Pham v The Queen [2014] VSCA 204

2 This unique characteristic of sentencing for drug offences - the same is true of sentencing under State law for trafficking[3] - makes the task of assessing the (relative) seriousness of such an offence much easier than where seriousness has to be assessed qualitatively, as for example with offences of violence.[4] This is of particular assistance when - as so often occurs - a sentencing court (or this Court on appeal) is asked to compare the case at hand with other cases said to be comparable.

3 The task of comparison and differentiation between cases is further simplified when the circumstances of the offence follow a familiar pattern. This appeal involves conduct of a very familiar kind - the offender performed the role of drug courier, has no relevant prior convictions, and pleaded guilty. As will appear, these are such recurrent features that a large number of sentencing decisions can be assembled - for the purposes of comparison - in which the only variable factor affecting offence seriousness is the quantity imported.

4 The offence in question here is the importation of a marketable quantity of a border-controlled drug. What constitutes a marketable quantity varies from drug to drug. In the case of heroin, which the appellant imported, a marketable quantity is any quantity between 2 grams and 1.5kg. The upper limit - 1.5kg - constitutes a commercial quantity. It is therefore possible - and, for comparison purposes, necessary - for the quantity imported to be represented as a percentage of the commercial quantity of the drug.

5 The appellant pleaded guilty to importing 577.1 grams of pure heroin. That represents 38.4 per cent of a commercial quantity of heroin. He was sentenced to eight years and six months' imprisonment, with a non-parole period of six years. The sole complaint is that the sentence is manifestly excessive, that is, outside the range reasonably open to the sentencing judge in the circumstances of the case. He was granted leave to appeal on that ground.

6 The appellant produced a table of Victorian appellate decisions for this offence which, he contended, showed that the sentence fell outside the range of sentences typically imposed on a drug courier for importing a quantity of this magnitude. The Commonwealth Director relied on a different table, which included appellate decisions from other states, to support his contention that the sentence was 'stern but within range'.

7 The table attached to these reasons (Attachment A), and the accompanying graph (Attachment B), show a strong correlation between quantity and sentence for offences in this category. The information is drawn from 32 decisions of intermediate appellate courts, many of which were included in the tables respectively presented by the parties.

8 In each case, the quantity imported is expressed as a percentage of a commercial quantity of the drug in question. This comparison confirms that, as counsel for the appellant submitted, there is a stark difference between sentencing practice in Victoria and that in other states for importation offences involving comparable quantities. Sentences in other states - New South Wales, Queensland and Western Australia - are substantially higher for the same offence with respect to the same quantity.

9 It should be emphasised that the purpose of presenting the sentencing information in this form is descriptive, not prescriptive. The table and graph depict current sentencing practice for offences in the same category of seriousness, to which the sentencing court - and this Court on appeal - is bound to have regard. Plainly enough, this tabulation leaves out of account factors personal to the individual offender (other than prior convictions), which will always be relevant to the sentencing decision in the particular case. But what this survey reveals is that in this class of case, the quantity imported - as a measure of the relative seriousness of the offence - bears a strong relationship to the sentence imposed.

10 What is relevant for present purposes is that the appellant pleaded guilty in the reasonable expectation that he would be sentenced in accordance with current sentencing practices in Victorian courts. The sentence imposed was well outside the range indicated by Victorian practice. His appeal must therefore be allowed and his sentence reduced.

11 That there appears to be such significant inconsistency in sentencing across Australia for importation offences is a matter which the Commonwealth Director will doubtless wish to address in an appropriate future case.

12 The circumstances of the appellant's offending can be briefly summarised. On 7 February 2013, he left Melbourne on a flight bound for Vietnam. His Australian passport had been issued on 4 February 2013. He was originally set to return to Melbourne on 7 March 2013, but his return ticket was changed to 15 March 2013.

13 On 15 March 2013, the appellant arrived at Melbourne International Airport. Upon touching down, the pilot notified Customs officers that the appellant had required medical treatment during the flight, due to a potential drug overdose. Customs officers were further advised that, during the flight, two clear plastic packages containing a white powder substance had been found inside one of the bathrooms on board. The appellant had been observed leaving that bathroom a few minutes earlier.

14 Customs officers boarded the aircraft and seized the packages. The appellant was detained. He admitted to having ingested heroin while on board the flight and admitted that the packages were his. When asked what the packages contained, the appellant stated 'Heroin, I guess'.

15 Tests on the white powder inside the packages confirmed that it was heroin. The pure weight of the heroin in the packages was 577.1 grams.[5] The appellant was paid a fee of $10,000 less expenses for acting as courier.

16 The appellant was born in Vietnam. He escaped with his parents and five siblings to Thailand, where he stayed for two years before migrating to Australia as a refugee. He was then 10 years old.

17 The appellant left home after completing Year 9 at high school. It was then that he was first introduced to illicit drugs. According to the plea submission on his behalf, he had struggled with drug dependency issues ever since.

