was imprisonment for 25 years. The maximum penalty applicable to the money laundering (again by reason of the amounts of money involved) was imprisonment for 10 years.

2 On each count the jury returned a verdict of guilty. On 10 September 2010 the respondents were sentenced by Sweeney DCJ as follows:

Anthony Nguyen

The drug offence : imprisonment for 5 years commencing on 21 June 2007 and expiring on 20 June 2012;

The money laundering offence : imprisonment for 4 years commencing on 21 June 2007 (and therefore to be served wholly concurrently with the sentence imposed in respect of the drug offence) and expiring on 20 June 2011;

Her Honour set a single non-parole period of 3 years, which expired on 20 June 2010;

John Nguyen

The drug offence : imprisonment for 5 years commencing on 10 September 2010 and expiring on 9 September 2015;

The money laundering offence : imprisonment for 3 years commencing on 10 September 2010 (and therefore to be served wholly concurrently with the sentence imposed in respect of the drug offence) and expiring on 9 September 2013;

Her Honour set a single non-parole period of 3 years, which expires on 9 September 2013.

3 Pursuant to s 5D of the Criminal Appeal Act 1912 the Commonwealth Director of Public Prosecutors (“CDPP”) appeals against the sentences, asserting that they are manifestly inadequate.

The facts

4 Because the charges went to trial, no statement of facts was prepared and none has been provided since. The factual material upon which this judgment is based is drawn entirely from the recitation of facts made by Sweeney DCJ in her Remarks on Sentence.

5 Each respondent was an operative within a large-scale criminal enterprise dubbed the “Ken Syndicate”, so called because its head was a man named Khan Hoang Tran, whose given name was anglicised to “Ken” or “Kenny”. His second in command was Hong Phong Le (see Le v R (Cth) [2010] NSWCCA 285).

6 The Ken Syndicate was based in Sydney. Its business was to traffic heroin and methamphetamine from Sydney to customers in Melbourne. The principal source of the drugs was Vietnam.

7 Couriers were used for the deliveries, which generally were in blocks of heroin of 350 grams, and blocks of methamphetamine of 500 grams to 1 kilogram. The couriers travelled by road or by commercial airline. In general, they were paid about $5000 per delivery.

8 Payment for the drugs was effected by the transfer of funds through a group of money remittance businesses located in Melbourne, Sydney and Vietnam. On occasions, couriers collected payment from Melbourne customers.

9 Both respondents became involved in the drug trafficking in March 2006, Anthony Nguyen on 12 March, and John Nguyen on 17 March. Each ceased his involvement on 31 May 2006. However, Anthony Nguyen had become involved in the money laundering some time earlier, on 20 December 2005, and continued to be involved until 14 June 2006, a period of 6 months. John Nguyen was involved in the money laundering aspect of the business for a short period, 3 weeks commencing on 10 June 2006.

10 Each of the respondents was involved as a courier. Except for two aspects of their involvement, there was little to distinguish one from the other. Those two aspects are the difference in the period over which, and the number of transactions in which, each was involved in the money laundering; the other is the amount of money involved. In total, Anthony Nguyen, on 12 occasions, dealt with almost $420,000. That represents about 70 per cent of the total amount dealt with by the Syndicate during that time.

11 John Nguyen, on eight occasions, dealt with a total of about $120,000, representing about 60 per cent of the total dealt with by the Syndicate during the (much shorter) period of his involvement in that aspect of the business. That accounts for the variation in the sentences imposed for the money laundering offences.

12 Less distinction can be drawn between the two respondents with respect to the drug trafficking. In May 2006, each made three trips from Sydney to Melbourne, to deliver drugs and collect money. On each occasion the two travelled together, each carrying a 350 gram block of heroin. On the third occasion they were accompanied by a third person, who also carried a 350 gram block of heroin. On each occasion they collected money from the customers, and dealt with it as directed by Hong Phong Le. Before, during and after the journeys, the respondents were in frequent contact with Le via coded text messages and telephone calls to receive instructions and report on progress. On each occasion each respondent was paid about $5000.

