R v Nguyen; R v Pham - [2010] NSWCCA 238

No judgment structure available for this case.

Reported Decision: 205 A Crim R 106

New South Wales

Court of Criminal Appeal

CITATION: R v Nguyen; R v Pham [2010] NSWCCA 238

HEARING DATE(S): 13 May 2010; final written submissions - 5 October 2010

JUDGMENT DATE:
22 October 2010

JUDGMENT OF: Macfarlan JA at 1; Johnson J at 2; RA Hulme J at 137

DECISION: Hai Van Nguyen: (a) Crown appeal allowed; (b) sentences imposed by his Honour Judge Walmsley SC in the Sydney District Court on 6 November 2009 set aside; (c) in their place:
(i) for the offence of importing a commercial quantity of a border controlled drug, cocaine, taking into account the offences on the schedule under s.16BA Crimes Act 1914 (Cth), Mr Nguyen is sentenced to imprisonment for a term of 16 years commencing on 19 May 2008 and expiring on 18 May 2024;
(ii) for the offence of importing a commercial quantity of a border controlled drug, methamphetamine, Mr Nguyen is sentenced to imprisonment for a term of 16 years commencing on 19 May 2010 and expiring on 18 May 2026;
A non-parole period is fixed of 12 years commencing on 19 May 2008 and expiring on 18 May 2020.
Phuong Thu Thi Pham: (a) Crown appeal allowed; (b) sentence imposed by his Honour Judge Berman SC in the Sydney District Court on 10 December 2009 set aside; (c) in its place, taking into account the offence on the schedule under s.16BA Crimes Act 1914 (Cth), Ms Pham is sentenced to imprisonment for a term of 15 years commencing on 19 May 2008 and expiring on 18 May 2023, with a non-parole period of 10 years commencing on 19 May 2008 and expiring on 18 May 2018.

CATCHWORDS: CRIMINAL LAW - sentence - Crown appeals - one offender pleads guilty to importing commercial quantities of cocaine and methamphetamine - second offender pleads guilty to attempted possession of commercial quantity of unlawfully imported cocaine with a similar offence concerning methamphetamine to be taken into account on sentence under s.16BA Crimes Act 1914 (Cth) - claim by Crown that sentences manifestly inadequate - assessment of roles of offenders - assessment of objective gravity of offences - held that sentences manifestly inadequate - no discretionary reasons why Court should not intervene - offenders resentenced

LEGISLATION CITED: Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)
Crimes (Appeal and Review) Act 2001
Judiciary Act 1903 (Cth)
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Jimmy v R [2010] NSWCCA 60; 240 FLR 27
R v Pham [2009] NSWDC 362
Everett v The Queen [1994] HCA 49; 181 CLR 295
R v Wall [2002] NSWCCA 42; 71 NSWLR 692
R v Lee [2007] NSWCCA 234
House v The King [1936] HCA 40; 55 CLR 499
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340
R v Bezan [2004] NSWCCA 342; 147 A Crim R 430
R v SC [2008] NSWCCA 29
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
R v Radloff (1996) 88 A Crim R 26
R v El Hassan [2003] NSWCCA 139
Adams v The Queen [2008] HCA 15; 234 CLR 143
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80
Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433
R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271
R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300
R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531
R v Pang [1999] NSWCCA 4; 105 A Crim R 474
R v Barrientos [1999] NSWCCA 1
R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451
Okafor v R [2007] NSWCCA 147
Onuorah v R [2009] NSWCCA 238; 234 FLR 377
Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Taru [2002] NSWCCA 391
R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63
R v Chea [2008] NSWCCA 78
Attorney General’s Application Under Section 37 Crimes (Sentencing Procedure) Act 1991 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
R v Poynder [2007] NSWCCA 157; 171 A Crim R 544
Assafari v R [2007] NSWCCA 159
R v Todoroski [2010] NSWCCA 75
R v Hamieh [2010] NSWCCA 189
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v JW [2010] NSWCCA 49
R v Carroll [2010] NSWCCA 55; 239 FLR 11
R v Hersi [2010] NSWCCA 57
R v Dinh [2010] NSWCCA 74
R v MA [2004] NSWCCA 92; 145 A Crim R 434

PARTIES: Regina (Applicant)
Hai Van Nguyen (Respondent)
Phuong Thu Thi Pham (Respondent)

FILE NUMBER(S): CCA 2008/19619 (Nguyen); 2009/1888 (Pham)

COUNSEL: Mr G Farmer (Applicant)
Ms C Loukas (Respondent Nguyen)
Ms C Nash; Mr D Kang (Respondent Pham)

SOLICITORS: Commonwealth Director of Public Prosecutions (Applicant)
Legal Aid NSW (Respondent Nguyen)
Ford Criminal Lawyers (Respondent Pham)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1303 (Nguyen); 2009/11/0062 (Pham)

LOWER COURT JUDICIAL OFFICER: Judge Walmsley SC (Nguyen); Judge Berman SC (Pham)

LOWER COURT DATE OF DECISION: 6 November 2009 (Nguyen); 10 December 2009 (Pham)

LOWER COURT MEDIUM NEUTRAL CITATION: R v Pham [2009] NSWDC 362

2008/19619
2009/1888

MACFARLAN JA
JOHNSON J
RA HULME J
22 October 2010

R v HAI VAN NGUYEN

R v PHUONG THU THI PHAM

Judgment

1 MACFARLAN JA: I agree with Johnson J.

2 JOHNSON J: These are Crown appeals under s.5D Criminal Appeal Act 1912 with respect to sentences imposed upon two offenders for very serious drug offences under the Criminal Code Act 1995 (Cth).

3 Although the Respondents, Hai Van Nguyen and Phuong Thu Thi Pham, are co-offenders (and cousins), in circumstances to be mentioned shortly, they came to be sentenced before different Judges of the District Court on different days.

The Sentences

4 On 6 November 2009, Mr Nguyen was sentenced by his Honour Judge Walmsley SC for the following offences to which he had pleaded guilty:

(a) Count 1 - on or about 2 May 2008 at Sydney, import a commercial quantity of a border controlled drug, cocaine, contrary to s.307.1(1) Criminal Code Act 1995 (Cth) , punishable by a maximum penalty of imprisonment for life - sentenced to imprisonment for 14 years commencing on 19 November 2008 and expiring on 18 November 2022, with a non-parole period of nine years expiring on 18 November 2017;

Criminal Code Act 1995 (Cth)

5 In sentencing Mr Nguyen on the first count, the sentencing Judge took into account two offences for the purposes of s.16BA Crimes Act 1914 (Cth), both committed on 19 May 2008, of attempting to possess a commercial quantity of unlawfully imported border controlled drugs, respectively cocaine and methamphetamine, contrary to s.307.5(1) Criminal Code Act 1995 (Cth). When prosecuted as substantive charges, the maximum penalty for these offences was imprisonment for life.

6 Mr Nguyen was sentenced to a total effective head sentence of 14 years and six months, including a non-parole period of nine years and six months.

7 On 10 December 2009, Ms Pham was sentenced by his Honour Judge Berman SC following a plea of guilty to a charge of, on 19 May 2008 at Sydney, attempting to possess a commercial quantity of an unlawfully imported border controlled drug, cocaine, contrary to s.307.5(1) Criminal Code Act 1995 (Cth), an offence punishable by a maximum penalty of imprisonment for life. His Honour was asked to take into account, for the purposes of s.16BA Crimes Act 1914 (Cth), an offence on 19 May 2008 of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, methamphetamine, contrary to s.307.5(1) Criminal Code Act 1995 (Cth) (an offence also punishable by a maximum penalty of imprisonment for life).

8 Ms Pham was sentenced to imprisonment for a term of 11 years commencing 19 May 2008 and expiring on 18 May 2019, with a non-parole period of seven years expiring on 18 May 2015.

The Hearing of the Appeals

9 As the Respondents are co-offenders, the Crown appeals were heard together.

10 The written submissions of Ms Loukas, counsel for Mr Nguyen, raised a question concerning the constitutional validity of s.68A Crimes (Appeal and Review) Act 2001 in its application to the determination of Crown appeals for offences against the Criminal Code Act 1995 (Cth) and the Crimes Act 1914 (Cth). As notices under s.78B Judiciary Act 1903 (Cth) had not been given, the parties agreed that the Court should make an order severing that question from other issues in the appeals, and such an order was made. The initial question for the Court is whether the Crown has established error with respect to the sentences imposed upon the Respondents. The effect of the order made on 13 May 2010 was that the Court was in a position to continue to hear argument concerning these issues which do not raise a constitutional question: s.78B(2)(c) Judiciary Act 1903 (Cth).

11 A five-member Bench of this Court in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 had reserved judgment on similar constitutional arguments concerning the application of s.68A Crimes (Appeal and Review) Act 2001 to federal offences.

12 Following the giving of judgment, on 17 September 2010, in Director of Public Prosecutions (Cth) v De La Rosa, further submissions were sought from the parties to the present appeals concerning the remaining issues in the appeals. Written submissions were provided by Ms Loukas to which reference will be made later in this judgment. The submissions invited the Court to proceed to determine the appeal in light of the decisions of the majority in Director of Public Prosecutions (Cth) v De La Rosa, and the Court will proceed to do so. The Crown provided further submissions, which touched upon the s.68A issue and discretionary considerations, as well as submissions concerning the case analysis in Director of Public Prosecutions (Cth) v De La Rosa. Ms Nash, counsel for Ms Pham, provided submissions in reply to the Crown submissions.

Separate Sentencing Hearings Before Different Judges

13 Before embarking upon the substance of the appeals, it is appropriate to observe that these cases illustrate the strong desirability of sentencing proceedings concerning co-offenders going ahead before the same Judge, and preferably at the same time.

14 Separate hearings resulted before different Judges because application for an adjournment was made on 16 October 2009 by counsel for Ms Pham. It seems that Ms Pham had been interviewed without the assistance of an interpreter, by a Probation and Parole Officer for the purpose of a presentence report, and had traversed her plea. His Honour Judge Walmsley SC made clear that he would not be available to preside at the sentencing hearing concerning Ms Pham then fixed for 10 December 2009. Counsel for Mr Nguyen wished to proceed on 16 October 2009 and the Crown did not oppose this course. The sentencing hearing concerning Mr Nguyen proceeded before his Honour that day.

