R v Phuong; R v Lewan - [2015] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PHUONG; R v LEWAN
[2015] SASCFC 70
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Stanley)
8 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
The appellants were convicted of trafficking in a controlled drug; Phuong on one count, Lewan on nine accounts. Lewan was also convicted on one count of attempted aggravated causing harm with intent to cause harm. Phuong was sentenced to two years and 10 months' imprisonment, with a non-parole period of 18 months. Lewan was sentenced to three years and four months' imprisonment in respect of the nine counts of trafficking, and 13 months' imprisonment in respect of the attempted causing harm offence. Lewan's sentences were to be served cumulatively, resulting in a total sentence of four years and five months' imprisonment, with a non-parole period of three years.
Phuong appealed on the grounds that the Judge erred in the categorisation of the offending, failure to observe and apply principles of parity, that the sentence was manifestly excessive and that the Judge erred by failing to exercise his discretion to suspend the sentence. Lewan appealed on the grounds that the sentence was manifestly excessive, and that the Judge failed to correctly apply the principles of parity.
Held (Sulan J, with Stanley J agreeing): The discrepancy between the sentences imposed on Phuong, Lewan and the other offenders demonstrated error on the part of the sentencing Judge. Disparity between sentences does not of itself mean an appeal must succeed.
Unjustifiable disparity will enliven a discretion to intervene. The appellate court will intervene to eliminate marked disparities unless there are strong countervailing considerations.
Appeals allowed on the ground of the principles of parity. In the case of Phuong, the Judge was also in error in his categorisation of the offending. Good reason does not exist to suspend Phuong's sentence. Appellants re-sentenced.
Phuong re-sentenced to three years and six months' imprisonment reduced to two years and six months' imprisonment for his guilty plea. Sentence reduced to one year and 10 months' imprisonment for time spent in custody, with a non-parole period of 12 months', commencing 30 October 2014.
Lewan's sentence of 13 months' imprisonment on attempted causing harm with intent to cause harm is not interfered with. On the nine trafficking counts Lewan is re-sentenced to four years' imprisonment, reduced to two years and 10 months' imprisonment, with a non-parole period of two years and four months' imprisonment, commencing 30 October 2014.
The Judge's forfeiture orders are re-affirmed.
Held (per Kourakis CJ dissenting):
1. The head sentence of five years imposed on Lewan was manifestly inadequate.
2. The Court should not reduce a sentence in order to maintain parity with the sentence of a co-accused where that sentence is manifestly inadequate.
3. Appeal by Lewan dismissed.
4. Appeal by Phuong allowed, a sentence of two years and two months is imposed with a non-parole period of 14 months fixed.
Controlled Substances Act 1984 (SA) s 32(3); Criminal Law Consolidation Act 1935 (SA) s 24(1), s 27OA, referred to.
Lowe v The Queen (1984) 154 CLR 606; Green v The Queen (2011) 244 CLR 462; R v Kong (2013) 115 SASR 425; R v Mangelsdorf (1995) 66 SASR 60; R v MacGowan (1986) 42 SASR 580; Postiglione v The Queen (1996-1997) 189 CLR 295, discussed.
R v Lagana [2012] SASCFC 135; R v Slavan [2014] SASCFC 108, considered.

R v PHUONG; R v LEWAN
[2015] SASCFC 70
Court of Criminal Appeal: Kourakis CJ, Sulan and Stanley JJ

KOURAKIS CJ: I have had the benefit of reading the reasons for judgment in draft of Sulan J. I accept that there is some disparity between the sentences imposed on the appellants on the one hand and the sentence imposed on Keath on the other. However, that disparity does not necessarily give rise to a justifiable sense of grievance if the sentences imposed on the appellants and on Keath are manifestly inadequate. An offender’s grievance that his or her sentence is not as manifestly inadequate as the sentence of a related offender will rarely be justified.
