Thi Nho Em Le v The Queen
[2015] VSCA 183
•21 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0033
| THI NHO EM LE | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 June 2015 |
| DATE OF JUDGMENT: | 21 July 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 183 |
| JUDGMENT APPEALED FROM: | DPP v Le (Unreported, County Court of Victoria, Judge Taft, 22 August 2014) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking in a drug of dependence – Large commercial quantity – Sentence of 11 years' imprisonment with non-parole period of 8 years – Parity – Whether sentence infringed principles of parity in relation to sentences imposed on 2 other offenders – Parity reasoning requiring modification in respect of 1 of 2 other offenders who was not a co-offender of the appellant – Insufficient disparity between the appellant's sentence and those of the 2 other offenders so as to give the appearance justice has not been done – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M D Stanton | Spicer Lawyers |
| For the Respondent | Ms F Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
BEACH JA:
Introduction
The appellant, Thi Nho Em Le (referred to as ‘Chi Tu’), Khi Sin Mong (referred to as ‘Mong’), Thanh Hai Pham (referred to as ‘Hai’) and Thi Nho Le (referred to as ‘Chi Ba’) were each involved in trafficking heroin. They were arrested on 12 August 2010 after a nine-month police investigation into their activities.
The appellant, Mong, Hai and Chi Ba are all members of the same family. Mong is the de facto partner of the appellant. Chi Ba is the appellant’s older sister, and Hai is Chi Ba’s husband.
On 22 November 2013, the appellant pleaded guilty in the County Court to one charge of trafficking in a drug of dependence (heroin) in a quantity not less than the large commercial quantity applicable to that drug. Following a plea on 13 and 19 March 2014, the appellant was sentenced on 22 August 2014 as follows:
Charge on Indictment Offence Maximum Sentence 1 Trafficking in a drug of dependence — large commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] Life imprisonment [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] 11 years Total Effective Sentence: 11 years’ imprisonment Non-Parole Period: 8 years Pre-sentence Detention Declared: 1471 days 6AAA Statement: 14 years and 6 months with a non-parole period of 11 years and 6 months Other orders: Disposal and forfeiture orders, forensic sample order
On 17 April 2013, Mong pleaded guilty in the County Court to one charge of trafficking in a drug of dependence (heroin) in a quantity not less than the large commercial quantity applicable to that drug. On 22 November 2013, Mong was sentenced as follows:
Charge on Indictment Offence Maximum Sentence 1 Trafficking in a drug of dependence — large commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] Life imprisonment [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] 11 years, 6 months Total Effective Sentence: 11 years and 6 months’ imprisonment Non-Parole Period: 8 years and 6 months Pre-sentence Detention Declared: 1198 days 6AAA Statement: 15 years with a non-parole period of 12 years Other orders: Disposal and forfeiture orders
Mong sought leave to appeal to this Court against the sentence imposed upon him. On 6 March 2015, Mong’s application for leave to appeal against sentence was refused.[1]
[1]Mong v The Queen [2015] VSCA 33 (‘Mong’).
On 17 February 2014, Chi Ba pleaded guilty to one charge of trafficking in a drug of dependence (heroin) in a quantity not less than the large commercial quantity applicable to that drug before the same County Court judge before whom the appellant and Mong had pleaded. On 5 September 2014, Chi Ba was sentenced, by the same judge who had sentenced the appellant and Mong, as follows:
Charge on Indictment Offence Maximum Sentence 1 Trafficking in a drug of dependence – large commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] Life imprisonment [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] 12 years Total Effective Sentence: 12 years’ imprisonment Non-Parole Period: 9 years Pre-sentence Detention Declared: 1485 days 6AAA Statement: 15 years and 6 months with a non-parole period of 12 years and 6 months Other orders: Disposal and forfeiture orders, forensic sample order
Chi Ba sought leave to appeal to this Court against the sentence imposed upon her. On 6 March 2015, Chi Ba’s application for leave to appeal against sentence was refused.[2]
[2]Pham v The Queen [2015] VSCA 34 (‘Pham’).
On 6 May 2015, the appellant was given leave to appeal against her sentence on the ground that the sentence imposed offended against the principle of parity in light of the sentences imposed upon Mong and Chi Ba.
Circumstances of the appellant’s offending
The appellant was the principal of a heroin trafficking business involving her partner Mong, her brother Muoi Van Le (referred to as ‘Muoi’) and his wife Nga Thi Pham (referred to as ‘Nga’). The appellant primarily conducted her trafficking business from her flat in Fitzroy.
