Nguyen v R

Court of Criminal Appeal (NSW)|2024-08-02|Before: Ierace J, Faulkner J, Harrison CJ

Solicitors: Hunter and Braddon Lawyers (Applicant) Solicitor for Public Prosecutions NSW (Respondent) File Number(s): 2021/158727 Decision under appeal Court or tribunal: District Court Date of Decision: 24 January 2024 Before: Herbert DCJ File Number(s): 2021/158727

JUDGMENT

HARRISON CJ at CL: I agree with Ierace J.
IERACE J: The applicant seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against an aggregate sentence imposed upon him on 24 January 2024 by Herbert DCJ, following his plea of guilty to two counts, the more serious being a count of knowingly taking part in the supply of not less than a large commercial quantity of a prohibited drug, namely, 973g of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the principal offence). The maximum penalty for that offence is life imprisonment (and/or 5,000 penalty units) with a standard non-parole period of 15 years. A large commercial quantity of methylamphetamine is at least 500g with no upper limit.

The procedural history of the matter

The applicant was remanded in custody from the date of his arrest on 2 June 2021 until 18 March 2022, when he was released on bail, which is a period of approximately 9 months and 2 weeks. He was committed for trial on 13 July 2022. A trial date was set of 5 June 2023. On 26 May 2023, the trial date was vacated on an application by the applicant. On 11 August 2023, he entered pleas of guilty to the two charges, which warranted a 10 per cent reduction on each offence. The sentence hearing occurred on 23 January 2024 and he was sentenced the following day. He remained on bail until sentence was handed down.

The sentence proceedings: the Crown's evidence on sentence

The Crown bundle on sentence included a statement of agreed facts, the applicant's criminal and custodial histories and two sentencing assessment reports, dated 24 November 2023, and 18 January 2024. The Crown also tendered material in relation to Michaels and three other co-offenders to Michaels in respect of other drugs supplies (related offenders). These were, an offender who shall be referred to by the pseudonym "Henke", [1] Chongyang Wang (Wang) and Khanh Loc Tran (Tran).

The facts of the offence

The facts for sentence, as determined by the sentencing judge, closely followed the agreed facts, which are to the following effect.
The applicant was aged 48 at the time of the offences and his co-offender, Michaels, was aged 64. As part of a strike force which was established to investigate the supply of prohibited drugs, police were granted a controlled operation to authorise the purchase of prohibited drugs from Michaels. On 23 May 2021, an authorised person, who was an undercover officer (UCO), contacted Michaels to negotiate the purchase of 1kg of methylamphetamine. Michaels agreed to do so, the agreed price being $105,000. On 31 May 2021, Michaels contacted the applicant using Ciphr, which is software that can be used to send encrypted text messages, photographs and videos to other users, and is known for its inability to be intercepted by third parties, including law enforcement agencies.
The applicant assisted Michaels "in making arrangements to source" 1kg of methylamphetamine using Ciphr. The messages exchanged between them included discussions as to the price, the applicant facilitating access to Michaels of samples and Michaels sourcing it from third parties.
On 2 June 2021 at 10.17 am, Michaels attended the applicant's home. At 10.24 am, Michaels and the applicant left in separate vehicles, the applicant driving behind Michaels' car. At 10:42 am, both cars entered the carpark of Bunnings Warehouse at Bankstown. Michaels parked his car and the applicant drove a lap around the area acting as a lookout for Michaels, to advise him via Ciphr of any police presence. The applicant then parked his car while the meeting with the UCO occurred. The UCO received 973g of methylamphetamine from Michaels, who paid him $105,000 in cash in exchange.
At 11:09 am, both cars left the carpark, driving in convoy before separating. At 11:27 am, police stopped Michaels' car and located the amount of $105,000 in cash inside. The police attended the applicant's home, arrested him and executed a search warrant. They located 1,330.1g of cannabis leaf, which is the subject of the second count, and ten .22 calibre pistol rounds, which is the basis of the Form 1 offence. A form of demand was placed on him as to the driver of the motor vehicle registered in his name at the time of the drug supply. Following legal advice, he admitted that he was the driver at the relevant time. Upon analysis, the methylamphetamine was determined to be 79 per cent pure.

