R v Nguyen - [2005] NSWCCA 362

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Nguyen; Regina v Pham; Regina v Vu; Regina v To [2005] NSWCCA 362

FILE NUMBER(S):
2004/2827
2004/2828
2002/109
2005/694

HEARING DATE(S): 26 April 2005

JUDGMENT DATE: 31/10/2005

PARTIES:
Regina v Nguyen Thanh Hai
Regina v Pham Van Hau
Regina v Vu Quang Huy
Regina v To Kam Pui

JUDGMENT OF: Grove J Barr J Howie J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70228/04, 70229/02, 70231/02

LOWER COURT JUDICIAL OFFICER: Sully J

COUNSEL:
M. Allnutt (Crown)
M. Ramage QC (Apt: Nguyen)
P. Boulten SC (Apt: Pham)
P. Hamill SC (Apt: Vu)
P. Byrne SC (Apt: To)

SOLICITORS:
Commonwealth DPP (Crown)
Ford Criminal Lawyers (Nguyen and Pham)
AKN & Associates (Vu)
Ross Hill & Associates(To)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
DRUG DEALING
WHETHER SENTENCES EXCESSIVE
PARITY

LEGISLATION CITED:
Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Customs Act 1901 (Cth)

DECISION:
APPEALS AGAINST SENTENCE ALLOWED
APPELLANTS RESENTENCED

JUDGMENT:

Four offenders were involved in one or more of three dealings with drugs imported into Australia and sentenced after pleas of guilty to various charges in the Supreme Court. Two other offenders were dealt with in the District Court. The second of these was dealt with after the others were sentenced, was involved in all three dealings but received the lightest total sentence and a non parole period shorter than that of all others, save one. Two of the four offenders had received sentences of life imprisonment.

Challenges were made to the apparent absence of reflection by way of leniencey of pleas of guilty, assistance to authority in the case of one recipient of a life sentence, acknowledgement by the prosecution of the lower status of the other recipient of life sentence in the hierarchy of those involved in the major importation and the taking into account of various requisite factors specified in s16A(2) of the Crimes Act 1914.

HELD: The disparity between the sentences received by the appellants and that imposed on the co-offender in the District Court was capable of engendering the justifiable sense of grievance claimed by the appellants. The appellants should be resentenced and, to the extent established by individual appellants, other contentions should be taken into account when assessing new sentences.

Where the prosecution accepts pleas of guilty in discharge of an indictment to offences different from those originally pleaded but carrying the same available maximum penalty, a judge should be informed as to whether or not it is implied that the charge or charges to which the plea is given are to be regarded as of lesser criminality than the original.

IN THE COURT OF
CRIMINAL APPEAL

2004/2827
2004/2828
2002/109
2005/694
GROVE J
BARR J
HOWIE J
Monday 31 October 2005

