R v Bui and Tran

SENTENCE 1HIS HONOUR: Ba Hai Bui appears today for sentence in relation to a charge to which he pleaded guilty on indictment that he between 18 July and 9 August 2012 at Sydney in the State of New South Wales supplied a prohibited drug, namely, heroin in an amount not less than the commercial quantity for that drug. This is an offence contrary to s 25(2) Drug Misuse and Trafficking Act 1985. He asks me to take into account in sentencing him for that offence to another offence committed at Bonnyrigg on or about 7 July 2012 of supplying heroin in an amount of 693.4 grams which is not less than a commercial quantity for that particular prohibited drug and this likewise is an offence contrary to s 25(2) Drug Misuse and Trafficking Act. 2Tuan Anh Tran also pleaded guilty at the same time as Mr Bui to a charge alleging that he on 8 August 2012 at Sydney in the State of New South Wales knowingly took part in the supply of a prohibited drug, namely, heroin in an amount not less than the commercial quantity for that drug. This is an offence under the same provision. 3These pleas of guilty were entered after the accused were arraigned in front of me and a voir dire examination was partially conducted, in respect of an indictment alleging against Mr Bui one charge of supplying not less than the commercial quantity of the drug heroin, which is now reflected in the Form 1, and another charge of supplying between 18 July 2012 and 9 August 2012 a quantity of heroin, namely, 2.449 kilograms being an amount not less than a large commercial quantity for that drug. Mr Tran had been arraigned and pleaded not guilty for the purposes of the voir dire, I hasten to say as the law requires, to a charge that he knowingly took part on 8 August 2012 to the supply of the prohibited drug heroin in the same amount as I have earlier outlined, being an amount not less than the large commercial quantity of that drug. 4The pleadings reflect what is self-evident from the facts particularly in relation to Mr Bui, that he was substantially involved in the supply of heroin in the commercial quantities outlined in the period of time between 17 July 2012 and 8 August. Mr Tran's pleadings, if I may call them that, specifically alleged against him knowingly taking part in the primary supply concerning Mr Bui but on the day of his arrest. 5In relation to the facts of the matters, I will come back to legal issues relevant to sentencing such as the maximum penalties and the like later, an agreed statement of facts was tendered. However, during the course of the sentence proceedings the Crown Prosecutor sought to supplement those agreed facts with further matters allegedly related to the circumstances of the police search of premises as I understand it controlled by Mr Bui and occupied by others including Mr Tran. This additional evidence I received in reply to the defence case for the reasons set out in the transcript. Those additional facts can only be relevant to Mr Bui in the context the circumstances in which they were tendered. 6The agreed facts show that two people, Tommy Thai and his sister Huong Van Thai, entered into an agreement after some months of negotiation with undercover police officers to find somebody who would be able to provide them with two blocks of heroin. These two blocks of heroin were supplied by the prisoner, Mr Bui, for the cost of $100,000 each and each block weighed approximately 350 grams. The Thais had entered into an agreement with the two undercover operatives that the heroin would be supplied to the undercover operatives by the Thais and eventually that occurred on 18 July 2012 at a bottle shop in Guildford for the price of $224,000. 7After this supply, which is the matter the subject of the charge on the Form 1, there was discussion then about a further purchase of more blocks of heroin. In relation to the heroin supplied at the bottle shop this was analysed and the blocks of heroin respectively had a purity of 66.5 and 66%, quite a high percentage of purity, and the respective blocks weighed 347 and 346 grams or thereabouts. 8The $100,000 for each block was provided to Mr Bui between 19 July and 21 July on two separate occasions and Ms Thai, that is Huong Van Thai, continued contact with the accused Bui in relation to the further supply of heroin. Ultimately the undercover officers entered into an agreement with the Thais after 18 July that the Thais would provide them ultimately with 20 blocks of heroin for the cost of $2.24 million. By 7 August 2012 it had been agreed between the Thais and the undercover police officers that the heroin would be handed over at a location described as a factory unit in Botany. The agreed facts state that on two separate occasions before 8 August Mr Bui supplied heroin in powder form which was ultimately less than one kilogram in total. The evidence in the agreed facts says that Ms Thai had attended Mr Bui's home over a number of occasions before 8 August 2012. 