The appellant’s sister Chi Ba ran a separate heroin trafficking business involving her husband Hai and Mong.
Mong was a senior member of the appellant’s heroin trafficking enterprise. His primary role was sourcing and arranging the purchase of heroin from suppliers for both the appellant and Chi Ba’s trafficking businesses. The two businesses sometimes shared the purchased heroin between each other. The appellant provided Mong with the funds to purchase the heroin.
The appellant and Chi Ba would re-package the heroin Mong sourced by diluting it and re-packing it into smaller amounts for sale.
The appellant used her flat in Carlton North as a safe house for the preparation and storage of heroin. The flat was also used to store cash and casino chips derived from the sale of heroin. On 29 April 2010 the flat was covertly searched by police and 1,662.8 grams of heroin, $595,000 cash and $50,000 worth of casino gambling chips were seized.
After these items were seized by the police, the appellant used her property in Brunswick, occupied by her children and grandchildren, and her sister Sau Thi Le’s house in St Albans, to store and prepare drugs.
Conversations between the appellant and others revealed that the police searchers had overlooked $115,000 in cash that was kept at the Carlton North flat. The appellant arranged for that money to be kept at Sau Thi Le’s house.
The appellant primarily sold drugs out of the Fitzroy flat that she lived in with Mong. She sold heroin in pre-packaged amounts of 1.7 grams (blue package) or 3.5 grams (yellow package) and kept records of her sales. The appellant’s younger brother Muoi and his wife Nga, who also lived in the flat, assisted her by selling heroin, receiving money, and recording sales.
The appellant had many regular customers. Her ‘shop’ opened after 8:00am and closed by 10:00pm each day with nearly daily activity and some customers attending multiple times a day. One customer would send her 14 year old daughter ‘W’ to the appellant’s flat to buy heroin for her. The appellant supplied W with heroin on ten occasions, on one occasioning advising her to ‘stash it in her bum.’ W was observed attending the appellant’s flat on 62 other occasions to either collect heroin or deliver money for her mother.
Chi Ba, Hai, Mong and the appellant used code words to refer to heroin and to discuss its quantity and quality. Customers wanting to purchase heroin used terms such as being ‘bored’, wanting to ‘have fun’, and invitations to come over for ‘chit chat’, or play Xap Xam, Tu Sac or cards. Money was often referred to as paper and was generally spoken about in multiples of 100 or 1000, depending on context. The police were referred to by terms such as ‘big brother’ and ‘paternal grandfathers’.
On 12 August 2010 the police carried out a series of arrests and searches. They seized more than $21,000 in cash and more than $275,000 in jewellery from the Napier Street flat that Mong and the appellant shared with Muoi and Nga. A further $94,595 in cash, $500,000 in casino gambling chips and $145,530 in jewellery was seized from the appellant’s property in Brunswick. $200,000 in cash, kept at Thi Sau Le’s St Albans home, kept there at the appellant’s request, was seized.
The appellant was interviewed by the police and denied any involvement in drug trafficking. She stated that she rarely saw her sisters Sau Thi Le and Chi-Ba. The appellant claimed not to know what Chi-Ba did for a living. The appellant stated that she only went to her Carlton North flat to collect rent from her daughter’s friends who had rented it for a period. When asked why W had attended her flat, the appellant said that W was looking for her mum.
The circumstances of Mong’s and Chi Ba’s offending
The appellant’s complaint being one of parity in relation to the sentences imposed upon Mong and Chi Ba, it is necessary to set out in some detail the circumstances of their offending. The circumstances of Mong’s offending were described by this Court in Mong as follows:
Mong was a senior member of the heroin trafficking enterprise managed by Chi Tu and Chi Ba. He was in a de facto relationship with Chi Tu. His primary role was sourcing and arranging the purchase of heroin from suppliers. A conservative calculation of the quantity of heroin sold by the enterprise is 11.1 kilograms.
Mong worked with both Chi Tu and Chi Ba to source heroin from suppliers. He had almost daily contact with suppliers. Chi Tu and Chi Ba would then re-package the heroin by ‘cutting’ it and re-packing it into smaller amounts for sale. The sales aspect of the enterprise was separated into two parts. Chi Tu ran one side, assisted by Mong, while Chi Ba and her husband, Thanh Hai Pham, ran the other. The two sides sometimes shared the purchased heroin between each other.