15 At the sentencing hearing concerning Mr Nguyen on 16 October 2009, his counsel tendered certain documents, including statements of Canadian police officers which were said to shed light upon the role of Mr Nguyen in the overall criminal enterprise surrounding the importations (Nguyen AB16, 105-138). Counsel for Mr Nguyen sought to rely upon some of this material, which referred to meetings between a principal in the enterprise and Ms Pham in Toronto on 2 April 2008 in support of an argument that Ms Pham, a Canadian national, had met the principal, described as an “organised crime figure”, and that this could be contrasted with Mr Nguyen who was described as being “very much a cog in a larger organisation” (Nguyen AB16). Mr Nguyen did not give evidence at the sentencing hearing.

16 His Honour Judge Walmsley SC sentenced Mr Nguyen on 6 November 2009. On 2 December 2009, the Commonwealth Director of Public Prosecutions gave notice of appeal (filed on 4 December 2009) under s.5D Criminal Appeal Act 1912 asserting that the sentences imposed upon Mr Nguyen were manifestly inadequate.

17 The sentencing hearing concerning Ms Pham proceeded before his Honour Judge Berman SC on 10 December 2009, with his Honour proceeding to sentence that day in an ex tempore decision. His Honour was informed that a Crown appeal had been filed with respect to the sentences imposed upon Mr Nguyen (Pham AB36). The Crown did not seek an adjournment of the sentencing proceedings concerning Ms Pham.

18 At the sentencing hearing concerning Ms Pham on 10 December 2009, counsel for Ms Pham did not initially call her client to give evidence. However, after some discussion between the presiding Judge and counsel concerning the absence of evidence with respect to a number of subjective matters referred to in defence counsel’s written submissions, counsel elected to call Ms Pham to give evidence (Pham AB22-30). In the course of her evidence, Ms Pham appeared to deflect questions, or answer them in a manner which seemed to minimise the role she had played in the offences, compared with that of Mr Nguyen. This led to the Crown Prosecutor, in cross-examination, putting to Ms Pham that she was “just trying to blame your cousin to minimise your own role”, a proposition denied by Ms Pham (Pham AB27.22).

19 The practical consequences of the separation of the proceedings included the making of submissions by counsel for the co-offenders that the other offender had, in some respects, played a more significant part in the enterprise. It was left to the two sentencing Judges, following separate hearings, to make findings upon the basis of the evidence before that Judge.

20 It is, at the least, highly desirable that co-offenders appear for sentence before the same Judge, preferably at the same time. This is especially so when submissions may be made on behalf of one offender which seek to compare and contrast the role of that offender as against the co-offender, as an issue bearing upon an assessment of the objective seriousness of the relevant offences.

21 These observations are not intended to serve as criticism of the sentencing Judges in these cases. Their Honours proceeded to hear and determine the matters on the appointed hearing dates. Counsel for the relevant parties did not urge the Court to proceed only by way of a joint hearing of the sentencing proceedings before the same Judge.

22 It was noted by the Crown Prosecutor on 10 December 2009, at the hearing before his Honour Judge Berman SC, that Mr Nguyen and Ms Pham were to be sentenced for different offences, albeit arising from the same series of related events so that this was “not a case where there is an issue really about parity” (Pham AB36.8).

23 The application of the parity principle (or analogous concepts), where co-offenders are being sentenced for different offences, has been considered recently by this Court: Jimmy v R [2010] NSWCCA 60; 240 FLR 27. Howie J, at 85 [246], observed that a principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who had been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. However, Howie J agreed that this principle was subject to the limits stated by Campbell JA in that case at 77-78 [203], where his Honour observed that limits on the use of the parity principle in such a case included the following:

(a) it cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them;

(b) if it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties; those practical difficulties become greater as the difference between the crimes charged becomes greater, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy;

(c) it cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low;

24 Mr Nguyen and Ms Pham are now before this Court by way of Crown appeals. If the appeals are made good, it will be a matter for this Court to sentence each of the Respondents. It will be appropriate to consider the principles referred to at [23] in the context of these appeals. The history of the sentencing proceedings of the Respondents adds a layer of complexity before this Court. All of this serves to underline the desirability of offenders in the position of Mr Nguyen and Ms Pham being dealt with by the same Judge following a single sentencing hearing.

Facts of Offences

25 A Statement of Facts was tendered in the sentencing proceedings concerning each of Mr Nguyen and Ms Pham. The Statement of Facts was virtually identical in each case, with the points of difference involving identification of the particular charge or charges against each Respondent. As mentioned earlier, Mr Nguyen did not give evidence at his sentencing hearing, but Ms Pham did at hers.

26 Each sentencing Judge made findings of fact, in varying levels of detail and by reference to the offender to be sentenced by that Judge, in accordance with the evidence tendered in the proceedings. It is appropriate to set out hereunder the relevant facts drawn from the Statement of Facts.

27 Before doing so, it should be noted that the commercial quantity of cocaine for the purpose of these offences is two kilograms of pure cocaine, and the commercial quantity of methamphetamine is .75 kilograms of pure methamphetamine: s.314.4 Criminal Code Act 1995 (Cth).

28 Mr Nguyen was born in Vietnam in 1965 and was 42 years’ old at the time of the offences. He came to Australia in 1982 and has resided here since then.

29 Ms Pham was born in Vietnam in 1976 and was 32 years’ old at the time of the offences. She migrated to Canada in 1993 and resided in Ontario in 2008.

30 The Statement of Facts in each case recited the following events (with letters substituted for telephone numbers):

“1. On 18 September 2007, the Offender Hai Van NGUYEN (NGUYEN), of 10/83 View Road, Springvale South, VIC, obtained an Australian Business Number (ABN) from the Australian Taxation Office (the ATO), to trade as a sole trader under the name ‘Pacific Beauty Supplies’.

2. On the same day, NGUYEN registered the business name ‘Pacific Beauty Supplies’ in Victoria.

3. On 8 October 2007, NGUYEN leased commercial warehouse premises at 163/248 - 264 Osborne Avenue, Clayton South, VIC, for a period of two years, for annual rental fee of $22,000. The lease for the premises, signed by NGUYEN, nominated the use of the premises as ‘warehousing of nail spa units’.

4. On 3 March 2008, NGUYEN registered the further business name ‘Super Pacific Beauty Supplies’ in Victoria.

5. On 10 March 2008, NGUYEN attempted to send a number of facsimiles to telephone number [A] (a number in Toronto Canada). The facsimile listed the full name and address of NGUYEN, the ABN he had received from the ATO, the company address for the warehouse at Clayton South and the fax and telephone numbers for the warehouse.

6. In early April 2008, a Canadian company, based in Toronto, Ontario, named ‘Oceanix Export’ arranged for the consignment by sea freight, from Toronto to Sydney, of goods described in a bill of lading as ‘4 Sets Spa Set Spirit Massage Chair’ (the consignment), on board the vessel ‘Cap Melville’. The consignee of the goods was listed as Super Beauty Supplies of 163/248-263 Osberne (sic) Ave, Chayton (sic) South, Melbum (sic), Australia.

7. The Cap Melville left Toronto on about 6 April [2008] carrying the consignment inside shipping container SUDU6540094 (the shipping container) together with a number of other consignments.

8. From 10 April 2008 onwards, a person, identifying themselves as ‘Vivian’ from ‘Super Pacific Beauty Supplies’, corresponded via e-mail with IPE Logistics (Aust) Pty Ltd, a freight logistics company based in Sydney, to arrange for the Customs clearance and delivery of the consignment. Between 10 April and 14 May 2008 a series of e-mails were sent between IPE and Vivian regarding the arrangements for the clearance and delivery of the goods.

9. The email address used by Vivian to correspond with IPE was identified as [B]. This e-mail address had been set up by NGUYEN in Melbourne on 18 March 2008, under the false name of Ms Hai NGUYEN, born 12 May 1973, of Australia 3171. The signature block for the e-mail correspondence from Vivian listed the consignee details as ‘Super Pacific (sic) Beauty Supplies’ of ‘163/248-263 Osborne Ave, Chayton (sic) South, VIC’ and provided the ABN that NGUYEN had obtained for the business.

10. On 22 April 2008 Vivian e-mailed IPE to request that the consignment be collected from Customs and delivered to the IPE warehouse once it had arrived. Vivian advised in the e-mail that the invoice should include the costs of warehouse storage at IPE for approximately one week.

11. On 23 April 2008, the co-offender Phuong Thu Thi PHAM (PHAM) departed Canada, onboard a Cathay Pacific flight from Toronto to Melbourne. PHAM arrived at Melbourne the next day, 24 April 2008.

12. On 26 April 2008, PHAM and NGUYEN travelled together to Sydney on a Qantas flight from Melbourne.

13. On 28 April Vivian e-mailed IPE to request that an invoice be provided by IPE once the consignment had arrived and to advise that storage would be required for about one week.

14. On 30 April 2008 Vivian e-mailed a Packing List Declaration for the consignment to IPE, in response to a request from IPE. IPE then e-mailed Vivian a Customs Entry document and an invoice in the amount of $1,518.90.

15. On 2 May 2008 the Cap Melville arrived at Port Botany, NSW, Australia.

16. On 5 May 2008, NGUYEN attended the Cabramatta Branch of the Commonwealth Bank of Australia (the CBA) and deposited $1,518.90 into IPE's bank account as payment for the invoiced consignment clearance, storage and delivery costs.

17. On 5 May 2008, Australian Customs Service (ACS) conducted an x-ray examination of the shipping container at the Customs Examination Facility (CEF) at Port Botany, NSW. The x-ray image revealed that there were anomalies within the consignment.

18. ACS Officers then conducted a closer x-ray examination of the eight items that comprised the consignment. Each of the eight items contained goods inside a cardboard box. Three of the cardboard boxes were sealed with clear packing tape and contained foot spas. The remaining five boxes were sealed with blue packing tape and contained a foot spa and four spa massage chairs. The further x-ray examination revealed that three of the foot spas, contained within the items sealed with clear packing tape, appeared to have a number of packages secreted inside their bases.

19. ACS Officers then conducted a physical examination of one of these foot spas. The foot spa had a small cut-out panel towards the bottom side, revealing a false fibreglass base in which a number of packages were concealed. ACS Officers then drilled into the false fibreglass base, removing a white powder with the drill bit. An ACS presumptive test on the white powder resulted in a positive reading for cocaine.

20. On 6 May 2008, Australian Federal Police (AFP) Forensics attended the CEF and examined the consignment. AFP Forensics removed a total of 54 blocks wrapped in black tape from the three foot spas. Some of the blocks contained a white powder substance and others a yellow/white crystalline substance. AFP presumptive tests resulted in positive readings for the presence of cocaine within the white powder and for the presence of methamphetamine within the yellow/white crystalline substance.