9The powder form heroin provided by Mr Bui was then rendered into block form similar to the blocks that had been supplied on 18 July. The agreed statement of facts that I was provided mistakenly refer to 18 June in that context. On 8 August 2012 the Thais, that is Tommy Thai and his sister, travelled from Cabramatta to Mr Bui's house where Mr Bui and Mr Tran then travelled onto a residence at Fairfield. The facts set out the travels of the parties and the changing of cars and the like which is of no real moment. Ultimately Tommy Thai and his sister drove to the factory unit in possession of the heroin that they were ultimately to hand over. It is important to note the heroin that they did hand over was a greater quantity than that had been provided by Mr Bui. The source of the other heroin is not disclosed in the agreed statement of facts. 10Mr Tran and Mr Bui also travelled to the factory unit but parked a short distance away from it. When Mr Tommy Thai and his sister went into the unit they met the undercover operatives. There was another undercover police officer present as I understand the matter. The sum of $784,000 was produced by the undercover operatives and Ms Thai produced seven blocks which contained heroin. The total weight of the heroin was 2.449 kilograms. One block had a purity of 64%. 11The police then arrested the two Thais and went outside the unit and arrested Mr Bui and Mr Tran who were waiting in the other vehicle. It would appear on the agreed facts that it's alleged that Mr Bui and Mr Tran were jointly in possession of seven fake blocks. When interviewed Mr Bui denied any involvement in the supply of heroin while Mr Tran admitted he was aware of the fake blocks and understood that he was to be paid a thousand dollars for transporting them. He denied any knowledge of heroin being involved in the transaction. 12The maximum penalty for each of the offences on the indictment and the offence on the Form 1 is one of 20 years imprisonment and/or a fine of 3,500 penalty units. The offence has a standard nonparole period of 10 years imprisonment. 13Turning to their criminal histories, Mr Bui has a lengthier criminal history than Mr Tran. Mr Tran has one conviction for possession of prohibited drugs in 2012 for which he was convicted at the Gundagai Local Court on 3 September 2012 having been arrested on 28 July of that year. He was fined a thousand dollars. Mr Bui has convictions which include a conviction at the Liverpool Local Court on 9 September 2004 of supplying a prohibited drug for which he received a s 9 bond for a period of 12 months. He has a conviction at the Burwood Local Court for possessing a prohibited drug for which he received a 12 month good behaviour bond in April 2006. On 11 August 2009 he was convicted of possessing an unauthorised pistol and after being dealt with firstly in the Local Court and then on appeal to the Campbelltown District Court. He received a sentence of eight months imprisonment which was suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. For not keeping a firearm in a safe condition on the same date he was fined $1500. 14When police arrested Mr Bui and Mr Tran they ultimately went to the premises that Mr Bui lived in at the time of Mr Tran at Bonnyrigg. There are other people as I understand residing at the premises at that time. A number of items were found in those premises consistent with the indicia of the supply of drugs. This Court on 20 February 2004 ordered that $219,000 in cash found in a safe in the main bedroom be forfeited to the State. That cash would, primarily as I understand it be the cash that was provided to Mr Bui for the first supply the matter, on the Form 1. As I earlier indicated the Crown tendered a document which comprised part of the Crown case statement setting out various items that were found including the cash, various resealable bags, mobile phones and other items consistent as I said earlier with the indicia of drug supply in reply to matters asserted by Mr Bui in his history given to the psychiatrist. 15In the case of Mr Bui and Mr Tran psychiatric reports were tendered prepared by the same psychiatrist. The least I could say about this is that I think this is not a particularly advisable course taken by the psychiatrist to agree to interview two people charged in relation to the same criminal enterprise. No issue was taken by the Crown in relation to this matter. I must say I was somewhat disturbed further to discover when I read more closely the facts in relation to Ms Thai, Ms Thai having been sentenced by the Chief Judge before this matter came before me, that in fact Dr Furst prepared a report in relation to Ms Thai too. I have earlier said in the absence of the prisoners that there must surely be some issue of conflict of interest that arises. I noted that the doctor dated his reports 17 March in relation to both Mr Bui and Mr Tran. In any event I am not criticising the solicitors for retaining Dr Furst. Separate letters of instruction were sent to him and separate solicitors are involved. I just cannot understand how a doctor could interview three people involved in the same criminal enterprise who are separately represented. I appreciate, of course, from my experience that Dr Furst is a medical practitioner of integrity and has a great deal of experience in assessing prisoners, including duties for the Justice Health organisation. 