13 The drugs involved were not seized by police, and their purity (and therefore, for the purposes of the Code, the precise quantity of drugs in which the respondents dealt) can only be estimated. By a process of extrapolation from other transactions, which has not been the subject of challenge, Sweeney DCJ calculated that the combined (pure) weight of the heroin actually transported by the respondents on the three individual occasions (including the block transported by the third person on the third occasion) was 857.5 grams, which she held to be in the lower end of the marketable quantity range, and that the total transported by each respondent individually was 367.5 grams.

14 Since a marketable quantity of heroin is 250 grams, and the commercial quantity 1500 grams (1.5 kilograms) her Honour concluded that the total quantity transported on the three occasions (857.5 grams) was midway between the marketable quantity and the threshold of the commercial quantity.

15 Each respondent had also been engaged in the execution of the agreement the subject of the conspiracy in other ways. Anthony Nguyen had assisted in arrangements for an earlier delivery, in March 2006, by collecting and storing methamphetamine (between 500 grams and 1 kilogram) before handing it over to couriers, and had provided funds to the couriers to cover travel expenses. Her Honour found that his role in this transaction was quite “slight”.

16 John Nguyen had arranged, or attempted to arrange, the introduction of a potential purchaser or purchasers to Tran, and, in March 2006, provided some samples of a drug (unidentified). On another occasion in May 2006, he “kept an eye” on 24 pellets while they were being prepared for delivery to Melbourne.

17 It was because of the greater involvement of Anthony Nguyen in the money laundering part of the enterprise that Sweeney DCJ differentiated between the sentences imposed in respect of those counts. There is no issue that sentencing the respondents identically for the drug offences was justified.

18 On 21 June 2006 Anthony Nguyen was arrested and charged, under State law, with supplying a prohibited drug. The subject of the charge was 503 grams of methylamphetamine, not less than the commercial quantity. Puckeridge DCJ imposed a sentence of imprisonment for 5 years, commencing on 21 June 2006 and expiring on 20 June 2011, with a non-parole period of 27 months, expiring on 20 September 2008. It was common ground that this offence was integrally associated with the organisation the subject of the present two charges. The Remarks on Sentence of Puckeridge DCJ were available to Sweeney DCJ at the time of sentencing.

The respondents’ personal circumstances

19 There was equally little to distinguish the respondents in terms of their personal circumstances.

Anthony Nguyen

20 Anthony Nyugen was born in South Vietnam in July 1978. He is an only child. He came to Australia as a child with his parents. He was 27 years of age at the time of the offences. He had a lengthy history of traffic offences, including a number of instances of driving whilst disqualified, which eventually culminated in a sentence of 6 months’ imprisonment. Sweeney DCJ did not regard that history as being of significant relevance to the present offences.

21 Before the sentencing judge were two psychological reports prepared by Mr Tim Watson-Munro. The first of these, dated 7 September 2007, was prepared for the purposes of sentencing in respect of the supply charge.

22 Anthony Nguyen left school during Year 12. That was because his then 17 year old partner gave birth to his son (in 1997). Anthony Nguyen abandoned plans for tertiary education and took up employment of various kinds. He embraced responsibility as a father (a second son was born a year after the first).

23 The relationship did not survive, although the mother of the children, and the children, maintained regular contact with him. (Since the writing of the first report, it seems, the mother and the children have relocated to Queensland.)

24 After leaving school Anthony Nguyen had a somewhat chequered employment history, eventually taking up employment in his parents business. At some stage he developed an addiction to amphetamines, together with a strong gambling addiction. Mr Watson-Munro described this as:

“… a vicious cycle of behaviour … with your client self-medicating with illicit drugs to deal with his depression, which in large measure was being exacerbated by his drug use.”

25 In the second report, written after Anthony Nguyen had been in custody for more than 4 years, Mr Watson-Munro expressed himself to be struck by “improved demeanour, orientation and insight”. The second report was very positive in terms of Anthony Nguyen’s rehabilitation prospects.

John Nguyen

26 John Nguyen was born in Australia, in December 1979, of Vietnamese immigrants. A psychological report prepared by Ms Rima Nasr was prepared for the purpose of the sentencing proceedings. He is the eldest of three children. He was 26 years of age at the time of his offences. His family life had been somewhat difficult, with conflict over adjustment to Australian life.

27 He completed his high school education, although this was marked by racist taunts by schoolmates. He began, but did not complete, a Diploma in Electronic Technology. He has had various forms of employment, and had begun a business in network marketing.

