Pham v R

Judgment 1HOEBEN CJ at CL: I agree with McCallum J. 2FULLERTON J: I also agree. 3McCALLUM J: Ho Thien Chuong Pham seeks leave to appeal against the sentence imposed upon him in the District Court (per Cogswell DCJ) after he pleaded guilty to one charge of supplying the large commercial quantity of a prohibited drug (cocaine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The large commercial quantity of cocaine is 1 kilogram: see schedule 1 to the Act. The amount involved in the charge against the applicant was 30 kilograms. The maximum penalty for the offence is imprisonment for life. The offence carries a standard non-parole period of imprisonment for 15 years: s 54B of the Crimes (Sentencing Procedure) Act 1999 and item 19 of the Table. 4The applicant pleaded guilty to the offence at the earliest opportunity and was allowed a discount to his sentence of 25 percent to reflect the utilitarian value of the plea. The learned sentencing judge sentenced the applicant to a term of imprisonment with a non-parole period of 9 years and 6 months and a balance of term of 4 years, giving a total term of imprisonment of 13 years and 6 months. Circumstances of the offence 5The applicant was sentenced on the basis of an agreed statement of facts tendered at the proceedings on sentence. The charge against him followed upon the detection by officers of the Australian Federal Police of approximately 240 kilograms of cocaine hidden in two shipping containers of tiles imported into Victoria from Mexico. The officers removed all of the cocaine and replaced it with an inert substance. The applicant is not alleged to have been involved in the importation. 6As a result of the interception of the importation, police came into possession of a mobile telephone evidently being used as a point of contact for distribution of the cocaine within Australia. Instructions were received on that telephone to deliver a quantity of the drug to an unnamed person on a specified number. Undercover police officers contacted that number and spoke to the applicant. They arranged to deliver a quantity of the substituted substance to him. 7The agreed statement of facts records that "undercover police contacted [the applicant] on his mobile phone and they arranged to deliver to him 30 kilograms of cocaine". In recording the agreement reached but not the words said, that statement was potentially ambiguous. The Crown evidently intended that the applicant be sentenced on the basis that he was told the substance in question was cocaine and that he expressly agreed to take delivery of 30 kilograms of that drug. 8The applicant's submissions at the sentence hearing appear to have invited the judge to proceed on a different basis. Counsel for the applicant noted that, in his interview with police, the applicant "indicates he didn't know how much was there" (T16.29). 9The judge made reference to that answer in his remarks on sentence. His Honour said (at [11]): Mr Pham agreed to be interviewed by the police. He told the police that he had met a man in a coffee shop some six months before and was provided with a mobile phone and told to follow instructions and "you will get paid". He expected to be paid "1,000 per one kilo handled". Within the week before he was arrested he received some instructions as to what to do. He was never told how many kilograms he was to collect. 10However, I do not think the judge intended in the last sentence of that paragraph to record his acceptance of the applicant's contention that he was not told how many kilograms he was to collect. Rather, in my view his Honour was simply recording what the applicant had told police. Earlier in his remarks on sentence, the judge recorded the facts as follows (at [7]): However on 6 July 2010 an undercover police officer contacted Mr Pham on his mobile phone. They reached an arrangement for the police officer to deliver thirty kilograms of the substituted substance for cocaine. 11Those remarks make clear that the learned judge sentenced the offender on the basis that he expressly agreed to receive 30 kilograms of cocaine. As noted by his Honour, the applicant expected to be paid by the kilo, suggesting at the very least an expectation of receiving a number of kilos. Further, the applicant admitted to police that he thought he could be accepting something "fairly sizeable" (Q341). 12After reaching agreement with the undercover police, the applicant drove to the arranged meeting place with his co-offender, Peter Nguyen. Mr Nguyen approached the undercover officer's car and spoke to the officer. The applicant then drove his car over to the undercover officer's car and parked next to it. Mr Nguyen provided a pre-arranged four-digit code to the undercover officer to confirm the transaction. The undercover officer then opened the boot of his car, revealing bags containing a total of 30 kilograms of the substituted substance in packets of 1 kilogram. Mr Nguyen lifted the bag and then placed it back down. He then returned to the car driven by the applicant and tapped the boot of the car, which the applicant opened. Mr Nguyen then returned to the undercover police officer's car and lifted the bag from the undercover officer's car. Mr Nguyen and the applicant were then arrested (ostensibly along with the undercover police officer) by other police. 13The applicant agreed to be interviewed by police. He said that he had met a person in a coffee shop at Marrickville about six months earlier who had given him a Blackberry mobile telephone and told him that if he followed instructions on that phone he would get paid. He said that he understood he would be paid $1,000 per kilogram for handling something which he thought was most probably drugs. He acknowledged that he had received such instructions but said that he did not know how many kilos he was going to collect. As noted above, he acknowledged that he was expecting it could be a bag that would be "fairly sizeable". 