16In relation to the offender Bui, he found no evidence of mental illness or any significant inherent mental disability. Both offenders gave some history of drug use. In Tran's case he claimed drug use only on occasions somewhat consistent with his criminal history such as it is having previously used amphetamines. The conviction in his record that I have referred to related to his possession of one gram of "ice", a form of methylamphetamine. 17Mr Bui gave a history of heroin use from about 2005 to 2008 stating that he became dependent on the drug. He said that he had decreased his intake by 2012. He referred to the fact that he had had some outpatient counselling concerning his drug usage but he had never been admitted to a drug and alcohol rehabilitation unit. I point out in relation to the histories both prisoners gave and the psychiatric reports that neither prisoner gave evidence and thus the hearsay representations relating to their background and other matters have not been subject to the test that would have been provided if needs be by the Crown Prosecutor. 18Mr Bui as I understand it was born on 21 November 1979 and is now 34 years of age. Mr Tran is substantially older but according to the records I have is coincidentally born on the same date in 1961. As I would calculate it he is now 52 years of age. Both men were born in Vietnam in different eras as reflected by their migration to Australia. Mr Bui migrated to Australia as an overseas student after finishing high school in Vietnam but he discontinued his studies in Australia. He was married in 2002 but apparently separated from his wife in 2005. 19Mr Tran, given his age, migrated to Australia in less salubrious circumstances having fled Vietnam by boat and came to Australia through Indonesia as a refugee. Mr Tran said that he had had a number of employments in a range of areas such as the construction industry as a welder. He had worked for the Post Office, he had worked for the Soul Pattinson's Pharmacy organisation, he had also run his own cleaning business. He said he had a significant industrial accident a number of years ago when he was extensively burnt. I do not know where this occurred. He could not work for 2½ years and received a modest compensation. 20Mr Tran offered, in his examination by the psychiatrist no evidence of psychotic or suicidal ideation. His cognition was intact, he described himself as a Buddhist and said he was a positive person. He said, "If I do good I get good, if I do bad I take the consequences." 21According to Dr Furst there were no clear indications for psychological counselling or drug and alcohol counselling although the doctor felt that Mr Tran would do well to undertake the Getting SMART Program within custody. He said the offender had a "low risk of future offending and has good prospects of being successfully rehabilitated." 22With regard to Mr Bui Dr Furst diagnosed "a substance use disorder." In relation to the offence or offences that he is for sentence he has told the doctor that he had been using heroin, that he had met some "bad friends" that they had put a lot of pressure on him. He said, "I had no money they would force me to do these things for money." It was this amongst other aspects of the history that he gave his doctor that were tendered in the report that permitted the material relating to the search, previously not relied upon by the Crown, to be admitted into evidence in rebuttal. 23The agreed facts, themselves, one might have thought self-evidently made the representations made to the doctor by Bui a suspect at the very least. I do not accept Mr Bui's explanations for his involvement of this offence being solely attributable to any use of heroin by himself or any "pressure" put on him by the "Thais". I have approached the other claims of this prisoner, particularly about his regret for his actions and his remorse, with the same circumspection as I approach his claimed involvement in these offences. 24Dr Furst reflected upon Mr Bui's history of childhood maladjustment, his addiction to heroin and what Mr Bui had claimed were "financial difficulties associated with his drug use." He went on to express views about his participation in the offending which to my view were outside the expertise of the medical practitioner and outside really the legitimate purpose of a psychiatrist's report. He made a finding, which I am prepared to accept, that the prisoner had low self-esteem and presented with depressed mood and had what he described as maladaptive coping skills. He said that these were factors that probably contributed to his offending behaviour although reliance upon the prisoner's representations is vital to their accuracy. The one thing I accept from the opinions of the doctor consistent with his qualifications and purpose in preparing reports for court was the finding of the doctor that the prisoner "was aware of his actions" and their "wrongfulness." Dr Furst recommended that the prisoner receive the benefit of vocational training, training in English, have sessions with a clinical psychologist and undertake drug rehabilitation and recovery programs. He suggested his maintenance on the methadone program. 