Dang v R; Tran v R

Overview of the Crown case

1. The Crown alleged that the appellants acted in concert in an attempt to possess a consignment of 1395 grams of powder containing 822.3 grams of heroin. The heroin had been unlawfully imported into Australia from Hong Kong concealed inside 10 table tennis bats. The consignment left Hong Kong on 12 May and arrived in Australia on 14 May 2012.
2. Australian Customs officials detected a discrepancy in the package and passed it on to the Australian Federal Police ("AFP"). AFP officers substituted flour for the heroin, reconstructed the package and inserted a listening device.
3. A co-offender, Shing Yuet Yeung, took delivery of the package at 138 The Boulevarde, Strathfield at about 1.50pm on 16 May 2012 from an AFP officer purporting to be a Federal Express ("FedEx") courier. AFP officers were in the vicinity carrying out surveillance.
4. The listening device recorded Yeung deconstructing the package and engaging in telephone conversations with a number of people including Tran. Yeung expressed concern that the weight and texture of the substance that had been secreted within the table tennis bats was not as it should be. (The police evidence was to the effect that the flour was only about half the weight of the substance containing the heroin.) About an hour after taking deliver, Yeung was joined by a co-offender, Ho Fung Lam. Lam was recorded voicing similar concern about the substance.
5. The appellants were first seen in the vicinity of 138 The Boulevarde by the AFP officers not long after Lam had arrived. The officers moved in to make arrests shortly after 3.00pm. Yeung was arrested inside the house and Lam was arrested as he was leaving. The appellants were arrested on the footpath diagonally across the road. It was the Crown case that the appellants were there for the purpose of taking possession of the drugs.
6. Tran was seen to throw an item away immediately before he was arrested. It was later identified as a Vodafone SIM card from a phone in his possession which, on the Crown case, had been used in telephone conversations with Yeung. Tran was also in possession of three other mobile phones. Dang was found to be in possession of two phones.
7. Police also found drug paraphernalia and cash in the possession of each of Dang and Tran, including almost $150,000 in cash at Tran's home.
8. Evidence based upon telephone records indicated that Dang and Tran were in frequent contact, calling each other multiple times on a daily basis in the weeks leading up to 16 May 2012. Likewise Yeung and Lam were in frequent contact with each other. The Crown contended that there had been contact between Tran and Yeung as well.
9. Based upon telephone conversations involving Yeung, his end being recorded by the listening device, it was the Crown case that there was a meeting arranged for 3.00pm on 16 May 2012 for the appellants to collect the drugs. Tran was referred to by Yeung as "Jimmy".

The Crown's circumstantial case

1. The Crown case was based upon circumstantial evidence that fell into a number of categories.

A Hong Kong connection

1. The consignment containing the heroin was sent from Hong Kong on 12 May 2012 and arrived two days later.
2. Immigration records showed that Lam arrived in Perth from Hong Kong on 10 March 2012 and Yeung arrived in Sydney from Hong Kong on 21 April 2012. Tran was a resident of Sydney but was in Hong Kong in the period 17 to 23 April 2012.

Contact between Dang and Tran

1. In the period 4 to 15 May 2012, there was an average of 15 contacts per day between phones associated with Dang and Tran. Their phones were in contact 21 times on 16 May prior to the delivery of the consignment to 138 The Boulevarde. They described themselves as being friends but the Crown argued that this frequency of contact indicated they were more than that.

Contact between Yeung and Lam

1. On 16 May 2012 there were 8 telephone contacts between Yeung and Lam prior to the delivery of the consignment and 4 between the delivery and the arrival of Lam and when he entered the home at 138 The Boulevarde at about 3.05pm.

Contact between Tran and Yeung prior to 16 May 2012

1. Upon his arrest, Tran was found in possession of a phone with a number ending in 858 ("the 858 phone"). He contended that he was given this phone to hold only a short time before his arrest. The Crown case was that he had the 858 phone in his possession at all material times. If the Crown was correct in this assertion, the following is relevant to the case against Tran.
2. There were about 10 contacts made between phones associated with Tran and Yeung on 11 May and 2 on the evening of 14 May 2012. One of the contacts made on 11 May was a text message sent to Tran (to the 858 phone): "22 angel rd Strathfld". (Exh A9 - AB 189) Yeung's home (a boarding house) was on the corner of The Boulevarde and Angel Road on the eastern side of The Boulevarde. 22 Angel Road was two doors down from the corner.
3. The first call Yeung made after the delivery of the consignment on 16 May was to Tran (to the 858 phone). Then, there were seven contacts in both directions in a period of 50 seconds.

Delivery of the consignment

1. Federal agent Dib ("FA Dib"), dressed as a FedEx courier, attempted to deliver the consignment at about 11.50am on 16 May 2012. No-one was home and he left a card under the door with contact details to organise a future time and date for delivery.
2. At about 1.03pm he received a call from Yeung who said he was home and asked for the delivery to be made. FA Dib said he would be there in about an hour.
3. The Crown pointed to this evidence as indicating that Yeung, and those with whom he was in contact, would have had no knowledge prior to about 1.00pm as to when the delivery was likely to be made.
4. FA Dib made the delivery to Yeung at about 1.50pm.

