Tran v The Queen

[2017] VSCA 346

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0063

THIEN THI TRAN	Applicant
V
THE QUEEN	Respondent

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JUDGES:	OSBORN, WHELAN and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2017
DATE OF JUDGMENT:	28 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 346
JUDGMENT APPEALED FROM:	DPP v Tran (Unreported, County Court of Victoria, Judge Montgomery, 16 March 2017)

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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST
SENTENCE DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Leave to Appeal – Sentence – Election to renew application – Attempting to possess commercial quantity of unlawfully imported border controlled drug (heroin) – Co-offender – Informer’s discount – Parity – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston	Furstenberg Law
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

OSBORN JA:

1. I agree that leave to appeal should be refused for the reasons given by Ashley JA.

WHELAN JA:

1. I have read in draft the reasons of Ashley JA.  I agree with his analysis of the substantive issues.  In my view, however, the parity ground, as argued before us, is sufficiently arguable to warrant a grant of leave to appeal.  I would dismiss that appeal for the reasons given by Ashley JA for refusing leave. 

1. The argument put to us on behalf of the applicant differed in some respects from that put in the written case upon the basis of which Priest JA refused leave. In particular, before us, counsel sought, in effect, to ‘quarantine’ all of the sentencing considerations referable to DCT’s cooperation into the 50 per cent discount on sentence declared in relation to DCT under s 16AC of the Crimes Act 1914 (Cth). Counsel relied in that respect on observations made by Vincent AJA (as he then was) in R v Cuthbertson.[1]

   [1](Unreported, Victorian Court of Criminal Appeal, 13 November 1995) (‘Cuthbertson’).

1. The reason why I would grant leave to appeal on the parity ground is DCT’s prior conviction.  On 26 March 1999 DCT was convicted of supplying a prohibited drug in a quantity greater than a commercial quantity.  According to the sentencing judge, DCT had been sentenced to a ‘minimum term of 3 years’ imprisonment’ for that offence.  Little else is known of the circumstances of the offending or the sentence, but what is known suggests that DCT must have been released from prison approximately 12 years prior to this offence being committed.  In my view, the existence of this prior conviction for a serious drug trafficking offence was a circumstance which differentiated DCT from the applicant to such an extent as to render the parity ground arguable. 

1. A Court of Appeal will reduce a sentence, not in itself manifestly excessive, because of considerations of parity only where that is necessary in order to avoid a ‘marked disparity’ with the sentence imposed on a co-offender.[2]  The court will intervene only where the disparity is such as to give rise to a ‘justifiable sense of grievance’[3] and that will not be the case unless it was not reasonably open to the sentencing judge to differentiate between the offenders in the way in which he or she did.[4]

   [2]Green v The Queen (2011) 244 CLR 462, 474–5 [31].

   [3]Ibid.

   [4]McCloskey-Sharp v The Queen [2015] VSCA 87 [17].

1. For the reasons given by Ashley JA, in my view it was open to the sentencing judge to differentiate, or more precisely in this case not to differentiate, between the two offenders in the way in which he did.

1. I would grant leave to appeal on the proposed ground but dismiss the appeal.

ASHLEY JA:

1. Thien Thi Tran (conveniently, ‘the applicant’) is a 56 year old Vietnamese woman who pleaded guilty in the County Court in March 2017 to attempting to possess a commercial quantity of a border controlled drug, namely heroin.  The maximum penalty for that offence is life imprisonment.

1. At the same time, a co-offender, DCT, pleaded guilty to importing a commercial quantity of a border controlled drug, namely heroin.  The maximum penalty for that offence is also life imprisonment.

1. The applicant and DCT were charged on the basis of joint commission,[5] in circumstances where there were other co-offenders involved in the scheme to import and distribute the heroin.

[5]See Criminal Code Act 1995 (Cth) sch 1 s 11.2A(1).

1. The offending engaged in by the applicant and DCT related to a parcel containing 5,601.6 grams of heroin with a purity of 71.2 per cent which arrived in Australia on or about 2 November 2015.  The importation was detected by the Australian Border Force.  There was an investigation.  In time, a substituted delivery was made, the parcel being received by the applicant.

