R v Nguyen, Le & Le - [2009] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN, LE & LE
[2009] SASC 63
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice David)
12 March 2009
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appellants pleaded guilty to charges involving sale and supply of heroin - sentencing judge imposed sentence on the basis that the offences charged were representative of a course of conduct involving other uncharged offences of the same type - counsel for the Director of Public Prosecutions did not submit that the Judge should sentence appellants on that basis - the Judge did not raise point with counsel in sentencing submissions - whether appellants sentenced on a factual basis that cannot be justified.
HELD: if an offender is to be denied the benefit of what would otherwise be a mitigating circumstance, the basis for doing so should be raised by counsel for the Director or by the Judge and the offender should be given opportunity to put offender's case - evidence not so strong that Judge's conclusion inevitable - appellants sentenced on factual basis that cannot be justified - appeal allowed - appellants resentenced.

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - OTHER
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
Appellants charged jointly with others with offences involving sale and supply of heroin - one co-accused pleaded guilty and received a suspended sentence of imprisonment - appellants and one other co-accused subsequently pleaded guilty - the sentencing Judge declined to suspend sentences of imprisonment imposed on appellants but suspended the sentence of imprisonment imposed on co-accused - the sentencing Judge considered that considerations of parity not relevant in assessing whether ‘good reason’ to suspend a sentence of imprisonment exists for the purposes of s 38 Criminal Law (Sentencing) Act 1988 (SA) - whether considerations of parity relevant to assessing whether ‘good reason’ to suspend sentence exists.
HELD: power to suspend sentence requires Court to consider a broad range of matters - considerations of parity could influence a decision whether or not ‘good reason’ to suspend sentence existed - only in an unusual case that considerations of parity would ultimately affect decision to suspend.
Controlled Substances Act 1984 (SA) s 32(1)(c), s 32(1)(d); Criminal Law (Sentencing) Act 1988 (SA) s 38; Offenders Probation Act 1913 (SA) s 4(2a), referred to.
Wakely v Police (2003) 229 LSJS 327; R v Huggett [2005] SASC 236, applied.
The Queen v Wilton (1981) 28 SASR 362, distinguished.
R v Mangelsdorf (1995) 66 SASR 60; The Queen v MacGowan (1986) 42 SASR 580; R v Whiting (No 2) [2005] SASC 351, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"good reason"

R v NGUYEN, LE & LE
[2009] SASC 63
Court of Criminal Appeal: Doyle CJ, Sulan and David JJ

DOYLE CJ: The Director of Public Prosecutions charged six persons with offences of selling heroin, taking part in the sale of heroin, supplying heroin and taking part in the supply of heroin, contrary to s 32(1)(c) and s 32(1)(d) of the Controlled Substances Act 1984 (SA) as it stood at the relevant time.
One of those charged, Ms Hue Thi Le pleaded guilty on arraignment on 18 June 2007. She was sentenced on 10 April 2008. The Judge suspended the sentence of imprisonment that he imposed. No appeal has been brought against that sentence.
The remaining five offenders were to be tried on 7 July 2008. In the lead up to the trial four of them indicated that they would plead guilty to the offences charged, and did so on 21 July 2008. They were sentenced on 16 October 2008. The Judge suspended the sentence of imprisonment that he imposed on one of them, Mr Giau Van Le. There has been no appeal against that sentence. The remaining three are Ms Ut Thi Nguyen, Mr Hieu Van Le, and Mr Ngo Van Le. Each was sentenced to imprisonment, the Judge declining in each case to suspend the sentence. Each of them has appealed against the sentence.
The last person charged, Mr Do Thanh Le, has maintained his plea of not guilty, and is to be tried in the District Court on 23 March 2009.
The three appeals against sentence raised two main issues.
The first is whether there is an unjustified disparity between the sentence imposed on Ms Hue Thi Le and Mr Giau Van Le on the one hand, and the three appellants on the other hand.
The second issue, which emerged at the hearing of the appeal as the main issue, is whether the Judge sentenced the appellants on a basis that cannot be supported because it was not advanced by counsel for the Director nor raised by the Judge.
I am satisfied that the Judge did sentence the three appellants on a basis that cannot be supported. The sentences imposed on the appellants must be set aside. The Court should re-sentence the appellants on the factual basis upon which they should have been sentenced by the District Court Judge.