Mong arranged the purchases of heroin made by Chi Tu and himself, with Chi Tu providing advice and funds.
During the first part of the charge period Chi Tu used a flat in Lygon Street, Carlton, to do the cutting and packaging of heroin. The flat was also used to store drugs and money derived from the sale of drugs. It was searched by police on 29 April 2010 and they seized 1.67 kilograms of heroin, $595,000 cash and $50,000 in casino gambling chips. After that seizure, Chi Tu used other houses to store and cut the drugs, including her own in Hope Street, Brunswick, where her children lived, and her sister Sau Thi Le’s house in Lahy Street, St Albans. Mong went to the Hope Street house on many occasions to collect drugs or deliver money.
Chi Tu sold drugs out of the flat that she lived in with Mong in Napier Street, Fitzroy. Mong would not conduct transactions with purchasers who came to the flat, but would refer them to either Chi Tu, or her younger brother and his wife who also lived in the flat. Mong personally sold heroin in one-ounce lots on a regular basis to his friend and associate, Thanh Van Dinh.
A conservative calculation of the amounts of heroin sold by each aspect of the joint enterprise were:
· in excess of 1.1 kilograms from the Napier Street flat;
· in excess of 448 grams to Mr Dinh; and
·7.89 kilograms by Chi Ba’s side of the business.
On 12 August 2010 the police carried out a series of arrests and searches. They seized a total of $123,332 cash, $1,780 in casino gambling chips and jewellery valued at $292,735 from the Napier Street flat where Mong lived with Chi Tu. Further cash, casino gambling chips and jewellery worth $1,089,555 in total was seized from Chi Tu’s house in Hope Street, Brunswick.
Mong was interviewed by the police and denied any involvement in drug trafficking. He claimed he did not know anything about drug dealing from the Napier Street flat. He initially denied knowing where the Lygon Street flat was, but later amended that and said that he thought he had probably been inside there once with Chi Tu. He said that Mr Dinh was his employer as well as his friend and he had not given him drugs.[3]
[3]Mong [2015] VSCA 33, [4]–[11].
The circumstances of Chi Ba’s offending were described by this Court in Pham as follows:
Chi Ba and her husband Hai ran a heroin trafficking business from their family home in Keilor Downs. They both pleaded guilty to participating in a joint criminal enterprise with each other, but not with Mong or [the appellant]. Chi Ba managed the business … .
Chi Ba purchased heroin from her own suppliers and/or in conjunction with [the appellant] and Mong. She would dilute the heroin to 25% purity before on-selling it. … .
Chi Ba and Hai sold heroin to a number of customers. They delivered heroin to their customers’ houses, and also supplied the drug to customers who visited their home.
Chi Ba and Hai sent some of the money they made from heroin trafficking to Vietnam for investing in property. Between February and June 2010, Hai arranged for three separate transfers of $200,000 to Vietnam. On 3 July 2010, Hai attempted to organise for the transfer of $320,000 to Vietnam, but the money was not sent as the AFP raided the business premises associated with the transfers and confiscated a large amount of cash. Chi Ba also arranged for money to be sent to Vietnam. On 21 April 2010, she organised for $100,000 to be transferred through one of her suppliers.
The applicants used code words to refer to heroin and to discuss its quantity and quality. Customers wanting to purchase heroin used terms such as being ‘bored’, wanting to ‘have fun’, and invitations to come over for ‘chit chat’, or play Xap Xam, Tu Sac or cards. Money was often referred to as paper and was generally spoken of in multiples of 100 or 1000, depending on context. The police were referred to by terms such as ‘big brother’ and ‘paternal grandfathers’. Safe houses were used to store drugs and money with Chi Ba sometimes storing drugs at her children’s houses.
Police searched Chi Ba and Hai’s home and seized $379,740 in cash, $54,500 in casino gambling chips and jewellery valued in total at $198,925. 168.6 grams of heroin with an approximate purity of 25% and 22.8 grams of heroin with an approximate purity of 70% were also located at the property. Additional jewellery valued at $47,635 was recovered from a bank safety deposit box
…
Chi Ba was interviewed by police and admitted to trafficking heroin ‘a little bit’, and selling to only one or two people. She told police that she sold the heroin in one ounce lots. She further admitted to having obtained six ounces from Mong at $10,000 per ounce and then re-selling them for $11,000 per ounce, but denied cutting the drugs before re-selling them.[4]
[4]Pham [2015] VSCA 34, [11]–[18].