18 He has prior convictions for possession and use of drugs, and for offences of dishonesty. The only relevant prior conviction dates back to 1996, when the appellant was convicted of trafficking heroin. He was released on a community-based order for 12 months, on condition that he perform 40 hours of unpaid community work. The judge accepted the defence submission that this was low- level street trafficking, in which the appellant had engaged in order to feed his own addiction. In 2009, the appellant was convicted of criminal damage by fire, and assault with a weapon, and sentenced to 12 months' imprisonment with a non-parole period of six months.

19 The sentencing judge described the appellant's criminal history as 'not insignificant'. Noting the 2009 sentence of imprisonment, his Honour said:

It follows then that you have had experience of prison and prison life but have been prepared to commit this offence, an offence which upon discovery would inevitably lead to your return to prison. Of course there is nothing in your history as serious as this offending for which I must pass sentence. Still your history is relevant to my task. You must be deterred from offending by the orders that I impose.[6]

20 With respect, his Honour's analysis was plainly correct. Specific deterrence was a relevant sentencing consideration. At the same time, in my view, the appellant could properly be regarded - for the purposes of sentence comparison - as having no relevant prior convictions. The drug trafficking conviction was so far in the past, and at such a low level, that it could safely be disregarded for that purpose.

21 In 2004, the appellant was diagnosed with HIV. His counsel on the plea acknowledged that a person with this diagnosis could still live a long life, but submitted that the appellant had believed that the illness would be fatal and 'he felt that his future was lost'. The judge rejected that submission, pointing out that the appellant had regularly sought and received appropriate treatment. He nevertheless accepted that the appellant's decision to offend had to be seen 'in light of someone labouring under an illness and a serious one at that'.

22 At the same time, his Honour said to the appellant, he had made

a calculated decision and you had a significant time to rethink your involvement. You did not have a gun to your head. You were not acting under some threat to you or family members ... or to bail yourself out of some debt incurred of which you had no hope of satisfying. Yours was a financial decision.[7]

23 The appellant suffers from chronic liver disease, secondary to hepatitis B and C, and has been hospitalised in the recent past with an AIDS-related infection. The judge accepted that these were 'significant and persisting health conditions' which would make prison more burdensome, as would the hostility of other prisoners because of his HIV status.

24 In conventional usage, the term 'courier' is used in this context to describe a person who carries out the physical act of importation - by ingesting or carrying the drug - but has no involvement in either the initiation or planning of the importation or the arrangements for distributing the drug once imported. Typically, but by no means uniformly, a courier is a person of previous good character, it evidently being thought that this makes detection less likely.

25 The role of courier is a very significant one. Self-evidently, it is indispensable to the success of an importation. More than three decades ago, Starke J (sitting in the Court of Criminal Appeal in R v Combey)[8] emphasised what an important role the drug courier played. His Honour said:

The experience over the years has shown that the principals ... are rarely caught. The people who are caught are the couriers. They are the people who very largely enable this trade to be conducted in Australia. They are the people who actually import the prohibited substance into Australia. They are the people who make it possible for the principals to conduct their nefarious business.

...

I am of the opinion that ... in this class of crime above all other classes of crime, deterrence is the main consideration ... The person who is approached in Australia to go overseas and bring in drugs has plenty of time to think about it. He knows that he has to run the gauntlet of customs inspection when he returns. He must and I am sure does weigh the prospects. If one of the things he weighs is that he is going to get a very heavy and severe sentence if apprehended, he may well be [dissuaded] from undertaking the operation at all.[9]

26 In the present case, the judge quoted from this passage. He addressed the appellant in these terms:

No one is suggesting that you were the head of a syndicate. You were not. The organisers have been arrested and will face the courts as organisers down the track. You certainly will not be sentenced as one. I have to assess what you did. Your involvement was absolutely fundamental to the success of this importation. It was after all you who physically imported the drug. You have committed, by your actions, this serious offence which is punishable by a 25 year maximum. Your offending is obviously extremely serious. There is no comfort to be found in a description of your merely being a courier. Your role was critical.

...

... Couriers are essential to the success of very many importations. ... You, like so many others before you and I fear so many after you, were prepared to take a massive risk or gamble for gain. You knew the stakes. You knew the risks. They were massive. You have lost.[10]

27 It should be noted that in Combey,[11] the Court of Criminal Appeal upheld a sentence of 15 years' imprisonment with a minimum of 12. Like the appellant, the offender was sentenced as a courier; had no relevant prior convictions; and had pleaded guilty. The sentencing regime then in force was the same: for importing any quantity of heroin up to 1.5kg, the maximum penalty was 25 years' imprisonment.[12] Mr Combey had imported 285.2 grams of heroin, almost exactly half the quantity imported by the appellant, yet received a far heavier sentence than the appellant, and a sentence far in excess of any listed in Attachment A.