It is not necessary to decide whether there is an unjustified disparity in the sentences of a kind that would require the sentences of the appellants to be set aside. But because the question of parity is relevant to the re-sentencing of the appellants, it is necessary to deal with one aspect of the submissions made on this topic.
Each appellant was granted permission to appeal by a single Judge. Ms Ut Thi Nguyen and Mr Hieu Van Le also sought permission to appeal on grounds on which the single Judge refused permission. Those grounds are either covered by the grounds on which permission was granted, or lack substance. Permission to appeal on those grounds should be refused.
The circumstances of the offences
The offences were committed in June and July 2006.
There were 16 counts in all. Fifteen counts alleged an offence by a single offender, and one count alleged an offence involving four of the offenders.
Mr Giau Van Le and Ms Ut Thi Nguyen are husband and wife. The Judge was told that they had separated, and apparently lived apart, but remained in contact with each other. Mr Hieu Van Le, Mr Ngo Van Le and Ms Hue Thi Le are their children. Ms Hue Thi Le is married to Mr Do Thanh Le.
Most of the offences were committed at a house at Mansfield Park where, I gather, Ms Ut Thi Nguyen lived. Mr Giau Van Le was staying at the house, having recently come out of hospital to recuperate from an operation. I gather that the house belonged to Mr Hieu Van Le, and that he and his family lived there. The other offenders either lived there or were there regularly.
As to the offences committed at the house, on each occasion an undercover police officer went to the house, and in exchange for some cartons of cigarettes was given a small package which, in most cases, contained about 0.01 grams or 0.02 grams of heroin. One or other of the offenders was involved in each transaction.
On some occasions the offences charged were committed at a nearby shopping centre. The same undercover police officer met one or other of the offenders there, and heroin was exchanged for cartons of cigarettes.
The offending is of a kind often described as “street level trading”. The quantity of heroin in each case was small. It was a quantity suitable for consumption rather than for division into smaller quantities and further sale. The payment for the heroin, a payment in kind through the medium of cigarettes, was not substantial.
There is nothing of any substance to distinguish the circumstances of one offence from the circumstances of another.
Although the transactions were “commercial” as the District Court Judge noted, meaning that the heroin was provided in return for payment in kind, the quantity of heroin and the value provided are at the lower end of the scale.
Nevertheless, the offending is of a serious kind. The sale of heroin in small quantities to heroin users is what ultimately sustains the trade in this dangerous substance. The supply and consumption of heroin has serious adverse consequences for Australian society. Although the offending can be regarded as at the lower end of the scale of seriousness, it remains the case that it is offending of a kind that has serious consequences for the Australian community.
It is not necessary to say any more about the circumstances of the offences. Hereafter, I will refer only to the number of offences to which each offender has pleaded guilty.
I propose to summarise the circumstances of each offender, and the sentence imposed.
Each offence attracted a maximum penalty of a fine not exceeding $200,000 or imprisonment for 25 years or both.
Ms Hue Thi Le pleaded guilty to seven counts. She pleaded guilty on arraignment. The offences were committed between 5 June 2006 and 29 June 2006. She was 29 years old when sentenced. She came from Vietnam to Australia as a refugee in 1995, aged about 16. At the time of her sentencing, she and her husband Mr Do Thanh Le had two children and she was pregnant with a third. A report from a psychologist was tendered before the Judge. The Judge appears to have accepted the findings of the psychologist. Significantly, the findings included a finding that she had “significant intellectual limitations” and functioned at the “mental retardation” range. The psychologist said that she was a person who could be “easily manipulated”. She was unable to read or write. She was not a drug user.
The Judge sentenced her on the basis that she committed the offences to help her mother pay some large debts to unnamed persons who had made threats against her mother in relation to the debts. She had no relevant previous convictions.
The finding that Ms Hue Thi Le offended to help her mother repay debts was made on material put before the sentencing Judge, the other defendants not being involved in the sentencing proceedings.
The Judge sentenced Ms Hue Thi Le to imprisonment for five years. He fixed a non-parole period of three years. He decided to suspend the sentence. He was influenced by the early guilty plea, the lack of prior convictions and:
…the fact that you were only a minor player in the overall trading operation at Mansfield Park, your illiteracy and unfamiliarity with English, the probability that you will cope badly within a gaol environment, the probable impact upon your husband, your young children and your unborn child, and a very real probability that you were manipulated into these offences by your mother and other members of your family.