Material concerning the applicant's co-offender, Michaels

Michaels was sentenced by Judge Gartelmann SC in the District Court on 5 May 2023 for two offences of supplying not less than a large commercial quantity of a prohibited drug and two offences of supplying not less than a commercial quantity of a prohibited drug, taking into account on one of those latter offences, a further offence on a Form 1 of supplying a prohibited drug (0.52g methylamphetamine) (the Form 1 drug offence). A commercial quantity of methylamphetamine is at least 250g and the maximum penalty is 20 years imprisonment with a standard non-parole period of 10 years. The maximum penalty for the Form 1 drug offence is 2 years imprisonment and/or 50 penalty units.
The offences were detected in the course of the same police operation that led to the applicant's arrest. Between 17 December 2020 and 2 June 2021, Michaels supplied the UCO with a total of 3.09015kg of methylamphetamine and a further 0.52g as a sample, in seven separate supplies, for which he received, in all, $395,000. The applicant and the related offenders assisted Michaels with four of these supplies. The seven supplies by Michaels occurred on 17 December 2020, acting alone (111.2g, 77 per cent pure), on 21 December 2020, with the assistance of Henke and Tran (498.3g, 77.5-78 per cent pure), on 8 February 2021, with the assistance of Henke and Tran (508.7g, 77-77.5 per cent pure), on 23 February 2021, acting alone (the sample of 0.52g, 81.5 per cent pure), on 19 March 2021, with an unknown co-offender (499g, 79 per cent pure), on 28 April 2021, with Wang (499.95g, 75 per cent pure) and the supply on 2 June 2021 with the applicant. All supplies, except for those on 18 March and 28 April 2021, occurred in the car park at Bunnings Warehouse at Bankstown.
The two supplies of large commercial quantities were for the sum of the supplies on 21 December 2020 and 8 February 2021 (1.007kg) and the supply on 2 June 2021 (973g), for which the applicant was also convicted. The two supplies of commercial quantities were for the supply on 18 March 2021 (499g) and the supply on 28 April 2021 (499.95g). The Form 1 drug offence was for the supply of the sample (0.52g) on 23 February 2021. I note that the agreed facts for the 2 June 2021 offence differed from those for the applicant in one important respect, being that it was the applicant who supplied Michaels with the methylamphetamine that was on-supplied to the UCO on that day.
Following a 25 per cent discount for an early plea of guilty to the charges and a further 25 per cent discount for assistance, Michaels received an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years. The indicative sentences were, for each of the supply large commercial quantity offences, 9 years imprisonment with a non-parole period of 6 years. For the supply of a commercial quantity of 499g, taking into account the Form 1 drug offence, Michaels received a sentence of 6 years and 9 months imprisonment with a non-parole period of 4 years and 6 months. For the other such offence, he received a sentence of 6 years imprisonment with a non-parole period of 4 years.
The sentencing judge said, as to the seriousness of the offences: "Some factors affect them equally. [Michaels'] role in all the offences comprised negotiation of the transactions concerned with the UCO, sourcing the drug from an associate or associates and then supplying the drug to the UCO in exchange for money. So far as labels might assist his role may be described as that of a 'middleman'. Some planning is inherent in this but the planning actually involved does not appear to have been extensive. Some steps to avoid detection were evident in his use of gloves and attempt to check the UCO was not wearing a 'wire'. However, it is not apparent that there was any particular sophistication involved in the role he performed. His motive for committing all the offences was at least in part to obtain money and not only to fund his own drug use. His culpability is less than one who supplies solely for profit or greed but more than one who supplies solely to fund his or her own use. There is no evidence [Michaels] had supplied drugs of any kind to anyone since his last release from prison about a decade before. Nor is there any evidence he had ever supplied methylamphetamine previously. The UCO agreed she asked him if he could get the drug. The evidence thus supports [Michaels] [returning] to drug supply generally and [commencing] methylamphetamine supply in the context of the controlled operation. But there is no credible evidence that he was reluctant or unwilling to do either. The drugs supplied were not ultimately disseminated into the community. Less harm was therefore caused than might have been as a result. But [he] was prepared to supply regardless of its potential harm. The seriousness of the offences otherwise differs according to the quantities involved … With respect to the two offences of supply prohibited drug in not less than the large commercial quantity … Both offences are moderately serious examples of offences of their kind."
As to Michaels' subjective circumstances, the sentencing judge noted his age and that he had prior convictions for offences involving prohibited drugs. In 1991, he was sentenced to imprisonment for 10 years with a non-parole period of 6 years for possessing prohibited imports; and in 1999, for conspiring to import a commercial quantity of a narcotic, for which, after a successful appeal against severity of sentence, he was re-sentenced to 18 years imprisonment with a non-parole period of 13 years.
As to considerations of parity, his Honour referred to the earlier sentences received by Henke and Wang, concluding that the starting point for Michaels' sentence should be "substantially greater than those for the sentences in the case of [Henke], and significantly greater for that in the case of Wang".

Material concerning the three related offenders

The three related offenders were separately sentenced. In view of the focus of the applicant's challenge being parity with the sentence received by Tran, it is unnecessary to go into detail as to the findings in the sentences of Henke and Wang.

Henke

The first sentence in time was that of Henke, who was sentenced by Judge Culver in the District Court on 24 November 2022 for two counts of knowingly taking part in the supply of a commercial quantity of a prohibited drug, being the supplies of methylamphetamine on 21 December 2020 (498.3g) and 8 February 2021 (508.7g), in which Tran and Michaels were co-offenders. The latter transaction did not found an offence involving a large commercial quantity because the Crown accepted that it could only establish beyond reasonable doubt that Henke had the requisite knowledge for a supply involving at least a commercial quantity.
Her Honour found that the role of Henke, in each offence, was confined to that of an interpreter for Tran, who did not speak English. Her Honour accepted forensic expert evidence that Henke had a "mild or borderline intellectual disability", which was causally connected to his commission of the offences. Her Honour determined that the objective seriousness of the offences: "… taking into account the impact of the causal connection which lessens the objective gravity, falls under the midrange. It is towards the lower end of gravity in all the circumstances, but it does not fall at the bottom."
Her Honour determined that the role of Henke was "significantly less" than that of Tran and Michaels. He received a combined discount of 50 per cent for early pleas of guilty and other matters. He was aged 25 at the time of the first offence and 26 at the time of the second. He had a prior conviction for knowingly taking part in the cultivation of a commercial quantity of cannabis, with a Form 1 offence of supplying a prohibited drug not exceeding a small quantity taken into account, for which he had been sentenced to imprisonment for 16 months with a non-parole period of 8 months. That sentence expired in September 2020, that is, three months before the commission of the first of these two offences.
For the first offence in time, Henke received a sentence of imprisonment of 18 months with a non-parole period of 6 months. He was on bail at the time of the sentence but had earlier served 6 months and 14 days on remand. The sentence was backdated to commence 12 months before the date the sentence was imposed, so that the non-parole period had already expired and 6 months of the parole period remained to be served. For the later offence, her Honour imposed an intensive correction order for a period of 2 years, commencing on the date of the sentence. Her Honour remarked that the result was "somewhat exceptional".