28 This marked disparity raises another question which the Commonwealth Director may wish to address, namely, whether current sentencing for this category of importation offences adequately reflects the maximum penalty of 25 years, the critical role of drug couriers and the consequent high importance of general deterrence, as so eloquently explained by Starke J. (I note that Priest JA raised a similar question in 2012 about sentencing practices for a different type of importation offence).[13]

29 In Adams,[14] the High Court confirmed that sentencing for offences of drug importation (including offences of possessing imported drugs) was governed by 'a quantity-based penalty regime'.[15] The Court held that the applicable provisions did not permit a sentencing judge to differentiate between drugs based on an assessment of the harm likely to be caused by a particular drug. The legislative regime differentiated between drugs in designating the trafficable and commercial quantities, but applied the same penalty regime to the quantities so designated.[16]

30 Thus, the same maximum penalty is prescribed for possessing a commercial quantity of each of the prohibited drugs. In Adams,[17] the drug which had been imported was MDMA. The commercial quantity of MDMA having been specified, the Court said, it was 'a matter of mathematical calculation' to determine the relationship between the quantity imported and the specified commercial quantity.[18]

31 It follows, as this Court has previously held, that quantity is a very significant indicator of offence seriousness. Other things being equal, it is the measure of seriousness. In Nguyen,[19] I set out a series of propositions formulated by the New South Wales Court of Criminal Appeal in R v Nguyen.[20] In the present case, both the prosecutor and the sentencing judge made express reference to those propositions, of which the following are of particular relevance to the present question:

1. Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
2. Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type.[21] In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.[22]

32 Identifying the sentencing range applicable to a particular case requires a consideration of current sentencing practice for offences of the relevant degree of seriousness.[23] Sentences imposed in comparable cases will ordinarily be a reliable indicator of sentencing practice.[24] For offences like these, where quantity is a guide to offence seriousness, comparisons by reference to the quantity of drug imported will almost always be illuminating.

33 Such comparisons are straightforward where the two cases to be compared involve the same drug. Very often, however, comparisons will need to be made where different drugs are involved - for example, where one case involves the importation of heroin and the other involves the importation of cocaine. No sentencing judge presented with the raw quantities of drugs involved is in a position to make a sensible comparison. Likewise, to say of the amount which the appellant imported - as the prosecutor did in this case - that it represented '288.5 times the minimum marketable quantity' provides little meaningful guidance as to the seriousness of the offence, in either absolute or relative terms.

34 What is required for this purpose is to convert quantities to a common denominator.[25] Since the upper limit of marketable quantity for each drug is the specified commercial quantity, it is possible to convert every marketable quantity into a percentage of the commercial quantity (CQ) for that drug. Moreover, that conversion can be done with precision. As the High Court said, it is 'a matter of mathematical calculation'. Another case might involve importing a marketable quantity - say 1500 grams - of cocaine. A commercial quantity of that drug being 2kg, the quantity imported represents 75 per cent of CQ.

35 As mentioned earlier, counsel for the appellant prepared a table summarising decisions of this Court since 2008 in Commonwealth prosecutions for 'significant marketable quantities of drugs'. For his part, the Commonwealth Director provided a table containing 'National Sentencing Decisions of Appellate Courts' in cases involving 'Comparable Marketable Quantities'.

36 Counsel for the appellant objected that no reliable guidance could be obtained from decisions of the New South Wales Court of Criminal Appeal before 2010 as those decisions were likely - so it was said - to have been influenced, impermissibly, by the quantitative guidelines promulgated by that Court in 1999 in R v Wong.[26] Although those sentencing guidelines were disapproved by the High Court in 2001 in Wong v The Queen,[27] it was not until in 2010 that the New South Wales Court of Criminal Appeal in R v Cheung[28] definitively stated that the Wong[29] guidelines had no continuing relevance. It is neither possible nor necessary to decide whether that objection is well-founded.

37 The table in Attachment A to these reasons is based on information drawn from the tables respectively provided by the parties, together with information drawn from the tables respectively attached to the judgments of this Court in Poh Kau Lau v The Queen[30] and OPQ v The Queen.[31] As mentioned earlier, the cases included in the table all concern the sentencing of couriers who, like the appellant, pleaded guilty to the offence and had no relevant prior convictions.

38 Attachment B is a graphical representation of the information in the table, with symbols used to differentiate between Victorian cases and cases from other states. It can readily be seen that, as counsel for the appellant submitted, there is a marked difference between sentencing in Victoria and sentencing in other states for the importation of equivalent quantities. In almost every instance, the sentence imposed elsewhere on a courier for importing a particular percentage of the commercial quantity of a drug is substantially higher than the sentence imposed in Victoria for importing the equivalent quantity.

39 Of most immediate relevance, the graph shows that Victorian sentences for importing quantities in the range relevant to this appeal - 30 to 40 per cent of CQ - are in the range of five to six years' imprisonment. Even in Alavy v The Queen,[32] where the amount imported was 53 per cent of CQ, the sentence imposed was only seven years. By contrast, there are a number of interstate sentences of eight years and above for quantities as low as 20 to 40 per cent of CQ.

40 As has often been said, these are federal offences and there must, so far as possible, be national consistency in sentencing.[33] The analysis of appellate decisions reveals, however, that this goal is very far from being achieved in sentencing for this category of offending.

41 The Victorian decisions in the table reveal a consistent sentencing practice for offences in this category of seriousness, to which the sentencing judge was obliged to have regard. Unfortunately, his Honour was not provided with comparative information of the kind contained in Attachments A and B.

