Vu v Regina

[2007] NSWCCA 2

New South Wales
Court of Criminal Appeal

CITATION:	Vu v Regina [2007] NSWCCA 2
HEARING DATE(S):	16/01/07
JUDGMENT DATE:	24 January 2007
JUDGMENT OF:	Adams J at 1; Howie J at 2; Price J at 3;
DECISION:	orders: (i) The extension of time in which to seek leave to appeal be granted; (ii) Leave to appeal be granted; (iii) Quash the sentence and non–parole period imposed by Williams DCJ (iv) Sentence the applicant to imprisonment for a non-parole period of 6 years to date from 11 July 2004 and expire on 10 July 2010 with a balance of term of 2 years expiring on 10 July 2012.
CATCHWORDS:	Criminal law - appeal against sentence - supply of not less than commercial quantity of prohibited drug - parity of sentences - evaluation of roles - applicant's lesser role not reflected in sentence - justifiable sense of grievance - applicant re-sentenced.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 s 25 (2) Crimes (Sentencing Procedure) Act 1999 s 54B
CASES CITED:	Lowe v The Queen (1985) 154 CLR 606 MLP v Regina [2006] NSWCCA 271 Postiglione v The Queen (1997) 189 CLR 295 R v AJP (2004) 150 A Crim R 575 R v Anderson NSWCCA 25 March 1993 R v Boney [2001] NSWCCA 432 R v Ilbay [2000] NSWCCA 251 R v Kollas & Mitchell [2002] NSWCCA 491 R v Laurentiu & Becheru (1962) 63 A Crim R 402 R v Le Cerf (1975) 13 SASR 237 R v Olbrich (1999) 199 CLR 270 R v Shi [2004] NSWCCA 135 R v Way (2004) 60 NSWLR 252 Tien Vu v Regina [2006] NSWCCA 188
PARTIES:	Van Phu Vu Regina
FILE NUMBER(S):	CCA 2006/2504
COUNSEL:	Mr P Boulten for the Applicant Ms J Girdham for the Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0518
LOWER COURT JUDICIAL OFFICER:	Williams DCJ
LOWER COURT DATE OF DECISION:	28 January 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Phu Van Vu

- 13 -

2006/2504

Adams J
Howie J
Price J

24 January 2007

Van Phu VU v REGINA

Judgment

1 ADAMS J: I agree with the judgment of Price J.

2 HOWIE J: I agree with the orders proposed by Price J for the reasons given by him.

3 PRICE J: The applicant Van Phu Vu seeks leave to appeal against the severity of the sentence imposed upon him by Judge Williams in the District Court of New South Wales at Sydney on 28 January 2005.

4 The applicant requires an extension of time in which to make an application for leave to appeal against that sentence which the Crown does not oppose.

5 On 13 October 2004 the applicant upon arraignment pleaded not guilty to a charge that he on 25 July 2003 at St Peters in the State of New South Wales did supply a prohibited drug, namely heroin, being an amount which was not less than the commercial quantity applicable to that prohibited drug and stood trial before Judge Williams and a jury of twelve. The Jury entered a verdict of “Guilty” on 18 October 2004.

6 The offence being contrary to s 25 (2) of the Drug Misuse and Trafficking Act 1985 is punishable by 20 years imprisonment and/or 3,500 penalty units. A standard non-parole period of 10 years imprisonment has been prescribed: s 54B Crimes (Sentencing Procedure) Act 1999 and table in Division 1A.

7 The applicant was sentenced to a term of imprisonment of 10 years and 8 months to date from 11 July 2004 and to expire on 10 March 2015 with a non-parole period of 8 years to date from 11 July 2004 and expire on 10 July 2012.

8 The Notice of Appeal identifies three grounds namely:

Ground 1

His Honour erred by imposing a sentence that failed to adequately reflect the substantially less significant role played by the applicant compared with the role played by his co-offender, Tien Hung Vu.

Ground 2

His Honour erred by imposing a sentence that has left the applicant with a justifiable sense of grievance.

Ground 3

The sentence is, in all the circumstances, manifestly excessive.

9 The first ground of appeal makes reference to the co-offender Tien Hung Vu. Tien Hung Vu pleaded guilty to an indictment containing two counts, the first count being an offer to supply a large commercial quantity of heroin. The applicant was not involved in that offence.

10 A further offence on a Form 1 being a charge of supply of heroin was taken into account on sentence for the first count. The applicant was not involved in that offence.