Wang

The next sentence was that of Wang, by Judge Hunt in the District Court on 13 February 2023, for one count of supplying a commercial quantity of methylamphetamine, being the supply on 28 April 2021 of 499.95g.
Wang was aged 22 at the time he committed the offence and had no prior convictions. Although Wang's sentencing pre-dated that of Michaels, Judge Hunt had available to him the agreed facts and criminal record for Michaels' forthcoming sentence. His Honour observed: "Because of the differing age, the significantly different record and the far greater culpability sentencing Mr Wang does not really attract any true parity considerations compared with Mr Michaels."
The Crown accepted that it could not prove to the requisite standard, that Wang knew that the quantity of methylamphetamine was greater than 250g. Wang pleaded guilty after the matter was set down for trial, thereby warranting a discount of 10 per cent. The level of objective seriousness was found to be "at about the notional point at the top of the lower range or at the bottom of the midrange of objective seriousness". He had been on remand for 20 months, in maximum security and subject to stringent COVID-19 restrictions. His Honour found special circumstances on the basis that he was relatively young, that it was his first time in custody, and to assist his rehabilitation in the community. His Honour imposed a total sentence of 3 years and 6 months, backdated to take into account his pre-sentence custody, and a non-parole period of 22 months.

Tran

Tran was also sentenced by Judge Hunt, on 17 July 2023, for two offences, supplying a large commercial quantity of methylamphetamine, namely 1007g, which is the sum of the supplies on 21 December 2020 and 8 February 2021 (the principal offence); and supplying an indictable quantity of cannabis, namely 9.894kg, contrary to s 25(1) of the Drug Misuse and Trafficking Act. Taken into account on that sentence were two Form 1 offences; possessing a prohibited weapon without permit (a taser), contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW), which has a maximum penalty of 14 years imprisonment, and possessing a prohibited drug, being 1.01g of cocaine, in breach of s 10(1) of the Drug Misuse and Trafficking Act, which has a maximum penalty of imprisonment for 2 years and/or 20 penalty units. The cannabis, the taser and the cocaine were located by police in Tran's bedroom following his arrest on 2 June 2021.
Agreed facts were tendered at Tran's sentence hearing, which were to the following effect. In relation to the first supply (498.3g), following negotiations with the UCO, on 21 December 2020, Michaels drove Henke to a short meeting with Tran in Lansvale. After that meeting, Michaels left the location and Tran drove in a car that he had hired to a self-storage facility that he rented, taking Henke with him. They were at the facility for six minutes, after which they drove to a meeting with Michaels. Michaels and Tran then drove, in separate cars, to the Bunnings Warehouse carpark at Bankstown, with Henke in Michaels' car. When they arrived, Henke transferred to Tran's car and they drove a short distance away. Michaels met with the UCO, who showed him the purchase money. Michaels phoned Henke, and Henke and Tran drove back into the car park. Michaels took the methylamphetamine from the boot of Tran's car and supplied it to the UCO in exchange for $72,000.
In relation to the second supply (508.7g), following negotiations with the UCO by Michaels, on 8 February 2021, Michaels, Tran and Henke travelled in separate cars to an address in Canley Vale, where Tran briefly left his car and entered a property. They drove on in their separate cars to the Bunnings Warehouse carpark at Bankstown. Michaels took the methylamphetamine from the back seat of Henke's car and exchanged it with the UCO for $72,000 in cash. The three co-offenders then drove to an address at Sefton, where Michaels and Henke entered a property while Tran waited outside in his vehicle. Michaels was carrying a bag. About 40 minutes later, he came outside and spoke to Tran, who was still seated in his vehicle. After a short conversation, Michaels and Tran drove off in their respective vehicles.
As to Tran's role, Judge Hunt found: "His involvement seems to be limited to being somebody who … in the first incidence of supply … was the person who physically transported the drugs in the presence of [Henke] to the supply point, as negotiated by Mr Michaels. In the second case, [Henke] transported the drugs in his own vehicle, but in close proximity to Mr Michaels and to Mr Trans [sic] vehicles. It is difficult to be satisfied beyond reasonable doubt as to what it was that Mr Tran and [Henke] did when they went to the storage premises that were registered in Mr Tran's name. The role of each of them seems to have been a transporter of the drugs, and the design of the exercise seems to have been to keep Mr Michaels at a remove from the physical possession of the drugs until the very last minute. And Mr Tran and [Henke] were also, it seems to me, required to be available so that Mr Michaels could sight the cash on each occasion from the authorised source before having the gentlemen arrive with the prohibited drugs."
Judge Hunt found that the objective seriousness of the principal offence was: "… in the low end of the range, but not at the lowest range, and there is very little to render Tran more criminally culpable, in terms of an assessment of role, than [Henke]."
As that observation suggests, on the material tendered in Tran's sentence hearing, his Honour came to a different view than Judge Culver as to Henke's role, stating: "There is nothing in the material before me that would enable me to make a comparable finding to that of Judge Culver, that Tran used [Henke] as an interpreter only, for the exercise."
Judge Hunt found that the objective seriousness of the supply cannabis offence was "towards the lower range".
Tran was aged 37 at the time of the two supplies comprising the principal offence, and 38 at the time of the cannabis offence. He had one prior conviction, which was for cultivating cannabis for a commercial purpose, for which he received a sentence of imprisonment for a period of 21 months, suspended upon him entering into a bond for that period. A related offence of consuming electricity without authority was taken into account on a Form 1.