25As to the doctor's opinion as to the prisoner's risk of reoffending, I approach that assessment with considerable circumspection having regard to the prisoner's criminal history, having regard to the facts of the case where the seriousness of which is self-evident and the unreliability of the prisoner in the context of those facts. There can be no doubt that he and to some extent Tran have not told the full story of their involvement of this offending to the doctor and certainly haven't told the full story to this court. 26One matter that is very relevant in this sentencing process, in the context of the responsibility to assess the objective facts and other relevant considerations, is the sentence that was imposed upon his Honour the learned Chief Judge Blanch J, the week before the matter came before me for trial. Part of the background of this matter is that the trial started before me as I said in the sense that I had to deal with pre-trial issues and then in the course of dealing with those pre-trial issues particular negotiations occurred between the parties leading to the plea to the altered indictment. 27I accept in relation to this matter that it was anticipated that Ms Thai would give evidence against the prisoners, for that she received a substantial discount, and she received a discount for her pleas of guilty. She pleaded guilty in respect of the transaction on 8 August to the more serious charge of supplying a large commercial quantity of heroin which carries a maximum penalty of life imprisonment as I understand it as a standard nonparole of 15 years imprisonment. The facts of that matter and the earlier supply on 18 July for which she was charged had common features with the matters involving Mr Bui. I will come back to the remarks on sentence in relation to Ms Thai shortly. 28I had written submissions from all counsel which I have taken into account. Most of the submissions made by the learned Crown Prosecutor were uncontroversial but there were some particular matters in the learned Crown's written submissions that were taken issue by Mr Barker QC who appeared for Mr Bui and to a lesser extent by Mr Price appearing for Mr Tran. Mr Baker challenged on the facts of this case that his client was "the principal of a well organised group" and that the matter on the Form 1 confirmed that the prisoner engaged "in this type of conduct over a significant period of time." When the learned Crown Prosecutor was challenged as to this aspect of the matter the Crown's position really turned upon the meaning of the word "significant" in relation to the latter assertion. Ultimately the issue of the prisoner's role as the principal of a well organised group was confined to his role as the supplier to Ms Thai, there being no evidence that Mr Bui was in any way directing Ms Thai or was superior to her in any particular criminal group. She came to him obviously for the heroin, he was able to source it relatively quickly. With regard to his involvement in criminal conduct, of course, the facts provided to this court can only establish that he was involved in the supply of heroin over the period of time between just before 18 July and 8 August 2012. Whether this is a "significant" period of time or not is a matter upon which reasonable minds may differ. It certainly is a substantial period of time. 29In addressing both the Crown and defence submissions in this regard there can be no doubt that Mr Bui's criminality is of a "very substantial order." The significance of the Form 1 matter in relation to the principal offence is that the principal offence cannot be regarded as an isolated incident. The material that was located at the house to which I have made reference confirms that finding. There can be no doubt in the context of the facts of the matter standing alone that the prisoner was substantially involved in the supply of heroin for profit on a commercial basis. 30Dealing with the matter on the Form 1 just for the moment, in the context of only sentencing the offender for the principal offence, I bear in mind what was said about the treatment of Form 1 matters in the guideline judgment in this regard Attorney General's Application No1 (2002) 56 NSWLR 147. Of course, there have been a number of cases since about Form 1, matters but the matters that I advert to now are still the proper approach to dealing with such matters. In the guideline judgment it was held that the fact there is a matter or matters to be taken into account on a Form 1 will mean that greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution. The entire point of the process, as was pointed out by the learned Chief Justice, was usually to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principal sentence had stood alone. It was wrong to suggest that the additional penalty would be small, sometimes it will be substantial. However, he pointed out that the sentencing process is only concerned with the principal offence not to determine appropriate sentences for matters listed on a Form 1 or to determine an overall sentence would be appropriate for all offences and then apply a discount giving appropriate weight to the matters earlier referred to in the judgment. The Court agreed that deterrence and retribution are entitled to "greater weight than they may otherwise be given when sentencing for the primary offence." 