21. The total pure weight of cocaine contained in the white powder found within the consignment was 27.1535 kilograms [Count 1 for Nguyen and Pham] . The total pure weight of the methamphetamine contained in the yellow/white crystalline substance found within the consignment 13.04 kilograms [Count 2 for Nguyen; s.16BA schedule offence for Pham].

22. The estimated street value of the cocaine is between $15,516,285 and $24,438,150 and the estimated wholesale value is between $4,582,153 and $5,581,552. The estimated street value of the methamphetamine is between $7,968,400 and $8,150,000 and the estimated wholesale value of the methamphetamine is between $2,607,840 and $5,216,000.

23. On 6 May 2008, IPE received a facsimile copy of the CBA deposit receipt for the payment made to IPE by NGUYEN. Subsequently, on 6 May 2006, Vivian e-mailed IPE seeking confirmation that they had received the facsimile copy of the deposit receipt.

24. Between 7 and 9 May 2008, AFP Forensics conducted a substitution of the cocaine and methamphetamine, removing all narcotic substances from the foot spas and substituting the narcotics with an inert substance. The consignment was then reconstituted and repackaged for delivery.

25. On 8 May 2008, IPE sent an e-mail to Vivian advising that the consignment would be available for delivery on Monday 12 May 2008. On 9 May-2008, IPE received an e-mail from Vivian stating that IPE would be contacted shortly with delivery instructions.

26. On 8 May 2008 a controlled operation certificate was issued authorising the AFP to conduct a controlled delivery of the consignment. As the investigation progressed the AFP subsequently obtained warrants for the interception of certain telephone services and for the installation of listening devices within the consignment and optical surveillance devices outside unit 801 of a self storage premises, ‘Rent a Space’, located at 148 Hume Highway, Lansvale.

27. On 13 May 2008, IPE received another e-mail from Vivian, providing a contact number of [C] , and giving a delivery address for the consignment of 148 Hume Highway, Lansvale, NSW. AFP enquiries established that the contact number of [C] was not a valid Australian telephone number.

28. AFP enquiries with Rent a Space revealed that on 30 April 2008, NGUYEN leased storage unit 801, at the Rent a Space facility in Lansvale, NSW (unit 801). NGUYEN provided Rent a Space with a contact mobile number of [D]. NGUYEN also completed an application for insurance for the goods to be stored in the unit, describing the goods as ‘spa/nail polish equipment beauty salon’.

29. Subsequent enquiries made by the AFP established that on 30 April 2008, NGUYEN commenced renting room 104 at the Lansvale Hotel and Resort, situated at 161 Hume Highway, Lansvale, NSW, (room 104). Between this date and 19 May 2008, NGUYEN, PHAM and another female named Ngan Kieu Thi PHUNG (NGAN), occupied room 104.

30. On 14 May 2008, IPE again e-mailed Vivian requesting a valid contact number. Later that same day, NGUYEN, using the name ‘Tom’, called IPE and provided the contact numbers of [E] and [D] .

31. AFP enquiries revealed that each of these mobile telephone numbers were Optus prepaid services subscribed in false names and with false address details.

32. On 14 May 2008, IPE staff had a further conversation with NGUYEN, using the name 'Tom’, and arranged to deliver the consignment to the Rent a Space, unit on Monday 19 May 2008. It was arranged for the courier to call ‘Tom’ on either [E] or [D] before delivery.

33. Once notification of the proposed delivery date had been provided, PHAM, using mobile number [F] ; sent a text message to the Canadian telephone number [G] to advise that delivery was to occur on the following Monday.

34. On 19 May 2008, PHAM, using mobile number [F] sent and received a series of text messages from a Canadian telephone number, [G] , in the course of which she was requested to go to the bank to make a further payment of $868.00 that day. Subsequently, on 19 May 2008, NGUYEN again attended the Cabramatta Branch of the Commonwealth Bank of Australia and deposited $868.00 into the bank account of IPE as further payment for the clearance, warehousing and delivery costs of the consignment.

35. Subsequently PHAM received a further series of text message [s] from telephone number [G] in which she was asked whether the further money had been paid and was instructed to fax ‘them’ a copy of the deposit receipt. On 19 May 2008 IPE received a facsimile copy of the deposit slip for the deposit of $868.00 paid by NGUYEN into IPE's account.

36. Later on 19 May 2008, the AFP conducted a controlled operation delivery of the consignment. At about 12.22pm that day, an AFP member posing as a delivery driver called NGUYEN, using the name ‘Tom’, on [E] to arrange for the delivery of the consignment.

37. Immediately after this call, at about 12.23pm, NGUYEN-using mobile number [E] telephoned PHAM, on mobile number [H] to advise that the delivery driver had called. NGUYEN told PHAM: ‘I stay over here unloading the stuff and then I'll head back, alright?’

38. About 12.40pm on 19 May 2008, the consignment was delivered to unit 801 at the Rent a Space premises at Lansvale by a member of the AFP. NGUYEN was present to take delivery of the consignment. Between 12.40pm and 12.49pm, NGUYEN, with the assistance of the AFP member and a staff member of Rent a Space, unloaded the consignment into storage unit 801.

39. Shortly after, at about 12.50pm NGUYEN locked unit 801 and departed the premises. A short time later NGUYEN returned to room 104 at the Lansvale Hotel and Resort.

40. After delivery of the consignment to unit 801, PHAM, using mobile number [F] , sent a number of text messages to the Canadian telephone number [G] to confirm that delivery had occurred.

41. At about 1.19pm NGUYEN and PHAM exited room 104 and then departed the Lansvale Resort car park driving a silver Mitsubishi Outlander, bearing NSW registration AQ28YF.

42. AFP enquires revealed that the Mitsubishi Outlander, bearing NSW registration AQ28YF, was hired from Thrifty Car Rental by Thi H LE, born 6 November 1971, on 30 April 2008. NGUYEN was listed as an authorised additional driver of the vehicle.

43. At about 1.28pm PHAM and NGUYEN arrived at storage unit 801 in the silver Mitsubishi Outlander. NGUYEN parked the car nearby and then he and PHAM entered storage unit 801. A short time later, the listening device within the consignment recorded saw-like sounds in storage unit 801 as the pair attempted to break into the bases of the foot spas.

44. At about 1.57pm, PHAM and NGUYEN exited unit 801 and departed the premises in the silver Mitsubishi Outlander, returning to the Lansvale Hotel and Resort. At this time, PHAM returned to room 104 whilst NGUYEN walked away from the car park towards a nearby street.

45. A short time later, at about 2.07pm, NGUYEN entered ‘Ming on Building Supplies’ at 52-56 Chadderton Street, Lansvale, NSW. NGUYEN then purchased a number of tools to be used for the purposes of cutting into the bases of the foot spa and extracting the concealed packages. NGUYEN then returned on foot to the Lansvale Hotel and Resort and placed the tools, carried in a plastic bag, into the rear of the silver Mitsubishi Outlander.

46. About 2.19pm PHAM and NGUYEN again entered the silver Mitsubishi Outlander and departed Lansvale Hotel and Resort and drove back to unit 801 at the Rent a Space premises. On this occasion the vehicle was parked with its rear end partially within the open roller door access way of the unit.

47. A short time later the listening device again recorded loud banging and sawing sounds in storage unit 801 as the pair continued to open the consignment items and cut into the bases of the foot spas. The pair remained within the unit working to break into the foot spas and extract the concealed packages until 3:15pm.

48. During this period, at about 2.26pm NGAN, using mobile number [I] , called PHAM on mobile number [E] and the pair had a conversation in which NGAN passed on details that had earlier been received via text message identifying the particular foot spas to be accessed. NGAN stated: ‘Um two kits, one um one is one has one box and the other one is two boxes, at the bottom of the big box.’ PHAM replied: ‘Okay.’ NGAN stated: ‘Want to reply with anything?’ PHAM instructed: ‘Punch in the word 'okay'.’

49. The listening device within the consignment then recorded PHAM passing on the details to NGUYEN of where they should look within the items for the concealed packages. PHAM stated: ‘Remember the two kits earlier, brother...Two kit, one kit has one box, one kit has two boxes...Can you still remember which one now?’ NGUYEN replied: ‘No, no I can't remember. Open un [sic] and have a look. Maybe this one.’ PHAM further stated: ‘Because before...two kit, now can you just think back and imagine...two kit from the start...Because one kit has two box and one kit has one box. Do you know what I mean...One kit they gave four boxes er three little boxes...Er two um four little boxes and one thingy box...And one kit has two big boxes and two little boxes. You know what I mean?’ Thereafter the listening device recorded more sounds of banging, tearing and moving noises within unit 801.

50. At about 2.31pm on 19 May 2008, NGAN again called PHAM and the pair had a further conversation regarding the instructions previously conveyed by NGAN to PHAM. PHAM asked: ‘What did it say before?’ NGAN replied: ‘Um let me open it up again. Two um two kits, the two kits, you know.’ PHAM stated: ‘Yeah.’ NGAN then stated: ‘One is the box, one is one has one box and the other one is two boxes, at the bottom of the big box.’

51. A short time after this conversation was recorded PHAM again spoke to NGUYEN about where they should be looking within the consignment for the concealed packages and what they should do with the removed packages. PHAM stated: ‘Just chisel it out, you do the sawing and I'll do the chiselling...I was told there are three pieces.’ NGUYEN replied: ‘Is that right?’ PHAM stated: ‘I was told there are three pieces. The other day...’ NGUYEN later asked: ‘You want to leave this one behind?... Too much to pack.’ PHAM replied: ‘No, we'll pick this one tomorrow...do you know what I mean?’ NGUYEN then stated: ‘Shouldn't be doing all at once?...Do you know what I mean? Or we just carry it all in one go?’ PHAM replied: ‘...we can leave it in the box....We can leave the...at the hotel but you can't leave this one there...have to count them when we're back at the hotel...got to count again to make sure.’ PHAM was then heard counting out loud to twenty two and then stated: ‘So twenty two and fifteen what is that?’ NGUYEN replied: ‘Thirty seven.’

52. By 3.15pm, PHAM and NGUYEN had finished cutting into two of the foot spas bases and had managed to remove a number of the concealed packages containing the substituted inert substance. The pair then packed up their vehicle and departed the Rent a Space premises, taking 15 of the removed substitute packages with them.

53. The pair then drove from Rent a Space back to the Lansvale Hotel and Resort whereupon they entered room 104 at about 3:22pm. At about 3:25pm PHAM, using mobile number [F] , sent a text message to the mobile number [J] , stating: ‘I hand over 15 alright?’