REGINA v NGUYEN THANH HAI
REGINA v PHAM VAN HAU
REGINA v VU QUANG HUY
REGINA v TO KAM PUI

Judgment

GROVE J: These are four applications for leave to appeal against severity of sentence imposed by Sully J. Each applicant was imprisoned following pleas of guilty to offences relating to illicit narcotic drugs which had been imported into Australia. It will be necessary to make some reference to some other participants in the criminal activity. The gravamen of the offences can be identified from three occurrences. First, the importation within a shipping container of tablets in hollowed out tiles which were established to contain 52.702 kilogrammes of pure methylenedioxymethamphetamine (the MDMA charge); second, the importation of heroin in a bottle labelled Baileys Irish Cream (the heroin bottle charge) and third, the importation of amounts of heroin and methylamphetamine through the post (the postal charges).
The evidence revealed that a principal in Hong Kong engaged in the enterprises was Peter Lam Ka Wa (LAM). With the exception of the appellant Vu Quang Huy (VU) whose role in the MDMA importation was described as a local courier, the appellants had a variety of direct and indirect contacts with LAM. As his Honour commented, the mass of incriminating facts and circumstances were pieced together by a process of painstaking intelligence and surveillance undertaken by law enforcement authorities. It is not necessary for present purposes to recapitulate all the extensive detail presented in statements of facts tendered in the sentencing proceedings.
I deal first with some facts pertinent to the MDMA charge.
The appellant Pham Van Hau (PHAM) and one Nguyen Dinh Minh (NGUYEN DINH) made journeys to places such as Hong Kong where LAM was generally located, and to Malaysia and Vietnam. PHAM’s wife, the appellant, Nguyen Thanh Hai (NGUYEN THANH) travelled to and from Canada, on occasion via Hong Kong. There were numerous telephone contacts between the parties to the criminal enterprise. The evidence did not show direct contact between LAM and NGUYEN THANH.
The final steps in the MDMA importation included the despatch on 23 September 2001 of an express airway bill purporting to come from “Robert” Lam and, among accompanying documents, a letterhead noting that it is addressed to “Mr Hau Pham”. The bill related to cargo consisting of a container aboard the vessel “Nedlloyd Adelaide” which berthed at Port Botany on 2 October 2001. On 3 October Australian Custom Service officers examined the contents which consisted of twenty crates (numbered 1 to 20) in each of which were thirty six boxes of tiles. Crates numbered 11 to 14 had hollowed out tiles within the boxes and there were extracted from these 420,000 MDMA tablets weighing 150 kilogrammes. These MDMA tablets were replaced with others made of an inert substance on 6 October and thereafter the shipment was repackaged. Investigators were monitoring activity concerning the release and delivery of the container including, in particular, monitoring telephone conversations between PHAM and LAM.
On 8 October, in accordance with instructions to freighting agents by PHAM, the container was delivered to premises at Punchbowl. From time to time PHAM and NGUYEN DINH called at the premises. Telephone conversations between each of them and LAM revealed that they were looking for signs to suggest that the enterprise had come to the notice of authorities, and there were discussions of precautions to be taken against this risk. On 10 October the crates were transported by truck to premises at Homebush. PHAM visited after the delivery and reported to LAM what had happened.
It might be mentioned that PHAM had been complaining to LAM about money and that LAM had told him that he had spoken to his “boss” about these complaints, who had said not to worry. Although this suggests that there was someone higher in the enterprise than LAM, this does not detract from categorization of LAM as a principal in the criminal enterprise.
PHAM’s complaints led to LAM calling NGUYEN DINH and informing him that a “friend” would arrive from Hong Kong and stay at his house until all the money had been paid. PHAM gave evidence at the sentencing proceedings that LAM had promised him payment of A$500,000, although this was later reduced to an offer of A$300,000 for his participation. On 12 October the appellant To Kam Pui (TO) arrived from Hong Kong and was collected from the airport in Sydney by VU. TO and others spoke to LAM several times about extracting the drug from the tiles. TO was told by LAM to guard the shipment. The intended extraction proceeded by first removing boxes from the crates so that all of the tiles with cavities became transferred into two crates only. On 14 October PHAM, NGUYEN DINH and TO were engaged in doing this. They then went to PHAM’s residence at Earlwood where they were observed unloading boxes. Later PHAM returned to Homebush and loaded a crate onto his vehicle which was also taken to Earlwood.
After these deliveries police heard sounds of grinding and smashing coming from the premises. The aftermath of this activity was viewed after the eventual arrests of the perpetrators in Australia.
TO and NGUYEN DINH spoke to LAM reporting that some tablets had turned black, apparently as a result of contact with glue but they were instructed by him to deliver them to a customer as “accounts” could be worked out later. Again TO was instructed to guard the drugs.
On the evening of 14 October VU arrived at Earlwood and he and TO departed carrying some blue and white check bags which they placed in VU’s vehicle and then proceeded to his residence.
The following day PHAM and NGUYEN DINH went to Chatswood and made contact with a “customer” who was subsequently identified as Antoine Antoun (ANTOUN). On 16 October VU and TO put the bags, which they had transported to the former’s residence into the boot of a white Mitsubishi Lancer vehicle, and they drove to Lakemba where it was parked near a hotel. PHAM and ANTOUN arrived there in another vehicle, NGUYEN DINH in a third vehicle. ANTOUN entered the white Lancer and then the three vehicles drove away. ANTOUN was stopped and arrested at Erskineville. The bags in the boot contained the inert tablets which had been substituted for the MDMA into the hollowed out tiles. At about the same time as ANTOUN was arrested other police arrested NGUYEN DINH and TO at Wiley Park, PHAM and NGUYEN THANH at Earlwood and VU at Lakemba.
I turn to some facts concerning the heroin bottle charge. On 20 August 2001 NGUYEN THANH spoke to her uncle Le Van Trung (LE) in Canada in coded terms about a transport of drugs from Hong Kong. In September her husband PHAM and NGUYEN DINH were in Hong Kong. An original arrangement was for NGUYEN THANH’s cousin Huan to make the trip but owing to a visa problem which she had, LE travelled instead. On arrival in Hong Kong from Canada he met NGUYEN DINH at the airport and received from him a shopping bag, after which they entered a duty free store. PHAM had made several telephone calls passing information about arrangements including how to identify LE (he had one arm), taking him to do some shopping and ensuring that he was contactable through a mobile phone. Some calls also made reference to LAM and specifically one call stated that NGUYEN DINH should inform him about LE’s arrival.
In due course LE departed Hong Kong and arrived in Sydney on Wednesday 19 September. He was stopped by customs and within a plastic bag which he was carrying was a bottle labelled Baileys Irish Cream. Later analysis of a white substance within the bottle demonstrated that it contained 477.8 grammes of pure heroin.
The postal charges concern five intercepted letters posted to various addresses in the southwestern area of Sydney, which arrived from Hong Kong between July and September 2001. The arrangements in Hong Kong were made by NGUYEN DINH assisted by a woman referred to as his mistress, and a supplier who was identified only as “Ben”.
VU and NGUYEN DINH spoke several times whilst the latter was in Hong Kong. Their conversations revealed that VU had despatched money for purchase and had supplied addresses to which the letters should be sent.
The intercepted letters which had been despatched pursuant to these arrangements contained heroin or methylamphetamine. In due course analysis showed the total pure weight of heroin as 38.1 grammes and of methylamphetamine as 10.4 grammes in the accumulated despatches.
PHAM was sentenced for being knowingly concerned in the importation of a traffickable quantity of heroin (the heroin bottle charge) to 15 years imprisonment to date from his arrest on 16 October 2001, and for importing a commercial quantity of MDMA to life imprisonment to date from 16 October 2003 with a non parole period of 23 years commencing on that date. Hence the effective overall term may be considered as life imprisonment with a non parole period of 25 years.
NGUYEN THANH was sentenced for being knowingly concerned in the importation of a traffickable quantity of heroin (the heroin bottle charge) to 15 years imprisonment to date from her arrest on 16 October 2001 and for being knowingly concerned in the importation of a commercial quantity of MDMA to 25 years imprisonment, to date from 16 October 2003 with a non parole period of 16 years. Hence the effective overall term may be considered as 25 years imprisonment with a non parole period of 18 years.