Activity following delivery of the consignment

1. It is important to bear in mind in what follows that only Yeung's side of any conversation was recorded by the listening device secreted within the consignment. He spoke in Cantonese which had been translated. The transcripts of the conversation, read in conjunction with the telephone records showing whose phone was in contact with whom provide a guide as to whom he was speaking with.
2. Another matter to note is that it became common ground in this Court that a record of transmissions made by the AFP officers (Exhibit T4), and which formed the basis upon which the officers prepared their statements, recorded times of various events that were almost two minutes behind the actual time. Thus, in synchronising events appearing in this log with events recorded by the listening device and the telephone records, an adjustment was required to be made. I have done this in what follows.
3. Police monitoring the listening device noted that the connection to it dropped out in between 1.52pm and 2.06pm.
4. As indicated above, there was a series of contacts between Yeung and the phone said by the Crown to be in Tran's possession (the 858 phone); 7 within 50 seconds from 2.02.47. Given the connection to the listening device was inoperative at this time there was no recording of Yeung's side of any conversation.
5. Tran then immediately rang Dang (at 2.03.53pm).
6. Yeung spoke by phone to an unknown person in a call commencing at 2.06pm. He told the person that "it" had not been opened by anyone; "it" was definitely okay; the time "here" was 2 o'clock and that something had been set down for 3 o'clock. He would ring this person back after he had weighed "them".
7. AFP officers monitoring the listening device noted that there were then sounds like someone was accessing the consignment.
8. At 2.10pm, Yeung spoke by phone about how he was unpacking the consignment.
9. A minute or two after this he was in contact with Lam, according to the telephone records. The coinciding listening device transcript at this time includes Yeung saying, "Already given, it's set at three o'clock". He also told Lam to "just come over here first".
10. Yeung had a number of phone conversations thereafter but it will only be necessary to refer to some of them.
11. Tran rang Dang again at 2.23pm.
12. At 2.28pm, Yeung spoke to "Ah Gor" in what was the first of a number of conversations in which he spoke of his concern that the consignment was of an appearance, weight and texture that was not what was expected. In further conversation with "Ah Gor" he referred to this consignment as being "different from the previous ones". (The translator explained that "Ah Gor" was a colloquialism which could have the equivalent in English of "Mate", "Hey mate", "Brother" or "Hey bro").
13. At 2.38pm, Yeung said to an unidentified person that "I am waiting for phone call from other people now". He continued speaking of his concern about the consignment.
14. At 2.45pm in conversation with an unknown person he made reference to his "boss" having told him that there should be more than "1400" but there was only about half that (which was consistent with the police evidence about the weight of the flour).
15. Lam arrived in a taxi at 2.45pm and lingered in the vicinity outside 138 The Boulevarde for the next 20 minutes or so. He was in phone contact with Yeung on four occasions in this period.
16. At 2.47pm, Yeung spoke with a person who was obviously not in the vicinity. He spoke of the appearance and weight of the consignment and offered to "send you the photo so that you can have a look, to see if it is the original appearance".
17. At 2.48pm, Yeung spoke with a person who must have been Lam. He invited him to "come over to here and have a look first". They would "talk after you have come here". He also made reference to the "Si Fu", that is the "Si Fu of the other side". The translator explained that "Si Fu" was Cantonese for "master", "maestro" or "expert". It seems a reasonable inference, as counsel for the appellants contended, that this was a reference to a person who was higher up in the hierarchy who was overseas. In his closing address to the jury the Crown Prosecutor contended that it was a reference to "the other side who is going to collect it". That seems less likely.
18. At 2.51pm, Yeung spoke with a person who appears to have been "Si Fu" and relayed a description of what he had seen after unpacking the consignment. He compared it with what they "normally" looked like.
19. Yeung interrupted that conversation at 2.53pm to take a call on another phone. It was a call from the 858 phone found in Tran's possession upon his arrest. Yeung's side of the conversation was: "Hi, brother Jimmy, what is the matter, brother Jimmy? [Pause] Hm, please wait, hm, I'll call you back later as I am having something to do now. I am sorry. [Pause] You just wait, should not be long. [Pause]"
20. Yeung then returned to his conversation with the "Si Fu" about the problems with the consignment. He made a suggestion of adding something to it.
21. At around 2.54pm, Tran was seen by FA Law walking west on Wonga Street and he turned right into The Boulevarde in the direction of No 138. (Wonga Street is the next street parallel to Angel Road.) A minute and a half, or two minutes, later a red, maroon or orange Nissan Navara was seen travelling down Wonga Street towards The Boulevarde, but it turned left. It was recorded in the surveillance log that FA Fitzpatrick passed on that "they got out of like a dark maroon-ey Nissan Navara I think it was". FA Law called in the registration number and somebody in the AFP Major Incident Room, where transmissions were being monitored, relayed that the registered owner "had some two thousand and one supply drugs offences".
22. While this was going on, Lam was seen walking around the area of 138 The Boulevarde, sometimes with a phone to his ear. He entered the yard once but then walked away. Tran was seen to walk north along The Boulevarde and stopped near Lam outside No 138. There was no apparent interchange between them and a short time later Tran walked away, south, along The Boulevarde only to be seen a short time later walking back in a northerly direction crossing Angel Road. This would appear to have been just after the call to Yeung at 2.53pm.
23. At 2.56pm, Yeung was continuing the conversation with the person he commenced speaking to at 2.53pm. The transcript records him saying: "Oh, so, what should be done now … [Pause] Have already been checked. [Pause] Not yet, that is what I am saying, there, now we are talking about, hey, buddy, it's now short by almost half! [Pause] Just keep delaying with Jimmy first [Pause] Is it … [Ind] has a head of long hair … Jimmy Gor [Cantonese means Elder Brother Jimmy]? [Pause] that is Jim Gor? [Pause] That's right, I previously, previously, I, I already told you, I told 'Andrew Lo' [Phonetic sound of words heard] on the twenty second (22nd) to wait for me at the end of the street."
24. At about 2.57pm, Tran was seen walking south along the opposite (western) side of The Boulevarde. He looked up a side street (Llandilo Avenue, directly opposite Angel Road) and kept walking.
25. At about the same time, Yeung spoke to "Ah Gor". He said, in part: "Has already rung me, but there, they said to me, hm, [Pause] him, I am now calculating, I am now working out the figures [Pause] Hm, … [Ind] He says, hm, he wants to check if the quantity of table-tennis bats is correct, and whether, when put together, whether the weight is enough, when he comes over to here. [Pause] [There was then further mention of the problems with the consignment and Yeung's suggestion of adding something to it] But although I have got enough now yet, as previously, before I came, I already asked Jimmy and now, Jimmy has arrived, the arrangement, and is already in the street next to me [Pause] That is, with that thing … [Ind] [Pause] He said to me that after the time was set, … [Ind] [Pause]". (Italics indicate my note.)
26. Lam entered No 138 at 3.00pm or thereabouts. The listening device recorded a conversation between Lam and Yeung about the consignment. Yeung told Lam of the weight of the substance, including references that were consistent with there being 700 grams instead of 1350 grams. He said he had just spoken to "the boss ... the opposite side, the boss of the other side and quoted four gram, and a half … [Ind] and I said just to refer to the paper work and it's only four gram". He then told Lam at 3.00.44pm, "I am now waiting for phone call".
27. A very short time later, Yeung answered a call from a person he referred to as "Ah Gor". He told him what the outcome was after something he referred to as "recycling"; perhaps a reference to adding something to the substance to make up the required weight. He continued: "… but I still need him to call me later [Pause] You told me to do the recycle, so I do the recycling and after the sum is calculated as well as after I receive hers/his phone call [Pause] I'll then give him a call later, is that alright?"
28. At around the same time, Tran was seen with Dang walking north on the western side of The Boulevarde. They looked up Llandilo Avenue and then proceeded out of sight.
29. In the ensuing minutes there was a conversation between Yeung and Lam about the problem with the substance. This included reference to it not having the expected smell and the like. Yeung suggested, "Well let what-you-call try then but might (Ind) not even be able to guess (Ind)".
30. At 3.06pm, Yeung answered a call from "Ah Gor". He further confirmed that the substance was not as it should be; not as it had been previously. He also referred to having spoken to "the Si Fu on the other side". This would indicate that "Ah Gor" was likely in this country somewhere, as opposed to "Si Fu" who was overseas.
31. About a minute into this conversation Yeung interrupted to say that "Jimmy Gor is now calling, what should I do, really, you tell me?" The reply was obviously not recorded but Yeung acknowledged whatever it was and proceeded to answer the call from "Jimmy Gor".
32. This call was made from the 858 phone found in Tran's possession a short time later when he was arrested. The phone records and listening device time stamp showed the call commenced at 3.07. The conversation, from Yeung's end, was as follows: "Hey, brother Jimmy, hm, I am sorry, here, er I had already done … yeah, that's right, here, some small problems occur here. [Pause] You, would you mind waiting for another moment? [Pause] That is, hm, how about I will call you later for yum cha, is that okay? [Pause] After I have fixed everything first [Pause]."
33. Yeung then returned to his conversation with "Ah Gor": "Well, so, now, what should we do? [Pause] yeah, oh, well, alright, I'll just call brother Jimmy then. [Pause] yeah [Pause] Yeah, alright, alright, alright."
34. That continuation of the conversation was, according to the listening device time stamp, from 3.07.51 to 3.08.10. The line to the listening device then dropped out. It was briefly reconnected and the sounds of "yelling" were heard. (It is safe to assume that police were making arrests at this point.) The recording ended.

Arrests

1. The order for the police in the vicinity to move in and make arrests was communicated by radio by FA Stipnieks after he saw Lam walk out of 138 The Boulevarde. The precise time that arrests were made is controversial (and I shall return to it).
2. The appellants were arrested on the opposite (western) side of The Boulevarde about 10 or 20 metres north of Llandilo Avenue. They were walking in a southerly direction approaching the police who emerged from Llandilo Avenue. FA Stipnieks saw Tran take a card out of a mobile phone he was carrying, bend it, and throw it away. FA Beckett simply saw him throw something away. The pair was arrested.

Conversation with Dang and items found

1. FA Beckett searched Dang and what was found included: $4120 in cash A white Nokia mobile phone A Blackberry mobile phone
2. FA Beckett spoke to Dang at the scene. (Evidence of the conversation was only admitted in the case concerning Dang.) He denied he was involved in drugs and said he was there because "Tran asked me to give him a lift to come here and that's all". The money he had on him was "to pay the builders for my sister's house because she gave it to me".
3. Notwithstanding Dang was released he agreed to remain and provide information. He told police that Tran phoned him and asked for a lift to Strathfield but did not specify any particular street. He did not know why Tran wanted to go to Strathfield. He picked Tran up from Tran's house in Fairfield East at about 2.00 or 2.15pm and they drove to Angel Road. Tran got out of the car and Dang went to find somewhere to park. Tran then asked Dang to get out of the car and walk with him and to bring his (Dang's) cigarettes with him. While they were walking together they talked about Tran's girlfriend and friend. Dang did not think it unusual that Tran wanted to walk around with him as Tran said he would go and meet a friend and just wait for a friend. Dang did not know the name of Tran's friend or why Tran was meeting the friend.
4. Dang agreed to allow police to search his car (a blue Toyota RAV 4). The items found included: $5000 in cash (all in $50 notes) A black bag containing scales, a plastic spoon, a plastic bowl and three plastic bags containing a white powder
5. (On subsequent analysis, the powder was found to be dimethylsulfone. FA Green gave evidence that, in his experience, this was a substance commonly used as a cutting agent for illicit drugs. The scales, spoon and bowl were swabbed and heroin, cocaine and caffeine were detected upon analysis.)
6. Dang told police that the bag was not his; it was Tran's. When pressed for details he became unsure and he could not explain how it came to be in the boot of his car. But he remained certain that it was not his or his wife's. He said that Tran had a black bag when he got into the car earlier that day. He was not able to say whether he had it with him when he got out of the car. He denied ever having touched the bag the police found and did not know what was in it.
7. On further questioning, Dang admitted that the bag was his. He was again placed under arrest for drug possession (he had earlier been released) and he replied, "No drugs". He admitted that he had lied when he earlier denied ownership of the bag. He told police the powder was "to make the meat tender"; "for marinating meat". The scales were to weigh the powder accurately "for the marinating of the meat". He denied a proposition that it was a cutting agent in relation to drugs. He also denied that the money found on his person and in his car was the proceeds of drug sales. He maintained that it was "to pay the workmen and to buy some stuff".

Items found on arrest of Tran

1. Tran was found to be in possession of four mobile phones, the SIM card for one of which was found nearby.

Search of Tran's home

1. Tran's home at Fairfield Heights was searched by police the day after his arrest. Officers found various items including: Two small bags containing powder and a piece of foil containing powder in a cupboard above the refrigerator Electronic scales in the master bedroom A total of $149,450 in cash in various locations in the master bedroom and under the kitchen sink
2. The powder contained in the bags and foil were subsequently examined and found to weigh 0.1g, 1.1g and 0.1g respectively. The larger quantity was able to be analysed and the analysis revealed it contained heroin at 55.3% purity. The smaller quantities were determined to contain heroin as well. Tran's fingerprints were found on the piece of foil.