54. At about 3:35pm, PHAM and NGUYEN exited room 104 and entered the silver Mitsubishi Outlander and drove from the Lansvale Hotel and Resort.

55. At about 4:10pm PHAM and NGUYEN drove into the driveway of premises in Braham Street, Heckenberg. At about 4:13pm, PHAM called NGAN and asked: ‘Er, can you ring uncle BEO...Ask uncle BEO where he is, ask him to meet me at the shop, tell him to ring Uncle's number....Or you can text uncle BEO's number to Uncle.’ At 4:17pm, NGAN sent a text message to PHAM, in which she stated: ‘here it is [J] ‘.

56. At 4:17pm PHAM called an unknown male (UM) on the number [J] to ask where he was. The UM stated that he had just gone out to do something. PHAM then stated: ‘In that case, I'll go back to my place, alright? Later on when you're out doing things, you want to drop by my place for a bit?’ The UM asked: ‘What is it my dear?’ PHAM replied: ‘Because I just want to have a little chat with you, brother.’ The UM then asked: ‘Are you waiting at my place?’ PHAM replied: ‘I'm in front of your place at the moment. Now I'm going back to my place.’ The UM stated that he would come and see her later.

57. At 4:17pm PHAM and NGUYEN drove from 1 Barham Street through various streets, heading away from Heckenberg, until at 4:20pm when the UM called PHAM back. The UM asked: ‘Hey what sort of car are you giving me, my dear?’ PHAM stated: ‘Um the um how you going car only. Like I told you the other day, brother.’ The UM stated: ‘But you said um the car er you said the sunglasses of Ray-Ban brand, didn't you?’ PHAM replied: ‘No...Not at all.’ The UM stated: ‘In that case I better see you at my place eh?’

58. PHAM and NGUYEN then drove back towards Heckenberg where at 4:28pm it again drove into Barham Street. The vehicle remained in that vicinity until approximately 5:07pm when it departed Barham Street and drove from Heckenberg back to Cabramatta.

59. During the time the vehicle was in the vicinity of Barham Street, PHAM met with an unknown person or persons and handed over the 15 substituted packages that had been removed from the consignment.

60. At about 5.40pm, PHAM and NGUYEN returned to the Lansvale Hotel and Resort and entered room 104. A short time later, at about 5.41pm, PHAM telephoned an unidentified female (UF) on

(being a Canadian telephone number). PHAM and the UF then had the following conversation, in which PHAM advised that there was a problem with the drugs:

PHAM: You can tell sister DEP that um those garments that were provided by sister DEP.

UF: Mm.

PHAM: The garments er like um with the standard, they don't meet the standard.

UF: Mm.

PHAM: Okay?

UF: Mm.

PHAM: Letting sister DEP know so she can um sort it out. That's the first thing. The second thing is, the fabric that was used to sew, the fabric that was used to sew.

UF: Mm.

PHAM: Um it has too much fibres.

UF: Yeah.

PHAM: Can you remember what I've just told you?

UF: I can.

PHAM: Alright. The third thing is er um the garments that were sewn and um like the smell of the fabric, you know.

UF: Mm.

PHAM: It, it doesn't have a smell of the fabric, it has an aged smell.

UF: Is that right?

PHAM: The smell has gone. Are you with me?

61. Prior to substitution, the original blocks of border controlled drugs contained a layer of scented, powdered detergent in between the layers of wrapping.

62. About 6.13pm the UM, using mobile number

, that PHAM had spoken to in earlier telephone conversations on 19 May 2008, telephoned PHAM and they had the following conversation, in which the UM advised PHAM that the packages that had been handed over did not contain drugs, but instead contained some other substance:

UM: Well, the fish sauce from before, it's no tasty at all. I put it up and tried and it doesn't smell like fish sauce whatsoever.

PHAM: Really?

UM: Yeah.

PHAM: I don't know.

UM: The four of us put it up to try, mix the Fish sauce to eat and try but there was no aroma.

PHAM: I don't know how but I, I could taste the aroma.

UM: You can come over and check it out, I'll let you mix the fish sauce and have a taste again.

PHAM: No, no, I don't want to taste it again.

UM: And you know what the fish sauce is like?

PHAM: What is it like?

UM: Like the wall made of timber of the house.

PHAM: Yeah I know.

UM: The liner inside.

PHAM: I did see it earlier.

UM: Yeah.

63. About 6.15pm PHAM again telephoned the UF on the Canadian telephone number

and had the following conversation, in which she relayed the information that had been passed on to her by the UM in the previous call:

PHAM: Hello, you go and meet um the friend tomorrow.

UF: Mm.

PHAM: Hello? You hear what I'm saying?

UF: Yes.

PHAM: You can say it's similar to dry wall. That's all you need to say.

UF: Okay, I know.

PHAM: You got that?

64. During reconstruction of the consignment, AFP Forensics substituted narcotic packages with blocks of Plaster of Paris.

65. About 6.25pm, AFP members entered room 104 of the Lansvale Hotel and arrested PHAM and NGUYEN.

66. The subsequent search and examination of storage unit 801, Rent a Space, 148 Hume Highway, Lansvale, by the AFP on 19 May 2008, revealed that two of the foot spa units had been damaged and a number of the reconstructed substituted narcotic packages had been removed. Various tools and other items were also located in unit 801. Searches confirmed that two of the three spa units, which had contained a total of 37 substitute blocks, had been cut into and all of the substitute blocks had been removed from those units. A search of the unit located 22 of the substitute blocks placed in a garbage bag within an open cardboard box. The other 15 substitute blocks that had been extracted were found to be missing and have not been recovered. Of the 15 missing substitute blocks, 14 were substituted cocaine blocks and one was a substituted methamphetamine block.”

Conclusions Reached by Sentencing Judges Concerning Roles of Respondents

Mr Nguyen

31 His Honour Judge Walmsley SC summarised the acts of Mr Nguyen in the following way (at remarks on sentence [35]) (emphasis added):

“35. In summary, I conclude from those facts that the offender did the following. He obtained an ABN. He registered two business names. He took a lease of commercial premises in Victoria for two years at $22,000 per annum. He set up and used a Yahoo email account. He paid two invoices from IPE to obtain clearance for the consignment. The emails that he sent to and received from IPE included emails relevant to delivery instructions. He rented space at Lansvale and gave his own mobile number. He booked accommodation at the Lansvale Hotel and Resort. He arranged for the consignment's delivery and was present for the delivery and helped unload it. He returned later with Pham driving a hired Mitsubishi Outlander and he helped cut the bases of the foot spas. He bought tools to cut the foot spa bases and took them to the storage area. With Pham he removed from the spas fifteen packages and took them to the Lansvale Hotel and Resort. He went with Pham to Heckenberg where Pham handed over the packages.

It is clear to me, therefore, that the offender was a significant person in the Australian end of the operation

.”

32 After summarising the submissions put concerning the role of Mr Nguyen in these offences, the sentencing Judge made the following further findings (at remarks on sentence [45]-[46]) (emphasis added):

“45. In my view, these offences are objectively extremely serious . As appears from the list of functions which I am satisfied that the offender performed the offender was one of a number of people involved in the importation of a large [quantity] of drugs from Canada. He was, as the Crown put to me, involved in two stages. The preparation stage included setting up the business names, getting accommodation and the second involved assisting once the drugs had arrived in Australia. I find that he was engaged in significant matters of preparation to enable the smooth entry of the consignment and that once the consignment had arrived he provided significant assistance in the warehousing and storage and in the unsuccessful location of the drugs or obtaining of the drugs from the foot spas .

46. I am satisfied beyond reasonable doubt that he used the name Vivian on the Yahoo email account.

I find that his role was very important to the enterprise. I think it unhelpful to put a label on his role. I am not persuaded he was a financier or a principal organiser or an entrepreneur

. There were statements in evidence from Canadian police officers from which I infer that

the parts played by the Canadian offenders were far more significant than that played by this offender. Nor was his on the other hand a minor role. The expression, ‘middle man’ is not necessarily apt because of the wide range of functions undertaken

. However, I do note the following and I am satisfied of these matters. The offender appears not to have had direct contact with Canadian links when the person known as Pham was on the scene. Secondly, he appears not to have been involved with acquiring or financing or shipping of the goods to Australia. Thirdly, his as I see it, is a role concerned rather with preparation and then the reception of the drugs in Australia, their storage and the like and then to a limited extent their dispersal once they arrived.

His role was more concerned with the physical aspects than the entrepreneurial

. Since he used his own name and his own telephone number when engaging in some parts of the enterprise such as registering the business names there was, I think, a lack of sophistication shown on his part.

Despite that I find that he knew that he was involved in a significant importation concealed in an apparently innocent consignment cargo. From evidence of conversations that he had when he was not being observed I find that he was motivated by a desire to make a significant sum and that that was among other reasons to pay off a gambling debt of at least $50,000

. That factor alone, however, does not serve to mitigate but it rather explains his position given his history of having been in the workforce in a legitimate way for such a long time. His legitimate employment for such a long time and his lack of any criminal history does add weight to the submission from Mr Pickin that this was out of character and I do find it to have been out of character.”

33 The reference (at [46] of the remarks on sentence) to statements of Canadian police officers is a reference to those statements tendered by counsel for Mr Nguyen referred to earlier in this judgment (at [15] above). It appears that his Honour accepted the defence submission, by reference to this material, that the “parts played by the Canadian offenders were far more significant than that played” by Mr Nguyen. It may be taken that Ms Pham is included amongst the “Canadian offenders” for this purpose.

Ms Pham

34 After reciting the facts of Ms Pham’s offences, his Honour Judge Berman SC summarised her role in R v Pham [2009] NSWDC 362 at [11]-[15] (emphasis added):

“11 The offender thus played a very significant role in this offence . She was responsible for liaising with the Canadian end of the operation about various aspects of the operation, including the payment of money, the deconstruction of the foot spas, the destination of some of the packages, and it was she who communicated with Canada about the problems that were identified when the packages were found not to contain any drugs. She physically assisted with the removal of the packages as well. This is not a case where she simply told someone else what to do, but she did a lot herself and she also delivered fifteen packages of what she thought were drugs to a purchaser. This is offending at the higher end of the range . Both the offence on the indictment and the offence on the schedule involved quantities of drugs many times that which exposes the offender to life imprisonment. Of course the quantity of the drug is but one factor in assessing the objective seriousness of an offence. But when one looks at the offender’s involvement and the role she played and what she actually did it can be seen that she placed herself in a significant position within this criminal enterprise. That is why I say that this is offending at the higher end of the range .