Bases upon which Mong and Chi Ba were sentenced
As we have said, the same judge sentenced the appellant, Mong and Chi Ba. Mong was sentenced first, the appellant second and Chi Ba third.
Mong was sentenced on the basis that he was a party to a joint criminal enterprise with Chi Ba and the appellant that trafficked heroin from Fitzroy, Carlton and Keilor Downs. A conservative calculation of the quantity of heroin sold by the joint enterprise was 11.1 kilograms. By the time Chi Ba and the appellant came to be sentenced it was no longer the Crown case that Mong, Chi Ba and the appellant were in joint criminal enterprise. The Crown case now was that the appellant and Chi Ba were the principals of separate criminal enterprises. Chi Ba was sentenced on the basis that she was involved in a joint criminal enterprise with her husband Hai (but not Mong — or the appellant), while Mong, as we have said, was sentenced on the basis that he was involved in both enterprises.
In sentencing Chi Ba, the judge found that the precise quantity of heroin could not be determined, but it was multiples of a large commercial quantity.[5]
[5]DPP v Le & Pham (Unreported, County Court of Victoria, Judge Taft, 5 September 2014) [4].
For the purpose of the application of the parity principle Chi Ba was not strictly a co- offender, and Mong, who was a co-offender, was also sentenced for his role in Chi Ba’s criminal enterprise.
The judge’s reasons
The appellant was 48 years of age at the time of sentencing. Mong was 65, and Chi Ba was 50. The appellant had prior convictions in 1997 for trafficking and possessing heroin for which she received a 4 month suspended sentence and a community based order. Mong had a prior conviction in 2001 in respect of 3 counts of trafficking heroin, for which he ultimately received a sentence of 9 years’ imprisonment with a non-parole period of 6 years and 6 months.[6] Chi Ba had prior convictions for trafficking and possessing heroin in 1993 for which she was sentenced to 6 months’ imprisonment on each charge, wholly suspended for 12 months.
[6]R v Mong (2002) 5 VR 565.
It is not necessary to set out all of the judge’s reasons for sentence so far as the appellant is concerned. It is sufficient to set out those parts of the reasons that deal with parity between the appellant and Mong. The judge said:
On 23 November 2013, I sentenced your partner, Mong, to a term of imprisonment of 11 years and 6 months with a non-parole period of 8 years and 6 months. He had pleaded guilty to trafficking a large commercial quantity of heroin. At that stage, the prosecution case was that you and your sister, Chi Ba, were involved in a joint criminal enterprise involving the sale of at least 11.1 kilograms of heroin. Mong accepted culpability and was sentenced on that basis. Subsequently the Crown case was reconfigured and both you and your sister, Chi Ba, have pleaded guilty to running separate criminal enterprises rather than a single joint criminal enterprise. As a result, the quantity of heroin which you have transacted is in excess of 3 kilograms rather than the greater quantity to which Mong entered a guilty plea.
In the course of the plea in mitigation, your counsel emphasised the disparity between the amount of heroin that you trafficked and the amount that Mong trafficked. For sentencing purposes, I accept that the distinction is clearly relevant. Further, Mr Ihle noted that Mong had been released in May 2008 after completing a lengthy prison sentence for trafficking heroin and that he had speedily re-offended in a like manner.
However your situation is to be adversely contrasted to Mong’s in respect of your position in the hierarchy, the benefits that you derived from trafficking heroin and the timing of your plea of guilty.
Mong was sentenced as a ‘senior manager’ of a heroin trafficking enterprise whereas you were the ‘director’ and principal beneficiary of your enterprise. It was your funds that paid for the purchase of heroin and it was you and your family who bettered themselves from such sales.
Further, and in contrast to you, when sentencing Mong I accepted that there was no evidence that he had derived great personal benefits from the large profits that you generated from trafficking heroin. The evidence of his personal financial gain is confined to the cash purchase of a car for $20,000 in June 2010.