Betting evidence

1. John Graham, the NSW investigations manager for Tabcorp Holdings Ltd was provided with copies of 19 TAB betting tickets by FA Santucci. (He had received them from Tran's solicitor as an explanation for the money found at Tran's home.) The barcodes on copies of two of the tickets were insufficiently clear but Mr Graham was able to establish that 17 were winning tickets where bets ranging from $200 to $4000 had been placed (a total of $19,070) which yielded winnings ranging from $1640 to $19,980 (a total of $103,254). The bets had all been in cash and they had been placed in suburbs near to Tran's home at Fairfield Heights. There was no record as to who had placed the bets or to whom the payout was made; Tran did not have an account.
2. Seven of the payouts had been made after the finding of the cash at Tran's home; namely from 20 to 23 May 2012 with the payout total for these being $23,614.
3. Lee Sienkiewicz, the licensee of the El Cortez Hotel gave evidence of gambling payouts to customers. He said that the first $2000 was paid in cash and anything in excess of that was paid by cheque. He provided evidence of there being payouts to Tran in the period 11 January to 27 April 2012 for a total of $76,937. There were no records of losses by patrons.

Telephone evidence

1. Investigations were carried out in relation to the four mobile phones found in Tran's possession when he was arrested. There were no subscriber details for one of them but the other three were subscribed in names other than Tran's. The activation dates for those three were in late April-early May 2012. The 858 phone (which had only been used for contact with Yeung) had been activated on 24 April 2012, the day after Tran arrived home from his trip to Hong Kong.
2. Of the two mobile phones found upon Dang, there were subscriber details available in respect of one of them and it was in a name other than his. That phone had been activated on 3 May 2012.
3. Three mobile phones found within 138 The Boulevarde, Strathfield had all been activated in early May 2012 in names other than Yeung or Lam.
4. A mobile phone found upon Lam had been activated on 2 May 2012, and not in his name.
5. The Crown suggested that there was significance in the fact that all of the phones for which subscriber details were available had been activated after Yeung, Lam and Tran had travelled from Hong Kong to Australia. Further, a phone in the possession of Dang and a phone in the possession of Tran were both with Optus and were registered on the same day: 3 May 2012.
6. FA Santucci confirmed in cross-examination that it was possible to purchase prepaid SIM cards in a name other than that of the purchaser.

The case for Tran

1. Tran gave evidence in the trial. He said he was born in Vietnam and had lived in Australia since he was 14. He could not speak any Chinese language. He owned a small business with two employees. It had an annual turnover of $100,000 to $120,000.
2. He was smoking heroin once or twice a month at the time. He had bought heroin from Andrew at the El Cortez Hotel, never elsewhere.
3. The six day trip to Hong Kong in April 2012 was with his wife and the purpose was to get him away from his drug use. (His wife gave evidence confirming she went with him on this trip. One of the purposes was to reduce his drug use; she said that he was using drugs a couple of times a week.) He admitted that the drugs found when his house was searched were his and they were for his own use. He was in the practice of buying a "half a ball" of heroin (1.75g) at a time. Sometimes he and Dang shared heroin.
4. Tran said that he had known Dang for about five years and described Dang as a friend. They were often in contact with each other.
5. On 16 May 2012 Tran was in the vicinity of 138 The Boulevarde Strathfield because he had a date with his long-term girlfriend, Katherine Wang. They had planned four or five days earlier to meet at a restaurant in Strathfield for dinner. He had asked Dang to come with him to the dinner. Dang was going to see "his friend to pick up his personal smoke". Tran said later in his evidence that Dang picked him up at about 2.00pm. His plan was to meet his girlfriend at a place that served coffee and light food. He had arranged this when he bumped into her at a pub near her workplace at Parramatta. They were to meet at about 4.30, 5 o'clock. He had asked Dang to go with him to the dinner so he would not be alone with his girlfriend; "it looks too funny if one of my wife's see her".
6. Katherine Wang gave evidence in which she confirmed that a few days before 16 May Tran had bumped into her at a pub and they arranged to meet at the restaurant in Strathfield in a few days' time at about 4.00 to 5.00pm. The arrangement was that he was to ring her when he was there and she would leave work and meet up with him. But he failed to call on the day in question. Ms Wang said that she did not know Dang at all; he had never been to any previous meetings she had with Tran.
7. Tran gave evidence that Dang had been told by his friend, "Andrew" to go to Wonga Street (the next street parallel to Angel Road). It was the first time Dang had been to that area and he missed the turn and had to turn into the next street (Angel Street). He then turned right (into Emu Street which leads to Wonga Street). At this point Dang saw Andrew sitting in a red four-wheel drive. There was no parking at that point and so, because Andrew "looks like he was dying to leave - like to drive off", Dang asked Tran to "just quickly jump out and come to the car, to that guy in the car, Andrew".
8. Tran alighted and approached the red four-wheel drive and asked Andrew "if he got the half ball that Dang wants". Tran said he knew Andrew because he had purchased drugs from him before. Andrew told him to get into the car. He then gave a phone to Tran, telling him to hold on to it while Andrew went away to get the drugs and he would then return. (He said that the phone was one of those found by police when he was later arrested (the 858 phone).) Tran got out of the car after Andrew had driven around into Wonga Street. Dang then called to find out where Tran was. (There is no call at this time from Dang to Tran in the telephone records.) They then met up on The Boulevarde between Wonga and Angel Streets.
9. Tran said that after Andrew left, and he had to wait for him to call, he realised that he did not have any cigarettes so he asked Dang to go for a walk with him so he could buy some. They walked for a while but then he realised the shop was too far away so he said not to worry about it and they proceeded to walk back. They were then arrested.
10. He was asked if he did something with the (858) phone that Andrew had given him and he replied: "I had it in my hand, and then as soon as they approached me, like, I was scared, nervous, when they had the guns out, so I try to just quickly open the phone out, and then had the SIM into my mouth. … (A)few minutes later, they pulled me up and put me against the wall, to - for a search. And then I was a bit nervous. And then I just decide - just to spit the SIM out. "
11. Tran denied having used the 858 phone. He said that his Blackberry was used for messaging; one of the other phones was used for friends; and the other phone was used for work. The SIM cards in his phones were prepaid and pre-activated; that is they already had subscriber details in other names when he bought them. Phone shops did this as a service to customers so as not to delay a purchase by a need to set up an activation.
12. Tran explained the large amount of money found at his home by claiming that it represented proceeds of gambling. Every time he won money he gave some to his wife to put aside and they had been saving in this fashion for over two years. He preferred to keep the cash at home in case he needed to access it for gambling because there was a $1000 withdrawal limit at a bank. In cross-examination he maintained that he won more money on poker machines than he lost; he won most of the time. He had a technique: "Remembering the gamble, the suits. I don't wait for free games, I just wait for a pay, and then I will work out the colour suits. … I always win a lot of money … most of the times."
13. Tran's wife gave evidence confirming that the money was the proceeds of gambling but she claimed that she hid the money away because she was afraid he would take it and use more drugs.
14. Tran explained that the scales that were found at his home were used to weigh drugs that he purchased to check whether he had been "ripped off". He said he had purchased heroin from Andrew a few times; usually at a pub, the El Cortez, where he (Tran) gambled on poker machines.
15. Tran had never met either Yeung or Lam. He had never been to 138 The Boulevarde Strathfield.
16. As to the man "Andrew", Tran said that he was of Asian appearance with short black hair. He had heard Andrew's friends refer to him as "Jimmy".