Tran was born in Vietnam and emigrated to Australia when he was in his mid-twenties. He had two children with his current partner and a child with a former partner. His Honour accepted that Tran was remorseful, that he had reasonably good prospects of rehabilitation, noting that he had been assessed as having a low to medium risk of reoffending and, subject to him accepting parole supervision, he was unlikely to reoffend.
His Honour took into account that Tran's family had significant health issues that raised an issue of hardship to them and to Tran, although that evidence did not rise to the level that is required to operate to reduce the otherwise appropriate sentence: R v Edwards (1996) 90 A Crim R 510. His mother suffered from Parkinson's disease and resided with him and his partner, who is a cancer patient and accordingly was in "a very vulnerable psychological condition". In addition, their youngest child had disabilities requiring regular therapy and other interventions. His Honour observed that these considerations "operate as part of the subjective case that I need to weigh against the objective matters".
His Honour made an allowance of 6 months for quasi-custody in view of stringent conditions of bail that Tran had complied with, and accepted evidence that he suffered from a depressive condition that would render his time in custody more onerous, although His Honour was not satisfied that it reduced his moral culpability. General deterrence had a role to play, although his Honour said that he was prepared to accept that much of the work of specific deterrence had been accomplished by the period on remand. He also took into account the impact of COVID-19 restrictions during Tran's remand and its likely continuing effects on his sentence; and that his period of remand had been served in maximum security.
His Honour canvassed the remarks on sentence concerning Henke and Michaels, remarking: "In terms of parity, it is difficult to consider either of his co-offenders as easy analogues for the promotion of consistency in sentencing". His Honour noted the similarities and dissimilarities between the three cases and concluded: "Those differences between [Henke] and Mr Michaels have been taken into account by me and the differentials between them and Mr Tran are why parity is less applicable in this case than it would be in a different case."
His Honour handed down an aggregate sentence of 5 years 6 months, backdated to take account of Tran's remand custody and the allowance of 6 months for his quasi-custody while on bail. The non-parole period was 3 years and 3 months, special circumstances having been found on the basis of it being his first sentence of served imprisonment and to facilitate his rehabilitation in the community. The indicative sentences were, for the supply methylamphetamine offence, 5 years and 1 month with a non-parole period of 3 years, and, for the supply cannabis offence, 1 year and 10 months. The starting point of the indicative sentences, before the 10 per cent discount for the pleas, were, respectively, 5 years and 9 months and 2 years.

Other material tendered by the Crown concerning the applicant

The applicant's criminal history

The applicant had a criminal record comprising prior convictions for relatively minor driving offences, assaulting police and goods in custody dating back to 1991, when he was aged 18. His most recent convictions were fishing offences, for possessing more fish than were permitted, in 2019, for which he was fined. His only prior sentence of imprisonment was a fixed term of one month, imposed in 1994 for an offence of goods in custody.

The sentencing assessment reports

The sentencing assessment report dated 24 November 2023 was prepared by Mihail Borisov, who is a Community Corrections officer. As to the applicant's attitude to the offences, Mr Borisov reported: "[The applicant] denied most of the police facts and minimised his offending by stating that he was not aware and had nothing to do with both the arrangements his co-offender had and the drugs at his property. Regarding the ammunition charge, [the applicant] stated that he had the ammunition for years, however failed to elaborate further. [The applicant] minimised his responsibility and placed blame on his co-offender and NSW Police for setting him up. [The applicant] claimed that he only pleaded guilty as he was financially not able to fight the charges. Even though he attempted to minimise and deny his offending, [the applicant] admitted that he should have refused to assist his co-offender."
The applicant had been assessed as having a medium risk of reoffending, according to the Level of Service Inventory - Revised (LSI-R). The applicant's personal circumstances were that he resided with, and cared for, his elderly parents, for which he received a carer pension. He had five children from two previous marriages. He informed Mr Borisov that he had a gambling problem and an illicit substance addiction at the time of the offences, and that he was under the influence of cocaine around that time. He acknowledged the impact of his offending on himself, his family and the general community, and expressed a willingness to engage in interventions that could address his risk factors.
Following the applicant's receipt of the first report, he sought to be reinterviewed. In an updated sentencing assessment report which is dated 18 January 2024, Mr Borisov stated: "No significant changes have occurred, however [the applicant] wished to provide a different version of his attitudes and insight into his offending. [The applicant] stated that he accepted responsibility for his actions and that he is sorry but failed to elaborate more. [The applicant] explained that during the initial interviews there was a misunderstanding, and he has since come to [a] realisation that his behaviour was unacceptable, however again couldn't elaborate further on this. Finally, [the applicant] stated that he has learned his lesson and has been living [a] pro-social and law-abiding life since the offence."