11 The second count on the indictment charged that on 25 July 2003, Tien Hung Vu did supply a prohibited drug, namely, heroin, being an amount not less than the commercial quantity. The applicant was the co-offender in the commission of this offence and was, as previously stated, found guilty after trial.

12 In relation to the second count on the indictment, Tien Hung Vu was sentenced by Judge Williams on 28 January 2005 (the same day as the applicant) to a minimum period in custody of 6 years and 9 months. The commencement date of the sentence was 25 July 2003. A total term of 9 years was specified to expire on 24 July 2012.

13 In relation to the first count on the indictment and the Form 1, Tien Hung Vu was sentenced to a minimum period in custody of 9 years. The sentence was partially accumulated to date from 25 July 2005. The earliest date upon which the applicant was to be released on parole was 24 July 2014. A total term of 12 years was specified to expire 24 July 2017.

14 Judge Williams in sentencing Tien Hung Vu determined the offender was entitled to the benefit of a discount of 25% for his plea of guilty. His Honour, relevantly, identified the starting point of the non-discounted sentence for count 2 as 12 years imprisonment.

15 Tien Hung Vu sought leave to appeal to this Court against the severity of the sentences imposed. In Tien Hung Vu v Regina [2006] NSWCCA 188, Justice Hall, with whom James and Buddin JJ agreed, ordered that:

(a) Leave to appeal should be granted.

(b) The appeal should be upheld in relation to the total non - parole

period.

(c) A finding of special circumstances should be made. The
sentences imposed by the District Court should be set aside and Tien Hung Vu should re-sentenced as follows:

(i) As to Count 2, Tien Hung Vu was sentenced to a fixed term of
imprisonment of 6 years and 9 months to commence from 25 July 2003

and to expire on 24 April 2010. The fixed term was intended to be the

equivalent of the non - parole period determined by the sentencing

judge.

(ii) As to Count 1, (including the Form 1 offence) Tien Hung Vu was

sentenced to a non - parole period of 7 years to commence on 25 July

2005 and to expire on 24 July 2012 and a balance of term of 5 years

commencing on 25 July 2012 and expiring on 24 July 2017. Hall J

determined that there should be a partial cumulation of sentence to

reflect the total criminality.

16 The result of the appeal was a total effective reduction of Tien Hung Vu’s non-parole period of 2 years. The total effective sentence that Tien Hung Vu is now required to serve is 14 years with a non - parole period of 9 years rather than 14 years with a non-parole period of 11 years. In relation to Count 2, (the offence in which the applicant was involved) Tien Hung Vu is required to serve a fixed term of 6 years and 9 months which is intended to be the equivalent of the non-parole period for that offence determined by Judge Williams.

The offence

17 The facts of the offence the subject of this appeal may be distilled from the sentencing judge’s remarks on sentence. An agreed statement of facts was tendered in the proceedings against Tien Hung Vu. The facts may conveniently be summarised as follows:

18 On 23 July 2003, the applicant and Tien Hung Vu (now referred to as the co-offender) flew to Brisbane and met the informant. The conversation was recorded. The sentencing judge recited that the informant gave evidence in the trial that the applicant had sat a short distance away and basically did not take much or any part in the conversation. His Honour was satisfied, however, that the applicant knew why the co-offender was at the informant’s house and had the capacity to understand what was being discussed if he cared to listen. The conversation and other telephone calls were in relation to the co-offender organising to supply the informant with 700 grams of heroin.

19 The co-offender wanted $300,000 for the heroin. The informant arranged to send the money by bus to Sydney on 25 July 2003.

20 The informant travelled to Sydney on that date and went to the bus depot with the co-offender and collected a box that was said to contain the money and placed the box in the co-offender’s vehicle. The co-offender drove off and was arrested shortly thereafter.

21 The applicant was located in the area in another vehicle, which was stopped and searched. An amount of white powder was located inside a box packed inside a rice cooker. The white powder was subsequently analysed and found to be heroin with a gross weight of 792.1 grams with a purity of between 56.5% and 57.5%.

The applicant’s subjective circumstances

22 The applicant was born on 11 December 1966, he, therefore, being 36 years old at the time of the offence and presently 40 years old. He is a married man with two children who at the time of sentence were aged nine and two. He is separated from his wife who has care of the children.

23 He was born in Vietnam and came to Australia in 1998, after spending seven years in Hong Kong, five of those in a refugee camp.

24 The applicant has a limited education, having completed only the equivalent of year 4. Prior to his arrest, he was unemployed or in partial employment. He claims that at the time of the offence he was in financial difficulties and his mother was sick in Vietnam.