Finally, and of lesser significance, is the timing of your plea of guilty relative to that of Mong. Your plea was not formally entered until you were arraigned on 22 November 2013. This court was told that on 19 June 2013 an offer was made on your behalf to plead guilty to trafficking a large commercial quantity of heroin and that there were subsequent discussions about the scope of your activity and the facts underpinning the plea. Mong was arraigned and entered a guilty plea on 17 April 2013 having previously indicated that he would plead guilty.[7]
[7]DPP v Le (Unreported, County Court of Victoria, Judge Taft, 22 August 2014) [25]–[30] (‘Reasons’).
The judge concluded:
In determining the sentence to be imposed upon you, the significantly lesser quantity of heroin that you trafficked vis-à-vis Mong is clearly relevant for sentencing purposes, as is Mong’s serious prior conviction. However, in my view, great weight must be accorded to your driving and directorial role in your heroin trafficking business, in comparison to the lesser and subordinate senior management role that Mong undertook on your behalf. Were it not for the distinction between the quantities trafficked, I would have sentenced you to a lengthier term of imprisonment than that imposed on Mong.[8]
[8]Ibid [36].
In his subsequent sentence of Chi Ba, the judge referred to the sentence he had imposed on Mong and issues of parity between Mong and Chi Ba. However, the only reference by the judge in sentencing Chi Ba to parity between Chi Ba and the appellant was to note that the submissions made by Chi Ba’s counsel on Chi Ba’s plea were similar to the submissions made on behalf of the appellant, and which the judge had dealt with in his reasons for sentencing the appellant. As the judge put it: ‘In this respect, similar considerations apply to you as applied to your sister.’[9]
[9]DPP v Le & Pham (Unreported, County Court of Victoria, Judge Taft, 5 September 2014) [58].
The appellant’s submissions
Central to the appellant’s argument that the sentence imposed by the judge offended against the principle of parity in light of the sentences imposed upon Mong and Chi Ba was the proposition that the sentencing regime for drug trafficking offences is quantity based. Mong received a sentence that was only six months longer than the appellant’s sentence in circumstances where he was convicted in respect of trafficking 11.1 kilograms of heroin, whereas the appellant fell to be sentenced for trafficking 3.219 kilograms. Further, Mong’s prior criminal history with respect to trafficking was significantly more serious than the appellant’s. It was submitted that these differences mandated a significantly lower sentence for the appellant than the one imposed on Mong
So far as the sentence imposed on Chi Ba was concerned, the appellant submitted that the disproportion between Chi Ba’s sentence and the appellant’s sentence was manifestly excessive when one had regard to the fact that Chi Ba was sentenced in relation to trafficking 6.076 kilograms of heroin (close to double the amount in respect of which the appellant was sentenced).
The respondent’s submissions
In answer to the appellant’s submissions, the respondent noted that, so far as any disparity between the appellant’s and Mong’s sentences were concerned, Mong was sentenced on the basis that he was subordinate to the appellant in the trafficking enterprise in which they were engaged. As the judge made clear, but for the significantly lesser quantity of heroin trafficked by the appellant compared with Mong, the appellant would have been sentenced to a lengthier term of imprisonment than that imposed on Mong.
Further, so far as parity between the appellant’s sentence on the one hand and the sentences imposed upon Mong and Chi Ba, the respondent relied upon the appellant’s repeated provision of heroin to the 14 year old girl W as a significantly aggravating factor. Ultimately, it was the respondent’s submission that there was no parity problem with respect to the appellant’s sentence.
Analysis
The application of the principle of equal justice where offenders are neither co-offenders nor participants in a joint criminal enterprise was discussed in Farrugia v The Queen[10] in these terms:
While the general principle of consistency of sentencing is achieved by a consideration of comparable cases which inform the range of sentences applicable, the essential and different characteristic of the parity principle requires the alteration of one sentence to conform with that of a related offender. But there will be circumstances in which the principles of consistency and parity become so closely related that the principles of equal justice may dictate that the sentence under question should be brought into line, or more closely conform, with the sentence imposed on an offender for a related crime. Such reasoning need not be confined to co-offenders or a common criminal enterprise. Once one has regard to the purposes of sentencing, automatic consequences need not necessarily follow from the presence or absence of particular factual circumstances. The discretionary decision must be made in light of the circumstances of the individual case.
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight.[11]
[10](2011) 32 VR 140.
[11]Ibid 146-47 [26]-[27] (Redlich and Bongiorno JJA).
Mong as we said pleaded guilty on the basis that he was a senior manager to one joint criminal enterprise that involved both Chi Ba and the appellant. He was therefore a co-offender and the principle of parity applied.