31Of course, there are matters that will limit the extent to which this will occur including the maximum penalty for the offence, the principle of totality and the like. It is rarely appropriate for a sentencing judge to attempt to quantify the effect of the sentence from the principal offence of taking into account a matter or matters on a Form 1 offence. Matters on a Form 1 will have a significantly lower salience in the sentencing process for various reasons. But a judge must be careful to assess whether it is appropriate to proceed to sentence on the basis that may bring the administration of justice into disrepute by sentencing a person guilty of a course of criminal conduct on a "manifestly inadequate, unduly narrow or artificial basis." 32As I have earlier pointed out the Crown case is in respect of the events of 8 August that it was not Mr Bui who supplied all the drugs that were obtained by the "Thais", nor is he responsible for setting up the deals that were negotiated. He was seen, as I said earlier, on two separate occasions as a source for a substantial quantity of heroin. The source for him the prisoner has cast absolutely no light on at this time. I note that the heroin that he obtained for the "Thais" was of a very high purity and there would appear to be in all the circumstances little difficulty in him providing the substantial quantities of heroin that he did on more than one occasion. The prisoner could not in any way, even accepting that he was a user of heroin, be classified as some type of user dealer, merely trading in quantities of heroin to purchase or use drugs for his own use. The sum of cash in his possession, the quantities he provided, self-evidently rebut any assertion that may be made in that regard. Although it was not put on that basis in fairness to Mr Barker's helpful submissions. 33The written submissions of the prisoner, Mr Bui, centred upon matters that really are not in dispute and are germane to the sentencing process. The context of the maximum penalty for the principal offence, the fact that it was submitted that the plea of guilty was entered at the first reasonable opportunity to plea to the particular charge and it was submitted the discount should be 25%. It was submitted on behalf of Mr Bui, amongst other matters, the mitigating factors arising under s 21A(3) Crimes (Sentencing Procedure) Act included his remorse, his unlikelihood of reoffending and his good prospects of rehabilitation relying upon Dr Furst's report. 34So far as some of these matters are concerned I cannot conclude on balance, as I am required to for finding mitigating matters, that the prisoner has good prospects of rehabilitation or is unlikely to reoffend. Whilst his plea of guilty implicitly carries with it an expression of remorse, the facts of the matter are that the prisoner's contrition or remorse is not such as to satisfy the requirements of that matter pursuant to s 21A(3). I bear in mind, of course, as I have said earlier the failure of the prisoner to provide full and frank description and detail about the circumstances of his access to the heroin that he was able to provide to the Thai's amongst other matters. Time in custody, as it was pointed out in the submissions, must be taken into account and, of course, as Mr Barker pointed out the issue of parity is of substantial importance in this matter. It is important in sentencing this prisoner to ensure that neither he nor Ms Thai, although I am not concerned about her directly, have any justifiable sense of grievance from my orders. 35It was submitted on behalf of Mr Bui that he did not significant criminal history like Ms Thai, which is true. As I will point out at the conclusion of my remarks in distinguishing between he and Ms Thai, significantly Ms Thai was on parole for supplying heroin. The prisoner was not subject to conditional liberty. She pleaded guilty to three offences committed over a period of time including in respect of the events of 8 August, pleading guilty to a more serious offence carrying a maximum penalty of life imprisonment. The prisoner Bui is not to be sentenced as having any responsibility for the totality of the heroin that she was able to supply to the undercover officers. 36It was submitted on behalf of Mr Bui that a lengthy period of custody would lead to institutionalisation. This obviously is potentially so, but on the other hand the institutionalisation of an offender who commits serious crimes requiring great weight to be given to general deterrence and personal deterrence is not a matter that ultimately should affect the total sentence to be imposed though it may have some bearing, however, upon the fixing of a non-parole period. 