PHAM v R

I am satisfied that [the applicant] was more vulnerable because of his background and his financial troubles and that he was only to receive modest remuneration for his part in this matter. It follows from the jury's verdict, and the evidence put to the jury, I am satisfied that he knew that he was dealing with illegal drugs. He is, however, and always has been, I am satisfied, a hard working and family orientated man. His history in prison and before augers well. His depression is something for which he will need treatment at some stage. His criminal history is relatively insignificant. I am satisfied that there are very good prospects of rehabilitation. 13 The Judge found that the standard non-parole should not apply and did not find special circumstances. It should be noted, however, that the non-parole period imposed is half the prescribed standard non-parole period. The Judge did not explicitly indicate where the offence lay in the range of offences of its kind. It seems that a major reason why the Judge departed from the standard non-parole period was the nature of the role undertaken by the applicant in the venture. He also indicated that parity was an issue. 14 Du pleaded guilty to an offence of importation of Tier 1 goods in breach of s 233BAA(4) of the Customs Act 1901 (Cth). That is an offence for which the maximum penalty is imprisonment for 5 years. An offence against him of supplying the drug did not proceed. The Judge sentenced Du to imprisonment for 2 years but suspended that sentence. 15 Ly was convicted of an offence of supplying the drug. The Judge sentenced him to a term of imprisonment made up of a non-parole period of 9 years with a balance of term of 3 years. 16 Lam pleaded guilty to an offence of importation and an offence of supplying the drug. He was sentenced by her Honour Judge Morgan to imprisonment for 2 years 6 months on the importation offence and a term of imprisonment comprising a non-parole period of 8 years and a balance of term of 4 years for the supply offence. The sentences were to be served concurrently. 17 The first ground of appeal is based on the alleged disparity between the sentence imposed upon the applicant on the one hand and the sentences imposed upon Du and Lam on the other. However the second ground asserts that the sentence is manifestly excessive. That ground should be considered first because an argument based upon parity accepts that the sentence imposed upon the applicant was otherwise appropriate. 18 The main thrust of the argument on the second ground is based upon the nature of the drug. It was submitted that it should have been regarded as being in the "midrange of seriousness of prohibited drugs". This was on that basis that it is not a drug that "end users" seek and that it has less "narcotic or psychotropic" effect than other drugs such as methylamphetamine. It was noted that it was within the category of "tier one goods" under the Customs Act and that it was a precursor under Schedule 1 to the Drug Misuse and Trafficking Regulation 2006 the possession of which in breach of s 24A of the Drug Misuse and Trafficking Act carries a maximum penalty of imprisonment for 10 years (see s 33AB). 19 In my opinion the nature of the prohibited drug is not a mitigating factor in sentencing for an offence under the Act. This was made clear in R v Nai Poon [2003] NSWCCA 42; 56 NSWLR 284 where it was held that the best guide to determining the sentence for different types of prohibited drugs was the structure of the Act under which the offences were created. As Ipp JA stated:

18 With respect to those who have expressed different views, I do not think that a person who commits a midrange drug offence is entitled to a discount in comparison with the sentence that would be imposed for a similar offence, relating to heroin or cocaine, merely on the ground that a midrange drug is a less harmful substance. 20 Hulme J considered that the scheme of the Act in prescribing different quantities, depending upon the nature of the drug, for determining offence categories, such as trafficable and commercial quantities, was significant. His Honour stated:

40. Common experience would suggest that there would have been a number of factors taken into account in the decision as to the weight(s) to be specified for the substances listed. Both potency and the potential of each drug to do harm are likely to have been included. It is not unlikely that there will have been some expert opinion considered in the determination of the substances and quantities specified. But whatever the reasons, the terms of the legislation to which I have referred amount to a clear statement as to the seriousness which Parliament attributes to possession of, or dealing with, not only the substances listed, but also particular quantities of those substances. 21 In R v Dang [2005] NSWCCA 430, with the concurrence of Studdert and Whealy JJ, Howie J stated at [29]:

………………………This Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: R v Nai Poon (2003) 56 NSWLR 284; R v Neale (2004) 148 A Crim R 493. The Drug Misuse and Trafficking Act does not distinguish in any way between cocaine and methylamphetamine: the maximum penalty for offences involving the two drugs is the same, as are the prescribed quantities. 22 In Adams v The Queen [2008] HCA 15; 82 ALJR 718 the High Court considered whether it was relevant to take into account when sentencing for an offence under the Customs Act that the drug was MDMA on the basis that it was less harmful than heroin. The Justices in the joint judgment (Gleeson CJ, Hayne, Crennan and Kiefel JJ) were of the opinion that there was no factual basis to support the argument that MDMA was "less harmful to users and society than heroin". They then went on:

[10] An equally serious difficulty for the appellant's argument is in seeking to reconcile it with the scheme of the Customs Act in relation to penalties. In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme. This problem was recognised by the Court of Criminal Appeal of New South Wales in R v Poon . A similar problem in relation to Victorian legislation underlay the decision in Pidoto and O'Dea noted above. 23 The Act recognises that there is difference in the criminality involved in supplying pseudoephedrine when compared with, say, methylamphetamine in the different quantities prescribed for the two drugs. So the commercial quantity in relation to the former is 1.25 kilograms whereas for the latter it is 0.25 kilograms. Similarly the comparable amounts for the large commercial quantity of both drugs is 5 kilograms and 0.5 kilograms. The fact that there is another scheme dealing with the possession or sale of precursors seems to me to be irrelevant especially when the offence involves drugs in the quantity that was being supplied in the present case, some 60 times the large commercial quantity prescribed for the drug. 24 Further, I have difficulty in appreciating any significant difference in culpability, either legal or moral, between the person supplying a precursor and the person using that drug to manufacture another more harmful drug. In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 this Court stated:

[166] Nor are we persuaded that the fact that the drug was methylamphetamine, rather than cocaine or heroin, makes any substantial difference in this case. Amphetamines in all their forms regrettably comprise an easily available and widely used illegal substance. A good deal of criminal behaviour, of an organised kind, is attached to their manufacture and distribution. 25 This was on any view a commercial operation designed to result in the dissemination into the community of a very large amount of a prohibited drug for profit. As the joint judgment in Adams notes at [8], the most obvious of the facts and circumstances of the present offence was that the applicant was involved in the supply of a prohibited drug. The relationship between the amount of drug being supplied and the large commercial quantity fixed for that type of drug could be determined by a mathematical calculation. 26 The Judge held that the role of the applicant was "significant to the enterprise" and thought that his role was below that of Lam and of Ly. This finding leads in part to the argument in relation to parity. However, before coming to that issue, I should indicate my view that the sentence imposed upon the applicant is a lenient one. 27 As I have already noted, the non-parole period is half of the prescribed standard non-parole period yet the offence was itself a very serious one, if for no other reason, because of the large amount of the drug involved. I would have thought that this supply offence was above midrange in seriousness, even though Judge Morgan found it to be of midrange seriousness and Judge Walmsley did not qualify it. A person committing an offence in the midrange of the hierarchy indicated by the maximum penalty is fortunate, in my opinion, to receive a non-parole period so far below the standard fixed for the offence. There was also the very generous finding made by the Judge that the applicant had good prospects of rehabilitation notwithstanding his denial of the offence and therefore the lack of any remorse. There is no merit in the complaint that the sentence is manifestly excessive. 28 The parity issue arises because of the sentences imposed upon Du and Lam. Some history is relevant. All the offenders were initially charged with both the importation offence and the supply offence. Complaint was made about this to the trial judge in the case of Du. As a result the Crown was required to elect as to which offence was to proceed in order to avoid the indictment being stayed. In the case of Du, the Crown elected to proceed on the importation offence. In the case of the applicant and Ly, the Crown chose to proceed on the supply offence. No complaint could be made about that decision as an exercise of prosecutorial discretion. 29 However, as a result Du pleaded guilty to an offence that carried a maximum penalty of imprisonment for 5 years. His culpability was based upon recklessness as to the presence of the drug in the container. There were generous findings made in favour of Du. The Judge gave him a discount of 20 per cent for the plea, notwithstanding it was a late plea, on the basis that he could not be expected to plead guilty when there were two charges on the indictment. The Judge found that he was "somewhat naïve and trusting and probably vulnerable because of his marriage break up". He found that Du was the dupe of Lam and that he did not take enough care to find out what was in the container. Notwithstanding that the Judge found that "no penalty other than one of full time imprisonment is appropriate", his Honour went on to suspend the sentence of 2 years imprisonment that he imposed. 30 Judge Morgan sentenced Lam for both the importation offence and the supply offence, no point having been taken before her that in some way the indictment was duplicitous or an abuse of process. As noted above, Lam's non-parole period is 6 months more than that imposed upon the applicant. 31 In relation to Du's sentence the complaint is that his criminality "seems more significant and indeed even more serious than the applicant's". That submission completely ignores the nature of the offence with which Du was charged and the factual findings made by the Judge. But the applicant relies upon a decision of this Court in R v Kerr [2003] NSWCCA 234, that suggests that parity can apply notwithstanding that two offenders are charged with completely different offences. There the applicant, who was sentenced for aggravated robbery, complained of a lack of parity with his co-offenders, one of whom was charged with simple robbery and the other with concealing a serious offence. The judge sentencing the applicant stated that there was no issue of parity between the co-offenders. 32 Miles JA, with whom the other members of the Court concurred, stated:

19 It is established that disparity so called can arise when a co-offender is sentenced after the aggrieved offender has been sentenced: Postiglione v The Queen. In such cases there can be no error on the part of the judge sentencing the offender later aggrieved: Lowe v The Queen (1984) 154 CLR 606 at 610-611. It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest. Perfect consistency is a goal that can never be reached because of the infinite variety of the circumstances of offences and offenders. However there is a danger that it may be compromised by the selection of differing charges so that one offender may be charged with a serious offence and given punishment at the top of an acceptable range for that offence, and a co-offender charged with another less serious offence and dealt with at the very bottom of the acceptable range for that other offence. There may be no impropriety in that course, which will often arise from negotiation between co-offenders and law enforcement authorities. Sometimes, however, and it is not necessary to put it higher than that, the result may have the appearance of injustice.

20 In other words when it is known that a person implicated in the offence for which an offender is being sentenced has already been convicted and sentenced, care needs to be taken to ensure that as far as possible the sentence about to be imposed is not so severe as to generate, not only a sense of grievance in the offender but also a sense of disquiet in the disinterested observer. The observer must of course be reasonably acquainted with the circumstances. Sometimes such a situation may be unavoidable. A co-offender may be given immunity in exchange for testifying against the accused. That does not in itself require leniency to be extended to the offender being sentenced let alone a sentence that is so lenient that it is out of the range of what is appropriate. 33 This statement of principle was considered by this Court in R v Formosa [2005] NSWCCA 363. There the applicant was charged with malicious infliction of grievous bodily harm in company. The co-offender, Wood, was dealt with as an accessory after the fact to the applicant's offence. In dismissing the appeal, Simpson J stated:

40 The decision in Kerr is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and against the applicant it is difficult, if not impossible, to see how that principle can be applied.

41 The effect of the submissions made on behalf of the applicant (and the decision in Kerr is at least capable of giving them some support) is that the principle of parity in sentencing is broad enough to extend to redressing disparities or discrepancies in the charging process as well as in the sentencing process.

42 In Kerr , there were marked parallels with the present case. The facts suggested that both the applicant and Oliver had been actively involved in the actual assault, and, so far as the facts are recited in the judgment, to a comparable degree. Yet Kerr was charged with a significantly more serious offence than was Oliver. Quite apart from any other differences, which were recognised in the passage quoted in Postiglione as justifying different sentences, that alone imposed demands upon each sentencing judge that were different.

43 In the present case the divergence was even greater. While Colin Wood does not appear actively to have participated in the assault, he was undoubtedly present for the purpose of supporting the applicant. That he was charged only with an accessorial offence is mysterious and unexplained.

44 I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle. 34 The statement of caution made by Simpson J above was repeated in Spinks v R [2007] NSWCCA 52 where a complaint of disparity was rejected in circumstances where one offender had been charged with less offences than the co-offender. The statement was also endorsed in Yin v R [2007] NSWCCA 350 at [23]-[24], in Kauwenberghs v R [2008] NSWCCA 98 at [109] and referred to in McGuiness v R [2008] NSWCCA 80. In the latter case there was no disparity arising where one offender had been dealt with summarily and the other on indictment. In Yin Barr J stated at [24]:

……………….Although I express no opinion about the comparison of an appellant's sentence with that of an offender convicted of a more serious offence, it seems to me that comparison with that of an offender convicted of a less serious offence, as is done in this appeal, is attended with difficulty. 35 For completeness I note that Kerr was referred to in Yassine v R [2008] NSWCCA 139 and a small part of the judgment of Miles AJ quoted, but without critical comment. But the argument on parity failed and the appeal was dismissed. Similarly, Formosa and Spinks were referred to by Buddin J (Basten and Barr JJ agreeing) in Holden v R [2008] NSWCCA 100 at [38] with apparent approval and the appeal was dismissed. 36 In my opinion, if Kerr has any applicability, it must be in a very limited class of case. This Court is not generally concerned with addressing the consequences of prosecutorial discretion as it impacts upon the sentences imposed upon offenders. As Miles AJ recognised, it could not be seriously argued that a person should receive a reduction in sentence because a co-offender is not charged or where, for some reason, the charge does not proceed. Why then should a sentence be reduced because another offender is charged with a less serious offence or a lesser number of offences? How does the court inform itself of the reasons why the prosecutor acted as he or she did? Does the court interfere even if the prosecutor's actions were completely justified? 37 If the disinterested observer is to be consulted then that observer should understand the reasons why the prosecutorial discretion was exercised as it was. If this observer also understands that the courts do not generally supervise the legitimate exercise of prosecutorial discretion or seek to address the results of its exercise, then the observer would feel no disquiet about the different sentencing outcomes. But if such disquiet does arise, it is a result of the prosecutor's actions and not the sentences imposed by the court. 38 In my opinion there is no justifiable sense of grievance arising from the proceedings against Du or the sentence imposed upon him. 39 In relation to Lam, the Judge himself took into account disparity arising from that sentence. But I fail to see where the justifiable sense of grievance could have arisen that the Judge needed to address or that this Court should further address. Lam was sentenced after pleas of guilty. He had made a record of interview in which he gave his account. He was dealt with as a person of prior good character. There was a pre-sentence report in which Lam blamed his financial problems for his offending but in which he also accepted responsibility for his conduct. He gave evidence on sentence further explaining his involvement in the offence. There was a psychological report in evidence stating that Lam had impaired judgment at the time of the offending because of clinical depression. 40 Judge Morgan, on the material before her, understood that she was to form a view as to Lam's role in the enterprise. She found, after considering his evidence before her and what he had said to the police and others, that he played a minor role in the importation and was at the "lowest level". Her Honour concluded that his role was "akin to a courier". He was "simply to find a person who would take delivery of the container and that person and the offender were then to arrange a storage unit". He was also, her Honour concluded, "at the lower end of the supply charge". His involvement was because of threats made to him by persons to whom he owed money. Notwithstanding a finding by her Honour that the supply offence fell within the midrange of objective gravity, her Honour declined to apply the standard non-parole period for these reasons. The judge gave him the benefit of a discount of 20 per cent for the pleas. Her Honour also found special circumstances. 41 In light of those findings the sentence imposed by her Honour was a significant one. The sentence before discount was a non-parole period of 9½ years and an overall sentence of about 14½ years. How then can it be said that the applicant has a justifiable sense of grievance in that he went to trial and yet received a sentence less than that imposed upon Lam despite the 20 per cent discount awarded to Lam? The answer is said to be in the facts found by the Judge sentencing the applicant. 42 As has been noted, the Judge found that the applicant's role in the enterprise was less than that of Lam, although the Judge also found that it was significant, given the commercial nature of the offence and the sophistication inherent in the importation of such a large amount of the drug. The Judge was not persuaded that the applicant's role extended beyond the one day, during which he spent about an hour unpacking and re-packing statues. 43 According to these findings, it follows, so the applicant submitted, that the Judge accepted that the applicant's criminality was below the midrange of objective seriousness. The applicant goes further and maintains that his criminality was low on that scale. Thus, it is submitted that a non-parole period only six months less than that imposed upon Lam is not consistent with such a low level of criminality, relative to that of Lam. 44 This submission confuses the objective gravity of the offence itself, with the criminality of the applicant, as reflected by his role in the offence. The Judge notes the distinction at 11.5 of the remarks on sentence. In any event, it is not altogether clear that the Judge determined that the offence did not fall within the midrange of objective gravity. A specific reference is made to the Crown's submission that the offence was of that character, and to the applicant's counsel's submission that there were reasons justifying a departure from the standard non-parole period. Ultimately, the Judge said "I do not consider that the standard non-parole period should apply here." Nowhere does the Judge reject the proposition that the offence was within the midrange of objective gravity. On the contrary, the remarks are consistent with the acceptance of the Crown's submission, and the adoption of the reasons advanced by the applicant's counsel for the departure from the standard non-parole period. 45 In my opinion, a proper reading of the whole of the remarks on sentence leads to the conclusion that the Judge sentenced the applicant on the basis that the non-parole period to be imposed was necessarily influenced by the standard non-parole period, in the sense that it continued to operate as a guidepost or benchmark. Accepting that it was open to the Judge to find that the applicant's role exhibited less criminality than that of Mr Lam, there is no disparity between the sentences imposed upon each of them when the sentencing exercise is viewed in this way. 46 The remaining ground of appeal may be dealt with briefly. The applicant and his wife have three children, aged 6, 3 and 2 at the time of the appeal. An affidavit from the applicant's wife establishes that their youngest son, born in February 2006, has been diagnosed with a gene abnormality of which severe global developmental delay is the primary symptom. The applicant's wife first noticed marked differences in his behaviour compared to children of a similar age in about May 2007. The boy was assessed by a paediatric physiotherapist on 15 August 2007 and referred to a clinical geneticist in January 2008. It is accepted that the condition was not known to the applicant at the time of sentence and that evidence should be received by the Court in support of this ground of the appeal. 47 The gene abnormality afflicting the applicant's son requires intervention and assistance with learning, physiotherapy for his motor development, occupational therapy and speech therapy. A comprehensive program has been devised, with the help of a number of agencies. The boy attends child care on Monday, Wednesday, Thursday and Friday. On Tuesday, he participates in a program at home. The applicant's wife receives a carer's allowance and she has been referred to the Autism Support Group. In August 2008, the applicant's wife was diagnosed with major depression. Not surprisingly, the applicant's wife is experiencing difficulty in caring for their children without the applicant's help. 48 The applicant's argument on the hearing of the appeal on this ground was expressed somewhat differently than the contents of the affidavit might suggest. The hardship to the applicant's wife was relied upon, yet only in a secondary sense. The primary argument was that the applicant's time in custody would be more onerous than that of a prisoner who was not burdened with the worries associated with a disabled child. It was submitted that this factor, had it been known at the time of sentence, may have justified a finding of special circumstances.