TO was sentenced for being in possession of a commercial quantity of MDMA to life imprisonment to date from 16 October 2001 with a non parole period of 20 years.
VU was sentenced on two charges of being knowingly concerned in the importation of traffickable quantities of heroin and methylamphetamine (the postal charges) to 8 years imprisonment to date from 16 October 2001 (to be served concurrently) and for conveying a commercial quantity of MDMA to 10 years imprisonment to date from 16 October 2003, with a non parole period of 6 years commencing on that date. Hence, the overall effective sentence may be considered as 12 years imprisonment with a non parole period of 8 years.
Some reference should be made to the structure of these sentences. His Honour expressed the sentences commencing on 16 October 2001 (except in the case of TO) as being for “fixed” terms, and in respect of each applicant, specified a non parole period in respect of other sentences dating from 16 October 2003. The expression “fixed” term does not appear in the relevant Commonwealth legislation although his Honour’s obvious intention was not to impose a non parole period in respect of those sentences, a procedure which is available, and I would regard the difference in expression as, in a practical sense, inconsequential.
Pursuant to s 16E of the Crimes Act 1914 a Federal offence may attract a sentence or non parole period commencing after the date of imposition if it is facilitated by relevant State law, which it is in this State pursuant to s 47(2)(b) of the Crimes (Sentencing Procedure) Act 1999. Insofar as there was a statutory requirement to give reasons for not setting a non parole period (s 19AB(3) and (4) of the Crimes Act 1914) his Honour specified to the individual offenders that the effect of his impositions was that they would serve minimum terms of 25, 18 and 8 years respectively, being in each case two years longer than the non parole period as stated. The substantial proportions of the “fixed” terms were, as his expressions indicated, subsumed within the longer sentences for which non parole periods were set. TO, of course, commenced his non parole period and total sentence on the stated date, 16 October 2001.
I consider that the statutory requirements were sufficiently satisfied and intervention by this Court is not attracted by reason of the expression which his Honour used.
Mention should also be made of sentences received by NGUYEN DINH and LE. Sully J sentenced the appellants on 9 March 2004. LE was sentenced by Shillington DCJ on 1 August 2003 and NGUYEN DINH by the same judge on 27 August 2004.
LE was sentenced to 6 years imprisonment with a non parole period of 3 years 6 months, to date from 19 September 2001 after pleading guilty to importing a traffickable quantity of heroin (the heroin bottle charge).
NGUYEN DINH was sentenced on two indictments alleging Federal and State offences respectively. Following pleas of guilty he was sentenced for being knowingly concerned in the importation of traffickable quantities of heroin and methylamphetamine (the postal charges) to imprisonment for 8 years to date from 16 October 2001 (to be served concurrently); for being knowingly concerned in the importation of a traffickable quantity of heroin (the heroin bottle charge) to imprisonment for 10 years to date from 16 October 2001 and for being knowingly concerned in the supply of a commercial quantity of MDMA to imprisonment for 22 years with a non parole period of 16 years 6 months to date from 16 October 2003. Hence, the overall effective sentence may be considered as 24 years imprisonment with a non parole period of 18 years 6 months.
As can be seen from the foregoing not all of the appellants were convicted of participation in all of the same crimes. PHAM and NGUYEN THANH, to the exclusion of the other two appellants, were involved in the heroin bottle charge and VU, to the exclusion of the other three, was involved in the postal charges. All four were convicted of offences within the compass of the MDMA importation, in each case, of a different offence. In short description, PHAM was convicted of importing a commercial quantity of the drug; NGUYEN THANH of being knowingly concerned in the importation of it; TO, of being in possession of a commercial quantity of the drug and VU of conveying a commercial quantity of it. NGUYEN DINH was convicted of a State charge of being knowingly concerned in the supply of such quantity and LE of a single charge of importing a traffickable quantity of heroin in the Baileys Irish Cream bottle.
Each of the appellants raises a ground (in the case of PHAM, grounds) complaining that he or she harbours a grievance by reason of lack of parity with sentences received by co-offenders. PHAM asserts lack of parity with TO and NGUYEN THANH in the sentences on the MDMA charge, and similarly with NGUYEN DINH and LE on the heroin bottle charge. NGUYEN THANH also complains in respect of sentences received by NGUYEN DINH and LE on the heroin bottle charge. TO complains of lack of parity between his sentence and the sentences of PHAM, NGUYEN THANH and NGUYEN DINH on the MDMA charge. VU complains of lack of parity in respect of the sentences received by NGUYEN DINH on the postal charges.
It is a practical course to examine first specific grounds argued on behalf of the individual appellants before turning to these parity grounds which can be considered in the light of the proposed outcomes of those other grounds.
PHAM (ground 1) asserted that inadequate weight was given to his plea of guilty. His head sentence on the MDMA charge was the full maximum term of life imprisonment and any benefit reflecting his plea of guilty can only be discerned in the setting of the non parole period. The sentence of 15 years imprisonment for being knowingly concerned in the importation of a traffickable quantity of heroin on the heroin bottle charge is to be gauged against a prescribed maximum penalty of 25 years in terms of available imprisonment. His Honour’s approach to this issue is manifest in these extracts from his remarks on sentence:
“All other things being equal, the prisoner would probably be entitled to some very limited leniency for his pleas of guilty and for his conduct as evidenced by the two exhibits. Whether even that limited leniency should be accorded in the context of crimes of the magnitude of the MDMA importation and of the heroin importation is a matter for further consideration in the light of relevant sentencing principles which I shall discuss in a later section of these remarks.”
And:
“Discounting for the Pleas of Guilty of the Prisoners
I venture the suggestion that few sentencing decisions of recent times have been so great and so persistent a spur to creative forensic mathematics as the guideline judgment of the New South Wales Court of Criminal Appeal in Thomson and Houlton [2000] 49 NSWLR 383.
The core guidelines are simple. They are stated as follows in the judgment of Spigelman CJ:
‘(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.’ [at paragraph 160].
While it is true that the High Court of Australia subsequently struck down the guidelines as formal components of sentencing for a Federal offence, forensic enthusiasm for at least a de facto application of the Chief Justice’s propositions does not seem to me to have abated, even in the case of a plea entered to a Federal offence.
No doubt even national and international drug trafficking on a massive scale is not necessarily beyond the pale of, to speak frankly, a utilitarian bribe given, as often as not, in exchange for a plea that represents, in the real world, a cynical and pragmatic calculation of self interest, rather than, to adopt the frequently encountered but somewhat unworldly alternative description, a willingness to facilitate the course of justice. Even so, there must be an intelligent limit. In the present cases the pleas have recognised the inevitable: that is to say, that there was no realistic prospect that a reasonable jury properly directed would simply acquit outright; and that the best thing to do, therefore, was to bargain for the best available plea. I do not for a moment suggest that there is anything wrong about such an expedient trimming of the sails. I think, however, that there is a great deal wrong with turning that unabashed expedient into some kind of leverage for more or less automatic percentage discounts of the kind about which the Chief Justice spoke in Thomson and Houlton.
I cannot say, as present authority stands, that the prisoners are entitled to absolutely nothing for their pleas, which did at least free up twelve or more weeks of Court time and resources. But they are not entitled, in my opinion, to much. I have built in to the sentences now to be passed a recognition of the pleas, but on the instinctive synthesis approach rather than on the mathematically computed one.
I add for the sake of completeness that I have taken the same approach to the fact, where relevant, of cooperation and assistance with the authorities; and to the need to consider what finding, if any, should be made as to special circumstances. I have been conscious, when setting any non-parole period, of the range, frequently adopted, of 60%-66-2/3% of the head sentence.”
And:
“I will set a non-parole period recognising all of the offender’s subjective features, including his pleas and any other particular discount; and so as not to extinguish any glimmer of hope for parole after a suitably long non-parole period has been served.”