The case for Dang

1. Mr Dang told the jury that he was born in Vietnam and came to Australia 19 years earlier. His English speaking skills were limited and he could not speak any Chinese language. He lived at Canley Heights. He received Centrelink benefits.
2. On 16 May 2012 he rang Tran in the morning and they made a plan that evening to see Tran's girlfriend. He picked Tran up at 2.00 or 2.15pm. It was only on the way that he told Tran that he needed to stop to see Andrew to buy a half a ball, 1.7g of heroin. (He and Tran had discussed the proposed meeting with Tran's girlfriend two or three days before but he had not previously told Tran about needing to see Andrew.)
3. Dang said he had met Andrew at the El Cortez hotel. He had bought heroin from him before, at the El Cortez. He had heard Andrew's friends refer to him as "Jimmy".
4. Dang said he had never been to Hong Kong himself and was unaware of Tran having been there in April 2012. Although they spoke often, Tran had not told him about it.
5. In relation to the phones found upon his arrest, Dang said that he had bought the Blackberry for playing games on the internet and the other had a prepaid pre-activated SIM.
6. Dang gave a similar account to Tran's about missing the turn into Wonga Street; seeing Andrew; Tran alighting and going to speak with him; and Dang finding a place to park. Once he found a parking place he called Tran, or vice versa, and they met up on The Boulevarde. Tran wanted to buy cigarettes so they walked up the street a bit but found it was a long way so started to return and were then arrested.
7. Dang denied knowing Yeung or Lam.
8. The money he had in his pocket and in his car was to pay the builder who was to do work on his sister's house. The powder that the police found was for mixing with food to make it more nutritious for his mother. He had it in the car because of a weekend he would take his mother to either a brother's house or her friend's house and he would not be sure whether they have that kind of powder at their house. The scales were required in relation to this powder because a piece of meat a little bit bigger than a tennis ball required 1 gram for tenderisation. The money he was going to use to purchase heroin from Andrew was in an ashtray in the back of his car which the police did not find.
9. Dang said that he had the scales because Andrew had a habit of selling him "underweight stuff".
10. Dang said in cross-examination that the arrangement to meet Andrew in Wonga Street on 16 May to purchase a "half a ball" was made two or three days earlier at the El Cortez Hotel. Although he usually met Andrew at that hotel (which is in Canley Vale), Andrew told him that they would meet at Wonga Street, Strathfield at 3.00 or 3.05pm and "maybe he would have half a ball and he would sell it at $700".
11. Dang was cross-examined about the frequent telephone contact he had with Tran in the period leading up to 16 May. He could not recall what they spoke about except to suggest it was "just friends talking".
12. He was asked about what he had been proposing to do between meeting Andrew and going with Tran to meet Tran's girlfriend and he said he was going to Fairfield to pay the people who were to do some work at his sister's place and then go to Mt Pritchard to pick up his children from school (and presumably take them home to Canley Heights).
13. Dang called Mr Anh David Tran to give evidence. Mr Tran described himself as a handyman. He said that he was a friend of Dang's and learned that his sister wanted some work done at her house while he was having a beer with Dang one day. The work involved repairing and renovating the garage. He gave a quotation, but not in writing, of $9500 for the job. The work included installation of a toilet. In cross-examination, he said that he would have had to look in the paper to find a plumber to do that part of the job and he would "share my money with them".
14. It also emerged in cross-examination that Mr Tran was a cousin to Dang's sister. He said that he usually received money in advance in order to pay for materials. In this case, Dang's sister wanted to pay him the entire amount in advance, in cash, because she didn't like to keep money in the house. She told him that Dang would bring him the money. Dang was supposed to come to Mr Tran's home on 16 May 2012 but he did not arrive. He heard a couple of days later that Dang had some trouble with the police so Mr Tran proceeded to work on another job.

Unreasonable verdict principles

1. A sufficient and succinct summary of well-known principles to be applied when determining a ground of appeal asserting that a verdict of guilty is unreasonable or cannot be supported in the context of a circumstantial evidence case was provided in Gilham v R [2012] NSWCCA 131: "[465] Section 6(1) of the Criminal Appeal Act 1912 provides that a verdict may be set aside if it is unreasonable or cannot be supported having regard to the evidence. As the High Court recently confirmed in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [14], when considering whether or not the verdict of a jury was unreasonable the appellate court is to make its own independent assessment of the evidence both as to sufficiency and quality. The question that an appeal court is required to determine is whether, notwithstanding that there is evidence upon which a jury might convict, 'nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand': M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-493. Only in circumstances where a doubt experienced by a court of criminal appeal can be resolved by the jury's advantage in seeing and hearing the evidence can the court conclude that no miscarriage of justice has occurred: M at 494 quoted with approval in SKA at [13]. [466] The case against the applicant is a circumstantial one. As McClellan CJ at CL discussed in Wood v R [2012] NSWCCA 21 at [50]-[53], where a case is circumstantial 'the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': quoting Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ), citing Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; see also Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252. However, a circumstantial case must be considered holistically. The court must weigh and consider the totality of the admissible evidence before reaching a conclusion, on the whole of the evidence, that it was open to the jury to be persuaded beyond reasonable doubt of guilt or, in the alternative, that a doubt persists such that it would be dangerous to allow the verdict of guilty to stand: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ). Tortuous reasoning in order to explain away every individual circumstance as being consistent with innocence should not be engaged in: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA)."

Facts established

1. I am satisfied beyond reasonable doubt that the 858 phone was, at all material times, in the possession of Tran. I am also satisfied beyond reasonable doubt that Tran was "Jimmy".
2. The 858 phone was found in Tran's possession upon his arrest. He tried to destroy and/or discard the SIM card. There is no reasonable explanation for this other than that he knew it would link him to Yeung and the consignment. (This evidence was only admitted in the case against Tran.)
3. Given Tran's possession of the phone at the time of the call at 3.07pm, there is no reasonable possibility other than that he was involved in the second "Jimmy" conversation with Yeung at that time. It follows that he was involved in the first "Jimmy" conversation with Yeung at 2.53pm.
4. The substantial point made in the submissions for the applicant in an endeavour to avoid these conclusions was that the times indicated in the surveillance log indicated that Tran would have already been arrested, or was in the process of being arrested, at 3.07pm. I accept the Crown's submissions on this point. That argument calls for too much precision in the recording of times in that log, aside from the error that is conceded. FA Stipnieks' evidence was that he saw the appellants at the place where they were arrested at "about 3.06pm" (AB 565.35). His times were based on the log but it was conceded that such times were out by almost two minutes. If this is correct, the arrests were effected at about 3.08pm. That is consistent with the sounds of yelling within 138 The Boulevarde as recorded by the listening device commencing at 3.08.44.
5. Regardless of the foregoing, what is incontrovertible is that (a) Tran had the 858 phone when he was arrested; (b) a short time earlier (at 2.53pm), Yeung had spoken with "Jimmy" at the same time as a phone available to Yeung had been in contact with the 858 phone; and (c) a phone available to Yeung was again in contact with the 858 phone at 3.07pm and he referred to the other party once more as "Jimmy". No other reasonable possibility arises than that Tran was the other party to the conversation with Yeung.
6. I am also satisfied that Tran had the 858 phone when it was involved in earlier contact with Yeung on 11 and 14 May 2012. Tran's claim that he only came into possession of the phone at about 2.50pm on 16 May is not credible. He explained to the jury that Andrew was in Wonga Street, Strathfield (an unusual location compared to prior dealings at the El Cortez Hotel) to sell 1.75g of heroin to Dang but Andrew did not have heroin and had to go away to get it. In these circumstances, he asked Tran to hold on to his phone while he was gone.
7. The whole story that there was a person by the name of Andrew Lo in Wonga Street is incredible. The defence case was that it was sheer coincidence that Yeung was arranging to meet someone at 3.00pm in relation to a large quantity of imported heroin and a small time drug dealer, who in the past only sold minor quantities of heroin to Dang at a hotel in Canley Vale, decided days before to conduct a transaction with him around the corner at the very same time.
8. The translator who prepared the transcript of the listening device material included "Andrew Lo" as the phonetic sound of English words in one of the recorded conversations. It is entirely feasible, as the Crown suggested in this Court, that the sound, in Yeung's undoubtedly accented voice, would be similar to "Angel Road". That makes sense of the reference in the same sentence to "the twenty second" which is consistent with the address of 22 Angel Road sent by text by Yeung to the 858 phone on 11 May 2012. Senior counsel for Tran conceded the latter but not the former (27.3.15 at T7.14).
9. It was suggested as a reasonable possibility that "Andrew Lo" might have been the anticipated recipient of the heroin. But no reasonably possible explanation was advanced for why he would have known days in advance of a need to be in the area at 3.00pm on 16 May when the delivery of the consignment only materialised that afternoon.
10. Once it is accepted that the 858 phone was Tran's, or even at least that it was in his possession from 2.53pm on 16 May 2012, discrete aspects of the defence cases are rendered incapable of acceptance. One such aspect was that Tran could not speak Cantonese. Another was that he was not known as "Jimmy" by anyone who gave evidence (he was at least known by that name to Yeung).
11. Another submission concerned the fact that there was no evidence of anyone, such as Dang, contacting the 858 phone other than Yeung. That is true. Tran was found with four phones. It is entirely conceivable that he had a purpose in having each of them and that, in relation to the 858 phone, the purpose was for contacting the person with whom he was dealing in relation to the consignment. If it had not been found in his personal possession, it would not have been traced to him, given the subscription details did not identify him.
12. It was submitted that the evidence of Tran concerning his reasons for being in the vicinity of 138 The Boulevarde (so that Dang could meet "Andrew Lo") found support in other evidence. I have dealt with most of those reasons except for the one that referred to the observation of "they" getting out of a Nissan Navara and the registered owner of that vehicle "had some 2001 supply drugs offences". There is no clear explanation for this in the evidence. There is no evidence that the registered owner was an "Andrew Lo". Sometimes in a case such as this there are matters that are mysterious. But I do not accept that this is a matter that detracts from what the evidence otherwise establishes.