As will appear, the sentence became a complicating factor when his Honour came to deal with the other offenders. First, there was the finding that other family members had manipulated Ms Hue Thi Le. That was a matter not pursued when the other family members came to be sentenced. The Director at no stage put that submission, having no basis to do so. Second, there was the problem of parity or potential disparity created by the suspended sentence.
I can understand the District Court Judge thinking that he should proceed to sentence Ms Hue Thi Le, once she pleaded guilty. She entered her plea on 18 June 2007. At that stage, the trial of the other defendants was likely to be about one year later. Her personal circumstances supported a decision to sentence her without waiting for the finalisation of the proceedings against the other defendants. But difficulties have arisen from the course that the Judge took. Moreover, delays in the sentencing submissions meant that when the Judge sentenced her (10 April 2008) the trial of the other defendants was only about four months off.
Ms Ut Thi Nguyen pleaded guilty in due course to three counts. She was 53 years of age. She came from Vietnam to Australia in 1995 to join her husband and two sons. She had six children in all, and the Judge sentenced her on the basis that she had spent most of her life raising and caring for her children. The Director had not accepted that Ms Ut Thi Nguyen was the prime mover in this offending when Ms Hue Thi Le was sentenced, and consistently with that approach, did not argue when Ms Ut Thi Nguyen was sentenced that she was the prime mover. The Judge accepted that she was experiencing some financial difficulties, was estranged from her husband, and was coping with the drug addiction of at least two of her children. She had some health problems as well.
Counsel for the Director was put in an awkward position in the sentencing proceedings involving the appellants. The Director had opposed a suspended sentence for Ms Hue Thi Le, arguing that she had pleaded guilty to more counts than any other offender faced. Nevertheless, in light of the Judge’s decision to suspend her sentence, counsel for the Director accepted that, bearing in mind that the remaining offenders were each facing a lesser number of charges, it was open to his Honour as a matter of consistency to suspend any sentence of imprisonment imposed on the remaining offenders.
In his sentencing remarks the Judge made it clear that he did not consider that he was bound to suspend the sentences of the remaining offenders, or that his approach to sentence should be “governed” by the sentence imposed on Ms Hue Thi Le.
Returning to the circumstances of Ms Ut Thi Nguyen, the Judge noted that she was not addicted to heroin, but had profited from the transactions, although he had no means of knowing to what extent.
The Judge sentenced her to imprisonment for three years five months. But for the plea of guilty, the sentence would have been four years’ imprisonment. He set a non-parole period of two years three months.
He was not persuaded that he should suspend the sentence, even though he accepted that her personal circumstances were “compelling”, and could “excite considerable sympathy”.
Mr Giau Van Le pleaded guilty to three counts. He was 55 years of age. He had been sent to a “re-education camp” after the end of the Vietnam War, and suffered from that experience. He came to Australia as a refugee in 1993. As mentioned earlier, he was separated from Ms Ut Thi Nguyen, but maintained a good relationship with her and helped support his children. From about 2005 he had been unable to work, having regard to his state of health. At the time of the offending, he had just come out of hospital and was staying at his son’s house. The Judge accepted that he received no financial benefit from the three offences in which he was involved. He appears to have been sentenced on the basis that he “helped out” with transactions that mainly involved other family members living in the house. He had no history of drug offences, and committed the offences because he felt pressure from within his family to participate. On that basis, his offending was of a relatively low level of seriousness.
The Judge sentenced him to imprisonment for two years six months. But for the plea of guilty he would have imprisoned him for three years. The Judge fixed a non-parole period of one year eight months.
The Judge decided to suspend the sentence. He was influenced by Mr Giau Van Le’s personal circumstances, his dependency on his wife and children for accommodation, his “relatively passive involvement” in the offending, the fact that he did not make any profit and the absence of any previous convictions.
Mr Hieu Van Le was 29 years of age. He came to Australia as a refugee in 1993 with his father. He attended school for a time, and since that time had worked as a market gardener, as a fruit picker and in a factory. He had been addicted to heroin for a long time, but when sentenced was participating in a methadone program aimed at ending that addiction. Urine testing established that he had not taken heroin for over a year. He was married with one daughter. His wife was dependent upon him. The Judge noted that he had been diagnosed as suffering from schizophrenia and depression. He had experienced auditory hallucinations and psychotic episodes. He suffered from a back condition that limited his ability to work.