In R v Neale [2004] NSWCCA 311 it was held to be open to a sentencing judge, where a statutory maximum term was appropriate, to afford mitigation in setting the non parole period.
Applicable statutory provision is to be found in the Crimes Act 1914:
“16A …..
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
………………………..
(g)if the person has pleaded guilty to the charge in respect of the offence – that fact ….. “
As a plea of guilty could not conceivably operate to the detriment of an offender, it follows that what is required is consideration of the fact of pleading guilty to the potential advantage of the offender. Of course, the statute does not mandate sentence reduction for that reason but the obligation to consider the mere fact does not make it necessary to determine as isolated matters, the utilitarian value, remorse or any other specific before a benefit can be assessed.
It is argued by the appellant that his Honour’s remarks demonstrated that he applied restraints upon granting leniency for pleas of guilty which exceeded any appropriate level. By reference to the Shorter Oxford English Dictionary, the meanings of “bribe” convey corruption, dishonesty and perversion of judgment, hence his Honour’s description of an available discount sanctioned by authority as a “utilitarian bribe” indicated an erroneous application of principle. Similarly, it was indicative of at least departure from orthodoxy to criticize a plea of guilty as a “willingness to facilitate the course of justice” as being “somewhat unworldly” having regard to those exact terms being sanctioned in the joint judgment in Cameron v The Queen 2002 209 CLR 339 @ 343.
Both the Crown and counsel for PHAM made reference to the circumstance whereby the pleas of guilty were not entered until the day after the scheduled trial date although it was conceded that PHAM had much earlier indicated his intention to plead guilty. The timeliness of a plea of guilty is primarily relevant to the utilitarian value of saving the Crown expense and saving witnesses the inconvenience and pressures of giving evidence.
Whether the approach adopted by his Honour was productive of a sentence in respect of which this Court should intervene will need to be determined in the light of this and other grounds including the assertion that the life sentence was manifestly excessive.
PHAM (ground 2) complained that his Honour gave insufficient weight to assistance by the offender to authorities. Again, for Federal offenders, there is applicable statutory obligation:
“16A      …..
(2)          In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…..
(h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences
………   ”
His Honour’s reference in his remarks on sentence to this aspect was limited to the allusion to exhibits which can be identified as exhibits C3 and VHP1. Exhibit C3 was a letter of comfort by Robert McDonald, the National Director of the Australian Crime Commission. It was stated that PHAM’s assistance was “moderate in value”. The exhibit VHP1 was a statement by a National Crime Authority investigator Mr Purchas, who gave evidence. This showed that PHAM gave a comprehensive statement which included material concerning the involvement of ANTOUN, some information categorized by Mr Purchas as previously unknown to the NCA, and an offer by PHAM to testify against ANTOUN if required.
The Crown Prosecutor observed that ANTOUN was discharged at committal and ultimately it was decided (presumably by the Director of Public Prosecutions) that no further proceedings would be taken against him, and therefore, it was submitted “the significance of (PHAM’s) statement in that respect dissipated”. That submission overlooks that the obligation imposed by s 16A(2)(h) is to take account of the degree to which the person has cooperated in distinction from mere consideration of the consequences of cooperation.
PHAM (grounds 3 and 4) complained of the setting of the maximum life term on the MDMA charge and a failure to take into account subjective features in his favour when so doing. PHAM had no prior conviction.
The approach of his Honour to determination that the MDMA importation was a “worst case” was stated thus:
“In Twala (unreported, 4 November 1994) the Court of Criminal Appeal, constituted by Carruthers, Finlay and Badgery-Parker JJ, endorsed the following proposition:
‘However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime as distinct from subjective features mitigating the penalty to be imposed.’
That proposition, if applied to the known facts concerning this importation, must surely result in a conclusion that the MDMA importation was an example of the worst case of the importation of prohibited narcotics. The quantity imported was 52.702 kilograms by pure weight: that is to say, between 105 and 106 times the minimum quantity prescribed by law as constituting a commercial quantity. If that does not constitute a Twala-type worst case of drug trafficking, then the very notion of a worst case in that context ceases to have any rational content.”
His Honour later added:
“In my opinion this MDMA importation was from first to last an enterprise breath-taking in its contempt for the law; in its disregard for the public order and welfare of this country and its citizens; and in its cynical amorality. Anybody instrumental in the planning and execution of so wicked an undertaking is criminally culpable in high degree.”
A claim by PHAM that he was, to an extent, tricked and intimidated by LAM and his associates into participating in the venture was rejected. That was a matter for his Honour’s judgment and I perceive no flaw in his conclusion. Following this rejection, his Honour stated:
“I am satisfied beyond reasonable doubt that the prisoner’s culpability is that of a principal; that his motive was huge financial gain; and that there are no ‘facts mitigating the seriousness of the crime’ as described and explained by the decision in Twala.”
It is implicit in his Honour’s stated reasons that the categorization into a “worst case of drug trafficking” was determined by reference to the quantity of drug involved. In Wong v The Queen 2001 207 CLR 584 it was observed in the joint judgment (Gaudron, Gummow and Hayne JJ) @ 609:
“The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament’s distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities (Customs Act s 235). No doubt, within both of those categories, the particular amount of narcotics involved can have significance in fixing the sentence that is to be imposed on an offender. But is weight generally the chief factor to be taken into account in fixing a sentence?
It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.
It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.
These are reasons enough for concluding that the Court of Criminal Appeal was in error in attributing chief importance to the weight of narcotic in fixing sentences for the offence. The error of the Court is, however, more deep seated than the factual difficulties to which reference has been made. The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle.”
Their Honours, in explanation of the reasons for this opinion, made reference to the explicit obligations imposed by s 16A(2) of the Crimes Act 1914 (@ 610):
“… To the extent that the matters identified in s 16A(2) are relevant and known to the Court, the sentencer must take those into account. This group of matters is very diverse. It includes not only ‘the nature and circumstances of the offence’ but also matters such as the degree to which the offender has shown contrition (s 16A(2)(f)), the offender’s character, antecedents, cultural background, age, means and physical or mental condition’ (s 16A(2)(m)) and ‘the need to ensure that the person is adequately punished for the offence (s 16A(2)(k)). What is notably absent from 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence. There is no statement of the kind found, for example, in the Sentencing act 1991 (Vict) (s 5) of the purposes for which sentences may be imposed, and there is no statutory requirement which obliges a sentencer to give particular weight to one or other of those purposes in sentencing certain kinds of offender (cf Sentencing Act 1991 (Vict) s 6D(a), which directs the court sentencing a ‘serious offender’ to regard the protection of the community from the offender as ‘the principal purpose for which the sentence is imposed’. Section 16A obliges the sentencer to take all of them into account and effect must be given to that legislative command.”