49 In Eken v R [2007] NSWCCA 320, a submission that leniency ought be extended to an offender was rejected in circumstances where the offender (who himself suffered from a mental illness) had been primarily responsible for the care of a severely physically and intellectually disabled adult brother, who was confined to a wheelchair and required 24 hour care. In that case, other family members had taken over that responsibility since the offender's incarceration. Hidden J, with whom Handley AJA and Hoeben J agreed, pointed out that, where family members other than an offender were available to care for a gravely ill or disabled child, however onerous the task, the Court generally failed to find exceptional circumstances : see also Roberts v R [2007] NSWCCA 112 ; Elsobky v R [2006] NSWCCA 168 ; Le v R [2006] NSWCCA 136. 50 The applicant does not suggest that he was ever the primary caregiver for his children. I accept that the applicant's incarceration has placed a considerably greater burden upon his wife in the care of their children, but the family is receiving appropriate support from community agencies and health professionals. As regrettable as the situation is, the hardship to the applicant's wife does not constitute exceptional circumstances. 51 The alleged hardship to the applicant is not of the kind occasionally endorsed by the courts, namely, serving a sentence on protection, serving a sentence as a former law enforcement officer, or serving a sentence as a foreign national without the support of family and friends. These categories underscore the fact that the conditions of custody must be significantly more onerous, not merely that the prisoner experiences custody differently. Nor is the alleged hardship, in my view, sufficiently unusual to qualify as "special circumstances". It would not be uncommon amongst the prison population for family members, particularly elderly parents, to be ill or disabled. Given that the underlying purpose of a finding of special circumstances is to benefit the rehabilitation of an offender (see R v Huynh [2005] NSWCCA 220), there is no logical connection between the concerns of the applicant as a parent and the need for a longer period under supervision. This ground of the appeal has not been made out. 52 I propose the following orders :- 1. Leave to appeal granted. 2. Appeal dismissed. 53 MATHEWS AJ : I agree with Latham J. **********

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.