42 When the appellant pleaded guilty, he was reasonably entitled to assume that he would be sentenced in accordance with current sentencing practices in Victorian courts.[34] The comparative information shows that the sentence was outside the range reasonably open to the sentencing judge in the circumstances of the case, having regard to applicable sentencing practices for a case of this kind.

43 I would set aside the sentence and resentence the appellant to six years' imprisonment, with a non-parole period of four years. This is, plainly enough, a substantial reduction. But consistency of sentencing requires nothing less. Like cases must be treated in a like manner.[35]

44 It is always open to the Commonwealth Director to bring an appeal against sentence for an offence of this kind, and to submit that current sentencing practices in this State are inadequate, having regard to the seriousness of drug importation, the high maximum and the need for national consistency. There is no doubt that this Court has power to entertain such a submission and, in an appropriate case, to uphold it.[36] No such argument was raised in the present case, however.

Table of sentencing decisions by Australian appellate courts for the offence of importing (or attempting to possess) a marketable quantity of a border controlled drug

Notes: Unless otherwise indicated the offender in each case was sentenced on the basis of having -

1. performed the role of courier (or recipient), and no more;
2. pleaded guilty to the charge; and

Tran v The Queen [2007] QCA 221; (2007) 172 A Crim R 436

Poh Kau Lau v The Queen [2011] VSCA 324

R v Jimson [2009] QCA 183

Todorski v The Queen [2010] NSWCCA 75; (2010) 267 ALR 593

Alavy v The Queen [2014] VSCA 25

DPP(Cth) and DPP (Vic) v Edge [2012] VSCA 289

Mirzaee v The Queen [2004] NSWCCA 315

DPP v Johie [2013] VSCA 308

Youssef v The Queen [2011] NSWCA 104

OPQ v The Queen (2012) 221 A Crim R 424[38]

Jailani v The Queen [2010] VSCA 276

Brink v The Queen [2010] NSWCCA 217

Govindaraju v The Quen [2011] NSWCCA 255

Mirza v The Queen [2007] NSWCCA 257[39]

R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451

Taylor v The Queen [2007] WASCA 146; (2007) 172 A Crim R 430

Tyn v The Queen [2009] NSWCCA 146; (2009) 195 A Crim R 345

BS (see R v Chea [2008] NSWCCA 78 below)

DPP v Johnson [2012] VSCA 38

(2011) 32 VR 149

Loueng (see R v Chea [2008] NSWCCA 78 below)

Choun (see R v Chea [2008] NSWCCA 78 below)

R v Chea [2008] NSWCCA 78

[2011] VSCA 269

[2011] VSCA 314

[2011] NSWCCA 182

Springer v The Queen [2007] NSWCCA 289; (2007) 177 A Crim R 13

Di Tommaso v The Queen [2010] VSCA 178

Srey (see R v Chea [2008] NSWCCA 78 above)

[2008] NSWCCA 16; (2008) 180 A Crim 517

Correlation between head sentence (months) and quantity imported (as a percentage of a commercial quantity)

45 On 23 October 2013 the appellant pleaded guilty in the County Court to one charge of having imported a marketable quantity of a border controlled drug (heroin) contrary to s 307.2(1) of the Criminal Code 1995 (Cth).

46 He was sentenced by his Honour Judge Tinney to eight years and six months' imprisonment with a non-parole period fixed at six years. His Honour declared that but for the plea of guilty he would have sentenced the appellant to be imprisoned for 11 years and six months with a non-parole period of nine years.

47 The appellant now appeals pursuant to leave granted by Priest JA on the grounds that the sentence imposed, and the non-parole period fixed, are each manifestly excessive.

48 The appellant is 39 years old. He was born in Vietnam. He first came to Australia as a refugee with his family when he was 10 years old. He returned to Vietnam in 1997 where he married and had two children. He then migrated back to Australia in 2002.

49 In 2013, the Australian Federal Police undertook an investigation of drug importation and trafficking involving a group of offenders including An Lanh Vo. Vo was alleged to be responsible for organising couriers to transport drugs from Vietnam to Australia. The appellant was identified as one such courier.

50 On 4 February 2013, the appellant travelled to Vietnam on a return ticket. He returned on 15 March 2013 on a Vietnam Airlines flight. During the flight the appellant was seen to use a particular toilet frequently. He was also observed to become unwell and required medical attention. Two small packages of white powder were discovered in the toilet which the appellant had been using. When subsequently questioned, the appellant admitted that he had ingested heroin during the flight and that the packages of powder were his. When asked what the packages contained, he said: 'heroin, I guess.'

51 On analysis, the powder was found to be a mixture of heroin and caffeine. The total pure weight of heroin detected was 577.1 grams. A marketable quantity of heroin is an amount between 2 grams and 1.5 kilograms. Thus, the amount substantially exceeded the minimum quantity required for this category of offending and comprised a little over one-third of the range of quantities covered by the offence. The maximum sentence applicable to the offence is 25 years' imprisonment.

52 The appellant submits that the sentence of imprisonment imposed is manifestly excessive having regard to the following facts.

(a) The appellant's role was that of a courier. The evidence indicated that his reward was to be a small quantity of heroin and some $10,000 cash less expenses.

(b) The appellant pleaded guilty at a very early stage and was co-operative with police.