The narrative established

1. With an acceptance of the proposition that Tran was "Jimmy", it was well open to the jury to accept that the evidence established the following narrative.
2. Yeung and Lam came to Australia from Hong Kong and Tran had visited Hong Kong a short time (a month or two) before 16 May 2012.
3. Each of the known participants, Dang, Tran, Yeung and Lam acquired mobile phones a short time (a few weeks) before 16 May 2012. None of the subscriber details were in their names.
4. The consignment containing heroin was sent from Hong Kong on 12 May and arrived in Sydney on 14 May 2012.
5. Yeung was in phone contact with Tran on 11 May 2012 (including via a text message which contained an address two doors down the street from 138 The Boulevarde). He was in further contact with Tran on the evening of 14 May.
6. FA Dib attempted to deliver the consignment to the house across the road from 138 The Boulevarde, Strathfield, at about 11.50am on 16 May 2012. No-one was home and he left a note. At 1.03pm he received a call from Yeung asking him to deliver it to No 138 and he said he would do so in about an hour. This provided the first expected time that the consignment would be received by Yeung.
7. FA Dib delivered the consignment to Yeung at about 1.50pm. The first person Yeung called after receiving the consignment was Tran who he rang almost immediately (at 2.02pm). A meeting was arranged for 3.00pm. Tran immediately (at 2.03pm) rang Dang. Yeung contacted Lam, telling him about the 3.00pm meeting. Thereafter he spoke to other people (including his superior overseas) as he set about unpacking and recovering the heroin that was expected to be within the table-tennis bats. He soon became concerned that the substance was not the same as what it usually was.
8. Tran rang Dang again at 2.23pm. Dang picked him up and they travelled together to Strathfield. By about 2.50pm, Yeung was well and truly concerned that the substance he had recovered from the bats was half the weight it should have been and may not have been heroin. His telephone conversations with others include discussion of the possibility of "recycling" (which I infer meant adding something to increase the bulk of the substance). When Tran rang Yeung at 2.53pm, it was sufficiently important for Yeung to interrupt a conversation with his overseas superior to answer; he referred to Tran by the name "Jimmy" and told him to wait.
9. The appellants were in the vicinity of 138 The Boulevarde by this time. They walked around the area, sometimes apart but mostly together. It is apparent they were looking out for any possible police surveillance. (The record of the police observations included that they were engaging in "counter surveillance"). Tran walked past 138 The Boulevarde, on either side of the road, five times.
10. At 2.56pm, Yeung reminded his overseas superior that he had previously said that "Jimmy" had been told to wait at the end of the street. He made reference a short time later to "Ah Gor" that Jimmy had arrived and was waiting nearby. When "Jimmy" (i.e. Tran) rang at about 3.07pm, Yeung again put him off by explaining that there were problems and asking if he would not mind waiting.
11. Yeung received further advice or instructions from "Ah Gor" and then said "alright, I'll just call brother Jimmy then". He did not get the opportunity as the police by this stage had determined to move in and affect arrests.
12. As Tran saw the approaching officers, with guns drawn, he quickly removed the SIM card from the 858 phone and threw it away. (This evidence was admitted only against Tran.) It is significant that he did this in relation to the phone that had been in contact with Yeung as opposed to any of the three other phones in his possession.
13. Tran was found to have some $150,000 in cash at his home. This indicated that he was financially able to engage in the acquisition and supply of large quantities of prohibited drugs. His claim of gambling as an alternative source for this money lacked credibility. He provided evidence of his successful betting endeavours but nothing in relation to his losing bets. His claim that he was invariably successful was implausible.
14. Tran's possession of four mobile phones also supported the proposition that he was involved in significant drug supply activity. His alternative explanation that he used one for messaging, one for work, another for friends and that he had received the fourth from "Andrew" did not command acceptance.
15. Dang was found to be in possession at the scene of his arrest, namely on his person and in his car, of some $9000. This tended to support the proposition that he was involved in drug supply activity. His alternative explanation of having been given that money by his sister in order to pay her builders was implausible. He was also found to be in possession of a substance capable of being used as a cutting agent. His alternative explanation that this was a marinade and meat tenderiser for his mother's food was incredible on its own; but more so when considering it was found in a bag that also contained scales that had been used in the past to weigh heroin and cocaine.
16. There was an argument that the amounts of money found in the possession of the appellants were inconsistent with the wholesale value of the heroin, said to be between $822,300 and $959,350. However, the Crown did not submit that this money was intended to be used to pay for the consignment. There was no evidence as to how the drugs had been or would be paid for, or how such transactions are typically carried out. The significance of these sums of money was more to show that large sums of money were available to the appellants, consistent with involvement in drug supply activity. For example, Tran owned a small business with a turnover of between $100,000 and $120,000 per year and, the Crown argued, his possession of almost $150,000 in cash secreted around his house was not credibly explained. Dang was on Centrelink benefits.
17. The coincidence that the three phones found in Tran's possession, one of the two found in Dang's possession, the three phones found in Yeung's possession, and the one phone found in Lam's possession had all been activated in the three weeks or so prior to 16 May, none of them in their own names, was another circumstance linking the three to the consignment delivered on that day. (Something was sought to be made of the fact that it is possible to buy a pre-paid SIM card already activated in another name; but that does not detract from the fact that the applicants had phones that were not in their own names.)

The defence cases did not give rise to a reasonable doubt

1. The overall version of events provided by the appellants was implausible. It was to the effect that Tran was to meet his girlfriend at a restaurant in Strathfield at about 4.30 or 5.00pm. Mr Dang was to accompany him. For this purpose, Dang, who lived at Canley Heights, picked Tran up from Tran's home in Fairfield Heights at about 2.00pm. So far as Tran was concerned, they were going to meet his girlfriend some 2½ to 3 hours later at a Strathfield café. But after Dang picked him up, he told Tran that he had to meet his drug dealer in Wonga Street, Strathfield. Dang was then going to drive back out west to Fairfield to pay his sister's builders and then go to Mt Pritchard to pick up his children. After all of that, they would then return to Strathfield to meet with Tran's girlfriend.
2. Another aspect of implausibility was that Dang had previously purchased heroin from "Andrew" at the El Cortez Hotel at Canley Vale; but for some reason that was not explained, a few days before 16 May 2012 Andrew told Dang that he "may" be able to supply him with some heroin on the 16th in Wonga Street, Strathfield at 3.00 or 3.05pm which, coincidentally, was the time that Yeung had arranged to meet a person which he could only have arranged after the consignment was delivered at 1.50pm that day.
3. Further rendering this implausible is that neither Dang nor Tran were daily users of heroin and they were in the habit of sharing between themselves. There was no need for them to buy heroin from "Andrew" on 16 May; Tran already had some at home.
4. The claim by Dang that the $9120 in his possession was to pay his sister's builders was lacking in credibility too. The evidence of Mr Anh David Tran about the arrangement to do the work was far from compelling.
5. Dang's credibility suffered as well from his claim that the dimethylsulfone found in his car was used for entirely innocent purposes and not as a cutting agent for drugs (aside from the implausibility of the innocent purposes he claimed). He said in re-examination that it was not a substance that could be mixed with heroin that was smoked. However, the appellants were in the habit of sharing their heroin; they both smoked it; and the heroin found in Tran's possession was mixed with dimethylsulfone.
6. The jury would have been forgiven for regarding any credibility Tran and Dang had as evaporating when they heard them each claim that "Andrew" was also known as "Jimmy". This was obviously an attempt to suggest that the "Jimmy" to whom Yeung spoke was "Andrew Lo". Acceptance of what I regard as incontrovertible evidence that "Jimmy" was Tran, the jury would have seen this as a blatant attempt to manufacture a defence that fitted in with the Crown evidence, taking advantage of the phonetic spelling of "Andrew Lo" in the transcript of Yeung's 2.56pm conversation but clumsily failing to recognise that if Yeung actually mentioned that name, in the same conversation he also referred to "Jimmy".

Conclusion

1. Having made an independent assessment of the evidence I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of both appellants.

Dang Ground 2

1. This ground is concerned with the admission in the case concerning Dang of evidence that Tran had travelled to Hong Kong in April 2012 and that he was found to have a large sum of cash at his home. It was contended by counsel for Dang that there was no evidence that his client was aware of either fact and so allowing such evidence to be admitted in his case was "severely prejudicial".
2. The "no evidence" point is correct in terms of direct evidence. But it was well open to the jury to infer knowledge by Dang of both matters, having regard to the fact that the pair were in contact with each other by telephone an average of 15 times a day. Counsel's response when this suggestion was made at the hearing was to submit that such an inference was "weak". The fact remains that it was only one of a number of circumstances that need to be viewed as a whole and not in a piecemeal fashion: Gilham v R [2012] NSWCCA 131 at [466].
3. The evidence was admissible and there was no legitimate basis for Dang to be tried separately.