25 The applicant admits a gambling problem but denied that he committed the offence to support his gambling habits.

26 He has no prior convictions.

27 A Probation and Parole pre-sentence report dated 28 January 2005 was before the sentencing judge. The applicant did not give evidence at the sentencing hearing.

Dealing with the Appeal

28 Ground 1 of the Appeal is that his Honour erred by imposing a sentence that failed to adequately reflect the substantially less significant role played by the applicant compared with the role played by his co-offender.

29 The applicant contends that his objective criminality was substantially less significant than that of the co-offender, that although his Honour was correct to conclude that his criminality was substantially less than that of the co-offender, the differential in the undiscounted starting points of the respective sentences was inadequate.

30 The undiscounted starting point in the co-offender’s sentence was 12 years whereas the applicant’s head sentence was 10 years and 8 months, representing a differential of 1 year and 4 months. The applicant asserts that this is a “very modest differential given that the applicant’s role in the enterprise was clearly subsidiary to that of Tien Hung Vu and the applicant fell to be sentenced in relation to only one matter whereas Tien Hung Vu was responsible for a course of heroin transactions over a period of time and included an offer to supply a large commercial quantity of heroin.”

31 Ground 2 of the appeal is that his Honour erred by imposing a sentence that has left the applicant with a justifiable sense of grievance.

32 The applicant contends that as a consequence of his appeal, the co-offender is serving a total effective non-parole period of 9 years for much more criminality than that of the applicant who is serving a non-parole period of 8 years. Even taking into account, the fact that the applicant pleaded ‘Not Guilty’ whereas the co-offender pleaded ‘Guilty’ the applicant contends, that the differential in the two sentences is such that he has been left with a justifiable sense of grievance.

33 These grounds of appeal raise the issue of parity of sentences.

34 Wood CJ at CL (as he then was) in R v Kollas & Mitchell [2002] NSWCCA 491 [at para 45 – 50] provides a helpful synopsis of the relevant principles in relation to parity when he said:

“ 45 The parity principle of sentencing established in Lowe v The Queen (1985) 154 CLR 606 and in Postiglione v The Queen (1997) 189 CLR 295 requires, as a condition precedent to appellate intervention, that there should be a marked disparity between the sentences imposed on co-offenders of a degree of kind which gives rise to a justifiable sense of grievance. A sentence which offends that principle should be reduced. That may occur notwithstanding that it is otherwise appropriate, or within the permissible range of sentencing options (per Mason J in Lowe at 612 and per Dawson and Gaudron JJ in Postiglione at 301) and R v Anderson NSWCCA 25 March 1993 per Justice Hunt, Chief Judge at Common Law at p4. The Court, however, still retains a discretion to intervene in those circumstances, if to do so would be to produce a sentence which was totally inappropriate to reflect the objective criminality involved.
46 In determining whether the parity principle has been observed, as the judgments of Gibbs CJ (at 610) and of Mason J (at 613) in Lowe and of Dawson and Gaudron JJ (at 301), and of Kirby J (at 338) in Postiglione show the different circumstances of co-offenders, including the part which each played in the offence, as well as their subjective circumstances such as age, background, previous criminal history, remorse, rehabilitation prospects and the like, must be considered.
47 That follows from the circumstance, as Dawson and Gaudron JJ confirmed in Postiglione (at 301) that the parity principle is “ an aspect of equal justice ”. Equal justice requires, as their Honours pointed out, that “ like should be treated alike, but that, if there are relevant differences, due allowance should be made for them.”
48 The principle is enlivened only where the disparity is such as to give rise to justifiable sense of grievance, or to the appearance of justice not having been done. As Kirby J pointed out in Postiglione (at 337):

“So long as the sentencing Judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders.”
49 This is associated with the principle of appellate restraint, and with the circumstance that sentencing can never be reduced to a precise mathematical exercise, or to one involving analytical certainty. Room must be left for discretion, and or an individual assessment of the facts by the sentencing Judge who has the benefit of seeing and hearing the evidence first hand.
50 The test for determining the existence of a sense of grievance is objective. That is, a person complaining of disparity must show that a reasonable person, looking at the circumstances of the case, would regard the offender’s grievance as justified: R v Ilbay [2000] NSWCCA 251 per Grove J (at par6).”

35 It was necessary for the sentencing judge to assess the applicant’s degree of criminality by defining his role and the level of his actual participation in the criminal enterprise: R v Olbrich (1999) 199 CLR 270.