(c) The appellant had a very troubled childhood and personal background which may be regarded as partially explanatory of his offending although it cannot of course excuse it. After fleeing Vietnam with his parents and five siblings, he spent two years as a refugee in Thailand before coming to Australia. There was friction between his parents which he struggled to cope with as the eldest sibling. He left home after completing Year 9 at high school and commenced using illicit drugs. Between 1992 and 1998 he came before Magistrates' Courts in both this State and in Queensland on some seven occasions with repeated drug-related offences. After a period in Vietnam, he returned to Australia in 2002 as a married man with two children.

(d) The appellant was diagnosed as HIV[40] positive in 2004. His illness affected his relationship with his wife and they separated in 2006. As a result, the appellant believed his future was lost and he resumed intravenous drug use. He came before the courts on a further six occasions between 2007 and 2009.

(e) The appellant's illness progressed and he required a substantial period of inpatient treatment in 2010. A report from St Vincent's Hospital states:

In more recent times later that year, he had a further protracted admission under the medical team on the 15 August 2010; he was acutely unwell and had a stay in hospital from the 15 August 2010 until 8 November 2010. At that time he had a pre-existing diagnosis made of long standing HIV infection, he presented with a pneumocystis pneumonia and CMV oesophagitis and viraemia. In short, he had an AIDS[41] defining illness with the above infections. He had intensive treatment for his infections and appropriate supportive therapy, he was stabilised on appropriate antiviral treatment for his HIV.

The report further states that while in hospital the appellant had acute renal impairment.

During his stay in hospital he had an acute renal impairment which resolved with supportive therapy. He was discharged from the Cottage with ongoing medico-social support on 8 October 2010 with an appropriate follow up plan put in place. It would seem subsequent to this admission he upon discharge he [sic] had regular reviews through the Infectious Disease team and support facilities with documented stability of his HIV without the need for further admission for treatment. On the basis of his review it would seem that he was fully compliant with his anti-viral treatment for his HIV. In terms of his opiate addiction he in more recent times was taking regular suboxone prescribed through his doctor Dr Jagoda.

(f) The appellant believed his diagnosis with AIDS was essentially a life sentence and that he did not have much time to live. The appellant wanted to provide for his children for whom he had never previously been able to provide and offended in this context.

(g) The appellant had some potential for rehabilitation. He demonstrated remorse by his plea of guilty and co-operation with the police. He had made efforts to address his health issues whilst in custody. He was receiving regular treatment for his HIV, and was taking antidepressants and also methadone. He was studying and completing courses in order to obtain skills for employment when released.

(h) The appellant's sentencing burden will be increased due to his HIV status and the isolation and rejection by other prisoners that is likely to occur in prison. He also suffers from hepatitis B and C and consequent chronic liver disease.

(i) The sentence imposed was excessive when compared with other comparable cases.

(a) The fact that the appellant was a courier does not limit his moral culpability. Couriers are an integral component of drug importation.

(b) General deterrence must be a primary sentencing consideration.

(c) Remorse should not be given significant weight in this case.

(d) Specific deterrence should be given weight in the light of the appellant's criminal history.

(e) The need to protect the community from the importation of drugs is a relevant consideration.

(f) A review of sentencing practice does not support the conclusion that the sentence was excessive.

54 The sentencing judge specifically addressed the appellant's role as a courier stating in part:

1. But yours was a calculated decision and you had a significant time to rethink your involvement. You did not have a gun to your head. You were not acting under some threat to you or family members, as sometimes does actually exist, or to bail yourself out of some debt incurred of which you had no hope of satisfying. Yours was a financial decision. No one is suggesting that you were the head of a syndicate. You were not. The organisers have been arrested and will face the courts as organisers down the track. You certainly will not be sentenced as one. I have to assess what you did. Your involvement was absolutely fundamental to the success of this importation. It was after all you who physically imported the drug. You have committed, by your actions, this serious offence which is punishable by a 25 year maximum. Your offending is obviously extremely serious. There is no comfort to be found in a description of your merely being a courier. Your role was critical. I am satisfied you were a courier; the Crown say I should be. I will sentence you as one. But there are very many instances where higher courts have emphasized that those who engage in the importation of drugs to this country must expect, if caught, to suffer significant punishment. An eminent judge in this State, Justice Starke, said over 30 years ago in, a case concerning heroin importation, the following words.

I am of the opinion that the time has come for the message to be clearly spelt out by this Court to those who are minded to endeavour to run the gauntlet that if they are caught they will be visited with the most severe and harsh penalties. In this way it may be hoped that such people will be deterred and the drug traffic in this country diminished.[42]

55 The sentencing judge also had regard to the statutory parameters of the amount imported.[43]

56 His Honour further acknowledged the difficulties of the appellant's personal history and his medical conditions stating in part:

1. You have had a relatively sporadic employment record courtesy no doubt of the negative influence of drugs in your life. You were exposed quite early to drugs and have been deeply affected by them in your life. You were married but that marriage came to an end in 2006 when you separated from your wife. You have had little contact with your family for quite some time now. There are 2 children but they live with your ex-wife. Your health has been poor as [the report from St Vincent's extracted at [52] above] makes very plain. You have had chronic liver disease secondary to hepatitis B and C and you were diagnosed as HIV positive in about 2004. There have been some illnesses associated with that condition, with a lengthy inpatient admission back in 2010. Your counsel argued that you had taken the view that your condition was terminal and your offending occurred in that setting. However the report does not suggest that that was the reality of your health conditions. When you are actually prepared to look after yourself, your HIV status is evidently quite treatable and has been treated. If of course you fail to attend treatment and review by medical practitioners, fail to take anti viral medication and take illegal drugs you are certainly not maximising your prospects of a long life.[44]

57 The sentencing judge also analysed the appellant's criminal history noting that he had previously had experience of imprisonment but accepting that he had no prior convictions for offences of comparable seriousness to that which brought him before the Court.

58 His Honour accepted that the appellant's plea of guilty must result in a discount of sentence[45] and that it was indicative of some remorse.[46]

59 He addressed the ongoing effect of the appellant's medical condition as follows:

1. Your counsel argued that there is likely an increased custodial burden courtesy of your medical conditions and perhaps more importantly the discriminatory response of prisoners to your conditions, especially your HIV status. Strangely, your medical conditions are more likely to be well-managed in a prison setting as there is less flexibility for you to pick and choose treatment, which you have done in the past when at large; also as drug use is less likely to complicate or compromise your health status. However, yours are still significant and serious persisting health conditions. Further, HIV is still subject to much misunderstanding in the general community and I am sure is less understood still and more feared in the prison community. In the circumstances I am prepared to accept your counsel's submissions and take those matters into account in mitigation by way of an increased custodial burden.[47]

60 He further accepted that the appellant had some prospects of rehabilitation.[48]

61 Lastly, his Honour emphasised the need for general deterrence[49] and he recorded that he had had regard to other cases reflecting sentencing practice for this type of offence.[50]

62 There can be no doubt that his Honour dealt with the relevant considerations in the case including, in particular, the sentencing considerations identified in Nguyen v The Queen; Phommalysack v The Queen.[51] The question is simply whether the sentence he arrived at was reasonably open to him.

63 I have had the benefit of reading the reasons of the President in draft and the analysis undertaken by him of the statistics relating to sentences for the offence in issue by reference to the factor of proportionate weight. That analysis proceeds by reference to percentage weight of the relevant commercial quantity and is limited to cases in which the offender's role was that of a courier only, there was a plea of guilty and the offender had no prior convictions. It is significantly more helpful than the more general data commonly presented to the Court. It demonstrates that the sentence imposed was on its face a heavy one if assessed against sentencing practice in Victoria.

64 The use of such statistics must be approached in accordance with the principles restated and affirmed by the majority of the High Court in Barbaro v The Queen:[52]

1. The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.[53]
2. As the plurality pointed out[54] in Hili, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.[55]

65 Section 16A(1) and (2) of the Crimes Act 1914 (Cth) requires the Court to have regard to a wide variety of factors each of which is itself capable of a range of permutations. In turn, the relative weight to be given to individual factors is not prescribed and must vary with the justice of the case. Section 16A(1) and (2) provides:

16A Matters to which court to have regard when passing sentence etc. - federal offences

(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence - any victim impact statement for the victim;

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

(fa) the extent to which the person has failed to comply with:

(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or

(ii) any obligation under a law of the Commonwealth; or

(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g) if the person has pleaded guilty to the charge in respect of the offence - that fact;

(h) the degree to which the person has co operated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(n) the prospect of rehabilitation of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

66 The analysis of sentencing statistics by reference to the weight of the narcotic imported may mask differences with respect to other aspects of the culpability of the offender such as the role of the offender, the relative extent to which the offender stood to profit from the offending (which may differ markedly), and the purpose(s) of the importation. As the plurality observed in Markarian v The Queen:

Little imagination is required to envisage a case involving a relatively small quantity of heroin, as being of very great seriousness, for example, supply to create an addiction in an infant.[56]

67 Some of these differences may be able to be minimised by limiting the variables within the cases surveyed but the potential for significant variation in culpability necessarily remains, even if the sample is restricted to offenders who undertook the same sort of role - in this case that of courier.

68 An analysis of sentences by reference to the weight of the narcotic may also mask significant differences between the personal circumstances of offenders, such as whether the offender pleaded guilty or not guilty, or assisted investigating authorities; was a person of no relevant prior criminal record or a person with serious prior convictions; was or was not on parole or bail at the time of offending; was a person who did or did not evidence remorse; was of relative youth or maturity; was a person with mental illness, cognitive impairment or suffering from substance addiction; and was or was not subject to forfeiture or pecuniary penalty orders.

69 Again, some of these matters may be able to be taken account of by limiting the parameters of the cases surveyed but the potential for significant difference must remain even if the sample is limited to offenders who, as in this case, pleaded guilty and had no prior convictions.

70 In Wong,[57] the plurality specifically held that it was an error to view the weight of the narcotic imported as generally the chief factor to be taken into account in fixing the sentence to be imposed on a person knowingly participating in its importation.