The defence's case on sentence

The applicant did not give evidence at his sentence hearing. He tendered a report dated 21 January 2024 by Sam Albassit, a psychologist, who had assessed him in a two hour interview, three days earlier.
The applicant was born in Vietnam. His father came to Australia in 1982 as a refugee and the family followed as immigrants in 1986, at which time I note the applicant would have been aged 12 or 13. The applicant related a history of physical and emotional abuse by his father in Vietnam and later in Australia, that had been principally directed to his mother, although he would turn on the applicant and his four siblings if they tried to intervene. His father assaulted the applicant with belts, chairs and bamboo sticks.
The assaults prompted the applicant to truant from school. From the age of 16, he lived on the streets, at bus shelters, or friends' places, and came into contact with "an anti-social crowd". He consumed alcohol from that age and prohibited drugs from the age of 17; initially cannabis casually, then daily, and later cocaine.
The applicant married when he was aged 25. He remained involved in "a lot of violence and gang-related activity". The marriage lasted for eight years and then he moved to Perth, in 2006, to attempt a fresh drug-free start. He started a restaurant business with a new romantic partner. After four years, he discovered that his partner had siphoned about $100,000 out of the business to satisfy a gambling addiction. He returned to Sydney in 2011 and the company of his former associates, and recommenced his gambling and use of prohibited drugs, eventually using cocaine and methylamphetamine on a daily basis. He became involved in the offence to service a drug debt that he had accumulated and to enable his continuing drug use.
Mr Albassit assessed the applicant as having symptoms that were consistent with him having a depressive disorder with features of generalised anxiety; a gambling disorder; and a substance dependence disorder. Mr Albassit concluded that there was a direct correlation between the applicant's mental health impairments and his offending behaviour.
Mr Albassit made a positive prognosis, in view of the applicant's assertion that he had not gambled or used illicit substances for two years; the deterrent effect he experienced from being in prison on remand; and his preparedness to engage in "ongoing and intensive psychiatric and psychological therapy", which Mr Albassit proposed in a treatment plan.
An affidavit by the applicant's eldest sister, who I will refer to as Ms Nguyen, dated 22 January 2024, corroborated the account provided by the applicant to Mr Albassit concerning their father's abusive nature. Ms Nguyen is a counsellor in a well-known forensic patient unit in a public hospital setting, which I note allows some weight to be attributed to her observations from within the family over the applicant's formative years. Two negative urine drug tests, dated 8 September 2023 and 7 November 2023, were tendered in support of the applicant's claim that he had not been using prohibited drugs.
The applicant tendered a letter signed by him, in which he expressed remorse for committing the offences and a desire to change his life, as evidenced by courses that he had completed while on bail. Certificates of completion of the programs were tendered, the programs being the Positive Lifestyle program, which is operated by the NSW Court Chaplains Association, the Drug Offenders Program, which is operated by certain private barristers, a program run by the Oakdene House foundation and an anger management course that was operated by the Open Path collective. A letter by the program facilitator of the NSW Court Chaplains provided more detail of their program and that of the Oakdene House foundation.
The applicant tendered three character references and four work references from persons who had employed him during his period on bail.

The parties' submissions on sentence

Since the sole ground of appeal concerns an issue of parity, it is only necessary to canvass the parties' submissions at first instance on that issue. Essentially, the Crown informed the court that considerations of parity applied to Michaels and the three related offenders, whereas counsel for the applicant took the position that parity did not apply to any of them.
In written submissions, under a sub-heading "Parity", the Crown summarised the findings by Judge Gartelmann SC in the sentence of Michaels and concluded that Michaels was more culpable than the applicant in their joint commission of the principal offence, continuing: "[Michaels] entered into several joint criminal enterprises to supply drugs, and while the other co-offenders are not strictly related to the index offence, a brief consideration of their facts and circumstances is of some assistance to a consideration of parity."
Thereafter the Crown summarised the sentences in respect of Henke, Wang and Tran, concluding, under a sub-heading "Parity with Nguyen": "One point of distinguishment between the co-offenders and [the applicant] is [the applicant's] use of encrypted communications in the lead up to the offending to facilitate [Michaels'] access to methylamphetamine. In addition to this he undertook a physical role by keeping watch at the location of the supply. In assigning roles to the specific participants, the Court should not lose sight of the fact that they were all participants in the crime ... Subjective features of individual offenders will result in differences, sometimes significant in the sentences imposed between offenders ... However, there are always differences in the objective and subjective elements in cases involving multiple offenders. Consideration should be given to whether the sentence imposed on a co-offender is reasonably justified given those differences ..."
Counsel for the Crown orally submitted: "… parity is an important consideration in this case. In the Crown submission, the other [individuals] which were provided in the Crown bundle do provide some utility to you know [sic] in ascertaining the appropriate range. Of course, every case falls on [its own] facts. However, the consistent presence of … Michaels and the relationship with the undercover operative, and that relationship context between the people that Michaels used to assist him is of some relevance … … the key point to distinguish [the applicant] from the others is the use of the encrypted application which took place two days prior and continued to the day of the offending. While it is a knowingly take part in offence, the objective facts of this offence in terms of the role played do need to be taken into account and place a greater degree of culpability on [the applicant] in comparison to others which were merely interpreters or lookouts. The lookout role was present here, but there is also another role that needs to be taken into account as well."
Counsel for the applicant did not hand up written submissions. In his oral submissions, he made no mention of the related offenders and suggested that the remarks on sentence for Michaels were of limited relevance on parity: "Michaels clearly was involved in several joint criminal enterprises with various other participants, and my client was not a party to any but that for which he stands to be sentenced."
The sentencing judge noted that she did not have the sentencing remarks for Tran. However, immediately before adjourning the Court to the following day to deliver sentence, her Honour noted that she had just received those remarks and offered an opportunity to both counsel to make further submissions in relation to them the following day. Counsel for the applicant indicated he did not wish to do so: "I don't wish to say anything further, your Honour, in relation to it. I accept I've said the - it becomes a point where by reason of the removal of many other common denominators, but the co offender, Mr Michaels, the concept of parity becomes a bit strained, in my respectful submission in this sentencing exercise."
The Crown said: "Your Honour, nothing of substance further from myself other than to say there are some parallels to be drawn between Mr Tran and [the applicant], although the encrypted application used in this case and the evidence of those messages in the lead up are a distinguishing factor."