37It was submitted that Mr Bui needed access to drug and alcohol rehabilitation and it was submitted that I should make a finding of special circumstances. It was submitted that the non-parole period should be less than the standard non-parole period. I will come back to the issue of the relevance of the standard non-parole period in the context of the legislation and the remaining relevance of Muldrock v R (2011) 244 CLR 120. In this matter, I have determined in relation to Mr Bui that there should be a finding of 'special circumstances' because in my view the prisoner will need an extended period of parole supervision to assist him to adjust to community living. The term of imprisonment I am imposing upon him is the first term of imprisonment that he would actually serve of any substance. He will need professional assistance to adjust to community living if, in fact, he is interested in undertaking a course of rehabilitation rather than going back to being a drug supplier. Mr Barker submitted that the principal offence was in the middle range of objective seriousness, but by comparison to Ms Thai the prisoner's culpability was much less. 38Mr Tran's counsel skilfully kept a very low profile. He took issue with the Crown's analysis of Mr Tran's role submitting that the prisoner was not a "trusted lieutenant" and that his role was significantly less than Mr Bui and Ms Thai. This is self-evidently so in my view from the agreed facts and the pleadings. In my view, his offending is below what could be described as the middle range of seriousness of offending contemplated by the legislation. His criminality was limited to the events of 8 August when he played what could only be described as a minor role. He was not responsible for the provision of heroin to Thai or to Bui on the facts available to me. He was living with Mr Bui at his home as I understand it and his recruitment arose out of his association with Mr Bui in that context on the facts available to me. He offered no support to Mr Bui beyond that described in the pleadings and in the facts. Whilst he had knowledge of the fake blocks in the possession of himself and Mr Bui at the time of his arrest and whilst he would have had some knowledge of the importance of the transaction he was, it would seem to me, clearly to receive little financial benefit. He had no financial stake in the transaction for a start. The written submissions of Mr Price reflected upon his role to assist to deliver the fake drugs to Ms Thai if she felt there was a need to do so, if she felt that they were being set up or there was a robbery taking place. It was submitted on his behalf that he was entitled to the maximum discount for the utilitarian plea of guilty, he had pleaded guilty at the first reasonable opportunity, as was conceded by the Crown. It was pointed out that he had spent the whole time in custody which, of course, will be taken into account. His mitigating factors arising under s 21A(3) of the Act included no significant record of previous convictions, expressions of remorse, good prospects of rehabilitation as well as unlikelihood of offending, relying upon Dr Furst's report, in the submission of Mr Price. 39In relation to Mr Tran, I am prepared to accept in the context of the terms of s 21A(3) that the prisoner has no significant record of previous convictions, notwithstanding his previous drug possession charge and that is consistent with his history of being a methylamphetamine user. I am prepared to accept, given his age and his prior criminal history, he is unlikely to reoffend and he has good prospects of rehabilitation. In the context of the circumstances of his plea I accept there is implicitly an expression of remorse but he does not, on balance, establish the remorse required pursuant to s 21A(3)(i). His plea of guilty, as with Mr Bui, is itself a mitigating factor. 40It was submitted on behalf of the prisoner he should be seen as a person who might be categorised as (courier) on the basis of the doctor's analysis that the offending was, "probably opportunistic and largely a consequence of his association with his co-offender". It is helpful of the doctor to try and express some view about the character of his offending, however I am not sure it is within his expertise. His commission of this offence was as a consequence of his association with Mr Bui. The extent to which it was opportunistic, or not, I cannot determine because, amongst other things, it is not as if the offender was involved only for a matter of minutes. He agreed to travel a considerable distance across Sydney to participate in this crime. As I have said earlier, clearly his criminality is well below that of Mr Bui and further again well below that of Ms Thai. 41It was submitted on behalf of the prisoner that the prisoner is an uncomplicated man with a work history and a strong work ethic. He had issues that needed to be addressed and it was submitted his offending was at the "absolute bottom". It was actually submitted the non-parole period should be less than two years. I could not agree the criminality is at the "absolute bottom", but it is at a low level in the scheme of matters contemplated by the section. 