Tran v The State of Western Australia

[2015] WASCA 218

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   TRAN -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 218

CORAM:   McLURE P

NEWNES JA
CORBOY J

HEARD:   9 SEPTEMBER 2015

DELIVERED          :   3 NOVEMBER 2015

FILE NO/S:   CACR 6 of 2015

BETWEEN:   PHAM MINH THOAI TRAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STONE DCJ

File No  :IND 1081 of 2014

Catchwords:

Criminal law - Appeal against sentence - Parity principle - Whether appellant had lesser role than co-offender - No relevant facts put before sentencing judge

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr A Robson

Respondent:     Mr J Scholz

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Jardim v The State of Western Australia [2011] WASCA 83

Lowe v The Queen (1984) 154 CLR 606

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

The State of Western Australia v Johnson [2010] WASCA 187

1. McLURE P:  I agree with Newnes JA.

2. NEWNES JA:  This is an appeal against sentence.  On 16 December 2014, the appellant and a co‑offender pleaded guilty in the District Court to possession of heroin with intent to sell or supply.  Both were sentenced by Stone DCJ to 8 years' imprisonment.  The appellant contends that the sentence imposed on him infringes the parity principle because he was significantly younger than his co‑offender and had a lesser role in the offending.

Background

1. On 30 December 2013, the appellant and his co‑offender, Mr Nguyen, travelled from Sydney to Perth on separate flights, arriving two hours apart.  The appellant arrived first and checked into a room at a hotel in the central business district of Perth.  When Mr Nguyen arrived he travelled to the same hotel, met the appellant and took up occupancy of the same hotel room.

2. Following their arrival, the two men were followed by police and the appellant was observed buying a set of digital scales at a city department store.

3. That afternoon, police arrested the two men as they walked out of the hotel.  They were searched and an amount of 349 g of heroin, of a purity between 77% and 79%, was found in a black bag carried by the appellant.  The hotel room was then searched and an additional 340 g of heroin, of a purity between 78% and 80%, was found.  The total amount of the heroin was therefore 689 g.  Police also found $1,735 in cash on Mr Nguyen.  The digital scales purchased by the appellant were located in the hotel room.

4. Following his arrest, the appellant told police that he had found the black bag outside the hotel as he was leaving and had picked it up thinking it was rubbish.  He denied any knowledge of the heroin in the bag or in the hotel room.

5. Mr Nguyen told police that he had been given $3,500 cash by a person in Sydney to travel to Perth to distribute two packages.  On the day he was arrested he had met a person in Perth who gave him the two packages containing heroin.  He took the packages back to the hotel room and hid one in the bathroom and put the other in the black bag.  When he and the appellant were arrested they were taking the drugs to supply them

to an unknown woman.  Mr Nguyen said that the $1,735 found on him was part of the $3,500 he had been given.

1. The appellant and Mr Nguyen subsequently pleaded guilty to possession of the heroin with intent to sell or supply.  Neither was a user of illicit drugs and neither had any prior convictions.  The appellant was 23 years of age and Mr Nguyen was 45 years of age at the time of sentencing.

The sentencing remarks

1. The sentencing judge found there were a number of aggravating factors to the offending, namely, that the offence was committed in company; the actions of the men were deliberate and they had come to Perth for the specific purpose for distributing a significant quantity of heroin; the quantity of heroin was very large and of a high purity; and the distribution of the heroin was for financial gain, although the exact amount of that gain was not clear.  His Honour noted that Mr Nguyen claimed he was to receive $3,500 and the appellant had not indicated how much he was to receive.

2. His Honour found that whilst the appellant and Mr Nguyen were couriers of the drugs, the circumstances, the possession of the scales, and the purity and quantity of the heroin indicated that they were near the top of the distribution chain.

3. By way of mitigation, the sentencing judge took into account that the appellant and Mr Nguyen had no prior criminal record and both had pleaded guilty at an early opportunity.  Both had participated in police interviews and made limited admissions.  His Honour found they had committed the offence for commercial gain and considered there was no reason to differentiate between them in terms of their culpability.

4. The sentencing judge took into account the appellant's age and the fact that both the appellant and Mr Nguyen would be imprisoned away from their families who lived either on the eastern seaboard or overseas.  He reduced the sentence he would otherwise have imposed by 25% for the pleas of guilty and further reduced it for the other mitigating factors.  His Honour sentenced them both to 8 years' immediate imprisonment, dated to commence from 30 December 2013, with eligibility for parole.

Grounds of appeal

1. The sole ground of appeal is that the sentencing judge erred in law in failing to impose a lesser sentence of imprisonment on the appellant than his co‑offender, as:

   •The appellant is significantly younger than his co‑offender; and

   •The appellant had less knowledge and a lesser role in relation to the offence than his co‑offender.

Disposition of the appeal

1. The only question that arises on the appeal is whether the parity principle has been infringed as a result of a lack of disparity between the sentences imposed upon the appellant and his co‑offender.  The purpose of the parity principle is to ensure an appropriate level of consistency in the sentencing of persons who participate in the commission of an offence.  The principle was explained by Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606:

   It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).

2. The concept of equal justice does not, however, equal mathematical precision.  An appellate court can intervene only if any disparity, or lack of disparity, gives rise to an objectively justifiable sense of grievance or an appearance that justice has not been done:  Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301. The fact that an appellant feels a sense of grievance is not determinative: Postiglione (338).

3. Ultimately, what is required is that there is a proper relationship between the sentences imposed on co‑offenders.  This requires a comparison of the sentence imposed on each offender, and an evaluation of their involvement in the commission of the offence and their antecedents:  Jardim v The State of Western Australia [2011] WASCA 83 [12] ‑ [13].

4. A critical feature of this case is the lack of information provided to the sentencing judge as to the circumstances leading to the offending and the role played in it by the appellant.  The appellant's initial response upon his arrest was to deny any knowledge of or involvement in it.  That, as the

sentencing judge observed, was plainly untrue, as the subsequent plea of guilty demonstrated.  But even after having pleaded guilty the appellant chose, for reasons he did not disclose, not to explain how he came to be involved in the offending, what his role was, or what he stood to gain.  The sentencing judge drew the irresistible inference that both offenders were high level couriers involved for commercial gain.  Beyond that no relevant findings were or could be made as to the circumstances or nature of the appellant's participation.

1. In those circumstances, there were no proper grounds upon which the sentencing judge could have sentenced the appellant on the basis that he had less knowledge of, or a lesser role in, the offending.  Because the appellant chose not to disclose how he came to be involved or what his role was, how his overall role compared with that of Mr Nguyen did not emerge.  The appellant cannot now complain that the sentencing judge failed to make a finding that he played a lesser role.

2. The appellant's age was a matter the sentencing judge expressly took into account.  However, to what extent it may have been a material factor in the offending again did not emerge from the factual vacuum which surrounded the appellant's involvement.  It is also the case that mitigating factors personal to an offender have less weight in offences of this kind:  The State of Western Australia v Johnson [2010] WASCA 187 [17]. In the circumstances, his Honour was entitled to conclude that the appellant's age did not justify a lesser sentence.

3. In my view, any sense of grievance the appellant may feel because he received the same sentence as his co‑offender is not objectively justifiable.  If there was any proper basis for the appellant to receive a lesser sentence than Mr Nguyen it was incumbent upon him to put the relevant facts before the sentencing judge.  It was a course he chose not to take.  The appeal should be dismissed.

4. CORBOY J:  I agree with Newnes JA.