The sentence judgment

The sentencing judge assessed the objective seriousness of the principal offence as being "just within the midrange of objective seriousness", noting that the applicant accepted that was the appropriate finding; and of the cannabis offence as being "within the low range of objective seriousness". The Form 1 offence would "increase the need to consider personal deterrence" in the latter sentence.
As to subjective factors, the sentencing judge found the applicant to be a person of otherwise good character. Her Honour set out at length the substance of Mr Albassit's report, the applicant's letter to the Court and the two sentencing assessment reports. Her Honour concluded that, despite what was said in the sentence assessment reports, she accepted that the applicant was remorseful. As to his prospects of rehabilitation, her Honour said: "I find that the offender has reasonable prospects of rehabilitation, but much will depend on the offender's ability to continue to be drug free, given his lengthy history of drug abuse. I acknowledge that he has taken considerable steps while on bail in an effort to address his addiction. I cannot be satisfied that the offender will not commit further offences."
Her Honour found that the applicant's moral culpability was reduced by a nexus between his dysfunctional upbringing, the effects of which had not reduced over time, and his use of prohibited drugs and his psychological state. In particular, his history of a depressive disorder made him a "less suitable vehicle for general deterrence". Her Honour stated that she would also take into account hardship that the applicant experienced when on remand in prison due to COVID-19 restrictions, concerns that he would reasonably hold about his mother's health and care, and the hardship he would experience in custody in view of his depressive disorder.
As to the issue of parity, the sentencing judge stated: "[The applicant] has one co-offender, being Michaels. There are associated offenders who were involved in other offences with Michaels. [The applicant] submitted that parity was not an applicable consideration for the associated offenders. There are significant differences between those offences [and] the present matter. [The applicant] does not have a comparable criminal history as Michaels had a history of serious drug offences. [The applicant's] prospects of rehabilitation are much better than for Michaels and unlike Michaels he is genuinely remorseful. Both [the applicant] and Michaels have mental health conditions which impact their moral culpability, suitability for the application of general deterrence and the hardship of time in custody. I note that there is a significant difference in the facts for Michaels … where it is stated that [the applicant] supplied the methylamphetamine to Michaels. My consideration of the role of [the applicant] is not on this factual basis. Michaels was clearly engaged in an ongoing drug supply operation and on the basis of the facts applicable [the applicant] assisted Michaels to source the drug. He did not engage in negotiations for the supply to the undercover operative and his role was slightly less serious than for Michaels for this offence."
Her Honour found special circumstances on the basis that an extended period of supervision would provide the applicant with an opportunity to address his mental health issues and engage in drug relapse prevention measures.

The applicant's submissions

In support of the proposition that parity considerations applied to the sentences for the applicant and Tran, even though they were not co-offenders of the same offence, the applicant relied upon the analysis and application of the parity principle in Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60, to which I will refer later in this judgment.
The applicant submitted that the basis for the him having a justifiable sense of grievance on the ground of parity was the fact that he received a higher indicative sentence for the principal offence and a higher aggregate sentence than Tran, in spite of Tran having a prior offence involving prohibited drugs; Tran's cannabis offence involving seven and a half times the quantity of cannabis that the applicant supplied; and the applicant having the benefit of a reduction in his moral culpability and less weight being given to general deterrence.
As to the concession made by the applicant's counsel below that Tran's sentence was irrelevant, the applicant submitted that when the relevance of parity considerations was established, the principle was not a matter that could be disregarded by the sentencing judge.

The respondent's submissions

The respondent took a different position on appeal than it did below, submitting that Tran and the applicant were not participants in the same criminal enterprise, because although they committed their offences with a common co-offender, they did so some months apart.
In any event, if parity considerations did apply, the objective facts and subjective circumstances of the two offenders were so different that the parity principle "had little to no work to do" and the sentences imposed could not give rise to a justifiable sense of grievance. That being so, the concession made by defence counsel at the sentence hearing was appropriately made.