1. The amount of heroin pure — 3,988.3 grams — is approximately 2.6 times the threshold referable to a commercial quantity of that drug.[6]  The potential value of the seized heroin was said to be at least $877,000.

   [6]See Criminal Code Regulations2002 (Cth) sch 4 item 95.

1. The applicant and DCT were charged with different offences referable to the importation.  This was done so as to reflect their respective temporal involvement in the affair.  I will say a little more about the role which each of them played later in these reasons.

Sentence

1. On 16 March 2017, the applicant was sentenced to eight years’ imprisonment with a non-parole period of five years. DCT was sentenced to four years’ imprisonment with a non-parole period of two years and six months. The latter sentence was imposed having regard to the fact that DCT had given an undertaking to assist the authorities in future prosecutions of co-offenders who, at that stage, were maintaining an intent to go to trial. The judge stated, as required by s 16AC(2) of the Crimes Act 1914 (Cth), that, but for DCT’s cooperation, he would have imposed a sentence on that offender of eight years’ imprisonment with a five year non-parole period. That is, he would have imposed the same sentence upon DCT as the sentence which he imposed upon the applicant.

Ground of Appeal

1. On 13 April 2017, the applicant sought leave to appeal against sentence.  She relied upon this ground:

Ground 1:    The sentencing judge erred by misapplying the parity principle.

Particulars:

(a)  The applicant was sentenced to the same sentence that would have been imposed upon her co-offender [DCT] but for her co-offender’s undertaking to co-operate with law enforcement agencies in future proceedings;

(b)  But for his undertaking, the applicant fell to be sentenced to a sentence that was less than her co-offender’s sentence:

(i)     The applicant’s role was comparable to her co-offender’s;

(ii)     Her co-offender had a relevant criminal record, whereas the applicant’s criminal record was of little relevance;

(iii)    The sentencing judge concluded that the applicant will probably not re-offend (and made no such finding in relation to her co-offender);

(iv)   Specific deterrence was of much more relevance to her co-offender’s sentence than it was to the applicant’s;

(v)    The applicant came from a deprived background and had experienced considerable trauma;  and

(vi)   The sentencing judge concluded that the applicant’s current psychological condition will be affected by imprisonment;

(c)  That the applicant was sentenced to the same sentence that would have been imposed upon her co-offender but for her co-offender’s undertaking reveals a misapplication of the parity principle; and

(d) That misapplication is otherwise revealed by the size of the disparity between the sentences ultimately imposed upon the applicant and her co-offender.

1. Before going further, it is desirable to outline what the applicant puts in issue, and what she does not.  In essence, she accepts the judge’s conclusion (as she describes it) that the roles played by DCT and herself were comparable.  She accepts that the judge was justified in discounting the sentence passed upon DCT by 50 per cent.  In the event, her application is founded on the judge’s statement that, but for the informer’s discount, he would have imposed a sentence of eight years’ imprisonment with a five year non-parole period upon DCT.  But, says the applicant, her personal circumstances were more favourable than those of DCT.  For that reason, a head term of less than eight years’ imprisonment ought to have been imposed upon her.  Thus, the judge erred in applying the parity principle and she has — objectively considered — a justifiable sense of grievance which this Court should remedy.

Leave to appeal refused.  Election

1. On 15 June 2017, Priest JA determined on the papers that leave to appeal should be refused.

1. Then, on 30 June 2017, the applicant elected to renew her application, such renewal to be determined by this Court.

Applicant’s oral submissions

1. Counsel submitted that —

(1)       At its heart, this was a ‘very simple application’.  DCT had a very significant prior criminal conviction, and the applicant had none. DCT’s offending on this occasion was not ‘out of character’.[7]  This was the principal point of distinction between the circumstances of the applicant and DCT.  It required that there be a difference between the sentence imposed on the applicant and the notional sentence imposed upon DCT.

[7]Counsel cited Veen v The Queen [No 2] (1988) 164 CLR 465 (‘Veen [No 2]’).

(2)       Priest JA was correct to describe the roles of the applicant and DCT in the offending as ‘comparable’.  Any distinction adverse to the applicant that might be drawn in their roles would be ‘minimal’.

(3)       The finding of the sentencing judge that the applicant’s psychological disorder would be worsened by imprisonment called into play the sixth consideration identified in R v Verdins,[8] a finding not replicated in the case of DCT’s psychological disorder.