28 He had one prior conviction, in 1998, for assault, which resulted in a fine of relatively modest proportions, and which her Honour regarded as of no real significance.

29 He has been in a relationship for 5 years but there have been difficulties, caused by his and his partner’s drug use and emotional instability. Not surprisingly, perhaps, Ms Nasr noted his reports of symptoms of anxiety and depression.

30 He, too, has had a dependence upon crystal methamphetamines. He ceased using amphetamines six months prior to sentencing (although he had been at liberty on bail up to the date of sentencing). That circumstance, together with evidence of more positive relationships with his family, satisfied Sweeney DCJ that he has good prospects of rehabilitation.

The Remarks on Sentence

31 The Remarks on Sentence are comprehensive. Sweeney DCJ referred in some detail to the facts which had emerged during the course of the trial. She described the respondents as “runners, or couriers, of drugs and money” on behalf of the Ken Syndicate and as “runners at the lowest level of the organisational hierarchy”. She recounted that each had made three trips from Sydney to Melbourne, together, transporting heroin. She noted that each had been in frequent contact with Le by text and telephone calls to receive instructions and report progress, and the payment received by each. She noted that John Nguyen had provided some samples of a drug to another person and had sought to introduce that person into the enterprise. She recorded the respondents’ involvement in the collection of money. She again described their roles as “subordinate”.

32 When dealing with the money laundering offences, she said:

“In assessing the seriousness of these offences factors to be considered are the acts performed, with what authority, over what period of time, the amount of money involved, the number of transactions, the degree of planning, and who owned the money.”

She cited decisions of this Court in R v Li; Li v R [2010] NSWCCA 125 and R v Guo [2010] NSWCCA 170.

33 She said that it was clear that neither respondent had any authority but simply acted on instruction “as performers of errands”.

34 Her Honour then turned to the personal circumstances of each respondent.

35 Finally, she referred to sentences imposed on various other participants in the Ken Syndicate. She attempted to draw a comparison, or relativity, of the respondents with those participants. I will return to this in due course.

The Crown appeal

36 A single ground of appeal was advanced on behalf of the CDPP. It asserts that each sentence is manifestly inadequate. Although the appeal is expressed to be as to all sentences, the contention of manifest inadequacy, and the submissions in each case, are limited to the sentence imposed in respect of the drug offences. No complaint is made about the length of the sentences imposed in respect of the money laundering offences. Nor, it must be expressly observed, is any complaint made about the specification that, in each case, the sentences be served concurrently.

37 In Hili v The Queen; Jones v The Queen [2010] HCA 45 the High Court has given further guidance to this Court in exercising its jurisdiction where the CDPP asserts manifest inadequacy in a sentence. As it had earlier done in Carroll v The Queen [2009] HCA 13, the Court emphasised the distinction between the assertion by a DPP of, on the one hand, error in the sentencing process that can be identified, as, for example, acting on a wrong principle, and, on the other hand, error that cannot be identified but that emerges from consideration of “all the matters that are relevant to fixing the sentence” (Hili and Jones, [60]).

38 The Court frowned upon analysis of the result of the sentencing process by reference to bare statistical material ([54]-[55]).

39 It endorsed the proposition that an assertion of manifest inadequacy is an assertion that the result was “unreasonable or plainly unjust” (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321).

40 The task of an appeal court in deciding a ground of manifest inadequacy is to consider all of the matters relevant to fixing the sentence; those include (but are not limited to) the nature of the offence, and, importantly, sentences imposed in cases most closely comparable with that under consideration: ([62]). A non-exhaustive list of the matters relevant to fixing the sentence is contained in s 16A(2) of the Crimes Act 1914 (Cth). By way of preliminary, s 16A(1) directs the sentencing court to:

“… impose a sentence … that is of a severity appropriate in all the circumstances of the offence.”

An assertion of manifest inadequacy is, in effect, an assertion that the sentencing judge failed to impose a sentence that is appropriate in all of the circumstances.