It is not necessary to recite the whole of the statutory provision. It is correct, as contended by the Crown, that all of the provisions within the subsection do not provoke mitigation, and indeed some would tend to increase sentence, but the form of s 16A is such that it imposes an obligation to take all the tabulated features into account to the extent that they are known. The process must be undertaken when setting the head sentence and, whilst I accept that if, on the exercise being undertaken, a maximum sentence becomes determined appropriate, mitigation may be reflected in setting the non parole period, it remains obligatory to take into account the known matters when making the initial assessment of head sentence. The contentions of the appellant concerning the focus upon quantity of narcotic as a chief factor in determining that this was a “worst case” and the severance of favourable subjective matters when assessing head sentence have been made good.
The potential for apparent unfairness in dealing with different offenders, if quantity were taken to be the chief factor in fixing sentence, is incidentally exemplified by a recent appeal in R v Moore [2005] NSWCCA 212 where possession of prohibited imports consisting of a quantity of pure MDMA exceeding 90 kilogrammes (as opposed to under 53 kilogrammes in the present instance) had attracted a sentence of 20 years imprisonment with a non parole period of 15 years. Whilst it must be acknowledged that Parliament has set scales of punishment by reference to quantities of different drugs and that regard should be paid to what has been said in R v Nai Poon [2003] NSWCCA 43, it cannot be without significance that no case was pointed to where a life sentence for dealing with MDMA was recorded.
That is not to say that the prescription by Parliament of an available sentence of life imprisonment is to be ignored when assessment is made. It is a circumstance of importance to be taken into account. Nor is it to be said that a crime dealing with MDMA may not be of such heinousness that the maximum sentence becomes appropriate. A critical consideration when the criminality of a participant in drug importation stands for sentence is to determine what the particular offender did.
NGUYEN THANH (ground 1) complained of insufficient weight being accorded to her by reason of her pleas of guilty. I have already set out his Honour’s remarks under the heading “Discounting for the pleas of guilty of the prisoners”. As appears therein, it was acknowledged that all the appellants were entitled to some consideration on this account but not “to much”. There was no obligation to specify what that amounted to, nor to express the “undiscounted” term assessed, but it is difficult to derive an appreciation of what benefit the appellant may have in fact received.
The principal thrust of submissions in support of NGUYEN THANH (ground 2) was based upon a report from a psychologist, Professor Hayes. It was contended that his Honour omitted reference to the opinion of the latter that NGUYEN THANH was suffering from an anxiety disorder and serious clinical depression which had an effect on her ability to concentrate and to reason through problems in a consistent and rational manner.
Even taken at face value, that opinion is distant from the sorts of mental disorders and abnormalities which would give rise to a conclusion, that, for such a reason, the offender was an unsuitable vehicle for manifesting general deterrence. His Honour did not ignore the report of Professor Hayes and referred to it with some particularity:
“Exhibit THN 1 on sentence is a lengthy report dated 5 September 2003 and prepared by Associate Professor Susan Hayes, Head of the Centre of Behavioural Sciences in the Department of Medicine at the University of Sydney. The report is a clinical psychological assessment of the prisoner. The background material for the report appears to have been information supplied by the prisoner through a Vietnamese interpreter during an interview of the prisoner by Professor Hayes at Mulawa Correctional Centre on 4 September 2003. It seems that Professor Hayes had access to documents, but it is not quite clear what they were or quite what they said.
The report contains this statement:
‘As noted above, Ms Nguyen has pleaded guilty, although she claims that she did not know what was to be hidden in the bottle in relation to the heroin charge and that she did not know what drug was involved in relation to the ecstasy charge and nor did she know the size of the shipment. She claims that her husband did not directly tell her that the marble shipment contained illegal drugs although she suspected something, and she advanced some cash and purchased air fares, although she understood the cash and air fares were helping in the organisation of the ‘bottle business’.’
It seems to me that those self-serving statements cannot be accepted: first, because they are inconsistent with the pleas of guilty; and, secondly, because they are inconsistent with the surveillance evidence.
The report details a family and social history. It derives largely, I infer, from the prisoner’s own statements and assertions made to Professor Hayes. The report notes the prisoner’s age as having been 38 at the time of the assessment. The report describes the prisoner’s completion of secondary schooling and her projected entry into a business and commerce course at a university. According to the report, the prisoner left Vietnam before commencing that projected course. She left as a refugee; reached Hong Kong in very difficult circumstances; was befriended and cared for by Van Pham whom she married in 1983; was interned with him as previously herein described; and was eventually sponsored with him as an immigrant to Australia.
According to the report, the prisoner’s marriage with Van Pham was volatile, sometimes violent, and, from her point of view, very unhappy. She and Van Pham divorced in 1993. Sometime thereafter there was a cautious reconciliation. It was not helped by her discovery of Van Pham’s Hong Kong liaison with another woman.
The report expresses this opinion:
‘Although Ms Nguyen had a number of psychological/psychiatric symptoms in the months leading up to the offences and she still suffers from depression and suicidal ideation occasionally, in my opinion none of these disorders are of a nature which would increase the likelihood of her re-offending. Furthermore, she does not have any substance abuse problems which would increase the likelihood that she might re-offend. She has very positive prospects for rehabilitation and for not re-offending once she is released back into the community.’
I take a guarded view about these opinions. I think that they are weakened by the inconsistencies to which I have previously referred. A fair view of the whole of the relevant surveillance evidence seems to me to justify an inference that, beyond reasonable doubt, this prisoner knew a lot more than she was prepared to tell Professor Hayes about what was being done, and by whom, in connection with both the MDMA importation and the heroin importation.”
It requires only some attention to the content of intercepted conversations to which NGUYEN THANH was a participant, for example with family members in Canada, to confirm the very substantial basis for his Honour’s findings about the appellant’s knowledge and her devotion to improving her financial resources by engaging in criminal activity.
It is accurate, as counsel drew to attention, that no express reference to the absence of any prior conviction was recorded. However, his Honour found that there was an irresistible inference from NGUYEN THANH’s own words that she was an experienced drug trafficker engaged in what was her largest, and she hoped, most profitable venture. The inference was clearly not only open but correct. Antecedent absence of conviction was unlikely, in these circumstances, to work in favour of the offender (or against her) in any practical way: Weininger v The Queen 2003 212 CLR 629 @ 639.
I am unpersuaded that his Honour omitted to give proper weight to this appellant’s subjective circumstances.
Grounds 1 and 2 advanced by the appellant TO asserted that the life sentence and the non parole period received by him were, in each case, manifestly excessive. There are some observations which should be made about the role of TO who, it will be recalled, pleaded guilty to possession of a commercial quantity of MDMA. He was not involved in either the heroin bottle charge or the postal charges. In connection with his participation, focus must be had on what he did rather than on classification of his role but that is not to say that the role was irrelevant. The correct approach was discussed in The Queen v Olbrich 1999 199 CLR 270 @ 279:
“Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports (contrary to Customs Act, s 233B(1)(cb)), or being knowingly concerned in the importation of such imports (contrary to Customs Act, s 233B(1)(d)). If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between ‘couriers’ and ‘principals’ may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a ‘courier’ or a ‘principal’ must not obscure the assessment of what the offender did.”