In R v Kong[1] this Court held that a sentence of 3 years 9 months with a non-parole period of 20 months imposed on an offence of trafficking in methamphetamine was manifestly inadequate. The Court did not interfere with the sentence on a Crown appeal because of the difficulty occasioned by the fact that the appellant had been released on a suspended sentence and because there were very strong mitigating circumstances in that case. However, the Court, in Kong, reaffirmed the general sentencing standard established in R v Mangelsdorf[2] of between four and seven years for street traders of drugs like amphetamine.This Court in Kong said:[3]
… the maximum penalties were fixed by Parliament relatively recently and, overall, manifest an intention to increase penalties for trafficking in the hope of deterring a trade which Parliament, for obvious reasons, considers is the cause of great social harm.
…
It must be remembered that the quantity of drug involved in a particular charge may be a matter of happenstance affected by how far into a trading venture an offender is apprehended.
There is another consequence of the scale of penalties which should be observed. The higher maximum penalties imposed by reference to the greater quantities of the drugs traded will, generally, result in longer terms of imprisonment in cases coming within the higher categories than those in the lower categories even though, apart from weight, all of the other circumstances are broadly similar.
All of the above implications of the scale follow from the application of the maximum penalties as yardsticks, and the principles of sentencing parity and consistency. Their net effect is to increase the broad penalty ranges across all of the categories, considered in Mangelsdorf .
There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf , the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as “speed” and “ice” has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, not surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.
[1] (2013) 115 SASR 425.
[2] (1995) 66 SASR 60.
[3] (2013) 115 SASR 425 at [84]-[90].
It is beyond argument that the starting point of 5 years for the head sentence imposed on Lewan for the trafficking offences was manifestly inadequate. He traded in both heroin and methylamphetamine. There was no reason to make the sentences on trafficking in those different drugs wholly concurrent. Furthermore there was little reason for total concurrency of the sentences for trades to different persons.
Nor was Lewan just a street trader. His charged offending largely comprised trades in eight balls, about 3.5 grams, which sold for $1,700. Lewan, like Phuong, appears to have been part of a network of mid-level dealers who traded supplies between themselves. The value and potential for profit of Lewan’s trades was high and he facilitated the distribution of large quantities of drugs to end users. His contribution to the personal misery and social harm caused by the trades in heroin and methylamphetamine was great. Applying the sentencing principles referred to in Mangelsdorf and Kong and taking into account Lewan’s personal circumstances, a starting point approaching 11 years was called for. There was little reason to reduce that sentence on a review for “totality”.
On the other hand Phuong fell to be sentenced for a single trade in methylamphetamine albeit in the context of a course of similar trades. Nonetheless he was not to be punished for the uncharged course of offending. As one of the mid-level dealers in this drug distribution enterprise a sentence at the higher end of the Mangelsdorf range was called for despite Phuong’s mitigating personal antecedents. In that respect I observe that it is important that the sentence imposed for trafficking in illicit drugs deter enterprising individuals like Phuong from using cash to which they have access in their lawful businesses to multiply their profit through the drug trade. In the ordinary course Phuong’s offence would have attracted, as a starting point, a sentence of about 7 years.
This Court should not so reduce the sentences of Phuong and Lewan in order to maintain parity with Keath that, but for the sentence imposed on Keath, an application for permission to appeal those sentences, if imposed at first instance, would almost certainly have attracted a grant of permission to appeal on the grounds of manifest inadequacy. A reduction of the appellants’ sentences to levels which would appease their subjective sense of grievance would give offenders who have received condign punishment, in accordance with the sentencing standard principles established by this Court, a justified sense of grievance and greatly undermine that standard.
Trafficking in amphetamines has caused serious and widespread harm in the Australian community. The high personal toll and wider social harm caused by that drug has attracted national concern. The criminal courts of this State deal daily with the crimes committed in its manufacture and distribution, the crimes committed to fund its purchase and the crimes committed by persons under its influence. The importance of general deterrence in sentencing for offending of this kind precludes this Court from compounding the error of the Judge in not imposing an adequate sentence on Keath by reducing the appellant’s sentences so that they are fully aligned with Keath’s sentence.
The correct approach to appeals on the ground of disparity is found in the judgment of the majority of the High Court in Green v The Queen.[4]The reasons of their Honours warrant lengthy citation:[5]
Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may “reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender”. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: “the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.” The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.
A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal’s discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment.
There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender’s sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, “an affront to the proper administration of justice”. Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.