41 In Carroll, the appeal to this Court was brought by the (NSW) DPP, who asserted manifest inadequacy in a sentence imposed following a plea of guilty to a charge of manslaughter. It was of some significance, in the High Court, that, although three matters, drawn from the Remarks on Sentence, were advanced to this Court as reasons, or explanations, for what was said to be manifest inadequacy, none was identified as “an error of principle or fact” such as to constitute any of the forms of error identified in House v The King [1936] HCA 40; 55 CLR 499 as the basis for an appellate court to interfere with the exercise of a discretion of a primary judge, other than the last – the inference that, by reference to the result, there has been (must have been) a failure properly to exercise the discretion conferred.

42 That is precisely the position in the present case. The CDPP has not sought to identify any error of principle or fact in such a way as to constitute a discrete ground of appeal. Rather, he has sought, as was done in Carroll, to explain, by reference to the Remarks on Sentence, how a result that (he contends) was unreasonable or plainly unjust came about.

43 Two principal points were made on behalf of the CDPP. One can be disposed of quickly. It was that, there being no mention in the Remarks on Sentence of the need for the sentences to recognise principles of general deterrence (one of the factors explicitly contained in s 16A(2)), it may be inferred that that consideration had been overlooked or given inadequate weight.

44 I would reject that contention. The issue of general deterrence is fundamental to any sentencing decision, and is known to be of particular importance in offences involving drugs. I would not infer that this was overlooked. Rather, I would infer that, by reason of its very primacy, it called for no express statement (although, I would add, it would generally be wise at least to record that it has been taken into account).

45 The second point made is, in my opinion, of more significance. It is that the Remarks on Sentence do not disclose that her Honour fully appreciated, or gave weight to, the nature of the offences in respect of which she was sentencing. These were, I reiterate, offences of conspiracy.

46 Counsel for the CDPP referred to the decision of this Court in Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458. There, with the concurrence of Spigelman CJ and Harrison J, I said:

“78 It has long been the case that a relevant consideration in sentencing for conspiracy is the ‘role’ played by the offender being sentenced …

81 That is not the same as saying, as was here said, that a participant in a conspiracy is to be sentenced (solely) for what he or she does. In this case, that was applied to mean that Chalmers was to be sentenced only for his physical (or overt) acts undertaken in pursuance of the conspiracy …

83 Identifying the ‘role’ of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the ‘role’ of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy – the agreement to participate in an organised criminal activity.

84 That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [102].”

47 The passage from the Remarks on Sentence which I have extracted above (at [32]), reflecting the sentencing judge’s approach to the assessment of the seriousness of the offences, was a passage specifically in reference to the money laundering offences. However, those offences were also charged as conspiracy offences and not discrete offences. It may be assumed that her Honour took the same approach to the drug offences. Different considerations do apply where the offence charged is conspiracy.

48 It is necessary to consider whether in so approaching the offence, her Honour did overlook the nature of the offence charged.

49 I have concluded that the CDPP has not made good this proposition. Her Honour did set out in considerable detail what each of the respondents actually did – the acts performed, his authority, the period of time, the quantity of drug involved, the number of transactions in which he was involved, and the degree of planning. However, it is clear that she was also fully aware that those acts took place in the context of a much larger and more complex enterprise. She referred to the Syndicate as “a group headed by Khanh Hoang Tran”, and to the role of the “second in charge”, Le. She noted that the respondents had no authority, but simply did as they were told and were “runners at the lowest level of the organisational hierarchy”.

50 In the circumstances of this case, I would not conclude that the fact that the respondents were shown to be part of a conspiracy elevates the seriousness of their offences. In Tyler and Chalmers, I also pointed out that positions in the hierarchy of an organisation is an important sentencing factor ([79]). That is a matter of fact that significantly distinguishes these respondents from the offenders in that case.

51 In written submissions prepared before the decision in Hili and Jones was published, the CDPP also relied heavily upon statistical material. However, in the light of the decision of the High Court in Hili and Jones, and the form in which that material was presented to this Court, the weight that can be given to that material is limited. I will, however, return to it.

52 Finally, both the sentencing judge and counsel for the CDPP made considerable reference to the sentencing of other individuals involved in the Ken Syndicate. However, only one could be shown to be truly comparable to the respondents.

53 That was a participant called Minh Tuan Vuong, who was sentenced, together with another participant (Ngoc Thuan Nguyen) by Solomon DCJ on 9 April 2009. Counsel for the CDPP accepted that Ngoc Thuan Nguyen was involved to a significantly greater degree than the two respondents, and charged with more serious offences, and therefore is not a suitable case for comparison. He contended, however, that Minh Tuan Vuong is significantly comparable.