1. The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament's distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities.[58] No doubt, within both of those categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. But is weight generally the chief factor to be taken into account in fixing a sentence?
2. It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), 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.
3. It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.[59]

71 Given the extent of the potential variations between the circumstances of offending and offenders there is also a fundamental limitation in the usefulness of generalised statistics derived with respect to sentences for offences of the kind in issue. In Wong the plurality also observed:

1. Further, to attempt some statistical analysis of sentences for an offence which encompasses a very wide range of conduct and criminality (as the offence now under consideration does) is fraught with danger, especially if the number of examples is small. It pretends to mathematical accuracy of analysis where accuracy is not possible. It may be mathematically possible to say of twenty or thirty examples of an offence like being knowingly concerned in the importation of narcotics where the median or mean sentence lies. But to give any significance to the figure which is identified assumes a relationship between all members of the sample which cannot be assumed in so small a sample. To take only one difficulty, why were the highest and lowest sentences set as they were? Do they skew the identification of the median or the mean? The task of the sentencer is not merely one of interpolation in a graphical representation of sentences imposed in the past. Yet that is the assumption which underlies the contention that sentencing statistics give useful guidance to the sentencer.[60]

72 This is not to say that reference to sentences in comparable cases will not provide a useful reference point to appellate courts and sentencing judges. In Hili, the Court stated:[61]

1. In Director of Public Prosecutions (Cth) v De La Rosa,[62] Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out,[63] a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said:[64] 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'.[65] Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added).[66] When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'.[67]

73 If a sentence appears to be outside the range ordinarily imposed in generally similar circumstances, that fact invites very close scrutiny of the individual case. The analysis undertaken by the President demonstrates that this is such a case. As Winneke P observed in R v Giordano,[68] a general overview of the sentences imposed by courts over a substantial period for offences of a similar character must inevitably play its part in provoking the instinctive reaction of the Court as to whether or not a particular sentence is manifestly excessive. But other sentences cannot be definitive of error. As was said in Hili:

1. As was said in Dinsdale v The Queen,[69] '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out[70] in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say[71] in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.[72]

74 If, upon examination, the sentence is manifestly excessive or inadequate, reference to relevant examples of sentencing practice also provides a yardstick informing but not determining the result of the discretion which must ultimately be exercised by reference to the facts of the particular case. In Hudson v The Queen, Ashley, Redlich and Harper JJA said:[73]

[27] The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.

[28] Sentences imposed in 'like' cases provide some indication of the range that is open in the proper exercise of the discretion.[74] They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the 'instinctive reaction' when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of 'current sentencing practices' which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.

[29] 'Like' cases can only, at best, provide a general guide or impression as to the appropriate range of sentences.[75] In that context it has been said on many occasions that 'comparable cases' can only provide limited assistance to this court.[76] They may however be used in search of unifying principles.[77]

75 It follows that the sentencing statistics provided to the Court inform the context in which the appeal falls to be considered but cannot be regarded as determinative of its outcome.

76 It must also be recognised that it is necessary for an appellant to go beyond simply persuading the Court that it would have imposed a lesser sentence than that imposed by the sentencing judge in order to make out the ground of manifest excess. The sentence must be 'wholly outside the range'[78] of sentences that might reasonably have been fixed.

77 Nevertheless, in my view, when the combination of matters upon which the appellant relies are taken into account, the sentence imposed and non-parole period fixed were manifestly excessive. In particular, it seems to me that a sentence of a little more than one-third of the maximum for the offence was manifestly excessive having regard to the following matters in combination.

(a) Whilst his Honour correctly identified the offending as constituting a serious offence requiring punishment by imprisonment and a sentence which placed an emphasis on general deterrence, the appellant's role as a courier and his limited financial interest in the offending support the view that he is relatively in the lower range of offending contemplated as potentially falling within the ambit of the section. This relativity remains relevant despite the fact that couriers are indispensable to drug importation of the type here in issue.

(b) The offending occurred in circumstances where the appellant was both a drug addict and had suffered from a combination of chronic illnesses including AIDS. As Mr McLoughlin submitted on appeal, the appellant had not simply been diagnosed as HIV positive. Whilst in St Vincents he had been diagnosed with pneumocystis pneumonia constituting an AIDS defining illness which elevated his diagnosis to that of AIDS. In turn, it seems to me, with respect, that the sentencing judge did not fully acknowledge the seriousness of the appellant's medical conditions and was wrong to dismiss as improbable the appellant's belief at the time of offending that his condition was terminal. The fact that the appellant's viral load was stable did not render improbable a belief that his condition was terminal given the length of hospitalisation he underwent in 2010 and the diagnosis of AIDS. The appellant's combination of medical conditions (hepatitis B and C, and AIDS with a history of pneumonia, oesophagitis, viraemia and renal impairment) does not excuse his offending but it renders the context in which that offending occurred more explicable and his stated motive more probable, namely to procure some money for his children for whom he had never been able to provide.

(c) The appellant pleaded guilty and co-operated with police. The judge accepted that this was indicative of remorse. Some palpable discount of sentence must result and the sentence imposed is such that it may be inferred insufficient weight was accorded to this factor.