[4] (2011) 244 CLR 462.
[5] Green v The Queen (2011) 244 CLR 462 at [31]-[33].
Importantly as the High Court explained in the last of the cited paragraphs, the existence of a discretion to reduce a sentence to a level which is inadequate does not extend to imposing a sentence which is so inadequate that it is an “affront to the proper administration of justice”.
As King CJ observed in R v MacGowan,[6] the protection of the public may require the higher sentence to stand. That is also the case for the appellant Lewan. As King CJ also observed in MacGowan, the lower sentence may be so inadequate that to establish parity may be thought to compound the error in a way which would be unacceptable to the public conscience. That too is the case for the appellant Lewan.
[6] (1986) 42 SASR 580.
I would dismiss Lewan’s appeal.
However, in the case of Phuong it is possible to reduce his sentence marginally because he is charged with just one offence of trafficking in methylamphetamine alone. I am also inclined to adjust his sentence to differentiate him from Lewan. I would therefore allow his appeal and resentence him. I would adopt a starting point of 4 years and reduce that to 2 years 10 months for his guilty plea. I would further reduce the sentence by 8 months for the time spent in custody. I therefore would impose a sentence of 2 years 2 months and fix a non-parole period of 14 months.
SULAN J: Roattana Phuong and Jayson Lewan have each appealed against sentences imposed by a District Court Judge for trafficking in a controlled drug and, in the case of Lewan, one count of attempted aggravated causing harm with intent to cause harm.[7] The maximum penalty for each trafficking offence is a fine of $50,000 and 10 years’ imprisonment. The maximum penalty for attempted aggravated causing harm with intent to cause harm is eight years and eight months’ imprisonment.
[7] Trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) and attempted aggravated causing harm with intent to cause harm, contrary to s 24(1) and s 270A of the Criminal Law Consolidation Act 1935 (SA).
Phuong was sentenced to two years and 10 months’ imprisonment, with a non-parole period of 18 months.
Lewan was sentenced to three years and four months’ imprisonment in respect of the nine counts of trafficking to which he pleaded guilty, and 13 months’ imprisonment in respect of the attempted causing harm offence. The sentences were to be served cumulatively, resulting in a total sentence of four years and five months’ imprisonment, with a non-parole period of three years.
Background
Before I deal with the grounds of appeal, it is important to understand the background and the context in which the sentences were imposed.
The sentencing Judge dealt with a number of offenders, all of whom had been involved in trafficking in methylamphetamine and/or heroin. At the time of sentencing the appellants, the Judge also sentenced Krisna Keath, Minh Giac Nguyen, Quang The Tran and Angelo Borden Barcelon. Those sentenced, and a number of others, were arrested and charged with offences resulting from a police operation over a number of months, during which police conducted numerous telephone intercepts as part of the investigation of a drug ring.
Central to the investigation was Krisna Keath whose telephone was intercepted over the period from 28 August 2012 to 22 October 2012. Over 1600 calls and SMS messages were intercepted and revealed communications between Keath and a number of other offenders, including the two appellants. The evidence revealed that Keath was engaged in high-volume drug dealing selling heroin and methylamphetamine to both drug users and other drug dealers on a daily basis. At the time she was offending, Keath was on bail for trafficking charges. On 29 October 2012, she had been sentenced to four years and six months’ imprisonment, with a non-parole period of three years, the sentence to commence on 18 October 2012.

Keath had made arrangements with another accused, Jeremy Butler, to continue her drug trafficking business whilst she was in custody. She had contacted her customers and advised them that “Jimmy” would be taking over for her. Butler continued the business of providing drugs to Keath’s customers. Subsequently, Butler was arrested on 13 November 2012. Whilst Keath was in custody in the Adelaide Women’s Prison, she contacted another offender, Ms Wong, and put her into contact with other members of the group. Keath was subsequently charged and committed for sentence on 17 counts of trafficking in a controlled drug.
Others, including the appellants, were also charged.
Phuong came to the attention of police when they were monitoring communications of Lewan. Police monitored a number of conversations between Phuong and others which related to possessing and selling methylamphetamine. The prosecution alleged that Phuong was a mid-level trafficker of methylamphetamine. Phuong was committed for sentence on one count of trafficking in a controlled drug. The charge is representative of a course of conduct.