TO came to Australia after the importation had taken place. He was “LAM’s eyes and ears at the Sydney end of the importation”. He was in frequent contact with LAM reporting on progress and receiving instructions which included LAM’s directions to him to guard the contraband before delivery to the anticipated customer.
His Honour described him as a “participant at the highest level after that of a participant who had a direct entrepreneurial stake in the importation”. (My emphasis).
It was acknowledged on behalf of the Crown at the sentencing hearing that what TO did required no great expertise and no special physical skill, and those acknowledgements were repeated in submissions to this Court. It was also expressly stated that it was not suggested by the Crown that TO was a “principal” but he was a supervisor and monitor of LAM’s interests. He was, however, physically involved in removing the inert substitute from the reconstructed tiles.
Attention was directed to the comment in R v Stanbouli 2003 141 A Crim R 531 @ 533 where Spigelman CJ (Carruthers AJ in agreement) said:
“The matter on which I have reservations is his Honour’s reference to life imprisonment being ‘the norm for those who provide important assistance in the importation of quantities of the order of that here’.
I would myself reserve the term of life imprisonment as ‘the norm’ for persons at the top of the importation hierarchy, rather than those who ‘provide important assistance’. ….”
The “order” involved in that case concerned forty six shipments of computer peripherals to differently named consignees, at least twenty three of which contained heroin, amounting in all to a pure weight approximating 375 kilogrammes. Stanbouli was an employee of customs agents. He received $200,000 in total for his assistance to the criminal importers. Using his position, he oversaw receipt, clearance and delivery. He monitored possible customs interest and made suggestions about how the offenders could avoid it. On Crown appeal a sentence of 13½ years imprisonment with 10 years non parole period was increased to 19 years imprisonment with a non parole period of 12 years.
The case is also useful in providing a reference by the collation in a schedule to the dissenting judgment of Hulme J which is supportive of the appellant’s observation that the Crown had not been able to point to any instance where a person whose actions were like to those of TO received a sentence of life imprisonment. It is recognized that some caution must be applied to looking at terms of imprisonment which were imposed prior to the repeal of s 16G of the Crimes Act 1914, nevertheless the sentence received by TO seems, on any view, to be higher than could conformably be accommodated within detectable patterns of sentencing.
It is not to be ignored that TO had served a sentence for a serious drug related matter in Hong Kong but, notwithstanding this, in my view the life sentence received by TO (an offender found not to be at the level of criminality of an entrepreneur) should be set aside and a determinate sentence substituted. That course will necessarily involve a non parole period being set which is appropriate to the new sentence and it is not necessary to deal with ground 2 separately.
VU (ground 1) complained of the lack of adequate weight being given to his pleas of guilty in the assessment of sentence. VU was taken into custody on 16 October 2001. He was charged with conspiracy to import a commercial quantity of MDMA and in the alternative, to being knowingly concerned in that importation. He was eventually committed for trial on those charges but intimated through his lawyers that he might plead guilty to a charge more limited in scope than a charge of conspiracy. In July 2003 he confirmed that he would plead guilty to conveying prohibited imports and he was arraigned and so pleaded on 11 August 2003. Hence his plea of guilty was prompt, once the opportunity in respect of that charge was offered. A further indictment on the postal charges was presented on 10 December 2003 and VU pleaded guilty.
His Honour made no remark about the value of VU’s pleas of guilty beyond those which I have recited which were of common application to all the appellants although, when referring to subjective matters concerning VU earlier in his remarks, he had said that he would return to a consideration of “what, if any, particular leniency (the prisoner) ought justly to receive for his pleas of guilty”. (Emphasis added).
As those passages of the remarks on sentence, which I have already quoted show, his Honour assessed any entitlement to mitigation by reason of guilty plea as minimal. He had, however, found VU to be at the lowest level of culpability of the four appellants and regarded his activity as, in effect, fetching and carrying as directed. The sentence, expressly assessed on an approach of “instinctive synthesis” gave no indication of what it would have been in the absence of guilty plea and it would appear that the matter of “particular” leniency remained undetermined.
Ground 2 contended that his Honour erred in disregarding the evidence concerning VU’s relationship with, and perceived obligations to, NGUYEN DINH, his father in law. VU gave evidence at the sentencing hearing. As his Honour observed, much of it was directed to the postal charges but when asked why he became involved in helping other people (in criminal enterprises) he said:
“A. Because it was very difficult for me to refuse my father-in-law request because in the past he had helped me with my marriage and also he had helped me to trying to take over the laundry business, so I felt very difficult to say no to him.
………
In my own family the discipline was very strict and when my father-in-law came back to Vietnam and he went to see my parents what my parents told him that the power of the family, all the disciplines in the family was given to him.”
His Honour expressed his understanding to be that this evidence was directed to facts mitigating the seriousness of the crime in the sense of the judgment in Twala which he had cited. He ruled that it was for the prisoner to establish mitigation on the probabilities according to the Briginshaw principles previously discussed.
This was a reference to his earlier dealing with evidence given by PHAM when he quoted a passage from the judgment of Dixon J in Briginshaw v Briginshaw 1938 60 CLR 336 @ 361-2. The quotation was:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes ……. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences.”
There is nothing in that quotation, or in Sully J’s express adoption of “that analytical method” to support the proposition that he was imposing on the offender a higher standard of proof than on the balance of probabilities: see R v Storey 1998 1 VR 359 which was expressly approved in Olbrich @ 281. The appellant’s submission, articulating a proposition that a “heavier burden of proving facts” was imposed can readily be seen to be flawed when put in clear terms as whether his Honour, as he patently did not, had proposed a higher standard of proving facts.
His Honour continued to record his reasons for his lack of persuasion concerning VU’s claims:
“The laws proscribing the importation of specified narcotics are laws made for the protection of Australian society. They cannot have that operation if Courts allow any watering down of them by some woolly-minded generalising about familial discipline and cultural idiosyncrasies. The proper and effective operation of those laws requires that it be understood clearly and by all concerned that a person, - any person, - who is knowingly concerned in any way, - I repeat, any way, - with illicit drug trafficking can expect to be dealt with by the Courts with all appropriate severity; and cannot expect to side-step those just desserts by generalised self-serving statements of the kind exemplified by this prisoner’s relevant evidence-in-chief. Those propositions must be applied, as a matter of simple common sense it seems to me, with even greater firmness in the case of an enterprise of the scale of the MDMA importation.”
It is one of the express requirements in s 16A(2)(m) of the Crimes Act 1914 that a sentencing court have regard to the cultural background of an offender. Against the argument that his Honour failed to comply with this statutory mandate, the Crown Prosecutor submitted that attention should be directed to a transcript of exchange with senior counsel then appearing for VU, which was said to reveal “his Honour’s legitimate scepticism at the proposition that the nature of the relationship with (NGUYEN DINH) was determinative of the applicant’s involvement in either offence.”
Whilst it is accepted that it was open to his Honour as a tribunal of fact to reject the testimony of VU, the language which he chose suggests that he applied a forceful view that such consideration should not be a factor of mitigation (“watering down”). Such an approach was incompatible with the command in the statute.
To the extents above indicated, the contentions on behalf of the appellant VU are made out.