Conclusion

1. I propose the following orders in each case: Leave to appeal against conviction granted. Appeal against conviction dismissed.
2. DAVIES J: I have had the opportunity of reading in draft the judgment of R A Hulme J. I agree with his Honour's analysis of the evidence and his reasons for the orders that his Honour proposes.
3. In relation to the grounds raised by each of the appellants that the verdict was unreasonable and could not be supported by the evidence I only wish to make brief additional observations.
4. The most significant matter was that the telephone ending in 858 was undoubtedly in the possession of Tran when he was arrested. The SIM card from that phone was retrieved, having been discarded by Tran at the time of his arrest. Possession of that phone inevitably leads to the conclusion that Tran must have been the person referred to as "Jimmy" with the further corollary that Tran was, contrary to his evidence, able to speak Cantonese.
5. Those matters significantly dented Tran's credibility and undermined the innocent explanation for his presence in The Boulevarde at the relevant time. It had the effect of impairing Dang's credibility also because by the time of the trial he and Tran asserted that the reason for their presence at that location was for the dinner engagement with Tran's girlfriend. That explanation was to be contrasted, in any event, with Dang's initial explanation for being there when spoken to by the police on the day he was arrested.
6. Further, whatever may have been the meaning of the Cantonese words translated as "Andrew Lo", assuming in the appellants' favour that there was such a person rather than it being a reference to a street address, such a person could not have been Jimmy (as both Tran and Dang asserted) by virtue of the telephone conversation recorded at 2:56pm on 16 May where both Jimmy and Andrew Lo were identified as distinct persons.
7. R A Hulme J has drawn attention to the other unlikely aspects of the explanations put forward by both Tran and Dang in the face of the persuasive evidentiary material led by the Crown to demonstrate their involvement in the attempted possession.
8. My own reading of the evidence satisfies me that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of both appellants.
9. I have read also the judgment of Bellew J regarding the sentence appeals. I agree with his Honour's reasons and the orders he proposes.
10. BELLEW J: I have had the advantage of reading, in draft, the judgment of R A Hulme J in relation to the appeals of the respective appellants against their convictions. I agree with his Honour's conclusions and with the orders that he proposes.

THE APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE

1. Each appellant seeks leave to appeal against the sentences set out in the judgment of R A Hulme J at [3].

His Honour erred in finding that the appellant intended to acquire the entire consignment of narcotics available at 138 The Boulevard

The findings of the sentencing judge

1. The relevant findings of the sentencing judge were in the following terms (commencing at ROS 6): "Mr Wendler on behalf of Mr Tran submitted that I should find that he intended to purchase and hence possess a quantity of the heroin but not the entire consignment. He submitted that this was supported by: The lack of money found by the police to purchase all of the $327,000 wholesale value of the heroin. At best there was a total of $150,000 plus the money found on Dang or in his car; Content of the phone call referrable to third parties (for example, the condition of the heroin) reference to Andrew Lo just after 3pm; The fact that Mr Tran was a heroin user. Not only did Mr Tran give evidence during the trial that he was a heroin user but what was found at his home. Mr Kumarasinhe for Mr Dang adopted the submission that I should find he did not intend to take possession of the entire heroin. I find, however, beyond reasonable doubt that both were there to takepossession of the whole consignment for the following reasons: Both Mr Tran and Mr Dang were drug dealers making use of multiple mobile phones with SIM cards in false names, having access to large amounts of cash and equipped with scales and a cutting agent; Both offenders were outside number 138 The Boulevard just over an hour after the consignment had been delivered and Mr Tran was virtually the first, if not the first person Mr Yeung telephoned when it arrived; Mr Yeung was concerned about the weight of the powder and that it wasabout half what it should have been against the background of the impending meeting with "Jimmy", who was Mr Tran, at 3pm. Seriousness of the offence As far as Mr Tran is concerned whether he was to be actively involved in the distribution or dissemination of the drug cannot be determined, but I am satisfied that he was more than a mere courier engaged to pick up the consignment and pass them on to others. This emerges from matters to which I have referred to earlier. I find he was to receive the drugs and deal with them prior to their next step along the path to their commercial distribution. This was an essential link in the chain of a sophisticated international enterprise. The total pure weight of heroin was 822.3 grams, which is over 400 times the marketable quantity of heroin (which is two grams). It is slightly more than half the commercial quantity, (which is 1.5 kilograms). The wholesale value of the heroin was $327,825 and the street value between $822,000 and $959,000. As the Crown submits I find both Tran and Dang knew exactly what drug they were dealing with and the approximate quantity they were attempting to possess. Although each had a comparatively low level heroin addiction, I find the reasonable inference is that each was motivated by profit to undertake this dangerous exercise of obtaining the heroin."

Submissions of the appellant

1. Senior counsel for the appellant Tran drew attention to the fact that the Crown had submitted at the trial that providing the jury were satisfied that the appellants had attempted to possess more than two grams of the drug, the offence would be established. Senior counsel described this as a "telling submission", and argued that it reflected the Crown's awareness that the evidence fell short of establishing that the appellants intended to take possession of the entirety of the consignment.
2. Senior counsel submitted that for a number of reasons, the evidence did not support the finding of the trial judge. It was submitted, in particular, that the purchase of the entirety of the consignment, even at its wholesale value, was well beyond the demonstrated financial capacity of either or both of the appellants. In this regard, and accepting that the drug would have been sold at its wholesale value of $327,000.00, senior counsel relied on the fact that: 1. the appellant had no cash on his person at the time of his arrest; 2. Dang had slightly in excess of $10,000.00 in cash on his person at the time of his arrest; 3. although the appellant was found to have $146,000.00 in cash at his home, this remained short of the amount required to purchase the entire consignment; 4. it was unlikely, in the extreme, that a consignment such as this would be given to someone who was not able to hand over the necessary amount of cash at the same time.
3. It was further submitted that the appellant's possession of mobile phones and SIM cards in false names, and his possession of scales and a cutting agent, said nothing about his capacity to purchase the entire consignment. It was submitted that such factors were equally consistent with drug dealing at a lower level.
4. Ultimately, senior counsel submitted that the evidence supported a conclusion that the appellant intended to purchase some smaller amount from the consignment, commensurate with the amount of money found in Dang's possession at the time of his arrest. In the alternative, it was submitted that even when combined, the demonstrated financial capacity of the appellants was limited to being able to purchase less than half of the total consignment.

Submissions of the Crown

1. The Crown emphasised that the finding of the sentencing judge was that the appellants were at the premises to take possession of - as opposed to purchase - the whole consignment. The Crown submitted that in circumstances where both appellants were found to be drug dealers, an amount sufficient to pay for the consignment was able to be derived from its sale. In these circumstances, it was submitted that the fact that neither appellant had access to an amount of cash sufficient to pay for the entire consignment was of no significance.
2. The Crown also pointed to the evidence that the appellants, in their capacity as drug dealers, made use of multiple mobile phones and SIM cards in false names, had access to large amounts of cash, and were equipped with scales and a cutting agent. It was submitted that these circumstances were consistent with drug dealing on a large scale, and thus consistent with the acquisition of a correspondingly large quantity of heroin.
3. The Crown also relied upon a number of other circumstances in support of the finding of the sentencing judge. These circumstances included: 1. the presence of the appellants at the Strathfield address within a short time of the consignment being delivered; 2. the fact that the appellant Tran was one of the first (if not the first) person telephoned by Yeung when the consignment arrived; 3. the references in the listening device material to the fact that there was no need to unpack the bags.

Consideration

1. The finding that both of the appellants were drug dealers was not challenged. The various items found in the possession of the appellants, and at the home of the appellant Tran, admit of no other conclusion.
2. As the Crown pointed out, it is important to bear in mind that the sentencing judge did not find that the appellants were present at the Strathfield address to purchase the entirety of the heroin. He found that they were there to acquire it. That is an important distinction. Although there was no direct evidence of the precise nature and extent of the relationship between the appellants and those others involved in the arrival of the consignment, it is clear that all of them were, as one might expect, acquainted. The presence of the appellants at the Strathfield address did not come about by chance. It was obviously pre-arranged and directly connected to the arrival of the consignment.
3. In all of these circumstances, the inference that the appellants were at the Strathfield premises to obtain the drug for the purposes of selling it was overwhelming. The cost of the acquisition of the consignment could obviously be generated from its subsequent sale by the appellants in their drug dealing activities. Given this, the fact that neither of them was in possession of, or had immediate access to, an amount of cash equivalent to its wholesale value is of little or no significance. In my view, the evidence amply supported the finding of the sentencing judge.
4. Finally, it was not incumbent upon the Crown, at trial, to prove beyond reasonable doubt that the appellants intended to obtain possession of the whole of the consignment. It was open to the Crown to put to the jury that the offence was made out if it was established that the appellants attempted to take possession of 2 grams. Whether, for the purposes of sentence, the evidence established an intention to obtain possession of a greater amount was a separate question entirely.
5. For all of these reasons this ground is not made out.