Lewan came to the attention of police when they were monitoring Keath’s telephone. Lewan’s telephone was then intercepted, which revealed Lewan and a number of other accused and unknown persons were trafficking in both heroin and methylamphetamine. The evidence demonstrated that Lewan was a mid‑level drug trafficker, dealing primarily in 8-ball quantities of methylamphetamine. He was dealing between two to four 8-balls of methylamphetamine each day. When police attended at his premises on 6 November 2012, they located two plastic bags containing quantities of methylamphetamine. Three sets of digital scales were seized and analysed. All contained traces of methylamphetamine.
On 10 May 2013, Lewan was arrested and charged with trafficking. He was committed for sentence on nine counts of trafficking in a controlled drug. The charges are representative of a course of conduct.
On 30 October 2013, the sentencing Judge sentenced Keath, Nguyen, Lewan, Tran, Phuong and Barcelon. In sentencing the defendants, the Judge observed that the sentences may vary depending on factors of aggravation or mitigation, which were different in each case. He was aware that any difference in sentence must fairly reflect those differences in circumstances and he stated that he would explain any such differences.
In the case of Keath, the Judge noted that she had pleaded guilty to 17 counts of trafficking in a controlled drug, namely, heroin and methylamphetamine. He noted that Keath had been sentenced to four years and six months’ imprisonment, with a non-parole period of three years, for offences for which she had been arrested in October 2011. At the time of her arrest in 2011, Keath was subject to a suspended sentence and bond. The Judge noted that after Keath had gone into custody she had continued the operation through Butler. The Judge noted that Keath was engaged in mid-level street trading in heroin and methylamphetamine to both drug users and other dealers on a daily basis. The Judge dealt with Keath’s personal circumstances. The Judge commenced with a sentence of four years and six months’ imprisonment, which he reduced by approximately 30 per cent for her early plea to three years and two months’ imprisonment. He further reduced it to two years and two months’ imprisonment to allow partial concurrency. He ordered that the sentence commence at the expiration of the four years and six months’ sentence which had earlier been imposed on 29 October 2012.
In the case of Nguyen, the Judge observed that he had pleaded guilty to four counts of trafficking in a controlled drug. He observed that Nguyen had continued to deal with Butler, and that he had supplied drugs to Ms Wong. The charges represented a course of conduct and involved dealing in 8-balls of heroin, which were selling for approximately $1200 per 8-ball. The Judge characterised Nguyen’s involvement as a mid-level trader selling to street-level traders or others who sold to street-level traders. Nguyen had prior convictions involving drug offending which had resulted in lengthy terms of imprisonment. The Judge started with a sentence of six years’ imprisonment, reduced to four years and 10 months’ imprisonment on account of his plea, and a further 12 months to allow some partial concurrency with a sentence that Nguyen was then serving.
In the case of Tran, the Judge noted that he had pleaded guilty to attempted aggravated causing harm with intent to cause harm. He observed that Tran was assisting an associate to recover a drug debt. Tran and his associate had planned to attack the victim. When Tran was stopped with his associate, police discovered cable ties fashioned as hand restraints. The Judge observed that the offending was extremely serious. It was organised and pre-planned, and the offence was committed whilst Tran was on bail for the offence of drug trafficking.
The Judge started with a sentence of two years and six months’ imprisonment, which was reduced by 30 per cent to one year and 11 months’ imprisonment and further reduced for time in custody.
Barcelon pleaded guilty to two counts of trafficking in a controlled drug. He was a first offender. He was purchasing methylamphetamine from Lewan to re-sell at street level. The two charges were representative of a course of conduct. Taking into account Barcelon’s personal circumstances, the Judge started with a sentence of two years’ imprisonment, reduced by 30 per cent to one year and five months’ imprisonment, with a non-parole period of 11 months. The sentence was suspended.