Mr Hieu Van Le had a number of convictions for traffic offences, but also convictions for offences of dishonesty and a number of convictions for forging a prescription to obtain drugs. He had had the benefit of a suspended sentence in 2002.
On 19 September 2007 Mr Hieu Van Le had come before another Judge of the District Court having pleaded guilty to a charge of possessing heroin for sale. The offence was committed on 31 October 2005. The Judge had sentenced him to imprisonment for 12 months, but suspended that sentence on condition that he enter into a bond to be of good behaviour for a period of two years, with conditions directed to ensuring that he receive treatment for his drug addiction.
In submissions before the sentencing Judge, counsel for the Director quite properly accepted that the circumstance that after the suspended sentence in September 2007 Mr Hieu Van Le had complied with the terms of the bond and had successfully undertaken treatment for his drug addiction, was a factor supporting a decision to suspend any sentence of imprisonment imposed on him.
The Judge sentenced him to imprisonment for one year eight months. But for the plea of guilty the sentence would have been two years’ imprisonment. The Judge fixed a non-parole period of one year one month. The Judge noted that Mr Hieu Van Le profited from the offences to an extent that the Judge was not able to determine.
The Judge declined to suspend the sentence, notwithstanding the circumstance that Mr Hieu Van Le had pleaded guilty to only one count, and notwithstanding his response to the suspended sentence imposed in September 2007.
Finally I come to Mr Ngo Van Le. He pleaded guilty to three counts. He was 32 years of age at the time that he was sentenced. He was addicted to heroin at the time of the offences. He also profited from the offences to an unknown extent. He came from Vietnam to Australia in 1995 when he was 19 years of age. For about eight years he maintained employment. He became addicted to heroin in about 2003. He had no previous convictions for drug related offences. He was married with one daughter. He was involved in a methadone program, and had remained drug free for about two years, and had maintained casual employment.
The Judge sentenced him to imprisonment for three years four months, but for the plea of guilty the sentence would have been four years’ imprisonment. He fixed a non-parole period of two years two months. He declined to suspend the sentence.
Submissions on appeal
The Judge sentenced each of the four offenders on the basis that their offending was “commercial” in nature. That was correct. The heroin was exchanged for cartons of cigarettes. There was no suggestion that the heroin was being provided for no reward.
But the Judge sentenced the four offenders on the basis that:
The offences were representative of a course of conduct and there was obviously an established pattern for your dealing in heroin.
In that respect, in the circumstances, the Judge was in error.
It is apparent that the Judge sentenced the four offenders on the basis that the offences were not the only offences that they had committed, and on the basis that before their offending was detected they had engaged in offending conduct of the same kind. If that was a proper basis on which to sentence, it was not open to the Judge to increase the sentence that would otherwise be imposed for the offences. However, the Judge could deny the offenders the reduction in the sentence, or the benefit of the mitigating circumstance, attributable to the fact that the offences were the only occasion on which they had transgressed the law. It is well established, and there is no need to cite authority for it, that an offender whose offences are the only instance of offending may receive a lesser sentence than an offender who is convicted of the same number of offences, but in relation to whom it cannot be said that the convictions represent the offender’s only incursion into criminal conduct.

The difficulty in the present case is that although the circumstances of the offending might have supported what the Judge said, counsel for the Director did not submit that the Judge should sentence on that basis. Consequently, no submissions were made on the point by counsel for the offenders.
Nor did the Judge raise the point in the course of sentencing submissions. It was open to the Judge to do so, even though counsel for the Director did not. Perhaps the Judge thought the point was self evident. But if an offender is to be denied the benefit of what would otherwise be a mitigating circumstance, the basis for doing so should be raised by counsel for the Director or by the Judge, and the offender should be given the opportunity to put the offender’s case on the point.
Moreover, when the circumstances of the case are examined more closely a further difficulty emerges. For example, Mr Giau Van Le was sentenced on the basis that his involvement in the offending was “passive” while he was staying at the house and convalescing after his operation. It is by no means evident that an inference should be drawn that he had participated in the sale of heroin on occasions other than the three occasions charged. Mr Hieu Van Le pleaded guilty to one count only. Once again, when the evidence is considered more closely, it is by no means apparent that it is right to draw the inference that there were other occasions on which he participated in the sale of heroin. Not enough is known about the comings and goings from the house, and about the movements of the offenders, for one to conclude that each of them had engaged in like offending conduct on other occasions. It is one thing to say that one or more persons were engaged in a course of dealing in heroin from the house, but another thing to come to a conclusion, to the required degree of satisfaction, that a particular offender had participated in the sale of heroin on other occasions.