Ground 1 - The sentencing judge erred in finding that in descending order, the appellant Tran was the most culpable, the appellant Dang the next culpable and the co-offender Yeung to be the least culpable

Ground 4 - The appellant has a justifiable sense of grievance having regard to the sentence imposed upon the offender Shing Yuet Yeung

1. These grounds overlap to some extent and it is appropriate that they be dealt with together.

The findings of the sentencing judge

1. The sentencing judge said (at ROS 8): "As far as Mr Dang is concerned the Crown submits, and I accept, that his role was subordinate to that of Mr Tran; but it is not possible to be any more specific than that other than to say that his role was not menial or limited role (sic). What he actually did was to drive and accompany Tran to the proposed meeting and had with him cash, a cutting agent and scales. He was to assist Mr Tran as his willing subordinate. The seriousness of the offence committed by Mr Dang is also high, although not as high as that of Mr Tran. When the following factors are taken into account it can be seen that this is the case. His subordinate role to Mr Tran, which was not a menial one; the amount and value of the drug; his financial motive and knowing what the drug was and it's (sic) approximate quantity."
2. His Honour then said (commencing at ROS 14): "Considerations of parity apply. In March this year Judge Bennettsentenced 25 year old Mr Yeung to imprisonment for 6 years and 9 (scil. 10) months with a non-parole of 4 years and 10 months. This followed what he described as a discount for his plea of guilty in the Local Court of "not quite 25% but near enough to it". This means his starting head sentence was close enough to 9 years. There was no evidence before the Judge of Yeung having any prior criminal history. Yeung lived in Hong Kong and was granted a visa to enter Australia some months prior to the present offence. He represented to the authorities that he would be attending university here. Various rooms of thehouse at number 138 The Boulevard were in fact sub-leased to differentpeople and Mr Yeung sub-leased one of these rooms for the purposes of thiscriminal venture. He can be heard on the listening device tape, unpacking the consignment when it arrived at the house. His Honour found his role to be a "mignon" of two other offenders - Mr Lam and another man - having managerial roles but nonetheless a role greater than that of a courier. His Honour found he was motivated by "youthful recklessness with a failure to truly appreciate the significance of the wrongdoing and what he was engaged upon" and found him to be contrite and insightful into his offending. He also took into account his sentence would be harder because he had limited English and no family in Australia. However a complicating factor is that other uncharged similar offences were taken into account so that the present offence was not an isolated offence. The Crown submitted Mr Tran and Mr Dang were more culpable than Mr Yeung because of the more serious role they played. On the other hand Mr Wendler submitted, as did Mr Kumarasinhe submit, that Mr Yeung's criminality was greater than they because, amongst other things, of his involvement in other uncharged importations on other occasions and the fact that his very purpose in coming to Australia in the first place was to be involved in his criminal activity. When considering these submissions it is important to bear in mind theseriousness of a present offence committed by all these offenders and the appropriate ultimate sentence to be imposed after taking into account all objective and subjective circumstances. The extent to which uncharged offences may be taken into account on sentencing was considered at length by Spigelman CJ in R v JCW [2000] NSWCCA 209. It is appropriate to take into account such offences to reject any claim to mitigation and attendant reduction of an otherwise appropriate sentence, and not as a circumstance of aggravation. As to the seriousness of the present offence that was committed in descending order I consider Mr Tran to have been the most culpable, Mr Dang to have been the next culpable and Mr Yeung the least culpable. Although Mr Yeung was sentenced on the basis that the present offence was not an isolated one this was balanced to a certain extent by Judge Bennett's finding that Yeung was motivated by "youthful recklessness" with limited appreciation of his wrongdoing. However I consider Mr Dang is not very sharp and despite his age somewhat immature. Mr Yeung also has the most favourable subjective case. He had a finding of being contrite, whereas the others have not and like Mr Dang, had no prior criminal history. Significant features distinguishing Mr Tran from Mr Dang are his greater role, his previous conviction for drug supply and his less favourable rehabilitative prospects. When all his factors are balanced out I do not consider Mr Yeung, for example, could have a justifiable sense of grievance about the sentence I intend to impose upon Mr Dang and Mr Tran notwithstanding the discount Mr Yeung received for his early plea of guilty. Particularly in the case of Mr Tran it needs to be borne in mind as Malcolm CJ said in R v Clinch (1994) A Crim R 301 at 306: "...the severity of a sentence increases at a rate greater than any increase in the length of a sentence."

The sentencing of the co-offender Yeung

1. Yeung pleaded guilty to one charge of attempting to possess a marketable quantity of a border controlled drug, namely heroin. He was sentenced by his Honour Judge Bennett to imprisonment for 6 years and 10 months, with a non-parole period of 4 years and 10 months. In the course of Yeung's sentence proceedings, the Crown sought to argue that the evidence supported a conclusion that he had been involved in the importation of two other consignments of heroin. The Crown submitted that those consignments formed part of the course of conduct in which Yeung committed the offence to which he had pleaded guilty.
2. Having considered the evidence, Judge Bennett rejected the Crown's submission and concluded (at ROS 31) that he could not be satisfied beyond reasonable doubt that Yeung was a participant in the first of the other importations relied upon by the Crown. Although satisfied that Yeung was a participant in the second, his Honour was not satisfied beyond reasonable doubt that such venture involved an importation of heroin.
3. The nature and extent of the involvement of Yeung in the present importation is set out in the judgment of R A Hulme J. His Honour's observations of such involvement are consistent with those made by Judge Bennett when sentencing Yeung. In particular, in terms of the role played by Yeung in the offending, Judge Bennett concluded (at ROS 36): "The facts and circumstances relevant to the charge to which he has pleaded guilty, of themselves provide compelling evidence of the role he engaged upon. I note the Crown's submissions that within less than twenty minutes of accepting delivery of the table tennis bats he was recorded as speaking on the phone complaining of their condition and the quantity of the powder, which was half of what he was expecting."
4. Judge Bennett dealt comprehensively with Yeung's subjective case. At the time of sentence, Yeung was 24 years of age. He had been born in Hong Kong and was the youngest of 4 children. He had lived with his family until he travelled to Australia in early 2012 which culminated in his arrest. His Honour found that his parents were supportive of him in his formative years to adulthood although they were not aware of the offending.
5. His Honour concluded (at ROS 34): "According to what is reported he did not in any true sense, in my judgment, seek to justify his crime or explain it against any circumstance of depravation (sic) or mistreatment. He acknowledged his family's economic circumstances which were modest and which left him with little or no opportunity for material gain comparable to that of his associates. His misconduct from which his opportunity for education was disrupted and his disregard for his parents who had sacrificed for him and his siblings according to their means, in consequence of which he associated with social peers until his desire for material things led him into criminality with negative associates and his commission of the offence charged for financial gain, is all acknowledged by him. It could hardly be said that through selfserving representations he has sought to blame his decision upon extraneous forces over which he had no control. I accept the representations attributed to him as expressions of remorse and contrition faced with a recognition that he has done wrong and must now pay the price that his misconduct has earned".
6. His Honour accepted (at ROS 37) that Yeung had demonstrated contrition by his plea of guilty. He was also satisfied that such contrition was demonstrated by statements made by Yeung to a psychologist. His Honour concluded (at ROS 2) that in light of Yeung's plea of guilty, a discount of "not quite twenty five per cent but near enough to it" would be applied. He subsequently acknowledged (at ROS 40) that the discount he in fact applied was marginally in excess of that. His Honour also had regard (at ROS 37) to the necessity for any sentence to reflect considerations of general deterrence, and he concluded that Yeung had "some prospects" of rehabilitation.

Submissions of the appellant

1. Counsel for the appellant Dang submitted that Yeung had been "involved with additional consignments of imported narcotics" and was "part of a wider narcotics importation syndicate". It was further submitted that on any objective assessment, the role played by Yeung was objectively higher than that of the appellant.
2. It was further submitted that even allowing for the plea of guilty entered by Yeung, (which, it was argued, was "inevitable" given the strength of the case against him) it was submitted that his involvement was of a demonstrably higher order than that of the appellant. It was submitted that in circumstances where Yeung had received a lesser "practical term of imprisonment" the appellant had a justifiable sense of grievance, and that a lesser sentence was warranted.

Submissions of the Crown

1. As to ground 1, the Crown submitted that there was no demonstrated error in the sentencing judge's finding as to the roles played by those involved. It was submitted that the evidence supported the conclusion that Yeung's role was essentially limited to receiving the consignment before passing it on to some other person(s) and that in these circumstances, the sentencing judge had correctly concluded that Yeung was the least culpable.
2. As to ground 4, the Crown submitted that it was necessary for the appellant to point to a marked and unjustified disparity. It was submitted that application of the relevant principles demonstrated that no such disparity was established. The Crown also pointed to the fact that Yeung had entered a plea of guilty before the Local Court, and had received the benefit of a significant discount which had not been available to the appellant, who had chosen to go to trial.