12 … She has two older sisters and two older brothers who also live in Canada. Whilst there she was employed in both a car company and also did some cooking in a restaurant. It was whilst she was at the restaurant that she met the man who asked her to become involved in this offence. When she first met him she did not know that he was involved in sending drugs to Australia, but she did find out that that is what was sent. She said in evidence today that she did not know what the drugs were, but she recognised that they could have been cocaine, could have been methylamphetamine, could have been heroin for that matter. The fact that she did not know precisely what the drugs were is scarcely a matter of mitigation.

13 The man she met in Canada whilst working at the restaurant asked her to become involved and offered to pay her, not only to pay for her air fare to Australia but also to provide some money to her although he never told her how much she was going to get. She said that her role was to supervise what her cousin Mr Nguyen was doing. Although one has to be careful not to sentence according to labels, the offender’s involvement extended beyond mere supervision of her cousin .

14 She travelled from Canada to Australia for the specific purpose of committing a serious offence involving drugs. She contacted people in Canada about various aspects of the criminal enterprise . As I have mentioned she attended the storage unit herself and participated physically in the removal of what she thought were drugs, liaising with people in Canada as she did so. It was she who instructed the offender how to extract the drugs based on what she had learnt from the Canadian end , told him how many packages were to be removed, and together with Mr Nguyen, transported fifteen of those packages for the purpose of delivering them to another person. And it was she who received complaints about the standard of the drugs and passed that information back to people in Canada .
15 In assessing the offender’s moral culpability it is important to identify the circumstances in which the offender attempted to come into possession of drugs and what it was intended that would happen to the drugs . There was some discussion as to whether I could take into account that the offender was involved in the supply of drugs, Ms Nash ultimately conceding that I was entitled to have regard to the fact that she participated in the delivery of what she thought were drugs. In any case, one does not import twenty-seven kilograms of cocaine for personal use. The offender was fully aware that she was involved in an enterprise which had as its object the distribution within the Australian community of a large quantity of drugs .”

35 It appears that the sentencing Judge accepted some, but not all, of Ms Pham’s evidence concerning her role in the offences, given his Honour’s findings at [12]-[14] of the remarks on sentence (see [18] above).

36 I will return to the findings of fact concerning the roles of each Respondent, which were not challenged in this Court.

The Subjective Circumstances of the Respondents

37 Both Respondents have been in custody since their arrest on 19 May 2008.

Mr Nguyen

38 As mentioned earlier, Mr Nguyen was born in 1965 and was 42 years’ old at the time of the offences. He was born in Vietnam and came to Australian in 1982. He has four children from previous relationships, but was single at the time of his arrest. He had been employed in the past as a machine operator and was residing in Victoria prior to his arrest. He has no prior criminal history.

39 No oral evidence was given on sentence. A presentence report dated 11 September 2009 prepared by a Probation and Parole Officer was tendered, as was a report of Mr John Taylor, psychologist, dated 15 October 2009.

40 His Honour Judge Walmsley SC summarised the subjective circumstances of Mr Nguyen by reference to these reports, including his family and employment history since his migration to Australia in 1982. Mr Nguyen told Mr Taylor and the Probation and Parole Officer that his motive for committing the offences was to pay off a gambling debt. Mr Taylor assessed Mr Nguyen as having a low-to-moderate risk of recidivism. The sentencing Judge was satisfied that there were reasonable prospects of rehabilitation.

Ms Pham

41 As mentioned earlier, Ms Pham was born in 1976 and was 32 years’ old at the time of the offences. Ms Pham was born in Vietnam and migrated to Canada in 1993 when she was 17 years’ old. When in Vietnam, her maternal grandparents raised her after her father was sent to a communist re-education camp. Prior to her arrest in Australia, she resided in Ontario, Canada. She is not an Australian citizen. She is married with no dependent children. Her husband resides in Vietnam. Ms Pham had been employed as a cook in a karaoke bar for two years before coming to Australia. Her only relative in Australia is her cousin, and co-offender, Mr Nguyen. Ms Pham has no prior criminal history.

42 As mentioned, Ms Pham gave evidence in the sentencing proceedings. Presentence reports were also before the Court.

Pleas of Guilty

43 Following his arrest and charging on 19 May 2008, the proceedings concerning Mr Nguyen were before the Local Court until his committal for trial on 6 February 2009. On 13 February 2009, his trial was fixed for 3 August 2009. The question of Mr Nguyen pleading guilty was raised with the Crown by his legal representatives on 19 June 2009 and, on 9 July 2009, he was arraigned on the present indictment and pleaded guilty.

44 In sentencing Mr Nguyen, his Honour Judge Walmsley SC allowed a discount of 15% to reflect his willingness to serve the course of justice from his pleas of guilty.

45 Following her arrest and charging on 19 May 2008, Ms Pham came to be committed for trial on 6 February 2009. On 13 February 2009, her trial was fixed for 3 August 2009, but was stood over to commence on 17 August 2009. On that day, Ms Pham was arraigned on the present indictment and pleaded guilty.

46 With respect to Ms Pham, his Honour Judge Berman SC allowed a discount of 10% on sentence to reflect her limited willingness to assist in the administration of justice.

The Crown Appeals

47 Notices of Appeal were filed by the Crown with respect to Mr Nguyen on 2 December 2009 and Ms Pham on 23 December 2009. In each Notice of Appeal, the sole ground relied upon is that the sentence was manifestly inadequate.

The Crown Submissions

48 The Crown submitted that the sentence imposed in each case was manifestly inadequate and that this Court should intervene to maintain adequate standards of punishment for offences of this kind: Everett v The Queen [1994] HCA 49; 181 CLR 295 at 299; R v Wall [2002] NSWCCA 42; 71 NSWLR 692 at 707 [70].

49 It was submitted that the sentences imposed fell outside the appropriate range of sentences that could legitimately and reasonably have been imposed by the sentencing Court. It was said that the appropriate range had been clearly identified in R v Lee [2007] NSWCCA 234 at [37]. The Crown contended that it can be clearly shown that, having regard to the relevant circumstances of each case, the sentences are so plainly unreasonable or unjust that this Court may infer that in some way there has been a failure by the sentencing Judges to properly exercise their sentencing discretions: House v The King [1936] HCA 40; 55 CLR 499 at 504-5; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 329, 340.

50 The Crown submitted that the quantities of the drugs involved were very substantial - 27.153 kilograms of pure cocaine (13 times the commercial quantity) and 13.04 kilograms of pure methamphetamine (17 times the commercial quantity).

51 With respect to Mr Nguyen, the Crown submitted that the sentencing Judge misunderstood and misstated a Crown submission on sentence. At [42] of the remarks on sentence, the sentencing Judge said that “the Crown put to me that the starting point for the head sentence ought to be 20 years”. However, the Crown submission (made by reference to R v Lee), had been “In terms of where … a range of sentence lies, in my submission we’re talking above 20 years and at the higher level really as [a] starting point here” (Nguyen AB31.6). It was submitted that the sentencing Judge’s misunderstanding of the Crown’s position may have contributed to the sentences imposed.

52 In any event, the Crown submitted that the sentencing Judge made correct findings concerning the role of Mr Nguyen, but then imposed a sentence which failed to properly reflect his objective criminality so that the sentences imposed fell outside the appropriate range of sentence.

53 It was submitted that the offender in R v Lee took on a role which was almost identical to that undertaken by Mr Nguyen in this case. As a result, an appropriate starting point for the sentences in this case was somewhere in excess of 20 years. The Crown submitted that it was plain, from the sentences imposed, that his Honour commenced with a notional starting point that was much less than 20 years.

54 The Crown submitted that the sentences imposed upon Mr Nguyen were in fact below the range identified by this Court as being the appropriate range for couriers or others low in the hierarchy, and where the amount of drugs was between 3.5 kilograms and 10 kilograms: R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340; R v Bezan [2004] NSWCCA 342; 147 A Crim R 430 at 434 [18].

55 With respect to Ms Pham, the Crown submitted that a significant error had been made by the sentencing Judge at [4] of the remarks on sentence, where his Honour observed that the “weight of the cocaine totalled slightly more than twenty-seven kilograms with its total pure weight being thirteen kilograms”. In fact, the weight of pure cocaine seized was slightly in excess of 27 kilograms. Although it was acknowledged that his Honour had stated correctly the estimated street value and wholesale value of the cocaine, the Crown submitted that this was a significant misstatement of the quantity of cocaine, which may serve to explain the sentence ultimately passed.

56 It was submitted that the sentencing Judge had characterised correctly Ms Pham’s role in the offences but that, having made these findings, the sentence imposed did not appropriately reflect the findings as to Ms Pham’s criminality so that the sentence was definitely outside the appropriate range for the case in hand.

57 The Crown submitted that the findings of the sentencing Judge confirmed that Ms Pham’s offending was of a higher order than that of Mr Nguyen, as was submitted by the Crown Prosecutor (Pham AB34.33). In these circumstances, it was not clear why the sentence imposed upon Ms Pham was significantly lower than the sentence imposed upon Mr Nguyen.

58 The Crown submitted that the sentence imposed upon Ms Pham was below the range identified by this Court as being the appropriate range for couriers or others low in the hierarchy, and where the amount of drugs was between 3.5 kilograms and 10 kilograms. In this respect, the Crown submitted that the sentencing range adopted in R v Wong and Leung is equally applicable to cases of possession or attempted possession: R v SC [2008] NSWCCA 29.

59 It was submitted that this Court should intervene in each case and resentence the Respondents.

Submissions of Respondents

60 Ms Loukas submitted that the sentences imposed upon Mr Nguyen were not manifestly inadequate. It was submitted that there were differences between the present case and the quantity of drugs and the role of the offender in R v Lee, so that R v Lee provided no real assistance on sentence.

61 Ms Loukas submitted that caution was required when the Crown sought to rely upon the guideline judgment in R v Wong and Leung, given the approach of the High Court on appeal from that decision in Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584.

62 Although acknowledging that Mr Nguyen’s sentences lay towards the lower end of the appropriate range, it was submitted that there was no patent or latent error demonstrated.

63 Ms Loukas submitted that in the event the Court found error and proceeded to resentence Ms Pham, this should not lead to an increase in Mr Nguyen’s sentences, as parity does not apply to Crown appeals: R v Radloff (1996) 88 A Crim R 26 at 31-32. Ms Loukas acknowledged that this submission would not apply if the Court was satisfied that the sentences of both Respondents were manifestly inadequate.