In the case of Phuong, the Judge noted that he had pleaded guilty to one count of trafficking, which involved selling methylamphetamine to Lewan. The Judge stated that Phuong was higher up in the chain of supply than was Lewan, and was selling multiple 8-balls of methylamphetamine and heroin on virtually a daily basis. The Judge considered that Phuong was a mid-level trafficker and was selling substantial amounts of methylamphetamine. Counsel for Phuong on the appeal submitted that the Judge was in error in assessing Phuong’s culpability as greater than that of Lewan and others involved in the enterprise. The Judge noted that Phuong had two previous convictions, both unrelated to drug offending, and that he was entitled to up to 30 per cent sentence reduction for a plea of guilty. Phuong had also been in custody for a period of seven months and one week, and on home detention for three months.
The Judge observed:
Mr Anders, your counsel, submitted that the following factors mitigate the penalty to be imposed: you come from a respectable law-abiding family; the salutary effect that the period in custody has had on you; the treatment provided to you by Professor Davies; the loss of your business as a result of your arrest; the death of your mother in April of this year; your good education, your industry and capacity for hard work; your addiction to methylamphetamine at the time of the offences, which he suggested was caused by stress and emotional issues; the intermittent nature of your offending; your decision to no longer associate with the people you were dealing with; your plea of guilty, evidencing contrition and desire to facilitate the course of justice; your lack of relevant previous convictions; and the responsibilities of a new relationship.
I accept that there are factors which are significant in fixing penalty.
It was noted that Phuong was addicted to drugs at the time. The Judge observed that Phuong had been dealing in large quantities of methylamphetamine and in large amounts of money. The Judge started with a sentence of five years’ imprisonment, reduced by 30 per cent to three years and six months’ imprisonment, and further reduced by eight months for time spent in custody and on home detention, resulting in a sentence of two years and 10 months’ imprisonment. The Judge fixed a non-parole period of 18 months’ imprisonment.
In the case of Lewan, the Judge noted that he had pleaded guilty to nine counts of trafficking in a controlled drug. He was first detected communicating with Keath. He had been trafficking in both heroin and methylamphetamine. He was a mid-level trafficker dealing mainly in 8-ball quantities. The nine counts were representative of a course of conduct.
As to the charge of attempted aggravated causing harm with intent to cause harm, the Judge accepted that Lewan was involved with Tran to whom he owed money. Tran was the instigator. Lewan was to assist Tran but, when they went to the victim’s house, their plan was aborted due to them observing police in the area. A second attempt was made, but that was also aborted when police apprehended Tran and another accomplice. The Judge accepted that Lewan did not intend to use a weapon, but was there to assist Tran. The Judge observed:
You were only 22 years of age at the time and, according to Mr Barklay, you were in over your head. But the telephone intercepts clearly show that you arranged for several others to be present to assist. You were an active participant in this joint criminal enterprise.
Mr Barklay submitted that the following matters mitigate the penalty for your offending: your age, you are still only 24 years old; your troubled upbringing, separation from your mother, the abuse you suffered as a child, your exposure to drugs and other unpleasantness while in the care of your aunt, your unsettled placement after that; your efforts to rehabilitate yourself since you went into custody on 6 November 2012 on the cause harm charge, including being drug-free since then; obtaining assistance to overcome your gambling problem and obtaining employment through Workskil; the deterrent effect of the four-and-a-half months or so that you had already spent in custody before gaining home detention bail on 15 February 2012; the mental health issues outlined by Mr Broomhall in his report; your compliance with strict home detention and reporting requirements, the support you get from your brother and others; your good character as evidenced by the references supplied; and your contrition and desire to facilitate the course of justice evidenced by your early pleas of guilty.
As to that last matter, the prosecution agrees that you are entitled to a 30% reduction in penalty on the basis of your early guilty pleas.
As to the drug trafficking charges, the Judge started with a sentence of five years’ imprisonment, which he reduced by 30 per cent to three years and six months’ imprisonment and by a further two months to three years and four months’ imprisonment for time spent in custody. As to the attempt to cause harm with intent charge, the Judge reduced the sentence by 20 per cent to 19 months’ imprisonment and by a further six months for time spent in custody and on home detention bail. The 13 months’ imprisonment for that offence was to commence at the expiration of the three years and four months’ imprisonment for the drug offences, making a total of four years and five months’ imprisonment. The Judge fixed a non-parole period of three years’.