36 His Honour found that the applicant’s involvement was “substantially less” than that of the co-offender. He noted there was no evidence before him of substantial profit made by the applicant nor was there a suggestion or evidence that he was involved in any way with the other activities of the co-offender. His Honour remarked (ROS at p3):

“He really is someone who should be sentenced on the basis he was prepared for financial reward to take part in the supply of a commercial quantity of heroin although not being the actual supplier but apparently the carrier of the drug for the purposes of supply.”

37 His Honour “applying the approach suggested in Way’s case [2004] NSWCCA 131” was satisfied that this offence “for this offender” fell just below the middle range of objective seriousness.

38 The sentencing judge, in my view, carefully analysed and defined the applicant’s role in the joint criminal enterprise. He had also carefully analysed the co-offender’s role finding (ROS Tien Hung Vu at p5) that the co-offender was readily able to obtain large quantities of heroin, was able to negotiate price with respective purchasers and was able to hold particular quality batches of heroin for persons who wanted to obtain drugs of a similar quality. He remarked that the co-offender’s “admitted behaviour was part of an ongoing criminal activity….” (ROS Tien Hung Vu at p 7). His Honour found that the offences committed by the co-offender fell within the middle range of objective seriousness.

39 The finding that the applicant’s involvement was “substantially less” than the co-offender was clearly correct. Although the sentencing judge was unable to precisely determine the co-offender’s standing in the drug hierarchy, he was at the very least a person of considerable significance. He was involved in the on going supply of heroin, was able to obtain large quantities of the prohibited drug, negotiate prices with respective purchasers and hold quantities of heroin for them.

The applicant on the other hand had travelled with the co-offender to the informant’s house in Brisbane where the sale of the drug was discussed and knew why the co-offender was there. He was the carrier of the heroin on the day of the arrest. The applicant had not previously been involved in the supply of heroin.

40 The applicant’s head sentence of 10 years and 8 months equates to 89% (round figures) of the undiscounted starting point of the co-offender’s sentence of 12 years. The differential of 1 year and 4 months does not adequately reflect, in my view, his Honour’s finding that the applicant’s involvement in the offence was “substantially less” than the co-offender. The disparity is such as to give rise to the appearance of justice not having been done and is such as to justify the intervention of this Court.

41 In R v Shi [2004] NSWCCA 135, Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, emphasised at [34] the importance of giving consideration:

“……to the well recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehouse men and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentiu and Becheru (1962) 63 A Crim R 402.”

42 Notwithstanding the applicant’s lesser role, the offence involved in this appeal is a serious offence. The applicant was knowingly involved in the commercial supply of 792.1 g of heroin of about 57% purity.

43 His Honour properly considered the harm and potential harm to the community in the case of heroin as being “enormous.”

44 The sentencing judge correctly identified the standard non–parole period as offering a reference point, although he found the applicant’s offending fell just below the middle range of objective seriousness. In so doing he was following what was said in Way (supra): see also R v AJP (2004) 150 A Crim R 575, MLP v Regina [2006] NSWCCA 271.

45 The standard non-parole period is 10 years.

46 The findings of this Court on the co-offender’s appeal do not give rise to any justifiable sense of grievance on the part of the applicant. The appeal to this Court succeeded only to the extent that the Court found that there were a sufficient number of relevant factual matters to justify a finding of special circumstances in the case of the co-offender: Vu v Regina (supra) [at 127]. The statutory ratio of the non-parole period taking into account accumulation of the offences was varied so as to equate to approximately 64% of the total term of imprisonment. The non-parole period of the offence in which the applicant was a co-offender was varied in effect by being converted into a fixed term.

47 This Court made a finding of special circumstances in the case of the co-offender. The sentencing judge did not find special circumstances in the case of the applicant and it was within his discretion not to do so.

48 It is unnecessary to consider Ground 3 of the appeal.

49 The Court, in my view, should form as required by s 6 (3) of the Criminal Appeal Act 1912 an opinion that “some other sentence….is warranted in law and should have been passed” and proceed to re-sentence the applicant.

50 I consider that an appropriate sentence is a non-parole period of 6 years with a balance of term of 2 years. Such a reduction will not produce a result disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432

51 The orders I propose are:

(i) The extension of time in which to seek leave to appeal be granted;

(ii) Leave to appeal be granted;

(iii) Quash the sentence and non–parole period imposed by
Williams DCJ
(iv) Sentence the applicant to imprisonment for a non-parole period
of 6 years to date from 11 July 2004 and expire on 10 July 2010
with a balance of term of 2 years expiring on 10 July 2012.

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