Consideration

In Jimmy, this Court considered whether the parity principle applied between sentences handed down to related offenders who were part of the same criminal enterprise, although not co-offenders of the same crime. Campbell JA (Howie and Rothman JJ agreeing) noted that the High Court had not considered whether the principle of parity applied beyond co-offenders of the same offence (Lowe v The Queen (1984) 154 CLR 295; [1984] HCA 46, Jones v The Queen (1993) 67 ALJR 376; Postiglione v The Queen (1997) 189 CLR 295). His Honour extensively reviewed judgments of this and other intermediate appellate courts, noting, at [136]: "… there is a stream of authority in intermediate courts of appeal recognising that, within limits, it can have a role to play in comparison of sentences for different crimes committed by people involved in a common criminal enterprise."
Those limits were articulated by his Honour at [203]: "There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are: 1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them … 2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy … 3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low … 4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant …"
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, French CJ, Crennan and Kiefel JJ at [30], referring to the passage from Jimmy quoted above, noted that: "The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant."
In my view, the extension of the parity principle approved in Jimmy, and implicitly in Green, namely, that the parity principle may apply to sentences for different crimes that are committed in the same criminal enterprise, is applicable to the sentences that were handed down on the applicant and Tran. This view is reinforced by Campbell JA's application of the principle to the criminal enterprise in Jimmy, which was not dissimilar in its structure and offender interrelationships to those in this case.
The applicant in Jimmy had been sentenced on a charge of money laundering, contrary to s 400.4(1) of the Criminal Code Act 1995 (Cth), arising from him breaching s 31 of the Financial Transaction Reports Act 1988 (Cth), by being a party to two or more non-reportable transfers of currency in circumstances that were intended to avoid obligations that applied to cash transactions of at least $10,000. On 27 occasions in an 11-week period, the applicant in Jimmy took a quantity of cash, that ranged between $7,000 and $10,000, to one of nine bank branches in Sydney and arranged for it to be transferred to a Hong Kong bank account (five different accounts in total), using seven different false identities. The total amount remitted was $243,952.
The applicant in that case was sentenced on the basis that his activities were part of a larger money laundering operation that was organised in Australia by Peter Chen, who paid him $2,160. The sentencing judge accepted that there was no evidence that he knew the money was the proceeds of illegal activity by Mr Chen.
Two related offenders, Siu and Huang, were also sentenced for offences arising from money laundering at the behest of Mr Chen, repeatedly remitting amounts of cash, each less than $10,000, to Hong Kong bank accounts in which Mr Chen had an interest. Siu was arrested 26 months before the applicant and was sentenced for the same offence (s 400.4(1) of the Criminal Code) on the same basis (breaching s 31 of the Financial Transaction Reports Act). The number of transactions and the total amount in relation to Siu were almost double those concerning the applicant in that case: 59 transactions for a total of $556,400, but in a slightly shorter period of offending (10 weeks). He received payment of $3,000 for his participation in the operation.
Huang was charged under a different statutory provision, namely s 400.3(1) of the Criminal Code, which applies if the amount involved was more than $1,000,000 and provides for a heavier penalty. Huang made 335 transactions over almost an 11-month period, comprising a total amount of $3,088,311. He received payment of $30,000.
The Crown submitted that Siu and Huang were not the applicant's co-offenders and therefore a question of parity of sentence did not arise. Having concluded that the principle of parity may apply to offenders in the same criminal enterprise, Campbell JA turned to the facts, and noted aspects that, in my view, resonate with the instant application, being, the central role of Michaels in each supply, the state of knowledge of the applicant about the other supplies, in particular, those involving Tran, and differences between the timing and quantities of the various supplies. At [204], His Honour said: "There is no basis in the Agreed Facts for concluding that the Applicant knew of the existence of Huang or Siu. There is no basis in the Agreed Facts for concluding that the Applicant knew that Mr Chen had ever engaged another person to take money to the bank for remission to Hong Kong in parcels of less than $10,000. The period when the Applicant was taking money to the bank for Mr Chen did not coincide, or even overlap, with the periods when Siu and Huang were taking money to the bank for Mr Chen. The sums of money that the Applicant remitted to Hong Kong are different to the sums of money that each of Huang and Siu remitted to Hong Kong. Thus, the Applicant, Siu and Huang, did not commit the same crime. However, it is clear that the Applicant, Siu and Huang were all being used by Mr Chen as part of an enterprise involving the repeated commission of crimes of a similar character. That suffices, in my view, to make them participants in a common criminal enterprise. The Crown's submission that the parity principle cannot apply because they are not co-offenders in the relevant sense fails."
Although the applicant's principal offence was "knowingly taking part in the supply" of methylamphetamine whereas Tran's was simply "supply", they were charged under the same subsection of the Drug Misuse and Trafficking Act (s 25(1)), which attracted the same maximum penalty. Accordingly, the limitations identified by Campbell JA in Jimmy at [203] are not applicable.
As to whether the applicant is precluded from relying upon the principle of parity in respect of Tran's sentence when its relevance had been rejected by his counsel below, I note authority to the effect that if there is a proper basis for its applicability, the parity principle cannot be dispensed with by a concession of counsel: Kemp v R [2014] NSWCCA 153 at [43]. It is perplexing that the Crown at first instance acknowledged that the principle of parity applied to the related offenders, but took a different position at this hearing. Leave is required for the applicant to rely upon the issue, pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). In order for leave to be granted, in my view, it would be incumbent upon the applicant to first demonstrate that there is a basis for him to have a justifiable sense of grievance.