64 Ms Nash submitted that the sentence imposed upon her client was within the range of the proper exercise of sentencing discretion. It was submitted that the Crown had unduly elevated the weight of the drug as the crucial factor to be taken into account on sentence, when it was but one factor relevant for that purpose.

65 With respect to the suggested error concerning the weight of pure cocaine, Ms Nash submitted that the sentencing Judge well understood the street value of the drugs and acknowledged that these figures demonstrated a “large scale offence”. Accordingly, it was submitted that the misstatement with respect to the weight of pure cocaine was not material.

66 Ms Nash sought to distinguish R v Lee by reference to features peculiar to that case. Submissions were also made seeking to distinguish on the facts the decisions in R v Wong and Leung and R v El Hassan [2003] NSWCCA 139.

67 Ms Nash submitted that it was erroneous for the Crown to submit that the sentencing Judge’s findings confirmed that Ms Pham’s offending was of a higher order than that of Mr Nguyen.

68 Further, it was stressed that Mr Nguyen was to be sentenced for two counts of importing a commercial quantity of drugs, cocaine and methamphetamine, and a further two matters were to be taken into account on a schedule for the purpose of s.16BA Crimes Act 1914 (Cth) in relation to the attempt to possess each of these drugs. In contrast, Ms Pham was to be sentenced for attempting to possess a commercial quantity of cocaine, with a similar offence concerning methamphetamine to be taken into account on a s.16BA schedule. Ms Nash submitted that the difference in the offences for which sentences were to be imposed was relevant and assisted Ms Pham in this Court.

69 It was submitted that the sentencing Judge had imposed a sentence which appropriately reflected Ms Pham’s criminality and that the Crown had failed to establish error on sentence.

Some General Sentencing Principles Concerning Serious Federal Drug Offences

70 The importation and possession offences now contained in the Criminal Code Act 1995 (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts “a quantity-based penalty regime” by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen [2008] HCA 15; 234 CLR 143 at 146 [2].

71 Before turning to the individual sentences imposed in this case, it is appropriate to refer to principles applicable to sentencing for drug importation offences. I include in this offences of attempting to possess a quantity of an unlawfully imported border controlled drug contrary to s.307 Criminal Code Act 1995 (Cth).

72 The following general propositions emerge from the authorities:

(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];

(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];

(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];

(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen at 607-608 [64]; R v Lee at [23]-[24];

(e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an 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: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];

(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];

(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen ; Leung v The Queen at 607-608 [64];

(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];

(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];

(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];

(k) where offenders are not young (Mr Nguyen was 42 years’ old and Ms Pham was 32 years’ old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];

(l) where an offender (such as Ms Pham) is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise: El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]-[37];

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230;

(n) the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong and Leung remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s.16G Crimes Act 1914 (Cth) : R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at 438 [34]-[36]; R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at 67-68 [65]-[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40];

(o) insofar as each Respondent asked the sentencing Judge to take into account on sentence offences under s.16BA Crimes Act 1914 (Cth) , it is necessary for a sentencing court to comply with the general principles applicable to the State regime for taking offences into account in accordance with Attorney General’s Application Under Section 37 Crimes (Sentencing Procedure) Act 1991 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146: R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 at 550 [28]; Assafari v R [2007] NSWCCA 159 at [9].

The Roles of the Respondents in the Offences

73 In each case, the sentencing Judge made an accurate assessment of the role of each Respondent in this serious and substantial criminal enterprise. The findings of the sentencing Judges set out at [31]-[35] above reflect criminality of a high order on the part of each Respondent.

74 It may be concluded that each of Mr Nguyen and Ms Pham played essential roles, with a high level of responsibility and with substantial rewards to flow to each of them as a result.

75 It is helpful to draw together the particular features of the conduct of each Respondent, before considering what sentences were necessary to ensure adequate punishment of each Respondent for the crimes they had committed.

Mr Nguyen

76 Mr Nguyen was a resident of Australia. The evidence points to him being a major participant in this criminal enterprise inside Australia. He was aware that substantial quantities of drugs were to be shipped from Canada to Australia for distribution within this country. Mr Nguyen was engaged in this activity for substantial financial reward involving, at least, a benefit to him in the sum of $50,000.00. He was aware that his cousin, Ms Pham, a Canadian national, was involved in the enterprise at the Canadian end, and he worked with her following her arrival in Australia.

77 Mr Nguyen performed a range of acts which indicated a responsible managerial role at the Australian end over a significant period of time in 2007 and 2008. His was not a transient or menial role. He exercised a range of responsible functions within Australia, including the making of administrative and physical arrangements for the importation. In the first phase of his activity (between 18 September 2007 and 2 May 2008), before the drugs had arrived in Australia, Mr Nguyen acted as an organiser to make the necessary arrangements so that his company in Australia could receive the consignment containing the concealed drugs. In this period of activity, Mr Nguyen was the main player within Australia concerning the pending drug importations.

78 There was a second phase of Mr Nguyen’s activity after the drugs had arrived in Australia on 2 May 2008. He acted first as a warehouser or storeman where he accepted the safe delivery of the drugs, and then performed the further role of breaking into and extracting the drugs, so they could be made available to others. In this phase, he worked closely with Ms Pham, but subject to her direction.

79 The range of activities undertaken by Mr Nguyen pointed clearly to him being the physical organiser in Australia for the importation. As his Honour Judge Walmsley SC found (see [31]-[32] above), he played a substantial and important part in the offences and the expression “middleman” was “not necessarily apt because of the wide range of functions undertaken”.

80 It must be kept in mind that Mr Nguyen pleaded guilty to two offences involving the importation of a commercial quantity of different types of border controlled drugs. The quantity of pure cocaine was more than 13 times the commercial quantity for that drug. The quantity of pure methamphetamine was more than 17 times the commercial quantity for that drug. It is entirely clear that he understood that a very large quantity of illicit drugs was being imported, sufficient to warrant a substantial financial reward to him and the need for elaborate and protracted planning, undertaken at both the Canadian and Australian ends, so that the importations could take place.

81 The s.16BA schedule offences of attempted possession did not add a substantial level of criminality to Mr Nguyen’s case. He was to be sentenced for the two actual importation offences concerning the cocaine and methamphetamine introduced into Australia. The attempted possession offences on the s.16BA schedule resulted from the discovery of the drugs by authorities and their substitution to allow for a controlled delivery and the apprehension of the Respondents.

Ms Pham

82 Although Ms Pham was to be sentenced for attempted possession of a commercial quantity of cocaine (with a similar offence concerning methamphetamine on a s.16BA schedule) it is necessary to consider her involvement in the overall drug smuggling enterprise to determine the degree of moral culpability attaching to the attempted possession offence: El-Ghourani v R at [33]-[37] (see [72](l) above). Of course, the attempted possession offence carries the same maximum penalty as importation of a commercial quantity of a drug, namely life imprisonment.

83 Ms Pham was a Canadian national who was engaged to participate in the criminal enterprise at the Canadian end, and was entrusted with the task of travelling to Australia to work with (and supervise) Mr Nguyen with respect to the importations. She was the point of contact, following her arrival in Australia, with the Canadian end of the operation.

84 It may readily be inferred that the selection by the Canadian principal of Ms Pham to undertake these responsible tasks on the other side of the world, meant that she was entrusted to play a major role in the criminal enterprise and to exercise control and judgment whilst in Australia for that purpose. It should be inferred that she came to Australia for these purposes and was to return to Canada when she had discharged these duties. Substantial financial reward was to flow to her and others.

85 Following her arrival in Australia on 24 April 2008, Ms Pham performed an overseer/supervisor role in relation to the extraction and removal of the drugs and the subsequent supply of the 15 packages of drugs to a person who comprised the next link in the chain of distribution.

86 It is apparent that Ms Pham played a critical and extensive role in securing, extracting and removing the drugs after their importation in Australia. It is apparent that Ms Pham had knowledge of the importation process and the method of concealment of the drugs. It may readily be concluded that Ms Pham travelled from Canada to Australia with this knowledge, in order to supervise and manage the subsequent collection and distribution of the drugs after their importation and delivery. Once in Australia, Ms Pham, at different times, gave instructions to Mr Nguyen with respect to activities.

87 The sentencing Judge found that Ms Pham “played a very significant role” in the offence and that “this was offending at the higher end of the range” (see [34] above).

88 Ms Pham’s indictment offence involved more than 13 times the commercial quantity of cocaine and the s.16BA schedule offence involved more than 17 times the commercial quantity of methamphetamine.

The Decision in

R v Lee

89 As submissions were made concerning the application of principles and a range of sentences in R v Lee to these appeals, it is appropriate to refer further to that decision.

90 The offender in R v Lee had been convicted at trial upon a charge of importing a commercial quantity of heroin, namely 76.3 kilograms of pure heroin with an estimated wholesale value of $28 million and an estimated street value of $266 million. The commercial quantity for heroin is 1.5 kilograms.

91 In R v Lee, McClellan CJ at CL (Howie and Hall JJ agreeing) undertook an analysis by reference to a schedule of comparative cases concerning drug importation matters in intermediate appellate courts and Supreme Courts in New South Wales, and in other States of Australia and the Northern Territory, between 1996 and 2007 (at [36]). Having undertaken that task, McClellan CJ at CL said at [37]-[38]:

“37 Consideration of these decisions confirms that the penalty imposed on the respondent [being imprisonment for a total term of 18 years including a non-parole period of 11 years] was quite inadequate for a person who played a senior role in a very large drug importation enterprise. If comparisons are confined to sentences imposed after the repeal of s 16G of the Crimes Act it can be seen that offenders who, although not at the pinnacle, were key organisers or critical to the success of the operation received head sentences in excess of 20 years and a number received life sentences. Non-parole periods are also significantly greater than the 11 years imposed on the respondent. In many of the cases in the table the offender obtained the benefit of a plea of guilty, sometimes an early plea, thereby significantly reducing the sentence. The present respondent was convicted following a trial.