Had the point been raised in the course of submissions, it could have been addressed by all parties, and evidence might have been given on the issue. The matter could have been resolved satisfactorily, one way or the other. As the matter was not raised in the course of submissions, and as it cannot be said that the evidence was so strong that the Judge’s conclusion was an inevitable conclusion, it follows that the appellants were sentenced on a basis that cannot be justified.
In my opinion, for this reason, the sentencing process has miscarried.
For this reason the appellants’ sentences must be set aside.
It is not necessary to deal with the argument that the disparity between the suspended sentences of Ms Hue Thi Le and Mr Giau Van Le on the one hand, and the unsuspended sentences of Ms Ut Thi Nguyen, Mr Ngo Van Le and Mr Hieu Van Le on the other hand is an unjustified or unwarranted disparity requiring this Court to intervene.
But because the question of parity must be considered by this Court in re‑sentencing the offenders, there is one aspect of the submissions on this point that should be dealt with.
The Judge said that when deciding whether “good reason” to suspend the sentence existed for the purposes of s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), the personal circumstances of the offenders were important. That was correct. But he added that a decision whether or not to suspend the sentence in a given case would not be influenced by the sentence imposed on Ms Hue Thi Le. His words were that the decision whether or not to suspend:
… will not have been influenced by what happened in [Ms Hue] Thi Le’s case.
In that respect the Judge erred.
It is true that in The Queen v Wilton (1981) 28 SASR 362 at 367, King CJ said:
Having determined the length of the sentences, the learned Judge ought to have applied his mind to the offenders individually and ought to have considered in relation to each offender whether he was of opinion that, having regard to the matters mentioned in the section or any of them, it was expedient to suspend the sentence. In that latter process considerations of disparity have no part.
But that statement by King CJ was made at a time when the power to suspend a sentence of imprisonment was found in s 4(2a) of the Offenders Probation Act 1913 (SA). That section provided:
(2a) Where a person has been convicted of an offence punishable by imprisonment, and the court is of opinion that, having regard to -
(a)     the character, antecedents, age, health or mental condition of the person convicted;
(b)     the trivial nature of the offence; or
(c)     any other extenuating circumstances,
it is expedient to exercise the powers conferred upon the court by this subsection, the court may impose a sentence of imprisonment upon the convicted person but suspend the sentence upon condition that the convicted person enters into, and observes the terms and conditions of, a recognizance to be of good behaviour for the term of the recognizance.
The power to suspend a sentence of imprisonment is now found in s 38 of the Act. The power is enlivened if the Court is satisfied that there is “good reason” to suspend the sentence. That power requires the Court to consider a broader range of matters than was the case under the former law. Indeed, in principle there is no limit to the matters that might be relevant to the decision, as long as they have a material bearing on the question whether the sentence should be suspended.
There is no reason why considerations of parity could not influence a decision whether or not there is good reason to suspend a sentence. It is wrong to say that such considerations are not relevant at all, as the District Court Judge in effect said: see Wakely v Police [2003] SASC 295; (2003) 229 LSJS 327 at [34]-[38]; R v Huggett [2005] SASC 236 at [32]; R v Whiting (No 2) [2005] SASC 351 at [47].
However, I agree that it will only be in an unusual case that considerations of parity would affect the ultimate decision under s 38. A conclusion that there is good reason to suspend the sentence is one that is determined by the circumstances of the offence and, in particular, the circumstances of the offender. If those circumstances do not lead to a conclusion that there is good reason to suspend a sentence, considerations of parity are unlikely to do so. But there could be a case in which considerations of parity would be influential: see R v Huggett at [32]. It is necessary to take considerations of parity into account when re-sentencing the offenders.
Re-sentencing
The offending conduct is serious. As I have already said, the unlawful trade in drugs is a serious social evil. So called “street trading” is the foundation on which the trade rests. The fact that each offence involved only a small quantity of heroin distinguishes these offenders from those who deal with large quantities. But because “street trading” is the foundation on which the unlawful trade in drugs rests, it is a serious social evil, and courts must impose severe punishment on those who engage in this trade. I refer to what I said on this topic in R v Mangelsdorf (1995) 66 SASR 60.