14The applicant was sentenced before the publication of the decision of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. In accordance with the authorities which applied at the time sentence was passed, for the purpose of taking due account of the standard non-parole period prescribed for the offence, his Honour was required to make a finding as to where the offence stood on a hypothetical range of objective seriousness (but cf Muldrock at [25] to [29], where the usefulness of making such an assessment is doubted and the requirement to do so dispensed with). 15At the proceedings on sentence, counsel for the applicant submitted that the offence was below the middle of the range of objective seriousness. He conceded that the quantity of the drug is a relevant consideration but urged the judge not to allow that factor to overwhelm other considerations. He submitted that the applicant's role was that of an underling; that his actual involvement in the offence on the day of his arrest spanned a short period of time and that the quantity of the drug seized had less significance in circumstances where the applicant was unaware of the actual amount of which he was to take delivery. 16The Crown submitted that the offence fell within the middle of the range of objective seriousness. He accepted that he was not in a position to prove that the applicant was acting at any higher level than that of a courier, but noted that the applicant had stood ready to receive instructions to collect drugs over quite some period of time. The Crown accordingly submitted that the offender could not be sentenced on the basis that he was involved only on the day of his arrest. The Crown noted further that the applicant, although only a courier, was one who had been placed in a position of great trust by his masters. 17The Crown also invited the judge to consider the aspect of danger to the public. However, the judge rejected that proposition, since the substance seized was a substitute for the cocaine imported from Mexico. 18The judge gave careful consideration to those competing submissions (at [25] to [32] of the remarks on sentence). His Honour concluded (at [33] of the remarks on sentence) as follows: I have determined, so far as the standard non-parole period is concerned, that the offence does fall within the middle of the range of objective seriousness for offences of this kind. In my opinion no other finding is really open given that the amount involved was thirty times the large commercial quantity for this offence. However, I find that the offence falls at the lower end of the middle of the range of objective seriousness. That is because I accept the submissions about Mr Pham's role in the transaction which has been emphasised by [counsel for the applicant] and acknowledged by [the Crown]. 19Separately, his Honour considered the personal information about the applicant, including evidence from the applicant's brother and a pre-sentence report. His Honour accepted a submission on behalf of the applicant that there were special circumstances such as to warrant altering the statutory ratio between the non-parole period and the balance of term, including the applicant's age (25); the fact that this would be his first term of imprisonment and the fact that he needed rehabilitation for a drug problem (at [28] and [38] of the remarks on sentence). 20The judge indicated that, leaving aside the discount for the plea, he would have imposed a sentence of imprisonment for 18 years. Allowing for the plea, his Honour discounted the sentence to 13 years and 6 months. The ratio of the balance of term to the non-parole period ordinarily required by s 44 of the Crimes (Sentencing Procedure) Act, would thus have indicated a non-parole period of 10 years and 1½ months. Reflecting the finding of special circumstances, his Honour fixed a non-parole period of 9 years and 6 months. Ground 1 21The first ground of appeal is: His Honour erred by finding that the weight of the drugs was the primary factor which determined the objective seriousness of the offence. 22It was not suggested that the judge made such a finding in terms. The applicant placed particular reliance upon his Honour's statement at [33] of the remarks on sentence (set out above) that "no other finding is really open given that the amount involved was 30 times the large commercial quantity". 23The selection of that single remark does not fairly reflect the careful evaluation undertaken by the judge of the competing submissions summarised above. In my view, his Honour was plainly aware of the principle that the quantity of the drug is not the sole or primary determinant of the seriousness of the offence. 24The applicant relied on the decision of this Court in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [68] per Allsop P and at [135] per Basten JA. The applicant submitted that, having regard to the principles there stated, the judge could be seen to have misdirected himself in the present case. Without intending any disrespect to the Court in De La Rosa, the passages relied upon by the applicant do no more than to reiterate the principles stated by the High Court in Wong v R [2001] HCA 64; (2001) 207 CLR 584. It is instructive to revisit that decision. Above all, what it emphasises is the vice of an overly prescriptive or formulaic approach to the assessment of the objective seriousness of drug offences. 25In that context, Gleeson CJ noted the risk of error in adopting a guideline which attached significance to the objective fact of the quantity of the drug, noting by way of example that there are cases where "an offender's state of information and belief about the quantity of heroin imported is much more significant than the objective fact as to quantity" (at [31]). 26The same proposition was emphasised in the joint judgment of Gaudron, Gummow and Hayne JJ (at [68]-[69]). Their Honours noted, "it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic", adding that "information about the kind and size of reward given or promised to the offender for involvement in the importation will [often enough] be seen as important in fixing a sentence and distinguishing between offenders". 