The appeal
In the case of Phuong, it is submitted that the Judge was in error in his categorisation of the offending, that he failed to observe and apply principles of parity, that the sentence was manifestly excessive and that the Judge was in error in failing to exercise his discretion to suspend the sentence.
In the case of Lewan, it is submitted that the Judge was in error in that the sentence was manifestly excessive and that he failed to correctly apply the principle of parity.
Before I consider the position in respect of each defendant, it is convenient to deal with the principles relating to parity.
Parity – principles
It is a fundamental principle that defendants charged with similar or the same offences are treated equally. Exact equality is rarely applicable, even when persons are charged with the same offence, as a sentence will always reflect different degrees of culpability and different personal circumstances.
In Lowe v The Queen,[8] the High Court considered an application for leave to appeal from a decision of the Queensland Court of Criminal Appeal which had reduced the applicant’s sentence on the ground that his co-accused had received a much lesser sentence. The Court of Criminal Appeal reduced the sentence, having regard to the principle of parity. The applicant argued that there had been insufficient reduction of his sentence.
[8] (1984) 154 CLR 606.
The High Court discussed the principle of parity. Gibbs CJ observed that a court of appeal is empowered in its discretion to reduce a sentence that is not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. He observed:[9]
... It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal.
[9] Lowe v The Queen (1984) 154 CLR 606 at 610.
Mason J considered that inconsistency in punishment reflects unfairness and will lead to an erosion of public confidence in the integrity of the administration of justice. Mason J considered that marked disparity is in itself a ground which discloses error. He referred to the debate about disparity and to the proposition that a sentence which is appropriate should not be reduced on the ground of discrepancy. He observed that if there is a genuine sense of grievance on the part of a defendant who has received a disparate sentence from that of his co-offender or other offenders in similar circumstances, then it is not always possible to increase the sentence of those who received excessive leniency. In those circumstances, Mason J was of the view that it is preferable to err on the side of leniency and eliminate or diminish the sense of grievance and appearance of injustice by reducing the more severe penalty in appropriate cases. He said:[10]
Accordingly, a court of criminal appeal confronted with the problem of discrepancy can substitute for a severe but appropriate sentence a lesser sentence which nevertheless falls within the order of what is appropriate. But the critical question is whether a court of criminal appeal can go further by reducing a sentence, which considered apart from disparity is otherwise appropriate, to a level where it is inadequate or might be regarded as inadequate.
[10] Lowe v The Queen (1984) 154 CLR 606 at 612.
He went on to conclude that there were two questions which arise. He said:[11]
... The first is: is discrepancy a ground for intervention in itself or is it merely indicative of undisclosed error in the sentencing process? Logic and reality combine to compel an answer in favour of the first alternative. The undisclosed error, as we have seen, may have occurred in the sentencing process as it affected the co-offender. The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.
What I have already said provides an answer to the second question: what is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.
[11] Lowe v The Queen (1984) 154 CLR 606 at 613-14.
Dawson J accepted that there is a principle which requires courts not to impose disparate sentences. He expressed the view that where there is disparity, a court of appeal will interfere if the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. If the difference between sentences is manifestly excessive, then an appellate court will intervene in the interests of justice. Wilson J agreed with the reasons of Gibbs CJ and Dawson J.
The High Court again considered the principle of parity in Postiglione.[12] Dawson and Gaudron JJ explained the parity principle in the following terms:[13]
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance”. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
(Footnotes omitted.)
[12] Postiglione v The Queen (1996-1997) 189 CLR 295.
[13] Postiglione v The Queen (1996-1997) 189 CLR 295 at 301-2.
Kirby J observed that the problem of disparity will ordinarily arise, not so much out of a suggested departure from the requirements to punish equally like offenders convicted of like offences, [but rather] out of the disparate punishment of co‑offenders or offenders in a situation demanding comparison and contrast.[14] He stated that mere disparity is not enough, but what is needed is that the disparity engenders a “justifiable sense of grievance” on the part of the prisoner, or “give the appearance that justice has not been done”. That question is to be answered not by a subjective consideration of how the prisoner feels, but by considering in an objective way whether the prisoner’s sense of grievance is justified.