(4)       The informer’s discount of 50 per cent accorded to DCT took account of the fact that he would serve his sentence in protective custody.[9]

(5)       The judge had referred to the applicant’s ‘impoverished background’.  His Honour had made no such reference in the case of DCT.  As I understand it, counsel submitted that the applicant’s impoverished background embraced the circumstances of her childhood, her very unsatisfactory and eventually failed marriage, the dangers encountered on her boat trip from Vietnam to Australia, and the difficulties of bringing up her children after her marriage failed.

[8](2007) 16 VR 269, 276 [32].

[9]Counsel referred to a passage in the judgment of Vincent AJA (as his Honour then was) in Cuthbertson (Unreported, Victorian Court of Criminal Appeal, 13 November 1995).  This was not a matter raised by the applicant’s written outline considered by Priest JA.

Crown’s oral submissions

1. Counsel for the Crown submitted that —

(1)The judge clearly separated out in his remarks the impact upon sentence of DCT’s offer to assist the authorities and the personal circumstance that he would be held not simply in protective custody, but in isolation from other Vietnamese-speaking prisoners.

(2)With respect to the informer’s discount, what weighed with the sentencing judge was DCT’s declared willingness to assist in the conviction of co-offenders (two of whom were to go to trial in a matter of days) and the encouragement of others to assist in other cases by the imposition of a reduced sentence in the present case.

(3)The text of s 16AC of the Crimes Act 1914 (Cth) does not lend itself to the informer’s discount being linked to a circumstance such as the informer being held in protective custody.

(4)The prior drug conviction incurred by DCT was not as significant as the applicant contended for.  There was a 16 year gap between that sentence in 1999 and the offending in 2015.

(5)The applicant’s drug offending was not altogether irrelevant.

(6)The judge found, at least inferentially, that the extent of DCT’s remorse was greater than that of the applicant.

(7)DCT’s cardiac condition could logically have been brought to account by the sentencing judge.

(8)There was no finding by the judge that DCT was likely to re-offend.

Applicant’s submissions in reply

1. Applicant’s counsel submitted in reply that —

(1)There was no evidence that DCT’s cardiac condition could not be treated satisfactorily in a custodial setting.  The judge had found to the contrary.  Moreover, DCT had taken himself off a hospital waiting list for a period, which implied that his condition was not particularly dire.

(2)It should not be concluded that the judge found that DCT exhibited greater remorse than the applicant.  His Honour did not explicitly say that.

(3)The judge made no assessment of the prospects of rehabilitation of either DCT or the applicant.  The applicant’s prospects must have been better, because, unlike DCT, she did not have a significant prior conviction.  The judge erred by not making such a finding.

(4)The judge had declared under s 6AAA of the Sentencing Act 1991 that, had both DCT and the applicant pleaded not guilty (and been convicted), he would have imposed the same sentence upon them.  This showed that the judge had evidently given inadequate weight to DCT’s significant prior conviction.

The correct approach

1. Two principles must be carefully borne in mind when a complaint of impermissible want of parity is made in this Court.

1. First, the Court is not placed in the position of the sentencing judge.  The question to be answered is whether it is satisfied, on objective consideration of the entire circumstances of the offenders and the offending, that the applicant is entitled to have a justifiable sense of grievance.  This requires the Court to be persuaded that the sentence passed upon the applicant was not reasonably open.[10]  There is no single correct sentence.  That is so whether complaint is made of manifest excess or of want of parity.

   [10]DPP (Cth) v KMD [2015] VSCA 255 [109].

1. Second, sentencing involves a synthesis of the entire circumstances of the offending and the offender.  Where more than one offender is being sentenced, just as where a single offender is to be sentenced, sentencing is not a mechanical exercise in which circumstances are to be weighed with a pretence of arithmetical certainty.[11]  Indeed, where more than one offender is being sentenced, and despite parity considerations requiring a judge to compare the circumstances of the offending and the offenders, disparate circumstances may lend themselves even less to such an exercise.  An attempt to demonstrate that the sentence imposed on one of the offenders was not reasonably open, by resort to a minute examination of the individual circumstances of the offending and the offenders, runs counter to the concept of instinctive synthesis.