38 To my mind the objective criminality of the respondent and the amount of the illegal drugs imported warrants a very severe penalty, toward the top of the available penalties, although not a term of life imprisonment (see the remarks of the Chief Justice in

R v Stanbouli

(2003) 141 A Crim R 531 at 533). There is little, apart from the fact that he has no prior criminal history, to ameliorate the sentence and that is of minimal significance. But for the fact that this is a Crown appeal a non-parole period significantly in excess of 20 years was appropriate. However, being a Crown appeal this Court should impose a sentence at the bottom of the available range. In my opinion that would require a non-parole period of 19 years and 6 months with an additional term of 8 years and 6 months making a total term of 28 years. Allowance must be made for the time he served in custody prior to his extradition to Australia. Although this provides a sentence where the non-parole period is greater than 66% of the total sentence the objective criminality of the offender more than justifies this term of full time custody (see

Bick v R

[2006] NSWCCA 408 at [21]-[23];

R v Sweet

[2001] NSWCCA 445 at [18]-[20]).”

92 The offender in R v Lee was resentenced to a term of imprisonment for 27 years and five months with a non-parole period of 18 years and 11 months.

93 In my view, the functions discharged by Mr Nguyen (see [76]-[81] above) were similar to those undertaken by the offender in R v Lee. Although Ms Pham performed different functions to Mr Nguyen (see [82]-[88] above), her moral culpability was high and, in some respects, greater than that of Mr Nguyen.

94 In the words used to describe the offender in R v Lee (at [33]-[37]), the present Respondents may not have been “at the pinnacle” but they “were key organisers” who were “critical to the success of the operation”. Their roles were greater than having a “middle level of responsibility for the importation”.

95 Of course, the quantities of the drugs are less in the present cases than in R v Lee, and the Respondents pleaded guilty and did not proceed to trial. However, their acts were those of persons who were more than middlemen in this criminal enterprise. Their criminality was of a high order.

An Updated Schedule of National Comparative Cases

96 At the request of the Court made during the hearing, the Crown provided an updated schedule of national comparative cases for the period August 2007 to May 2010. This schedule updates that referred to in R v Lee. The updated schedule extends beyond the class of cases referred to in R v Lee (being intermediate appellate court and Supreme Court decisions only) and includes many District Court and County Court sentencing decisions as well. Of the 68 cases contained in the updated schedule, 44 cases are District Court or County Court sentencing decisions.

97 Following receipt of the updated schedule, the parties made written submissions by reference to it.

Submissions Concerning Updated Schedule

98 Ms Nash submitted that, of the 68 cases in the schedule, 34 cases involved imposition of sentences with a non-parole period of seven years or less. It was submitted that included in these cases were offences which involved higher levels of criminality or culpability than in the present case. Ms Nash submitted that comparative cases which specifically involved charges of attempted possession of cocaine were confined to five cases. It was submitted that the schedule assisted Ms Pham on this appeal.

99 Ms Loukas submitted that the range revealed in the schedule demonstrated that the sentences imposed upon Mr Nguyen lay within the appropriate range.

100 The Crown submitted that the updated schedule generally supported its contention that the sentences imposed upon the Respondents were manifestly inadequate. It was acknowledged that there was a range of different factors, including discounts for assistance to authorities in a large number of cases, this not being a factor applicable to the Respondents (beyond appropriate credit for their pleas of guilty).

101 Insofar as the sentences imposed upon a number of persons in the schedule fell below the sentences imposed upon the Respondents, the Crown submitted that an analysis of the cases indicated that in the majority of them (20 of the 34 cases), the role of the offender was at a much lower level than that exhibited by the present Respondents, or the particular offender was given a significant discount for assistance to the authorities. When allowance was made for these factors, the Crown submitted that about 75% of the cases noted in the schedule supported the appropriateness of the range put forward by the Crown.

102 The Crown submitted that, generally speaking, the sentences imposed by the Supreme Courts in New South Wales, Victoria, Queensland and Western Australia supported its submission regarding the appropriate range of sentence for offenders who undertook “senior roles”, or who were “key organisers critical to the success” of the enterprise in large-scale importations.

103 The Crown submitted that the appropriate interpretation of the schedules (both in 2007 and 2010) was that the range identified in R v Lee was the appropriate starting point for sentences involving offences of this kind. It was said that there will always be cases which fall either side of the range, and there will be a number of different reasons why that occurs. However, the Crown submitted that such occurrences did not detract from the general principle. Further, the Crown submitted that the sentencing Judges in the cases of these Respondents did not make findings which would explain why the sentences imposed were lower than what would lie within the appropriate range.

Conclusions Concerning Updated Schedule

104 The gathering of sentencing decisions into a schedule, to assist both intermediate appellate courts and sentencing courts, has proved useful in a number of circumstances. The analysis contained in the decision of this Court in R v Lee identified sentences which had been imposed over a period of time for commercial drug importation offences, and has served to promote consistency where sentences for federal offences of that type are passed in a range of courts throughout the States and Territories of Australia.

105 Of course, R v Lee did not (and cannot) purport to be a guideline judgment. The fact that this Court has been provided with an updated schedule for the period 2007 to 2010, and has received submissions concerning that schedule for the purpose of determining these Crown appeals, does not translate the present judgment into a form of guideline judgment.

106 Comparable cases can be useful guides, but care remains necessary in the use of case schedules given the objective and subjective differences between cases and the need to render individual justice: R v Todoroski [2010] NSWCCA 75 at [26].

107 The submissions to this Court by reference to the updated schedule have been made in relatively general terms and it is appropriate that the Court respond in similar terms. Having considered the cases referred to in the updated schedule, I am satisfied that the schedule continues to support the analysis contained in R v Lee.

108 Of course, there are differences between offences and offenders in the cases referred to in the schedule, including quantities of drugs involved, the offender’s plea and the timing of the plea, the giving of discounts for assistance to authorities and the role of the particular offender in the various cases.

109 An examination of these cases, however, supports the Crown submission with respect to manifest inadequacy in this case, where the Respondents played senior roles, and were key organisers critical to the success of the enterprise, being large-scale importations of border controlled drugs. The position reached by reference to arguments advanced on the appeals is supported by the fact that the Respondents appear to fall within the second group of commercial quantity offenders identified by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa at [210]-[211], [224], being part of an analysis which Simpson J (at [291]-[305]) and Barr AJ (at [313]) regarded as helpful.

110 I do not consider that Ms Pham derives any assistance from the sentencing decisions in attempted possession cases in the schedule. As Spigelman CJ noted in El-Ghourani v R at 218 [41]-[44], care must be taken in the use of sentencing decisions and the use of Judicial Commission sentencing statistics for attempted possession offences, given the range of moral culpability which may exist in particular cases. Given the high moral culpability of Ms Pham for her attempted possession offence, comparison with other cases involving lesser moral culpability does not assist.

111 In my view, application of the general principles in R v Lee, taken in conjunction with an examination of the cases contained in the schedule, supports a conclusion that the sentences imposed upon each of these Respondents was manifestly inadequate.

Application of Principles to Resolution of these Appeals

Suggested Patent Errors

112 With respect to Mr Nguyen, I do not consider that the suggested error (referred to at [51] above) concerning the Crown submission as to a starting point above 20 years is significant.

113 However, I accept the Crown submission that significant factual error occurred when the sentencing Judge misstated the weight of pure cocaine in sentencing Ms Pham (see [55] above). I am conscious that his Honour delivered ex tempore sentencing remarks on the day of the sentencing hearing. The remarks should not be “parsed and analysed”: R v Hamieh [2010] NSWCCA 189 at [32]. Although his Honour described correctly the street values referred to in evidence and elsewhere, and his remarks on sentence acknowledged the substantial quantity of cocaine that was involved, the erroneous statement concerning the actual quantity of pure cocaine was significant. This error involved the drug referred to in the offence charged in the indictment, being the primary offence for which Ms Pham was to be sentenced. In my view, this error sheds light upon the sentence actually imposed.

Suggested Latent Errors

114 The question for determination is whether the sentences imposed upon Mr Nguyen and Ms Pham are manifestly inadequate in the well-recognised sense that they were unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25].

115 I am satisfied that the sentences imposed upon Mr Nguyen were manifestly inadequate. This conclusion has been reached after assessing the objective seriousness of his crimes, and his subjective circumstances. In my view, consideration of the principles set out at [72] above, and application of the principles in R v Lee to his case, leads to such a conclusion. I keep in mind the differences between R v Lee and this case, being the substantially lesser quantities here and Mr Nguyen’s plea of guilty. Nevertheless, Mr Nguyen stood for sentence for two offences involving importation of a commercial quantity of different drugs. Mr Nguyen was heavily involved in a substantial drug importation. A total effective sentence of imprisonment for 14 years and six months with a non-parole period of nine years and six months is manifestly inadequate.

116 The findings of fact concerning Ms Pham’s involvement in the offence (see [34] and [82]-[88] above) demonstrate a high degree of moral culpability on her part: El-Ghourani v R at [33]-[37] (see [72](l) above).

117 The s.16BA schedule offence in her case attracts further comment. During the hearing of the appeals, the Court raised with the Crown the charging practice whereby an offence punishable by imprisonment for life was placed on a s.16BA schedule to be taken into account on sentence. Such a course is not available for a State offence which is punishable by imprisonment for life: s.33(4)(b) Crimes (Sentencing Procedure) Act 1999. However, s.16BA does not exclude offences carrying a life sentence from being dealt with in this way.

118 Where an offence carrying a maximum penalty of life imprisonment is included on a s.16BA schedule, it is ordinarily necessary for the sentencing court to reflect in the sentence imposed for the primary offence that a most serious offence has been taken into account, with the expectation that a significant additional increment will result in the sentence. This is especially so in the case of Ms Pham, where the only method to take into account her criminality with respect to the commercial quantity of methamphetamine was via the s.16BA schedule offence. Application of relevant sentencing principles in El-Ghourani v R required a substantial sentence to be passed for the primary offence, with a significant additional component for the s.16BA schedule offence.

119 The Crown has made good its submission that Ms Pham’s sentence of imprisonment for 11 years with a non-parole period of seven years is manifestly inadequate.

120 As a finding of manifest inadequacy has been made with respect to sentences imposed upon both Respondents, it is not necessary to address Ms Loukas’ submission by reference to R v Radloff (see [63] above).

121 The conclusion of manifest inadequacy has been reached by examination of the objective seriousness of the offences in each case and the subjective circumstances of each Respondent, compared and contrasted with the sentence imposed upon each Respondent.

Discretionary Factors

122 In Director of Public Prosecutions (Cth) v De La Rosa, all five members of the Court concluded that there was no inconsistency arising under s.109 of the Constitution as between s.68A Crimes (Appeal and Review) Act 2001 and s.16A Crimes Act 1914 (Cth) since the State provision could not operate of its own force. The majority of the Court concluded that s.68A, as construed in R v JW [2010] NSWCCA 49 and R v Carroll [2010] NSWCCA 55; 239 FLR 11, applied to Crown appeals concerning federal offences.