27The critical proposition is that the quantity of the drug is a relevant but not determinative measure of the degree of seriousness of the offending. The Court must consider all of the circumstances informing that issue, including the role played by the offender, his or her state of knowledge, the reward to be received and any other relevant indicator of moral culpability or lack of it. That said, as recently explained by Latham J, the quantity of the drug remains a very material consideration in assessing the objective seriousness of a State offence against the Drug Misuse & Trafficking Act: see R v Calcutt [2012] NSWCCA 40 at [60]. 28On a fair reading of the remarks on sentence in the present case, it is clear that his Honour did not regard the quantity of the drug as the determinative factor in assessing the objective seriousness of the offence. The quantity was very large and that was a consideration which the judge was required to take into account. His Honour carefully balanced that consideration against the matters put to him on behalf of the applicant, expressly accepting the submissions put as to Mr Pham's limited role in the transaction. He took into account the fact that the offender expected to be paid $1000 "per kilogram", a consideration pointing to an expectation that he would be collecting a substantial quantity of the drug and, perhaps more importantly, a preparedness to collect whatever quantity was brought to him. 29The weight to be given to each of those factors was ultimately an evaluative judgment guided by principles to which his Honour plainly had regard. I am not persuaded that the weight his Honour gave to the several matters put to him entailed error of the kind required to be established in order to interfere with such an evaluative judgment. In my view, ground 1 must be rejected. Ground 2 30Ground 2 is that the sentence was manifestly excessive. 31The judge imposed a sentence which reflected a starting point of a head sentence of 18 years (before applying the discount for the early plea). The applicant submitted that such a starting point was too high in the circumstances of the present case. 32In his Honour's remarks on sentence, the judge referred to two decisions of this Court as comparative sentences. The first was the matter of Elmir v R [2009] NSWCCA 22; (2009) 193 A Crim R 87. In that case, the offender had pleaded guilty to an offence of supplying the large commercial quantity of cocaine, as did the offender in the present case. The charge was based on two separate amounts supplied pursuant to a single criminal enterprise. The offender had taken delivery of 1 kilogram of cocaine in a controlled operation and, several days later, had received 496 grams of cocaine. Those two amounts were aggregated into a single charge in accordance with the decision of this Court in R v Hamzy (1994) 74 A Crim R 341. The offender was sentenced to a term of imprisonment with a non-parole period of 8 years and a balance of term of 4 ½ years giving a total of 12 ½ years. The judgment does not record when the plea was entered and accordingly it is not possible to calculate the starting point. If it was entered at the earliest opportunity, the sentence reflects a starting point of about 16 years and 6 months but I cannot reliably conclude whether that is the case. The appeal against the severity of the sentence relied on specific errors. There was no ground of manifest excess. This Court dismissed the appeal. 33The second comparative decision referred to by the sentencing judge was the decision in Stevens v R [2007] NSWCCA 252. The offender in that case was arrested as part of the same operation as Mr Elmir. As in Elmir, the offender had pleaded guilty to supplying the large commercial quantity of cocaine based on the aggregation of more than one supply. The plea was entered on the basis that the applicant disputed one of the supplies and, on that basis, disputed that he had supplied the large commercial quantity. The sentencing judge found against him on that issue, being satisfied that he had supplied just less than 2 kilograms of the drug (the large commercial quantity being 1 kilogram). The offender was sentenced to a non-parole period of 7 years with a balance of term of 4 years, giving a total sentence of 11 years. Again, the judgment does not record when the plea was entered. If it was entered at the earliest opportunity, the sentence reflects a starting point of about 14 years and 7 months but that is not clear. The offender's appeal against the sentence related primarily to the sentencing judge's finding that the large commercial quantity had been supplied. There was no ground of manifest excess of the sentence in the event that the finding stood. 34Comparison between those offences and the applicant's is difficult. While the detail is sparse, it appears that the offenders in Elmir and Stevens may have had a marginally greater role than the applicant but in respect of a smaller kind of operation. The amount of cocaine involved was substantially less than in the present case. 35At the hearing of the appeal, the applicant relied upon a number of further cases for comparison. One was the decision of Sevastopoulos v R [2011] NSWCCA 201. That was another matter arising out of the same operation as in Elmir. The offender had pleaded guilty (not at the earliest opportunity) to supplying the large commercial quantity of cocaine. The amount involved was 2.25 kilograms, which was the aggregate amount from four transactions. The offender was sentenced to imprisonment with a non-parole period of 9 years and a total term of 12 years and 6 months. Taking account of the discount of 15% allowed for the plea, that represented a starting point of approximately 14 years and 8 months. 