   [11]In DPP v Dalgleish (a Pseudonym) [2017] HCA 41 [4]–[6] Kiefel CJ, Bell and Keane JJ re-stated and illumined this long-established principle, one among very many instances being the observations of Crockett J in R vNagy [1992] 1 VR 637, 638–9, cited by Nathan J in R v Mundy (1994) 76 A Crim R 92, 97 (‘Mundy’).

A flawed approach

1. In this case, the submissions for the applicant involved, as it seems to me, an essentially mechanical approach.  First one looked to the offending.  That should be equated, consistent with an observation by the sentencing judge.  Then one went to personal circumstances.  A circumstance tending a particular way, applicable only to the applicant, went onto the scales, and another circumstance tending a particular way, applicable only to DCT, went onto the other side of the scales.  A nominal weight was assigned to each such circumstance.  Circumstances common to both the applicant and DCT, said to assist neither of them as against the other, were to be regarded as cancelling each other out.  In the end, what was left, the scales otherwise being in balance, was DCT’s relevant prior conviction.  Ergo, the sentence imposed upon the applicant revealed impermissible want of parity.

Analysis

1. The judge was alive to the question of parity.  He said that he found it a difficult one.

1. The fact that the applicant and DCT were charged with different offences did not mean that parity considerations could not apply.  In the present case, the applicant and DCT were not simply involved in the same course of criminal conduct.  The different charges brought against them drew a somewhat artificial distinction between their roles, and the offences with which they were charged each carried a maximum penalty of life imprisonment.[12]

   [12]See Green v The Queen (2011) 244 CLR 462, 473–4 [30] (French CJ, Crennan and Kiefel JJ).

1. Against the background which I have described, I consider that the proposed ground of appeal is not reasonably arguable. It is not reasonably arguable on a correct, principled approach. It would not be reasonably arguable even if the applicant’s approach was the correct one. Further, the applicant’s argument was in one instance underpinned by a misreading of the judge’s sentencing remarks, and also sought to make impermissible use of the judge’s declaration under s 6AAA of the Sentencing Act 1991.

1. It follows that I would refuse leave to appeal.  The fact that it will take some time to explain why that should be so does not tell to the contrary.

1. As to a misreading of the judge’s remarks, I noted at [19](4) above the applicant’s submission that the informer’s discount which the judge allowed took account of the fact that DCT would serve his sentence in protective custody.  Counsel cited Cuthbertson.[13]  The obvious result of the submission, if correct, would be that a circumstance in mitigation of DCT’s sentence would be taken out of the equation — in the sense that it would be double-counted if treated as an independent circumstance of mitigation.

   [13](Unreported, Victorian Court of Criminal Appeal, 13 November 1995).  See above n 9.

1. I put to one side, for the moment, the authority cited.  Simply, the submission was not correct at a factual level.  Although counsel was reluctant to concede the point, the judge’s sentencing remarks make it crystal clear that the extent of the informer’s discount which he allowed was based upon encouraging offenders ‘to assist the authorities and provide evidence to attain convictions against co-offenders’.[14]  Having settled upon the extent of the discount, his Honour thereafter dealt with other circumstances in mitigation of DCT’s sentence.  They included DCT being ‘in protection and isolated from other Vietnamese offenders.’[15]

   [14]DPP v Tran (Unreported, County Court of Victoria, Judge Montgomery, 16 March 2017) (‘Remarks’) [12]. See also Remarks [11] and [18].

   [15]Remarks [13].

1. Because counsel’s submission, in my opinion, fails at a factual level, it is unnecessary to pass upon the question whether, in the context of Commonwealth legislation, it is open to a judge to take into account when fixing the extent of an informer’s discount the fact that the informer, as Vincent AJA said in Cuthbertson, ‘may be subjected to a significantly more difficult period of incarceration than would otherwise have been the case’.[16]  I only note that — (a) Vincent AJA did not say that a judge was mandated to take the particular circumstance into account when fixing the extent of an informer’s discount;  (b) his Honour was doing no more than providing an instance of a circumstance which might in a particular case be brought to account. In the passage from Mundy to which Vincent AJA referred, Nathan J had observed that ‘the relevant matters to be taken into account when exercising a sentencing discretion are almost infinitely variable,’[17] for which reason it would be inappropriate to set a fixed informer discount; and (c) there could be no objection to a judge treating the prospect of an informer being held in protection — a fortiori, if isolated from other persons speaking the same language — as a distinct circumstance in mitigation of sentence. Further, absent full argument I refrain from considering whether the language of s 16AC of the Crimes Act 1914 (Cth) is compatible with a judge bringing to account, in setting the discount to be allowed in a particular case, the fact or likelihood that the informer will be held in protective custody.