Turning then to consider the comparative culpability and antecedents of the applicant and Tran, I am mindful of the guidance of this Court in Rees v R [2012] NSWCCA 47, per Garling J (Macfarlan JA and R S Hulme J agreeing) in such an exercise: "50 So far as I understand it, the authorities on the application of the parity principle in circumstances such as those with which this Court is presented in this case, provide the following principles: … (5) In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance, a court: (i) must consider not just the head sentence, but all components of the sentence including the non-parole period and the total effective period that both offenders will serve: Postiglione at 303 per Dawson and Gaudron JJ, at 338 per Kirby J; (ii) must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offence, in order to identify whether a differential sentence was justified; Green at [30] per French CJ, Crennan and Kiefel JJ; (iii) ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: R v Chen [2002] NSWCCA 174; 130 A Crim R 300 at [289] per Heydon JA, Sully and Levine JJ; DGM at [58] per Latham J (McColl JA agreeing); Kelly at [12] per Johnson J (Simpson J agreeing); Green at [33] per French CJ, Crennan and Kiefel JJ."
In that regard, I note the following. The quantity and purity of the methylamphetamine that was supplied in each case were approximately the same, although the applicant took part in one act of supply, whereas Tran committed two acts.
The supply cannabis offence was also the same for both offenders (supplying an indictable quantity of cannabis, contrary to s 25(1) of the Drug Misuse and Trafficking Act). The indicative sentences of imprisonment were, for the applicant, 10 months, and for Tran, 1 year and 10 months. The quantity supplied by Tran was seven and a half times that supplied by the applicant, and the two Form 1 offences were taken into account.
Their aggregate total sentences reflected the same discount for their pleas (10 per cent). They were, for the applicant, 5 years and 5 months (only one month more than the indicative sentence for the principal offence) and for Tran, 5 years and 6 months. The respective aggregate non-parole periods, for the applicant, 3 years and 7 months, and for Tran, 3 years and 3 months, reflected the same ratios to the total sentence as with the indicative sentences.
The applicant and Tran were differently involved in their principal offences, for example, the applicant was involved in negotiations for the purchase of the drug using Ciphr and Tran in transporting the drug in his first supply. The findings of objective seriousness of their respective principal offences differed significantly; "just within the midrange" for the applicant and "in the low end of the range, but not at the lowest range" for Tran.
The levels of objective seriousness of the cannabis offences were closer; "within the low range" for the applicant and "towards the lower range" for Tran, which is consistent with the differences in the related factors and indicative sentences for those offences.
The applicant's moral culpability was reduced by the effects of his dysfunctional background. The sentencing judge for Tran rejected a submission that there was a causal link to a similar effect in his case. The applicant was found to be a person of prior good character, whereas Tran had a prior prohibited drug offence (cultivate cannabis for a commercial purpose) which had attracted a 21-month suspended sentence of imprisonment. Although it did not aggravate the sentence, it limited leniency that might otherwise be afforded to him.
Both were found to be genuinely remorseful and to have reasonable prospects of rehabilitation, although the finding in respect of the likelihood of reoffending was less positive in respect of the applicant than it was for Tran.
The sentences for both offenders took into account their past and likely onerous conditions of imprisonment and the effect on them of the hardship occasioned to their families by their incarceration as a relevant circumstance.
The applicant's submission is that Tran was at least as culpable as the applicant and had a less favourable subjective case: "… and yet, the applicant received a higher indicative sentence in respect of [the principal offence] and a higher overall aggregate sentence and non-parole period."
As to the first aspect of that complaint, the applicant's indicative sentence for the principal offence also took into account the Form 1 offence and was only slightly more than that for Tran's principal offence (imprisonment for 5 years and 4 months compared to 5 years and 1 month), even though the finding of objective seriousness was significantly greater for the applicant's principal offence than for Tran's.
The second aspect, being complaint as to a higher overall aggregate sentence, is incorrect. As noted, the applicant's aggregate sentence was slightly lower than Tran's.
As to the third aspect, the difference in the aggregate non-parole periods was four months (3 years and 7 months for the applicant, compared to 3 years and 3 months for Tran). If special circumstances are found, the extent to which the statutory ratio in s 44(2A) of the Sentencing Procedure Act is varied is a matter within the discretion of the sentencing court: R v Pickard [2023] NSWCCA 7 at [73]. As noted, some aspects of Tran's subjective case were more favourable than for the applicant, and the applicant was not assisted by his reluctance to accept responsibility for his actions, as reflected in the sentencing assessment reports. In summary, the four-month difference in the aggregate non-parole period ratios (66 per cent to 59 per cent) is not so disparate as to satisfy the test of justifiable grievance.
In my view, so far as parity is concerned, the applicant could not have a justifiable sense of grievance from Tran's aggregate sentence, including the aggregate non-parole period. For those reasons, I would refuse leave to the applicant to appeal against his sentence.
Accordingly, I propose the following order: Leave to appeal against sentence is refused.
FAULKNER J: I agree with Ierace J.

Endnote

A non-publication order was made in respect of this offender by Culver DCJ during the sentence proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2024

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