36In his appeal against that sentence, the offender contended that the sentencing judge had erred in assessing the offence to be in the middle of the range of objective seriousness on the grounds of the relatively small amount of cocaine involved, the role of the offender as a broker with no "managerial function" and the small amount of remuneration he received, being $1000 on each of four occasions. That ground was rejected by this Court: at [63] per Hall J; Tobias AJA and Johnson J agreeing at [1] and [2] respectively. The Court intervened with the sentence only to the extent of reducing the non-parole period (by 6 months), finding that the sentencing judge had failed to give meaning and effect to her finding of special circumstances such as to warrant varying the statutory ratio of the non-parole period to the balance of term. 37The decision upon which the applicant placed the most reliance as a comparator was the decision of this Court in Coetzee v R [2007] NSWCCA 12. The offender in that case had been sentenced to a term of imprisonment with a non-parole period of 6 years and 9 months and a total term of 9 years and 3 months after pleading guilty to supplying 24.4 kilograms of cocaine. The sentence reflected a discount of 15% for the offender's plea of guilty (not entered at the earliest opportunity), indicating a starting point of just over 10 years and 9 months. 38The drugs were imported concealed in pallets of wooden flooring received by the offender. He claimed not to have known that the shipment contained drugs until very shortly before receiving it. The sentencing judge disbelieved that evidence and, in that circumstance, noted that it was impossible accurately to categorise the offender's role in the hierarchy. The judge sentenced the offender on the basis that he was "not some minor functionary in an insignificant position", finding that his participation was central and vital to the success of the scheme. He had arranged the formation of a company to facilitate the importation and had received $130,000 for his role. 39This Court rejected an appeal against his sentence. In relation to a ground of manifest excess, McClellan CJ at CL (as his Honour then was) expressed the view (at [29]) that the sentence was "well within the appropriate range". 40The characterisation of the offender's role in that case, which involved a similar quantity of cocaine, is to be contrasted with the applicant's more limited involvement in the present case, which entail his arranging a meeting by telephone and agreeing to transport the drugs to a third party. I consider the sentence imposed in Coetzee to have been very lenient in the circumstances. The disparity between its starting point and the starting point of 18 years adopted in the present case for what is, in my view, a less serious offence is stark. 41I have come to the view that the sentence in Coetzee should not be regarded as revealing error in the present case. In reaching that conclusion, I have had regard to the remarks of the Heydon J in Hili v R [2010] HCA 45; (2010) 242 CLR 520 at [77] (the fact that his Honour's reasons for joining in the orders of the Court differed from those of the plurality does not derogate from the force of the remarks): Sentences must be reasonably consistent. But it does not follow that disparities between them may not exist. Within the boundaries of reason, and leaving aside the special instance of co-offenders, where marked disparity renders sentences vulnerable on appeal, it cannot be said that any particular disparate sentence is necessarily wrong merely because it is disparate. Indeed, even within a single jurisdiction, one court, while bound by whatever this Court or the intermediate appellate court for that jurisdiction has held to be the correct legal principles (statutory or common law), may arrive at sentencing results in particular cases which are different from those reached by earlier courts in that jurisdiction without being open to appellate reversal or criticism for "error" merely because of those differences. 42Another case involving the supply of the large commercial quantity relied on by the applicant was Wang v R [2009] NSWCCA 223. The offence involved some 5000 ecstasy tablets (MDMA) with a weight of almost 1.5 kilograms, almost three times the large commercial quantity (0.5 kilograms). The applicant was sentenced to a non-parole period on 15 years with a balance of term of 5 years giving a total sentence of 20 years. 43An appeal against the severity of that sentence was allowed. This Court found that the judge had erred in characterising the objective gravity of the offence as falling within the mid-range. The sentence was reduced to a non-parole period of 12 years with a balance of term of 4 years. The offender was convicted after trial so the sentence reflected no discount. Hidden J, with whom Giles JA and I agreed, viewed the objective seriousness of the offence as falling "somewhat below the mid range". The offender's involvement in that case was comparable to that of the applicant in the present case. He got into a car which travelled a short distance before he emerged holding a bag containing the pills. 44In re-sentencing the offender, the Court noted that the starting points in a series of decisions considered by Hidden J ranged from roughly 11 years to about 19 ½ years: at [35] per Hidden J; Giles JA and I agreeing at [1] and [39] respectively. 45Against those considerations, it is clear that the sentence imposed in the present case was stern. However, in determining whether it was manifestly excessive, the breadth of the sentencing judge's discretion must not be overlooked. It is well recognised that this Court must not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion differently: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [26] to [28]. What is required is to establish that the sentence was "unreasonable or plainly unjust": Vuni v R [2006] NSWCCA 171 at [33], citing Dinsdale v R [2002] HCA 54; (2002) 202 CLR 321 at 325. 46The remarks on sentence reveal a careful and thoughtful exercise of the court's sentencing discretion. Having regard to the matters considered above, I am not persuaded that the starting point of 18 years was unreasonably high. 47For those reasons, the orders I propose are: (1)that leave to appeal be granted. (2)that the appeal be dismissed.