   [16](Unreported, Victorian Court of Criminal Appeal, 13 November 1995) 6–7.

   [17](1994) 76 A Crim R 92, 97.

1. I noted at [21](4) above a submission for the applicant founded on s 6AAA of the Sentencing Act 1991. The Court has set itself against the use of that section to impugn a sentence actually imposed. Section 6AAA involves an artificial construct. It enquires about a hypothetical situation in which only one circumstance amongst many is altered. It is remote from the actual conduct of litigation. It is inconsistent with the concept of instinctive synthesis to separate out one sentencing consideration and put a value to it. Notwithstanding, judges do their best to comply with the section’s dictate.

1. The use of the declarations in the present case, as proposed by applicant’s counsel, if permitted, would not simply impugn the sentence passed on the applicant.  It would also impugn the judge’s detailed analysis of the entire circumstances of the offending and the personal circumstances of the two offenders, as he had to consider them.  I do not accept that the declarations could be used in the manner contended for.

1. I next remark upon the importance of the structure of the judge’s remarks. Having sketched the nature of the offending, and made some broad remarks about the personal circumstances of the applicant and DCT, his Honour then discretely examined the personal circumstances of the two offenders.  In doing so, he did not engage in a weighting exercise, as between the applicant and DCT, of particular circumstances applicable to both of them.  I will give three examples.

1. First, his Honour referred at some length to the mental health issues of both the applicant and DCT.  He accepted, though in a qualified way, that the applicant’s condition would be affected adversely by imprisonment.  He made no such finding in DCT’s case.  But he appears to have accepted that DCT was suffering from ‘severe psychological stress’ and fitted ‘the criteria for a diagnosis of persistent depressive disorder with anxious distress’.[18]  It could hardly be supposed that such a condition would be improved by imprisonment, the more so imprisonment with an aspect of isolation.  This example illustrates the difficulty of ‘weighting’ mitigating circumstances in a mechanical way.

   [18]Remarks [12].

1. Second, I refer to the submission for the applicant noted at [19](5) above.  The judge did say at one point that the applicant had ’an impoverished background’.[19]  I do not accept that this was a reference to the entirety of the applicant’s life history.  On the other hand, his Honour did say that the applicant came ‘from a deprived background’ and that she had had ‘a hard life’.[20]  It is implicit, if not explicit, that his Honour treated those circumstances as going in mitigation of sentence when considering a woman in her mid-fifties who had not engaged in ‘such serious offending’ before.

   [19]Ibid [6].

   [20]Ibid [28].

1. But again, the difficulty arises of trying to ‘weight’ the life histories of the two offenders.  In different ways, each of them had suffered a hard life. The judge noted that DCT’s parents were subsistence fishermen, that DCT had little English despite being 31 years resident in Australia, that he and his family had arrived from Vietnam as refugees in Australia via a refugee camp, that DCT had worked in various occupations until he was able to start a small business, but that the business had failed because of problems with a supplier.  DCT had left Victoria with unpaid bills, but had eventually returned to Victoria.  The bulk of his family, however, had remained in Sydney.[21]

   [21]Ibid [8].

1. Third, DCT had a ‘relevant prior conviction’.  He had been convicted in 1999 of supplying a prohibited drug in a quantity greater than a commercial quantity.  He had been sentenced to a minimum of three years’ imprisonment.[22]  The relevance of this conviction was recognised by the judge.

   [22]We were told, with three years’ supervision to follow.

1. This was the circumstance at the forefront of the applicant’s submissions in this Court.

1. The applicant had also committed drugs offences, there being three findings of guilt, but only one conviction,[23] in the period 2003–2004.  That offending was more recent than DCT’s offending, but it involved possession offences, committed by a heroin user, and the judge treated the offending as playing ‘a very little role’.[24]

   [23]So the applicant’s counsel informed us, and emphasised.