(d) The appellant has some realistic prospects of rehabilitation although it must be acknowledged that they are almost entirely dependent upon him maintaining control over his drug habit with methadone or by some other means.

(e) The appellant's life in custody is likely to be materially more difficult than that of most prisoners. His chronic illnesses still confront him and he must deal with prison life in circumstances where, as the sentencing judge accepted, the probability is that other prisoners will continue to shun him and treat him as an outcast.

(f) The sentence imposed was very heavy when compared with the class of broadly comparable cases identified by the President.

78 In all the circumstances, I would allow the appeal and re-sentence the appellant to six years' imprisonment. I would fix a non-parole period of four years. I would declare pursuant to s 6AAA of the Sentencing Act 1991 that but for the appellant's plea of guilty I would have sentenced him to 9 years' imprisonment with a non-parole period of six years.

79 I have had the benefit of reading the judgments of Maxwell P and Osborn JA in draft.

80 I agree with their Honours that the appeal against sentence should be allowed and that the appellant should be resentenced as proposed by them.

81 In my opinion, the impugned sentence is manifestly excessive for the reasons set out by Osborn JA. As his Honour has demonstrated, a balancing of the sentencing considerations that were relevant to the present case strongly indicates that the sentencing discretion has miscarried.

82 I have found the statistics in attachments A and B to the judgment of Maxwell P helpful in identifying comparable cases and current sentencing practice and thus facilitating consistency in sentencing. In this context, consistency means consistency in the application of relevant legal principles, not numerical equivalence.[79] When the statistics are used to inform the sentencing process in this manner rather than for the purpose of engaging in an impermissible mathematical exercise, they can be a valuable yardstick against which to examine an impugned sentence.[80]

83 The statistics establish that the impugned sentence is out of line with current sentencing practice in Victoria. The disparity between the impugned sentence and other comparable sentences is a factor, together with the other factors to which Osborn JA has referred, which enables this Court to be satisfied that the impugned sentence must have resulted from the misapplication of principle and thus warrants appellate intervention.[81]

[1] Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143, 146 [2] ('Adams').

[2] DPP v Holder [2014] VSCA 61 [10] citing Nguyen v The Queen [2011] VSCA 32; (2011) 31 VR 673, 676 [2], 681-3 [34] ('Nguyen').

[3] R v Pidoto and O'Dea [2006] VSCA 185; (2006) 14 VR 269.

[4] See, for example, Nash v The Queen [2013] VSCA 172, [10].

[5] Paragraphs 12-15 above are taken from the Registrar's Neutral Summary.

[6] DPP v Pham (Unreported, County Court of Victoria, His Honour Judge Tinney, 23 October 2013) [12] ('Reasons').

[8] R v Combey (Unreported, Court of Criminal Appeal, Starke, Anderson and Fullagar JJ, 5 February 1980) 10-11.

[11] (Unreported, Court of Criminal Appeal, Starke, Anderson and Fullagar JJ, 5 February 1980).

[12] The Court noted that this had become the maximum in 1977.

[13] DPP (Cth) and DPP (Vic) v Edge [2012] VSCA 289, [69].

[14] [2008] HCA 15; (2008) 234 CLR 143.

[19] [2011] VSCA 32; (2011) 31 VR 673, 681-3 [34].

[20] [2010] NSWCCA 238; (2010) 205 A Crim R 106, 126-8 [72].

[21] Chan, Lo & Nguyen [2010] NSWCCA 153, [114]-[115].

[22] Nguyen [2011] VSCA 32; (2011) 31 VR 673, 682 [34].

[23] Anderson v The Queen [2013] VSCA 138, [22]-[23].

[24] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 537 [54], 539-40 [62]; DPP (Cth) and DPP (Vic) v Edge [2012] VSCA 289, [5]-[6], [14].

[25] See DPP v Holder [2014] VSCA 61, [10].

[26] [1999] NSWCCA 420; (1999) 48 NSWLR 340 ('Wong'); see, for example, R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451, 457 [27].

[27] [2001] HCA 64; (2001) 207 CLR 584.

[28] [2010] NSWCCA 244; (2010) 203 A Crim R 398, 412 [90]-[91] ('Cheung').

[29] [1999] NSWCCA 420; (1999) 48 NSWLR 340.

[30] [2011] VSCA 324.

[31] (2012) 221 A Crim R 424.

[32] [2014] VSCA 25, [3].

[33] Cheung [2010] NSWCCA 244; (2010) 203 A Crim R 398, 413 [94]; DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 46-7 [193]; R v Tran [2007] QCA 221; (2007) 172 A Crim R 436, 438-9 [8]; R v Mokoena [2009] QCA 36; [2009] 2 Qd R 351, 354 [12]; Nguyen [2011] VSCA 32; (2011) 31 VR 673, 681 [30], 698-9 [104] (citations omitted).

[34] DPP v CPD (2009) 27 VR 533_; DPP v DDJ_ [2009] VSCA 115; (2009) 22 VR 444.

[35] Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483, 495 [28]-[29] (citations omitted).

[36] DPP v Winch v The Queen (2010) 27 VR 658; DPP v Werry (2012) 37 VR 524_; Hogarth_ v The Queen [2012] VSCA 302.