Each appellant is to be re-sentenced for that number of offences to which the appellant pleaded guilty. In the circumstances the offence or offences to which the respective appellants pleaded guilty are to be treated as the only instances of offending conduct by each appellant. But each offence remains a commercial transaction, because value was given for the heroin.
When considering the sentence that is appropriate, it is necessary to bear in mind that many (probably most) cases involving street trading have been cases in which the offender was sentenced on the basis that the offences before the Court were not isolated acts, but were part of a wider pattern of dealing with drugs. In this respect the offences by the appellants are less serious than those of many other street traders who have come before the Court. This is a significant point of distinction.
Considerations of parity of treatment may need to be considered in relation to the head sentence, the non-parole period and in relation to the question of whether there is good reason to suspend the sentences of imprisonment that must inevitably be imposed. As will appear, when considering the question of whether there is good reason to suspend the sentences of imprisonment, the fact that such an order was made in relation to the sentences imposed on Ms Hue Thi Le and Mr Giau Van Le is a factor. The principle that offenders whose offences and circumstances are the same should receive the same or similar treatment does not require this Court to impose a lesser sentence than would otherwise be appropriate, with a view to ensuring parity as between all of the offenders. But it is appropriate for the Court to consider whether there is a disparity between the sentence imposed on one or more of the offenders and those imposed on other offenders that cannot be justified by reference to the circumstances of the offences or of the offenders in question, and whether that disparity calls for some adjustment to be made to the sentence that would otherwise have been imposed. I refer to the summary of the relevant principles to be found in the reasons of King CJ in The Queen v MacGowan (1986) 42 SASR 580 at 582-583, and in my reasons in Wakely v Police at [34]-[36].
I turn to the circumstances of the individual appellants.
Ms Ut Thi Nguyen has no prior convictions, a factor in her favour. But she traded in heroin with a view to gain, because she needed money to pay debts. Her personal circumstances support a merciful approach. I should record that in arriving at the sentence to be imposed on her, I do not find that she manipulated or persuaded the other offenders to offend. No submission to that effect was made to the District Court Judge.
I would sentence Ms Ut Thi Nguyen to imprisonment for three years, reduced from three years four months on account of the relatively late plea of guilty. I would fix a non-parole period of two years.
Mr Ngo Van Le is about 32 years of age. He is making good progress in curing himself of his addiction to heroin. He has a wife and children. He has no relevant previous convictions. He profited from the offences. Apart from his addiction, which is not a significant mitigating factor, his offences and his circumstances are not materially different from those of his mother. I would sentence him to imprisonment for three years, and would fix a non-parole period of two years.
Mr Hieu Van Le is about 29 years of age. He also was addicted to heroin, and he also has been making good progress in curing himself from the addiction since he received the benefit of a suspended sentence in September 2007. He has pleaded guilty to only one offence, but on the other hand his record of offending means that I cannot give him credit for previous good character. In the circumstances, I would sentence him to imprisonment for one year six months, reduced from one year nine months on account of the late plea of guilty. I would fix a non-parole period of one year three months.
Although I have been mindful of the sentences imposed on Ms Hue Thi Le and Mr Giau Van Le, I have not fixed the above sentences and non-parole periods by reference to their sentences. Having arrived at what I consider to be an appropriate sentence for each of the appellants, I see no need to alter those sentences having regard to considerations of parity. Any differences are attributable to the circumstances of the particular offender or, in my opinion, are not sufficient to warrant reducing what I consider to be an appropriate sentence in each case.
I turn to the question of whether there is good reason to suspend any of these sentences.
I again remind myself that each of the appellants is to be dealt with on the basis that their respective offences are isolated instances of offending. Each of them has served almost five months’ imprisonment. I will adjust the sentences to allow for that in due course.
I consider that there is good reason to suspend the sentence imposed on Mr Hieu Van Le. I am influenced by the circumstance that he pleaded guilty to one offence only, and by the circumstance that he is making good progress towards rehabilitating himself, despite his rather poor record. I would order that his sentence of imprisonment be suspended upon him entering into a bond in the sum of $1,000 to be of good behaviour for a period of two years.