I turn to the various complaints concerning parity of sentence between offenders. It is obvious that these need to be dealt with in the context of any resentence consequent upon other grounds of appeal being made out by individual appellants as well as taking account of what amounts to cross references between the sentences of offenders. In these regards some further observations should be made concerning the conduct of NGUYEN DINH and LE who were dealt with separately and whose sentences I have earlier mentioned.
LE was a resident of Canada who was recruited by his niece, the appellant NGUYEN THANH. When sentenced in 2003 he was aged sixty four years. He has lost an arm during the hostilities in Vietnam, in which nation he was born. He had no prior convictions. His role was to fly from Canada to Hong Kong where he received the heroin in the Baileys Irish Cream bottle, which he transported on a flight to Sydney. He was to be reimbursed for expenses. He was arrested at the airport where he denied any knowledge of the contraband. He pleaded guilty on the day after his trial was scheduled to commence. It was claimed that his denial was inspired by a wish to protect his niece. Shillington DCJ expressly took into account his lack of English which would render life in custody more difficult, his age and his serious physical disabilities.
NGUYEN DINH was also sentenced by Shillington DCJ who was in possession of the details of the sentences by that time received by the appellants as well as the remarks on sentence of Sully J. NGUYEN DINH was taken into custody on 16 October 2001. Pleas of guilty were entered on 21 March 2004 following some variations in charging between his arrest at that date. His Honour considered that it was appropriate to grant some leniency for the utilitarian value of these pleas. Significantly, NGUYEN DINH had been convicted in 1996 of being knowingly concerned in the importation of heroin and received a sentence of 4 years 6 months with a non parole period of 2 years 6 months for that offence.
In order to commit the crimes which became the subject of the postal charges, NGUYEN DINH flew to Hong Kong in June 2001 and organized the despatch by mail of the packages containing heroin and methylamphetamine to be collected by his son in law VU at various addresses in Sydney.
Again in Hong Kong, but on this occasion in association with LAM and PHAM he negotiated the purchase of the heroin which was imported into Australia in the Baileys Irish Cream bottle. He physically handed the drugs to LE at Hong Kong airport when the latter had disembarked for the purpose of this receipt and bringing the drugs into Australia.
The MDMA charge against NGUYEN DINH was of supplying a commercial quantity of drug contrary to State law. Shillington DCJ noted that it arose out of a highly sophisticated operation involving considerable planning and massive profits, if successful. The Crown contention was that he was the Australian principal next in order of importance after PHAM. After arrest he admitted that he had been promised $40,000 and “more later” if the operation succeeded. He provided accommodation for TO, LAM’s lieutenant, after he arrived in Sydney and he was engaged in various activities in seeking to achieve safe delivery of the drugs and transfer to an ultimate purchaser. There was evidence that at one point NGUYEN DINH asked LAM if he could take some of it himself as he was “out of stock”.
It can be seen therefore that, whilst PHAM and NGUYEN THANH were involved in the MDMA and the heroin bottle charge, TO in the MDMA charge solely and VU in the MDMA charge and the postal charges, NGUYEN DINH was involved in all three criminal enterprises, yet subject to a non parole period six months longer than NGUYEN THANH, he received the lightest effective sentence.
I deal first with VU. Both he and NGUYEN DINH received concurrent sentences of 8 years imprisonment on each of the postal charges relating to the importation of heroin and methylamphetamine, however the effect of the structure of sentences received by VU, once sentence on the MDMA charge is taken into consideration, was to require serving 2 years imprisonment referrable to the postal charges, whereas the sentences received by NGUYEN DINH for the postal charges were wholly subsumed within sentence received for the heroin bottle charge.
In a written submission it was stated “the Crown accepts, when considered alone, there may be a justifiable sense of grievance in relation to the fact that exactly the same head sentence was given to (VU) as was given to (NGUYEN DINH) for the postal importations.”
The submission continued however to suggest that any reduction for VU would not have impact on time to be served because, in any event, the sentence on the MDMA charge would remain. Acceptance of that submission would ignore the circumstance that I have mentioned, namely that VU will serve actual time for the postal offences exclusively, whereas NGUYEN DINH will not. It is hardly a matter of equal justice that NGUYEN DINH should be advantaged for involvement in additional crime and it is germane to seeking to achieve the end of equal justice to consider actual time liable to be spent in prison: Postiglione v The Queen 1997 189 CLR 295 per Dawson and Gaudron JJ @ 304.
Having regard to this matter and the grounds previously considered, I am of opinion that VU should be resentenced with a structure which will, in particular, reduce the effective period of 8 years imprisonment derived from service in part of what his Honour described as “fixed” term and the non parole period to an effective 6 years.
For the reasons previously stated, I am of opinion that the life sentence received by TO should be quashed and a determinate sentence imposed. His complaint of parity is directed to the sentences received by three co-offenders. To recapitulate in terms of minimum time liable to be served, TO was sentenced to life imprisonment with a non parole period of 20 years; PHAM received a sentence for the MDMA charge of life imprisonment with a non parole period of 23 years with an additional 2 years to be served for the heroin bottle charge; NGUYEN THANH received a sentence for the MDMA charge of 25 years imprisonment with a non parole period of 16 years with an additional 2 years to be served for the heroin bottle charge and NGUYEN DINH received a sentence for the MDMA charge of 22 years imprisonment with a non parole period of 16 years 6 months with an additional 2 years to be served for the heroin bottle charge and the postal charges.
It is of significance to consider the respective activities of TO and NGUYEN THANH in particular in relation to the MDMA charge. NGUYEN THANH was involved in “bankrolling” the importation for profit and actively involved to some degree in progressing the matter. That reflects participation at a very high level. TO was a watchkeeper who reported what was being done to LAM in Hong Kong. It is difficult to perceive that TO’s conduct is more culpable than that of NGUYEN THANH who was to all intents one of the entrepreneurs.
In a submission on behalf of the Crown it was pointed out that TO’s non parole period was significantly less than that of PHAM, “who received an overall period before release of 25 years” and added that “the principal, NGUYEN THANH received an overall non parole period of 18 years”. It is not clear why it was contended that the period of 2 years, in each case referrable to the heroin bottle charge in which TO was not involved, should be taken into account when making these comparisons. What is significant is, however, a prior conviction of TO in Hong Kong for a drug related matter. In that regard, his situation is somewhat analogous to that of NGUYEN DINH who also had prior conviction whose non parole period for his MDMA offence was 3½ years less than that specified in the case of TO.
In assessing sentence there should be reflection of the criminality of each offender in accordance with what each has done in pursuit of the crime, and, although TO and NGUYEN DINH did materially different things, I conclude that they should be assessed as having approximately equal criminal responsibility as well as broadly equivalent subjective factors. I would resentence TO to a similar term as that received by NGUYEN DINH for his MDMA charge.
I remain conscious of the relativity between the entrepreneurial activity of NGUYEN THANH and TO but assessment of her sentences require attention to issues of totality whereas TO faces the single count and there is the deprivation of leniency consequent upon the existence of his prior conviction.
It is convenient to deal with the sentences received by PHAM and NGUYEN THANH for the heroin bottle charge together. In each case, the structure of sentence resulted in a term of 2 years imprisonment being effectively liable to be served for this offence, but the actual sentence was 15 years imprisonment to date from their arrests on 16 October 2001. The actual sentences received by NGUYEN DINH and LE were 10 years imprisonment and 6 years imprisonment with a non parole period of 3½ years respectively.
LE was a recruited courier and his conduct and contribution to the criminal enterprise was different from, and much less culpable than, the other three who were organisers and intended sharers in any profit. No justifiable grievance could be harboured because he was treated more leniently than PHAM or NGUYEN THANH.
The Crown, in its written submissions accepted that there was a disparity “per se” between these two appellants and NGUYEN DINH. Further the Crown conceded that the latter was unquestionably a principal in the heroin bottle offence and, in contrast with the other two, by reason of his prior conviction for a drug offence was liable to life imprisonment on the heroin bottle charge itself pursuant to s 235(2)(c)(ii)(A) of the Customs Act 1901. It was recognized that NGUYEN DINH was sentenced after PHAM and NGUYEN THANH but Shillington DCJ did not advert to any reason for his treatment of him and the Crown acknowledged that “on the face of it, there should not have been such a difference”.