   [24]Remarks [19].

1. It is unarguable that DCT’s offending was relevant for sentencing purposes.  It invited consideration of what was said by Mason CJ, Brennan, Dawson and Toohey JJ in Veen [No 2] as follows:

The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. [25]

[25](1988) 164 CLR 465, 477.

1. But the weight to be given to this conviction in the overall sentencing synthesis was another matter.  The conviction was relatively old.  More importantly, DCT had not only admitted his guilt, he had undertaken to assist the authorities in the prosecution of co-offenders.  In that connection, the judge said —

You… have a relevant prior conviction, but you have offered assistance to the authorities.[26]

This observation was immediately followed by the judge’s evaluation of the ’minimal importance’[27] of the applicant’s prior offending.

[26]Remarks [6].

[27]Ibid.

1. Evidently, I consider, the judge was saying that in his view DCT’s prior conviction did not carry the weight for sentencing purposes, in the particular circumstances, which it might otherwise have done.  This was not, of course, to say that DCT’s prior offending equated with the (in)significance of the applicant’s prior offending. But it was to render the comparative significance of the offending much less stark than it would have been if, for instance, the two offenders had gone to trial and been convicted, or if the two offenders had simply pleaded guilty.  His Honour’s conclusion did not support a conclusion, in the circumstances of this case, that ‘specific deterrence was of much more relevance to her co-offender’s sentence than it was to the applicant’s.’[28]

   [28]Proposed ground of appeal 1(b)(iv).

1. I should next refer to other circumstances referred to by the judge which highlight the problem of attempting to ‘weight’ matters in a mechanical, arithmetical way.  Take the fact that DCT was suffering from a cardiac condition which called for a triple bypass operation.  The judge said there was no material before him that, if an emergency arose, it could not be coped with if DCT was in custody.  So much may be accepted.  But the life history of the offender included the circumstances that he was a man in his mid-fifties, suffering from a heart condition requiring surgery, suffering also from a persistent depressive disorder with anxious distress, who was to be imprisoned.  In light of DCT’s mental health issue, there was, I think, little in what I took to be the applicant’s submission that because DCT had taken himself off the surgery waiting list at some stage, the heart condition could not be all that serious.  But the argument illustrates the difficulty of attributing ‘correct’ weight to a circumstance where there was a practical limit to how much the judge could say about it.

1. Another instance of the problem is remorse.  The judge accepted that both DCT and the applicant were remorseful.  DCT had exhibited remorse ‘by way of [his] statement to the police, [his] plea of guilty, and [his] expression of such to others’.[29]  The judge did not specifically say that he found the applicant to be remorseful, but so much may be inferred from his reference to her pleading guilty.[30]

   [29]Remarks [13].

   [30]Ibid [6].

1. It was argued for the Crown that the judge had found a greater level of remorse on the part of DCT, implicit in his Honour’s reference to that offender having assisted the police.[31]  That might be so, but could the value of remorse then be weighted in some mechanical way as a mitigating circumstance as between DCT and the applicant?  So to argue suggests the need for a judge to pass upon the importance of each individual circumstance — that being inconsistent, in my view, with the duty to impose a sentence in the exercise of judicial discretion which has regard to all the circumstances of the offending and the offender.

   [31]Ibid [13].

1. Again, I should refer to the judge’s finding that the applicant would probably not re-offend.[32] It was submitted for the applicant that the judge had made no such favourable finding in the case of DCT. In terms, that is true. But the matter is not so simple. As I have noted at [44] above, the judge evidently concluded that DCT’s assistance to the authorities bore upon the significance of the relevant prior conviction for sentencing purposes. As Veen [No 2][33] shows, a prior conviction may bear upon the need for specific deterrence.  But the judge’s finding tends to suggest that he did not perceive any increased role for specific deterrence when sentencing DCT.

   [32]Ibid [30].

   [33](1998) 164 CLR 465.

1. Thus far, I have not referred to the roles played by DCT and the applicant in the offending.  This was important in the overall sentencing synthesis.  The judge accepted that their roles were as set out in prosecution submissions.  His Honour observed that DCT’s main participation occurred early in the scheme, whilst the applicant’s participation occurred later, mainly during the delivery phase.  His Honour said:

Simply put, you, [DCT] secured the deliver[y] address on behalf of your interstate associate, Ms Ly.  You, [the applicant], collected the assignment upon delivery.[34]

[34]Remarks [4].