54 Vuong was charged identically to the respondents. He entered a plea of guilty, for which he was allowed a 25 per cent reduction in the sentence that otherwise would have been imposed. Vuong was involved in two instances of delivery of heroin; the money laundering offence involved $572,000. Solomon DCJ found him to be a “low-level facilitator” and to have voluntarily extricated himself from the conspiracy prior to apprehension; his offence was therefore classified as “below the mid range of objective seriousness”. His pleas of guilty, of course, significantly distinguished his case from the cases of the respondents. Another distinguishing feature – pointing in the opposite direction – is that Vuong had a prior conviction, for drug supply. That was in 1993, and resulted in a sentence of imprisonment for 6 months to be served by way of periodic detention. Although the lapse of time since that conviction, and the relatively modest penalty, might suggest that that offence had only a limited bearing on the sentence to be imposed by Solomon DCJ, nevertheless the judge considered that it deprived Vuong of the leniency that might otherwise have been afforded to him if he were a person of good character.

55 In the result, on the drug trafficking offence, Solomon DCJ sentenced Vuong to imprisonment for 5 years; on the money laundering offence, he sentenced Vuong to imprisonment for 3 years, to be served concurrently. He fixed a single non-parole period of 3 years. Those sentences were identical to the sentences imposed on John Nguyen.

56 On behalf of the CDPP, it was therefore argued that because, prior to reduction in recognition of the pleas of guilty, the starting point of Vuong’s total sentence was 6 years and 8 months, the sentences imposed on the respondents can be seen to be manifestly inadequate.

57 The salient feature of the present cases is the low level occupied by the respondents in the hierarchy.

58 The sentences imposed on Vuong, like those imposed on other participants in the Ken Syndicate, were drawn to the attention of Sweeney DCJ. Her Honour noted that Solomon DCJ found Vuong to be a “low-level facilitator” who had voluntarily ceased his activity, and that his criminality was below the middle of the range of objective seriousness. She then said:

“On the evidence in the trial before me, I do not consider Minh Vuong’s involvement in the conspiracies to be comparable to Mr Nguyen’s and Mr Nguyen’s. There was evidence that he was a recipient of drugs couriered to Melbourne and sent money to Mr Le. There were phone conversations between him and Hong Phong Le in which he complained about the quality of the drugs and that his customers would not accept it. While I do not disagree with Judge Solomon’s assessment of his offences his conduct in the conspiracy was at a higher level than Mr Nguyen’s and Mr Nguyen’s. Therefore his sentence does not assist in sentencing them.”

59 Counsel for the CDPP submitted that this approach was “misconceived”. That is because, for the purpose of comparison of sentences, it was necessary to set the relevant findings of fact in the one case (Vuong) against the relevant findings of fact in the other cases (the respondents), even if the evidence before Sweeney DCJ did not support the findings of fact made by Solomon DCJ. To the extent that Vuong was put forward as a comparator, or his sentence was put forward as a guide to Sweeney DCJ, that argument is correct.

60 But that is not the only consideration. Because Sweeney DCJ had presided over a two-month trial, she was in a good position to appreciate, on the basis of sworn evidence, the roles of the various participants. If, on the evidence before her, she concluded that Vuong was involved at a higher level than the respondents, then the respondents were entitled to have that taken into account in the selection of sentences.

61 On the basis of the findings of fact made by Solomon DCJ in relation to Vuong, his case was an appropriate comparator. Of course, the various points of distinction to which I have referred to above had to be taken into account, but they did not deprive the decision of its relevance.

62 But neither did its relevance elevate the decision into a binding precedent. It was one, even one important, precedent against which to measure the sentences contemplated by Sweeney DCJ. Parity in sentencing, in the sense discussed in Lowe v The Queen [1984] HCA 46; 154 CLR 606 and Postiglione v The Queen [1997] HCA 26; 189 CLR 295, is not a concept available to the prosecution. A judge cannot be expected to pass a heavier sentence than he or she otherwise would, merely because another judge had, in a related or comparable case, done so: see Steer v R [2000] FCA 462; 171 ALR 463.