It was submitted however that the question of disparity for this offence became academic in the context of the MDMA charges. However, as was observed in Pearce v The Queen 1998 194 CLR 610 @ 624 (McHugh, Hayne and Callinan JJ):
“If, in fixing the appropriate sentence for each offence proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.”
It is appropriate in all the circumstances that the terms of sentence of PHAM and NGUYEN THANH for the heroin bottle offence should be coordinate with that received by NGUYEN DINH.
PHAM argues that the life sentence received by him for the MDMA charge should be varied, in addition to the matters advanced in connection with other grounds, by reason of its disparity with the sentence received by NGUYEN THANH and that received by TO. This submission must now also be considered in the light of my proposal concerning variation of the sentence upon TO.
Sully J found that PHAM was the principal in Sydney in the MDMA offence, LAM was the principal in Hong Kong. Although he also found that NGUYEN THANH was a principal, he noted that she was not as intensely and directly active as her husband and had pleaded guilty to being knowingly concerned in the importation as distinct from actually being an importer. The distinction in role was minimal. There can be no criticism of these findings.
In the final analysis, the learned sentencing judge’s conclusion that PHAM should receive a sentence of imprisonment for life was reached despite the appellant’s capacity to call upon a combination of mitigating factors, prominent among them being the pleas of guilty and the offer of assistance already discussed. I have also mentioned the apparently exclusive attention given to the quantity of illicit drug in assessing PHAM’s involvement as a “worst case”. Nevertheless, I consider it a matter of fine balance whether this Court should, on that analysis, intervene in respect of his Honour’s substantial sentencing discretion.
However, the ultimate question in my view is whether the life sentence can stand in the light of the grounds already discussed and the circumstance that two others, one of almost equivalent culpability as a principal (NGUYEN DINH), and the other an important supervisor on behalf of another principal (TO), should receive determinate sentences. The custody to be served by NGUYEN DINH and that to be served by PHAM stands in such stark contrast that I have concluded that PHAM’s case for intervention is made out. The conclusion receives some emphasis when it is observed that NGUYEN DINH participated in all three of the occurrences which I initially described, PHAM in two of them. In my view, the discrimination would entitle PHAM to harbour a justifiable sense of grievance and he should receive a determinate sentence although, as a reflection of his greater culpability (even if it was only marginally so) it should be a longer term than the others.
The complaint on behalf of NGUYEN THANH on the matter of parity is limited to the sentence received by her for the heroin bottle importation which has already been dealt with.
Before turning to resentence, there is a final matter of comment. As has been recounted, the Crown, after what were referred to as “negotiations”, presented indictments and accepted pleas of guilty to variously expressed crimes deriving from the MDMA importation. PHAM pleaded guilty to importing the quantity of narcotic, NGUYEN THANH to being knowingly concerned in the importation, TO to being in possession thereof and VU to conveying it. The Court raised with the Crown whether the distinctions were intended to provide a sentencing judge with a scale or guide to seriousness, noting Sully J had said of PHAM and NGUYEN THANH that there was, in the context of charges and roles a distinction that was “minimal”.
The response of the Crown was to observe that one is not sentenced for being in a hierarchy but for what one does. That is true: Olbrich. But, sentence is not imposed for what one does in a generalised sense of misconduct but in the context of the crime for which the offender has been convicted. The Crown asserted that these were “parallel charges” and, in the sense of available penalty, that is also true but, where the Crown chooses to prefer a particular charge (whether following “negotiations” or not) a sentencing judge is entitled to expect explanation for the selection when there are multiple available alternatives.
The stance of the Crown in the appeal suggests that the appellants had not been led to believe that some benefit would flow to those who pleaded guilty to offences different from those originally indicted. Counsel appearing for the Crown in this Court had not appeared at first instance and was not able to assist with information about the implications of the “negotiations”. As a matter of simple fairness an offender is entitled to know whether in accepting a plea of guilty to a different charge from that laid, the Crown is acknowledging a lesser culpability or not. This is, of course, self evident where alternative charges have lesser prescribed maximum penalties but it is incumbent on the Crown to make known the content of its assertion when there is an identity of available penalty.
Absent any explanation, I would nevertheless not infer as a matter of generality that there was some implied scale, for example that importing is more serious than being knowingly concerned in the importation which, in turn, is more serious than being in possession of the drug, down to being a conveyor of it. Resentence should be imposed in accordance with the finding relative to the grounds made good by the individual appellants and they should be resentenced, in accordance with their objective criminality and subjective circumstances.
I propose the following orders:
A.           In the appeal of PHAM VAN HAU:
               (a)          Application for leave to appeal against sentence granted.
(b)Appeal allowed and sentences imposed in the Supreme Court quashed.
(c)          In lieu thereof the appellant sentenced:
(i)For being knowingly concerned in the importation of a traffickable quantity of heroin to imprisonment for 10 years to date from 16 October 2001.
(ii)For importing commercial quantity of prohibited import (MDMA) to imprisonment for 27 years to date from 16 October 2002.
(d)Fix a non parole period of 18 years to date from 16 October 2001.
B.           In the appeal of NGUYEN THANH HAI:
               (a)          Application for leave to appeal against sentence granted.
(b)Appeal allowed and sentences imposed in the Supreme Court quashed.
(c)          In lieu thereof the appellant sentenced:
(i)For being knowingly concerned in the importation of a traffickable quantity of heroin to imprisonment for 10 years to date from 16 October 2001.
(ii)For being knowingly concerned in the importation of a commercial quantity of prohibited import (MDMA) to imprisonment for 21 years to date from 16 October 2002.
(d)Fix a non parole period of 15 years 6 months to date from 16 October 2002.
C.           In the appeal of TO KAM PUI:
               (a)          Application for leave to appeal against sentence granted.
(b)Appeal allowed and sentence imposed in the Supreme Court quashed.
(c)In lieu thereof the appellant sentenced for being in possession of a commercial quantity of prohibited import (MDMA) to imprisonment for 22 years to date from 16 October 2001.
(d)Fix a non parole period of 16 years 6 months to date from 16 October 2001.
D.           In the appeal of VU HUY QUANG:
               (a)          Application for leave to appeal against sentence granted.
(b)Appeal allowed and sentences imposed in the Supreme Court quashed.
(c)          In lieu thereof the appellant sentenced:
(i)On each of the charges of being knowingly concerned in the importation of traffickable quantities of heroin and methylamphetamine respectively, to imprisonment for 6 years to date from 16 October 2001, such sentences to be served concurrently with each other.
(ii)For conveying a commercial quantity of prohibited import (MDMA) to imprisonment for 8 years to date from 16 October 2002.
(d)Fix a non parole period of 5 years 3 months to date from 16 October 2002.
Where sentences have been proposed without the fixing of a non parole period, the reason for so doing is that any such period would follow upon and substantially be subsumed by sentences to be imposed in respect of other offences.
The respective legal advisers of each appellant are directed to explain to their clients the purpose and consequences of fixing a non parole period as required by s 16F of the Crimes Act 1914.
BARR J: I agree with Grove J.
HOWIE J: I agree with the orders proposed by Grove J very substantially for the reasons given by him. I merely wish to add a brief comment with respect to the assertion that, in determining that a sentence of life imprisonment was appropriate for Pham Van Hau, Sully J gave too much emphasis to the amount of drug involved in the importation.
There is nothing in the passage from Wong and Leung v The Queen (2001) 207 CLR 584 quoted by Grove J at [45] that suggests that in an appropriate case the amount of the drug involved in the importation is not a highly relevant factor in determining the objective seriousness of the offence even to the extent of assessing that a particular offence is in the worst category of its type. In many cases the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
In the present case there was no suggestion that the appellant Pham Van Hau was under any misapprehension about the quantity or purity of the drug involved. He was, as Sully J rightly found, a principal in the importation. Absent any evidence to the contrary, it can be assumed, even to the extent of proof beyond reasonable doubt, that he was aware of the quantity and quality of the drug simply from the extent of his involvement in the type of importation taking place.
I see no error in the passages from Sully J’s remarks on sentence set out in the judgement of Grove J at paragraphs [42] and [43]. I would also conclude that this was an importation in the worst category. This is not only because of the amount of the drug involved but also takes into account the sophisticated nature of the importation. Therefore, depending upon the criminality of any participant in this importation based upon what that person did to further the importation and his or her knowledge of the amount and quality of the drug involved, a participant was liable to the maximum penalty of life imprisonment.
In my opinion such was the criminality of Pham Van Hau that it was open to Sully J to impose a life sentence upon him subject to those matters, such as his plea and assistance, that might have mitigated the otherwise appropriate penalty. I agree that the appeal should be allowed in his case because of the application of the principle of parity so that it is unnecessary to determine whether otherwise any lesser sentence was warranted.
I particularly endorse the statement of Grove J at [49] to the effect that, simply because an importation involves MDMA, it does not follow that a participant in that importation could not be sentenced to life imprisonment.
**********

LAST UPDATED: 19/05/2006