1. The detail of the prosecution submissions, upon which the judge acted,[35] was as follows:

   [35]And the accuracy of which was not disputed, either before the judge or in this Court.

A.Between 25 October 2015 and 6 December 2015, DCT (in anticipation of payment):

(1)Provided the address for the delivery of the consignment of border-controlled drugs to Ly;

(2)Checked upon the progress of the consignment upon its arrival into Australia;

(3)Provided updates to Ly about the progress of the consignment in order to facilitate the ultimate collection of the consignment;

(4)Instructed the applicant to await arrival of the consignment and to take delivery; and

(5)Arranged to meet with, and met with, the applicant in anticipation of delivery.

B.Between mid-November 2015 and early December 2015, the applicant:

(1)Made payments overseas to Lee prior to the arrival of the consignment;

(2)Received instructions from DCT about the collection and delivery of the consignment;

(3)Provided updates to, and sought updates from, DCT about the progress of the consignment;

(4)Tasked another person to make enquiries with the consignment delivery company (UPS) about the progress of the consignment;

(5)Provided updates to others about the progress of the consignment before it was delivered;

(6)Discussed future plans relating to the consignment with others (including Lee);

(7)Discussed payment to DCT with Lee;

(8)Made arrangements to meet with DCT in anticipation of the arrival of the consignment;

(9)Accepted delivery of the consignment at the consignment’s delivery address;

(10)Distributed/transported the consignment upon receipt;

(11)Informed others about the successful delivery of the consignment;

(12)Unpacked the (substituted) consignment and verified the contents;

(13)Informed others overseas (including Lee) about the contents of the consignment;

(14)Spoke with Lee about what should occur in relation to the consignment;  and

(15)Prepared the consignment for further distribution.

1. Each of the applicant and DCT was to be paid $20,000 had the criminal scheme succeeded.

1. The judge said that each of DCT and the applicant ‘had critical roles and were trusted associates of your co-offenders’.[36]

   [36]Remarks [5].

1. His Honour said also that the applicant, on the material before him ‘displayed a greater interest in the success of the scheme’; but that ‘apart from that, the value of each of your roles is comparable’.[37]

   [37]Ibid.

1. Thus, his Honour’s conclusion that the roles of the applicant and DCT were comparable was not unqualified.  To the extent that it was qualified, it did not assist the applicant.  But how, sensibly, was that differentiation to be individually weighted in the sentencing synthesis?

1. When refusing leave to appeal, Priest JA observed that the applicant’s case ‘revolves around attempts to draw fine distinctions between the applicant’s and DCT’s roles in the offending and personal circumstances’.[38]  His Honour concluded that the judge had been correct to describe the roles of the two offenders as ‘comparable’, and said that the only meaningful difference in personal circumstances was DCT’s prior relevant conviction.  But when that was set in the entire circumstances of the offenders and the offending, his Honour concluded that it was ‘not reasonably arguable that such difference should have dictated that the notional starting point for DCT’s sentence should have been higher than the applicant’s.’[39]  His Honour observed also that ‘[t]he judge was entitled to approach the issue of parity in a broad and practical way.’[40]

   [38]Tran v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 15 June 2017) [17].

   [39]Ibid [20].

   [40]Ibid.

1. I respectfully agree.  The overall picture of the offending and the two offenders displayed many similarities.  Nonetheless, individual variations tending for and against each of them were part of that picture, and the significance attached by the judge to each such circumstance when putting the picture together did not lend itself to picking out one circumstance among many as persuasive that his Honour erred in his consideration of the parity issue.  Even if the judge might have concluded that DCT’s prior relevant conviction meant that he should have received a heavier sentence than that imposed upon the applicant,[41] it does not follow, when the judge had regard to all the circumstances of the offending and the offenders, that there was an imperative that he impose a lesser sentence upon the applicant; and so that the sentence which he passed upon the applicant was not reasonably open.  For the reasons which I have attempted to explain, there was no such imperative.

   [41]That is, a notionally heavier sentence.

Order

1. I would refuse the applicant leave to appeal against sentence.

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