63 Sweeney DCJ did not depart from the findings of fact made by Solomon DCJ. She accepted them, but, having regard to relativity, determined that lesser sentences were here appropriate.

64 There is nothing in Hili and Jones that suggests that sentences imposed in cases “most closely comparable with” that under consideration acquire greater status than that. The phrase I have quoted was given as one of the reasons that the High Court upheld the finding of this Court that, in those cases, the sentences imposed were manifestly inadequate. The other reason was “the nature of the offending” which the High Court then went on to detail.

65 Counsel for the CDPP also pointed to the decision of this Court in another, (unrelated) Nguyen v R [2010] NSWCCA 132. That involved a severity appeal against a sentence of 13 years with a non-parole period of 8 years and 6 months, after a plea of guilty to a charge of trafficking a marketable quantity of heroin. After appeal, the sentence was reduced to one of imprisonment for 9 years with a non-parole period of 6 years. Before the reduction referrable to the plea of guilty, the starting point was a head sentence of 11 years with a non-parole period of 7 years and 6 months. However, a significant point of departure in that case is that the offender was found to be a “valued, high level functionary” whose role was “integral” and “indispensable” to the overall enterprise. No comparable finding was made in relation to either of the present respondents.

66 It is well recognised that, in virtually every sentencing decision, there is a range available to the sentencing judge. If the judge sentences within that range, the sentence will be neither manifestly inadequate nor manifestly excessive. To put forward a single decision as evidencing manifest inadequacy (or manifest excess) is to overlook that essential fact.

67 In Hili and Jones, the High Court firmly rejected the proposition that “manifest error [in sentencing] is fundamentally intuitive”. This Court is required to consider all of the matters relevant to fixing sentence – in much the same way as a sentencing judge is required to do. In addition to the facts and circumstances of the offences, and the personal circumstances, the court (at either level) ideally has available to it sentences imposed in comparable cases, including, importantly, the reasons for the selection of those sentences.

68 With that in mind, I turn to the relevant circumstances in relation to each respondent. They can be shortly stated. Each respondent was involved in the drug trafficking over a period of between 2 and 3 months. Each made three separate excursions to Melbourne carrying drugs. Each was otherwise involved by being in close contact with Le. John Nguyen showed some signs of aspiring to be involved at a higher level, but the evidence did not disclose that he succeeded in doing so.

69 The personal circumstances of each were similar; although their personal histories warranted a level of compassion, there was little to suggest that sentences appropriate to the objective criminality ought to be substantially ameliorated for that reason.

70 That brings me to the statistical material provided on behalf of the CDPP. I do so for the purpose of using this a yardstick against which to examine the sentences imposed by Sweeney DCJ.

71 Commonwealth offences of this nature being relatively recent in origin, the statistical material yielded by analysis of Code offences is too sparse to be of use. Indeed, it is very likely that some, at least, of the small number of sentences constituting the basis of the statistics are the sentences imposed on the respondents and other members of the Ken Syndicate. However, consistently with the view I expressed in R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244 at [131] I consider it appropriate to have regard to sentences imposed under comparable, and much longer established, State law. The most nearly comparable offence is the supply of not less than the commercial quantity of heroin which, pursuant to s 33 of the Drug Misuse and Trafficking Act 1985, carries a maximum penalty of imprisonment for 20 years. The commercial quantity is 250 grams. The range of sentences imposed after pleas of guilty (17 cases) is 3 years to 12 years, with the majority lying in the range of 4 to 5 years. Assuming universal reduction of 25 per cent for the pleas of guilty, the range is 4 years to 16 years. After conviction following a plea of not guilty (4 cases only) the range is 4½ years to 7 years. Exposing those figures dramatically exposes one of the limitations on the use of statistics – they do not say anything about the vast range of relevant circumstances, including the quantity of drug and the role of the offenders.

72 All that I can say is that, using these statistics as a yardstick, with all their limitations, I am not persuaded, by that reason, that the sentences here imposed were below the range legitimately available.

73 Although I consider that the sentences were lenient, there is nothing else provided which persuades me that error of the third kind identified in House affects these sentences. I would therefore, in each case, dismiss the Crown appeal.

74 HALL J: I agree with Simpson J.

75 GARLING J: I agree with Simpson J.

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