Although Chi Ba was not a co-offender the appellant contends that there was a sufficient nexus between her and Chi Ba and such important common features of their offending that the principle of equal justice required that Chi Ba‘s sentence should be given significant weight so as to ensure an appropriate disparity between her sentence and the appellant’s sentence. The appellant and Chi Ba pleaded guilty to charges on separate indictments on the basis that they were principals running unrelated separate heroin trafficking enterprises. The basis upon which each pleaded guilty was that their offending conduct was discrete. The common features that may be pointed to were the role played by Mong in each enterprise and that all were family members.
It may be doubted that there is such a degree of connection between the two criminal enterprises of Chi Ba and the appellant as to require the application of parity reasoning without some modification. Subject to that important qualification, the sentence of Chi Ba is obviously a comparable case of offending committed in similar circumstances by close family members and is thus a relevant sentence which may provide some ‘yardstick’ against which to inform the range of sentences applicable to the appellant.
As has been said repeatedly, mere disparity between the sentences imposed on co-offenders is not of itself a ground for the intervention of an appellate court.[12] The difference between the sentences must be manifestly excessive, and an appellate court will only intervene if the disparity gives rise to a justifiable sense of grievance. Here it is said that there is insufficient disparity between the appellant’s sentence and that of Chi Ba and Mong so as to give the appearance that justice has not been done.
[12]Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295, 301.
It may be accepted that the quantity of a drug trafficked is clearly a very significant factor in determining sentence. All other things being equal, the larger the quantity, the more serious the offending.[13]
[13]Dao v The Queen [2014] VSCA 93, [14] (Nettle JA, with whom Redlich and Priest JJA agreed).
The appellant and Chi Ba were sentenced as principals of the trafficking businesses in which they engaged. While Mong was sentenced as a senior manager, his role was subordinate to the roles of the appellant and Chi Ba. Further, the evidence did not show that Mong received substantial sums of money or other benefits out of the business, as compared to the financial benefit received by the appellant. The searches of the various premises associated with the appellant revealed in excess of $1 million in cash, gaming chips with a face value of more than $500,000 and jewellery valued in the hundreds of thousands of dollars exceeding $2 million in total. In addition a number of properties were confiscated after the plea but before sentence.
In his reasons for sentencing the appellant, the judge, having sentenced Mong, gave careful consideration to the issue of parity between the appellant and Mong.[14] We see no error in the judge’s analysis. The issue of equal justice between them was at the forefront of his Honour’s consideration. Notwithstanding the significantly larger amount trafficked by Mong and his significantly more serious prior convictions, the appellant’s day-to-day conduct of her business, as a principal and of which she was the financial beneficiary, together with the significantly aggravating factor of supplying heroin repeatedly to a 14 year old child, well justified the relative sentences imposed by the judge in relation to Mong and the appellant. In truth, the differences between Mong’s circumstances and the appellant’s circumstances, as identified by the judge, explain the different sentences his Honour imposed upon them.
[14]Reasons [25]–[30], [36].
Chi Ba had not been sentenced at the time of the appellant’s sentence. The role played by Chi Ba and the appellant were similar. Although Chi Ba was convicted in respect of trafficking almost twice the amount for which the appellant was convicted, they were both involved in trafficking multiples of large commercial quantities of a drug. Although quantity is an important indicator of the level of seriousness of the offence, it is not determinative of penalty.[15] Sentences are not to be increased on an arithmetic basis. The severity of the sentence increases exponentially as it increases in length.[16] We are not persuaded that the sentencing judge was not permitted to distinguish between the appellant and Chi Ba in the manner in which he did. The judge, who is very experienced, had been involved in the sentencing of all of the family members and was very familiar with the circumstances of the offending in each criminal enterprise and the individual circumstances of each offending family member. He gave the most careful consideration to each of their sentences. Equality of justice was plainly a prime consideration which moved his Honour. He took into account that the appellant by daily dealings trafficked a very large amount of heroin over some eight months, utilised a child to traffic and was apparently able to reap enormous profits and acquire very substantial assets therefrom. We do not accept that the judge was obliged to fix a greater degree of disparity between Chi Ba’s and the appellant’s sentences.
[15]R v Bala (2010) 201 A Crim R 505, [12].
[16] Azzopardi v The Queen(2011) 35 VR 43, 61 [62].
Conclusion
The appeal must be dismissed.
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