123 Ms Loukas submitted that, in the event that the Court determined to resentence, the relevant law to be applied was as stated in Director of Public Prosecutions (Cth) v De La Rosa. The Crown made a similar submission.

124 It is for this Court to approach the question of resentence of each Respondent by reference to applicable principles, and the evidence admitted in the District Court with respect to each Respondent as supplemented (in the case of Mr Nguyen) by affidavits relied upon by him in this Court.

125 Ms Loukas relied upon affidavits of Mr Nguyen affirmed 24 April 2010 and 24 September 2010 and her instructing solicitor, Frances Low, affirmed 5 May 2010. I have taken the content of these affidavits into account both on the question of whether the Court should exercise its discretion to intervene and, if the Court determines to do so, in determining sentence to be passed upon Mr Nguyen. The first affidavit of Mr Nguyen reveals efforts undertaken by him in custody by way of employment and the provision of psychological assistance to him. His second affidavit refers to aspects of his custodial experience and conditions and the anxiety and distress which he has experienced as a consequence of the Crown appeal. The affidavit of Ms Low annexes a work reference which speaks positively concerning Mr Nguyen’s prison employment.

126 Ms Loukas submits that, if the Court finds error, it should exercise its discretion not to intervene having regard to the actual anxiety and distress suffered by Mr Nguyen as a consequence of the Crown appeal, his progress towards rehabilitation since the imposition of sentence and the delay in finalising the appeal as a result of the need for a judicial determination whether s.68A applied to Crown appeals concerning federal offences (cf R v Hersi [2010] NSWCCA 57 at [55]). The Crown submits that no discretionary basis has been demonstrated for the Court to decline to intervene and resentence the Respondents.

127 I am not persuaded that any discretionary consideration exists in these cases so that the Court should not proceed to resentence each of the Respondents. The sentencing process at first instance in each case was marked by error leading to the imposition of an unreasonable or plainly unjust sentence. The interests of justice require the imposition of appropriate sentences for these serious offences: R v Dinh [2010] NSWCCA 74 at [79]. The sentences are so inadequate that they cannot be allowed to stand: R v Hersi at [57]. The delay in the hearing and determination of the appeals is not such that this Court ought refuse to intervene. Nor are the matters relied upon with respect to Mr Nguyen such that the Court should decline to intervene given the public interest in the imposition of appropriate sentences.

128 In fixing sentences in this Court, I have applied the discounts allowed in the District Court with respect to Mr Nguyen (15%) and Ms Pham (10%) flowing from their pleas of guilty, with some rounding down to achieve a practical result.

129 Although the parity principle has no application, I have borne in mind, to the extent that it is possible, the principles in R v Jimmy (referred to at [23] above) in approaching the question of sentences to be imposed upon the Respondents as co-offenders. It remains the case, however, that leaving aside the s.16BA schedule offences, Mr Nguyen is to be sentenced for two importation offences, whilst Ms Pham is to be sentenced for one attempted possession offence. Despite her high level of moral culpability, Ms Pham can only be sentenced for this offence, albeit with a significant increase for the serious offence on the s.16BA schedule

130 Having taken into account the matters required by s.16A Crimes Act 1914 (Cth), including the objective gravity of the offences and the subjective circumstances of Mr Nguyen, and other factors bearing upon the imposition of sentence, I consider that an appropriate sentence for each of the offences of importing a commercial quantity of cocaine and methamphetamine is one of imprisonment for 16 years.

131 I turn to the issues of cumulation, concurrency and totality. Although the two drugs were imported in the same object and as part of the one transaction, there are two serious offences involving significant commercial quantities of different drugs. In my view, some degree of cumulation is appropriate. The sentences should be accumulated by a period of two years, resulting in a total effective head sentence of 18 years. A single non-parole period ought be fixed in accordance with s.19AB(1) Crimes Act 1914 (Cth). A non-parole period of 12 years is appropriate, being 66% of the total term.

132 The offences on the s.16BA schedule will be taken into account in fixing sentence for importing a commercial quantity of cocaine. The sentence on the importation of methamphetamine count reflects the greater relative quantity of that drug by reference to the commercial quantity.

133 With respect to Ms Pham, having taken into account the matters required by s.16A Crimes Act 1914 (Cth), including the objective gravity of the offence and her subjective circumstances, and other factors bearing upon the imposition of sentence, and taking into account the serious offence on the s.16BA schedule, an appropriate sentence is one of imprisonment for 15 years commencing on 19 May 2008 and expiring on 18 May 2023, with a non-parole period of 10 years expiring on 18 May 2018, being 66% of the full term.

134 In the case of each Respondent, the non-parole period to be fixed represents the minimum period that each Respondent should spend in prison having regard to all the elements of punishment, including the objective seriousness of the offences, specific and general deterrence, denunciation and the subjective circumstances of each Respondent R v MA [2004] NSWCCA 92; 145 A Crim R 434 at 440-441 [33]-[34].

135 I propose the following orders. With respect to Hai Van Nguyen:

(a) Crown appeal allowed;

(b) sentences imposed by his Honour Judge Walmsley SC in the Sydney District Court on 6 November 2009 are set aside;

(i) for the offence of importing a commercial quantity of a border controlled drug, cocaine, taking into account the offences on the schedule under s.16BA Crimes Act 1914 (Cth) , Mr Nguyen is sentenced to imprisonment for a term of 16 years commencing on 19 May 2008 and expiring on 18 May 2024;

136 With respect to Phuong Thu Thi Pham:

(a) Crown appeal allowed;

(b) sentence imposed by his Honour Judge Berman SC in the Sydney District Court on 10 December 2009 is set aside;

Crimes Act 1914 (Cth)

: I agree with Johnson J.

**********

Citations

R v Nguyen; R v Pham [2010] NSWCCA 238

Most Recent Citation

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Statutory Material Cited

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CITATION:	R v Nguyen; R v Pham [2010] NSWCCA 238
HEARING DATE(S):	13 May 2010; final written submissions - 5 October 2010
JUDGMENT DATE:	22 October 2010
JUDGMENT OF:	Macfarlan JA at 1; Johnson J at 2; RA Hulme J at 137
DECISION:	Hai Van Nguyen: (a) Crown appeal allowed; (b) sentences imposed by his Honour Judge Walmsley SC in the Sydney District Court on 6 November 2009 set aside; (c) in their place: (i) for the offence of importing a commercial quantity of a border controlled drug, cocaine, taking into account the offences on the schedule under s.16BA Crimes Act 1914 (Cth), Mr Nguyen is sentenced to imprisonment for a term of 16 years commencing on 19 May 2008 and expiring on 18 May 2024; (ii) for the offence of importing a commercial quantity of a border controlled drug, methamphetamine, Mr Nguyen is sentenced to imprisonment for a term of 16 years commencing on 19 May 2010 and expiring on 18 May 2026; A non-parole period is fixed of 12 years commencing on 19 May 2008 and expiring on 18 May 2020. Phuong Thu Thi Pham: (a) Crown appeal allowed; (b) sentence imposed by his Honour Judge Berman SC in the Sydney District Court on 10 December 2009 set aside; (c) in its place, taking into account the offence on the schedule under s.16BA Crimes Act 1914 (Cth), Ms Pham is sentenced to imprisonment for a term of 15 years commencing on 19 May 2008 and expiring on 18 May 2023, with a non-parole period of 10 years commencing on 19 May 2008 and expiring on 18 May 2018.
CATCHWORDS:	CRIMINAL LAW - sentence - Crown appeals - one offender pleads guilty to importing commercial quantities of cocaine and methamphetamine - second offender pleads guilty to attempted possession of commercial quantity of unlawfully imported cocaine with a similar offence concerning methamphetamine to be taken into account on sentence under s.16BA Crimes Act 1914 (Cth) - claim by Crown that sentences manifestly inadequate - assessment of roles of offenders - assessment of objective gravity of offences - held that sentences manifestly inadequate - no discretionary reasons why Court should not intervene - offenders resentenced
LEGISLATION CITED:	Criminal Appeal Act 1912 Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) Crimes (Appeal and Review) Act 2001 Judiciary Act 1903 (Cth) Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Jimmy v R [2010] NSWCCA 60; 240 FLR 27 R v Pham [2009] NSWDC 362 Everett v The Queen [1994] HCA 49; 181 CLR 295 R v Wall [2002] NSWCCA 42; 71 NSWLR 692 R v Lee [2007] NSWCCA 234 House v The King [1936] HCA 40; 55 CLR 499 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340 R v Bezan [2004] NSWCCA 342; 147 A Crim R 430 R v SC [2008] NSWCCA 29 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 R v Radloff (1996) 88 A Crim R 26 R v El Hassan [2003] NSWCCA 139 Adams v The Queen [2008] HCA 15; 234 CLR 143 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 R v Pang [1999] NSWCCA 4; 105 A Crim R 474 R v Barrientos [1999] NSWCCA 1 R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 Okafor v R [2007] NSWCCA 147 Onuorah v R [2009] NSWCCA 238; 234 FLR 377 Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Taru [2002] NSWCCA 391 R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 R v Chea [2008] NSWCCA 78 Attorney General’s Application Under Section 37 Crimes (Sentencing Procedure) Act 1991 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 Assafari v R [2007] NSWCCA 159 R v Todoroski [2010] NSWCCA 75 R v Hamieh [2010] NSWCCA 189 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v JW [2010] NSWCCA 49 R v Carroll [2010] NSWCCA 55; 239 FLR 11 R v Hersi [2010] NSWCCA 57 R v Dinh [2010] NSWCCA 74 R v MA [2004] NSWCCA 92; 145 A Crim R 434
PARTIES:	Regina (Applicant) Hai Van Nguyen (Respondent) Phuong Thu Thi Pham (Respondent)
FILE NUMBER(S):	CCA 2008/19619 (Nguyen); 2009/1888 (Pham)
COUNSEL:	Mr G Farmer (Applicant) Ms C Loukas (Respondent Nguyen) Ms C Nash; Mr D Kang (Respondent Pham)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Applicant) Legal Aid NSW (Respondent Nguyen) Ford Criminal Lawyers (Respondent Pham)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11/1303 (Nguyen); 2009/11/0062 (Pham)
LOWER COURT JUDICIAL OFFICER:	Judge Walmsley SC (Nguyen); Judge Berman SC (Pham)
LOWER COURT DATE OF DECISION:	6 November 2009 (Nguyen); 10 December 2009 (Pham)
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Pham [2009] NSWDC 362