[14] Postiglione v The Queen (1996-1997) 189 CLR 295 at 338.
In Green, the plurality French CJ, Crennan and Kiefel JJ confirmed the decision in Lowe. The Judges stated:[15]
“Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order”. It has been called “the starting point of all other liberties”. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
“Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.”
(Emphasis in original.)
Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
(Footnotes omitted.)
[15] Green v The Queen (2011) 244 CLR 462 at [28].

Their Honours observed that the parity principle is not limited to persons charged with the same offences arising out of the same criminal conduct or enterprise. The greater the differences in the charges, the more difficult it is to apply the principle. However, practical difficulties in limitations do not exclude the operation of the parity principle. The Court observed:[16]
There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed.
[16] Green v The Queen (2011) 244 CLR 462 at [33].
In R v MacGowan,[17] King CJ confirmed that the principle of disparity applies. However, there are limitations upon it.
[17] (1986) 42 SASR 580.
He said:[18]
There may be considerations against interference. The protection of the public may require the highest sentence to stand. The lower sentence may be so inadequate that to establish parity may be thought to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest. But in the absence of strong countervailing considerations, the Court of Criminal Appeal will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case.
[18] R v MacGowan (1986) 42 SASR 580 at 583.
It is to be accepted that disparity between sentences does not necessarily, of itself, mean that the appeal must be allowed. Unjustifiable disparity will enliven a discretion, but it does not follow that the appellate court will necessarily intervene. However, as King CJ pointed out, the appellate court will interfere to eliminate marked disparities unless there are strong countervailing considerations.[19]
Phuong
[19] R v Lagana [2012] SASCFC 135; R v Slaven [2014] SASCFC 108 at [6] per Nicholson J.
Incorrect factual basis
Counsel submitted that the sentencing Judge’s characterisation of Phuong as being higher in the supply chain than Lewan is a factual error. I observe that the Judge failed to identify the factors which supported his conclusion that Phuong’s involvement in the enterprise was greater than that of Lewan. Counsel for the Director accepted that to characterise each defendant’s involvement as being part of a chain of supply was not accurate. She accepted that if one started with Keath at the epicentre, the more accurate description of the involvement of others was like a spider web. She accepted that it was more accurate to consider each person’s involvement individually, rather than where they sat in the chain of command.
I agree with counsel’s summary and description of the involvement of the various defendants in this enterprise. There is little doubt that Keath was the central figure in the operation. Other defendants who were involved and who police discovered and eventually apprehended as a result of telephone intercepts were persons who were trading with one another, and selling to others who were selling on the street. The description of all of the defendants as mid-level dealers is a generalisation. The evidence established that they were persons dealing in larger quantities of drugs to others who then sold the drug on the street. They were also dealing amongst themselves. In that regard, there is little to distinguish between their involvement, and any distinction must be drawn from the number of charges which they faced and their personal circumstances. In my view, the Judge erred in his description of Phuong’s involvement in the enterprise.
Phuong was addicted to drugs which was the motivating factor for his offending. He was primarily involved in order to be able to access drugs for his personal use. Phuong supplied Lewan but was far less involved in trading than Lewan, which was reflected in the number of charges he faced.
It was submitted that the starting point for Phuong being the same as Lewan, who pleaded guilty to nine counts, demonstrated error. Further, it was argued that when compared with the sentence imposed upon Keath and Barcelon, there was obvious disparity. Barcelon was charged with two counts of trafficking, which was also part of the course of conduct. It was argued that there was an insufficient reason to distinguish between Barcelon’s conduct and that of Phuong.
The Judge in his sentencing remarks did not indicate why there was such great disparity between the sentence imposed upon Keath on the one hand and Barcelon on the other hand and that imposed upon Phuong. Nor did the Judge distinguish Lewan’s role from that of Phuong other than to state, erroneously in my view, that Phuong was higher in the chain.
Counsel submitted that this disparity results in a genuine and justifiable sense of grievance, and enlivens the discretion to reduce the sentence.