The cases of Ms Ut Thi Nguyen and Mr Ngo Van Le are more difficult. Each has pleaded guilty to three offences. But neither of them has any prior convictions. Mr Ngo Van Le is making good progress towards curing his addiction. There are personal circumstances supporting a conclusion that there is good reason to suspend the sentence that I would impose on each of them. As against that I must bear in mind that it will only be in exceptional circumstances that suspension of a sentence of imprisonment for trading in heroin could be supported. In the end, I am satisfied that considerations of parity of treatment as between these two appellants and Ms Hue Thi Le and Mr Giau Van Le support a conclusion that there is good reason to suspend their sentences also. I do not consider, in all the circumstances, that the public interest requires that considerations of parity be put to one side, and that the heavier (because unsuspended) sentence be allowed to stand: see MacGowan at 583. But for that matter, it is likely that I would have refused to suspend their sentences. This is an exceptional case. In each case I would order that their sentences of imprisonment be suspended upon each of them entering into a bond in the sum of $1,000 to be of good behaviour for a period of three years.
I should say, by way of further explanation, that while I recognise the force of the personal circumstances of Ms Hue Thi Le, I have substantial reservations about the appropriateness of suspending a sentence of five years’ imprisonment, resulting from seven convictions for dealing in heroin. Equally, although I recognise that the personal circumstances of Mr Giau Van Le provided stronger support for a conclusion that his sentence should be suspended, I have reservations about the appropriateness of that decision as well. It is appropriate to say that the decision to suspend the sentences of Ms Hue Thi Le and Mr Giau Van Le should be regarded as exceptional, and not as representing a standard of punishment that is appropriate.
I do not know what would have been the outcome had all offenders been dealt with at the same time, and if the District Court Judge had been in a position to grapple satisfactorily with the question of who, if anyone, was the organiser or prime mover in the offending, and with the question of whether the offences should be treated as isolated acts or as part of an ongoing pattern of dealing in drugs. As I have already mentioned, the end result of these proceedings illustrates the desirability of avoiding a situation in which offenders whose cases are linked are dealt with separately.
Conclusion
I would refuse permission to appeal on the proposed additional grounds of appeal.
I would allow each appeal. In each case, I would set aside the sentence imposed by the District Court.
In arriving at the following sentences, I have made a reduction of five months in each case, to allow for the time already served.
I would sentence Ms Ut Thi Nguyen to imprisonment for two years seven months. I would fix a non-parole period of one year seven months, and I would order that that sentence of imprisonment be suspended upon her entering into a bond in the sum of $1,000 to be of good behaviour for three years.
I would sentence Mr Ngo Van Le to imprisonment for two years seven months. I would fix a non-parole of one year seven months and would order that that sentence of imprisonment be suspended upon him entering into a bond in the sum of $1,000 to be of good behaviour for a period of three years.
I would sentence Mr Hieu Van Le to imprisonment for a period of one year one month. I would fix a non-parole period of 10 months. I would order that that sentence of imprisonment be suspended upon him entering into a bond in the sum of $1,000 to be of good behaviour for a period of two years.
SULAN J: I would allow the appeal of each appellant. I agree with the reasons of the Chief Justice and his orders that the sentences be set aside. I agree with the sentences to be imposed.
DAVID J: I would allow each appeal. With regard to re‑sentencing, I agree with the sentences imposed by the Chief Justice for the reasons that he has given.
I wish to add that the sentencing judge in this case found himself in a difficult situation. He understandably concluded that he had to sentence Hue Thi Le before sentencing the other offenders. She had pleaded guilty on arraignment. It would be unfair to delay the sentencing of Hue Thi Li until the trial and conviction of the other offenders, who had pleaded not guilty on arraignment. Consequently the sentencing judge was placed at the great disadvantage of not being able to sentence all offenders at once. I agree with the Chief Justice that every effort should be made by sentencing judges to deal with joint offenders jointly, but on occasions, such as the present, that is almost impossible to achieve. That being so, I also agree with the Chief Justice that considerations of parity may influence a decision whether or not to suspend a sentence. However, I am also of the view that if it were open to suggestion that there was some form of arrangement between the offenders whereby one would plead early and the others would plead at later stages to gain a tactical advantage, then considerations of parity would play a lesser role in the decision whether or not to suspend a sentence, if indeed any role at all. However, there is no suggestion that this was the case here.