Consideration and conclusion

1. The submissions advanced by counsel for the appellant in support of these grounds were based, to a large extent, on the proposition that Yeung had been involved in additional importations of narcotics, and was thus part of a wider "narcotics importation syndicate". Whilst that was certainly the Crown's position in Yeung's sentence proceedings, Judge Bennett was not satisfied beyond reasonable doubt that this was the case. The submissions of counsel for the appellant in this regard tended to ignore Judge Bennett's conclusions.
2. Moreover in my view, there was no error on the part of the sentencing judge in concluding that Yeung was the least culpable out of himself and the two appellants. On the evidence, Yeung's role was essentially a practical one. It was to receive the consignment and pass it on to somebody else who occupied a more senior position in the hierarchy.
3. The sentencing judge found that Yeung had the most favourable subjective case. He also found that the appellant had not displayed remorse or contrition. Counsel for the appellant did not take issue with either finding. In contrast, Yeung was found by Judge Bennett to be contrite.
4. Yeung also had the benefit of a discount to reflect the utilitarian value of his plea of guilty. Counsel for the appellant submitted that such a plea was inevitable. Whether this was so is not to the point. The fact is that the plea entitled Yeung to a substantial discount to which the appellant was not similarly entitled. That explains, at least in part, the different sentences which were imposed.
5. The doctrine of parity in sentencing is a norm of equal justice and is an essential element of the rule of law. The principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be meted out in order to reflect differences between those that are relevantly different: Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 at [28].
6. In Sinkovich v R [2011] NSWCCA 90 Hoeben J (as his Honour then was) said (at [70]): "[70] It should be kept in mind that a ground of appeal asserting disparity is concerned with markedly and unjustifiably different sentences imposed on different offenders. In England v R; Phanith v R [2009] NSWCCA 274 Howie J (McClellan CJ at CL and Fullerton J agreeing) said at [61] - [63]: "[61] ... A ground asserting disparity is concerned with such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of an impartial observer that justice has not been achieved because one offender has been unfairly treated having regard to the sentence passed upon the co-offender. Yet frequently, as in this case, the Court is asked to trawl through the sentencing remarks and the facts and circumstances of the two offenders in detail in order to dissect and weigh every aspect of their competing objective and subjective facts to see whether some variation, however minor, should be made to the sentence of the person who, it is asserted, has a grievance. [62] It should be borne in mind that the High Court's decisions on this area of appellate intervention speak of "gross", "marked", "glaring" or "manifest" disparity. These terms are used throughout the judgments in Lowe v The Queen [1984] HCA 46; 154 CLR 606. Another way of considering the issue is to ask whether the two sentences give rise to an appearance that justice has not been done: per Gibbs CJ at 610 and Dawson J at 623. It should be recalled that the sentences being compared in that case were, on the one hand, a sentence of 6 years imprisonment and, on the other, a non-custodial sentence. [63] No different approach was taken in Postiglione v The Queen [1997] HCA 26; 189 CLR 295. Dawson and Gaudron JJ in their joint judgment stated at 301: "However, the parity principle, as identified and expounded in Lowe v The Queen recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate "and within the permissible range of sentencing options." Gummow J stated at 323: "The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done." His Honour then quoted with approval from a decision of Callaway JA in R v Taudevin [1996] 2 VR 402 in which it was pointed out that the important words in considering the issue of disparity were "manifestly" "justifiable" and "objective" and emphasising that the difference between the sentences must be "clearly excessive"."
7. There was no error in the finding of the sentencing Judge as to the relative criminality of those involved and there is no unjustified disparity between the sentence imposed upon the appellant on the one hand, and that imposed upon Yeung on the other.
8. For all of these reasons, these grounds are not made out.

Ground 2 - The sentencing judge erred by finding that the appellant and the offender Tran intended to acquire the entire consignment of narcotic available at 138 The Boulevard

1. This ground mirrored the ground of appeal advanced by the appellant Tran which I have previously discussed. The submissions of the appellant Dang in support of this ground were generally consistent with those advanced on behalf of Tran. However, counsel for Dang relied upon the following additional factors: 1. the telephone intercepts suggested the involvement of others interested in the arrival of the narcotics at Strathfield; 2. the appellant and Tran did not enter the premises at Strathfield; 3. the appellant was a user of narcotics and was found with quantities suggesting personal use rather than commercial dealing;
2. None of these matters affects the conclusion I previously reached. For the reasons previously stated this ground is not made out.

GROUND 3 - In all the circumstances the sentence imposed upon the appellant was manifestly excessive, alternatively the head sentence was manifestly excessive

The findings of the sentencing judge

1. I have previously set out (at [165] above) the findings of the sentencing judge regarding the circumstances of the offending and, in particular, his Honour's conclusion that both appellants were at the Strathfield premises to take possession of the whole of the consignment. I have also set out (again at [165] above) his Honour's observations as to the seriousness of the offending.
2. Having dealt with those matters, his Honour said (at ROS 8): "Well know (sic) authorities demonstrate the very substantial role of general deterrence in sentencing offenders for commercially motivated but thankfully thwarted attempts to inject seriously bad drugs into the community. There must be a signal to would-be traffickers that the potential financial gains from doing this will be neutralised by the risk of severe punishment."
3. In terms of the appellant's subjective case his Honour (commencing at ROS 12) noted that the appellant was 35 years of age at the time of the offence, that he was 37 years of age at the date of sentencing, and that he had no relevant criminal history. His Honour concluded that the offending "bespeaks of a flawed character" before dealing with other aspects of his subjective case (commencing at ROS 12): "Mr Dang was born in Vietnam and immigrated to Australia when he was aged 19 years. His schooling in Vietnam took him to midway through high school. However, his command of English is poor as is that of his family. Prior to going into custody following being convicted by the jury he lived with his mother, wife and three daughters aged 5 years, 3 years and 5 months. His wife currently cares for his 78-year-old mother and children alone. His mother has a heart problem, impaired memory and needs assistance showering and going to the toilet. Since he has gone into custody they have all moved in to reside with his wife's sister. In Australia he worked as a machine operator in a furniture factory for six to seven years until he lost his right little finger at work. Since then he has had casual jobs, but has mainly looked after his mother. At the time when the jury convicted him of this offence he was receiving a carer's pension. He told Ms Cullen he commenced smoking heroin at the age of 34 to 35years. He said he would smoke half a gram over a two week period and didnot see it as a problem at the time. He says that since his arrest he hasstopped using heroin and does not want to take it up again. His mother andstepfather brought him up. He told Ms Cullen that his stepfather consumed alcohol and used "opium every day". Based on this information Ms Cullen states that his "exposure to opium and alcohol used by his stepfather is likely to have normalised this behaviour and therefore predisposed him to seeking opiates as a maladaptive coping mechanism". Mr Dang also reported a history to Ms Cullen of unresolved abandonmentby his biological father. Although Ms Cullen did not have Mr Dang completeany intelligent test, possibly due to his limited English, my impressions ofMr Dang was that he was not very sharp, far from mature and somewhatimmature. My assessment of his demeanour and observations of him when he gave evidence during the trial, his limited education and the emotional issue with his biological father he has he still wrestles with, cause me to make these findings. Although Mr Dang has not displayed remorse or contrition I find his prospects of rehabilitation to be reasonable. The fact that he has no prior relevant criminal history, his claim to be drug-abstinent which I accept, his commitment to his family and their support referred to in the report from Ms Cullen cause me to make this finding. Whilst each offender had a comparatively low level heroin addiction and in Mr Tran's case a gambling problem, resulting no doubt in financial pressures and motive for the crime, each offender's involvement was very much more than simply funding a drug dependency and does not explain it. Nonetheless I have regard to this as part of each subjective case."

Submissions of the appellant

1. Counsel for the appellant pointed to a number of factors in support of this ground, including: 1. the fact that the appellant had no criminal history; 2. the appellant 's age; 3. his background, which included having immigrated to Australia from Vietnam; and 4. the fact that he had the care of his elderly mother as well as three young daughters.
2. Counsel also relied on the observations of Ms Cullen (to which his Honour expressly referred) regarding the appellant's predisposition to the use of opiates as a result of such use by his stepfather. Counsel for the appellant also relied on the appellant's lack of maturity as found by the sentencing judge, as well as the fact that he was found to have reasonable prospects of rehabilitation.
3. Whilst acknowledging that the quantity of the drug was a relevant factor, counsel submitted that the quantity in the present case was "well below quantities regularly encountered by investigative authorities and the court".

Submissions of the Crown

1. The Crown submitted that the appellant had failed to demonstrate any specific error on the part of the sentencing judge. It was submitted that the sentence imposed was within the legitimate exercise of the sentencing discretion, and that the sentencing remarks demonstrated that the sentencing judge had addressed all relevant conclusions.

Consideration

1. In order to succeed on this ground, the appellant must demonstrate that the sentence imposed was unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321.
2. The submissions advanced on behalf of the appellant tended to focus upon various aspects of his subjective case. The sentencing remarks demonstrate that all of the factors relied upon by counsel for the appellant were taken into account by the sentencing judge. His Honour also had proper regard to the fact that any sentence was required to reflect considerations of general deterrence.
3. His Honour took into account (at ROS 7) the amount of the drug involved. That was a relevant consideration on sentence: Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 609. The consignment contained 822 grams of pure heroin, more than 400 times the marketable quantity. That was, on any view, substantial. The proposition advanced by counsel for the appellant that such quantity was "well below the quantities regularly encountered by investigative authorities and the Court" is so general as to be meaningless. The significance of the quantity is rendered even greater in light of the conclusion that the appellants intended to take possession of the entirety of it.
4. Moreover, his Honour found (at ROS 7) that in committing the offence, both of the appellants were motivated by the profit which would be derived from the sale of the consignment. No challenge was made to that finding. In light of the evidence of the wholesale and street values of the drug (set out at [165] above) the likely profit was substantial.
5. The maximum penalty for the offending was imprisonment for 25 years. In all of the circumstances the sentence imposed was well within the range of proper sentencing discretion. This ground is not made out.
6. ORDERS
7. In respect of the applicant's leave to appeal against sentence, I propose the following orders in each case: Leave to appeal granted. Appeal dismissed.

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