It was further submitted that the starting point of five years’ imprisonment for a single trafficking offence is manifestly excessive. It was submitted that Phuong’s level of involvement and personal circumstances were such that the Judge’s starting point of five years’ imprisonment was excessive. Counsel submitted that the Judge failed to reduce the non-parole period by the actual time spent in custody.
Counsel contended that, having regard to the defendant’s personal circumstances, including his employment, his previous good record, his strong family connections, and the fact that he had spent some seven months in custody, the Judge was in error in declining to suspend the sentence.
In my view, the sentencing Judge was in error in characterising Phuong’s involvement as higher in the chain of command than that of Lewan. Further, the discrepancy between the sentences imposed upon Phuong and others demonstrate error on the part of the sentencing Judge.
I have had regard to the sentence imposed upon Keath. She was centrally involved in this offending. She had a long history of drug offending and continued her enterprise whilst in custody. In my view, the sentence imposed upon her was merciful. Nevertheless, when considering the sentence imposed upon Phuong, it is difficult to reconcile with the sentence imposed upon Keath.
For these reasons, I conclude that the sentencing Judge’s discretion miscarried.
I would re-sentence Phuong as follows. I would start with three years and six months’ imprisonment, reduced to two years and six months’ imprisonment, having regard to his plea of guilty, further reduced by eight months to one year and 10 months’ imprisonment having regard to time spent in custody. I would set a non-parole period of 12 months’, the sentence and non-parole period to commence on 30 October 2014. I regard the offending to be too serious to conclude that good reason exists to suspend the sentence, and I decline to do so.
Lewan
In the case of Lewan, it was submitted that the sentence was manifestly excessive, having regard to Lewan’s personal circumstances. He was 22 years of age at the time of the offending. He had no prior convictions for drug dealing. He had spent four-and-a-half months in custody and 11 months on home detention bail. He was separated from his mother as a young child. He was left with his grandmother who died. He then grew up in foster care with his siblings. He was the subject of sexual abuse as a child and exposed to drugs at a young age. After his arrest, he remained drug-free. He sought counselling for both his gambling and drug addiction. He had obtained full-time employment. He had the support of his brother and others. He pleaded guilty at an early stage.
It was submitted that his compelling personal circumstances justified a lower sentence.
As to parity, it was submitted that when compared to the involvement of Keath, the sentence was disproportionate to that passed upon her. It was submitted that to start at five years for Lewan’s involvement when compared to Keath’s involvement where the Judge started at four years and six months’ imprisonment, the sentence was disparate and engendered a justifiable sense of grievance on the part of Lewan. It was contended that, in the circumstances, this Court should reduce the sentence even though the sentence, when considered in isolation, may not be manifestly excessive.[20]
[20] See Lowe v The Queen (1984) 154 CLR 606 at 609; Postiglione v The Queen (1996-1997) 189 CLR 295 at 301.
It is submitted that, in the circumstances of this offending, to reduce the sentence would not offend the principle that it would be unacceptable to the public conscience for the sentence to be reduced.[21]
[21] See Green v The Queen (2011) 244 CLR 462; MacGowan v The Queen (1986) 42 SASR 580.
I consider that there is merit in counsel’s submission. When compared to the sentence imposed on Keath and Barcelon, the starting point of five years’ imprisonment in the case of Lewan for the drug offending was not justified. Lewan has established a genuine sense of grievance. I am satisfied that, objectively, when the sentence is compared with that imposed upon Keath on the one hand and Barcelon on the other, the Court is left with a sense that an injustice has resulted.
Lewan’s involvement, having pleaded guilty to nine offences, must be regarded as more serious than Phuong. In the circumstances, I would commence with a sentence of four years’ imprisonment, reduced to two years and 10 months’ imprisonment, having regard to his plea of guilty.
In respect of the offence of aggravated causing harm with intent to cause harm, I would not interfere with the sentence of 13 months’ imprisonment. That results in a total head sentence of three years and 11 months’ imprisonment. I impose a non-parole period of two years and four months’, the sentence and non‑parole period to commence on 30 October 2014.
I would reaffirm the forfeiture orders made by the sentencing Judge.
In each appeal, the appeal is allowed and the appellants are re-sentenced to the terms of imprisonment to which I have earlier stated.
STANLEY J: I agree with Sulan J.