42Part of the problem with the analysis submitted by learned counsel for the prisoner, is that Mr Tran does not explain - not that he has an obligation to - to this Court how he became involved with Mr Bui and why he should be living in a home with a man who was conducting a business, at least evidenced by the two transactions I am aware of, involving substantial supplies of heroin. The house had many items within it consistent with the indicia of supply. I do not blame Mr Tran for that. There is no evidence that what was found inside the house was his. But one might draw the conclusion he must have had some knowledge of Mr Bui's business at least at that time. There is no evidence Mr Tran was involved in any way with the agreements with the Thais to supply them heroin and as I said earlier, no role in sourcing the heroin and the like. 43I turn now to the Crown's submissions, because as I said they helpfully, in the written form, covered a number of matters which really are not in dispute. The Crown's primary submission is undoubtedly correct; the assessment of the role of a particular offender was germane to the assessment of the objective seriousness of the offence for sentencing. The Crown referred to features of the matter, such as the character of the drug, its reasonably high purity and the amount of heroin involved, which of course is a relevant matter in assessing the objective criminality, particularly in the case of Mr Bui who was responsible for sourcing heroin to the Thais. In relation to this matter I have concluded, in the context of what he has pleaded guilty to, that his criminality falls at either the very top end of the middle range of objective seriousness or just above it. The middle range of objective seriousness, of course not being a 'narrow band' as the learned Chief Justice said in the decision of Way, which substantially was overturned by the High Court in Muldrock. I bear in mind, of course, in sentencing Mr Bui that he was able to supply this heroin, as I said, on more than one occasion for financial gain, which is what the Crown has submitted. The prisoner had knowledge, not only of what he was supplying and the quantity of it - he could not claim any ignorance of those matters - but there is the added factor of his physical presence at the factory unit to assist the Thais in the transaction when he was arrested with the seven fake blocks. A distinguishing feature between him and Ms Thai is that the prisoner Bui was not involved in the negotiations with the police. His offending is within the middle range of objective seriousness. 44It was submitted by the Crown that Tran's presence at the property at Bonnyrigg reflected adversely upon him in assessing his criminality. As I point out earlier, the absence of any particularised activity on his part at the property ultimately means I could not draw any conclusion adverse to Mr Tran beyond reasonable doubt as submitted by the Crown. Notwithstanding his awareness of the presence of heroin and his physical presence at Banksmeadow in the possession of the fake blocks, I have already pointed out the absence of his involvement in other features of this matter. His role complying on 8 August just showed he was a person willing to assist the principals by his possession of the fake blocks in the knowledge some form of transaction for the supply of heroin was going on inside the factory unit over which he had no control. 45There was some tension in relation to the Crown submission concerning the reference to Mr Tran being a "trusted lieutenant". I do not know where this expression came from. If it seeks to describe Mr Tran I regret to say it is really a case of hyperbole. There are no facts provided to show the prisoner bore any formal relationship with any "organisation" Mr Bui may have been concerned with, not that I can conclude he was associated with any particular organisation in any event. Mr Tran obviously was a friend. But as I have said, the facts and other available evidence do not establish he was "a trusted lieutenant" in the sense as I would understand those words, other than being present to assist Bui at the transaction. I could not be satisfied beyond reasonable doubt the Crown's categorisation of Mr Tran is accurate. As to what he did inside the co-accused's home would be complete speculation on my part. As I have said earlier, in my view the criminality of Mr Tran falls well below the middle range of objective seriousness. 46That brings me to the relevance of Pt 4 Div 1B of the Act. I am required to have regard to the amended provisions of that part of the Crimes (Sentencing Procedure) Act. Section 54A(2) in its amended form now provides: "For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle range of seriousness." 47Section 54B(2) provides: "The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determine the appropriate sentence for an offender." 48Those other matters of course are matters that might arise for example under s 21A(3) of the Act as mitigating factors, or mitigating factors available pursuant to s 21A(1). The repeal of the previously worded s 54B of the Act and the phrase "is to set" has left the matter now such that the Court is to have regard to the standard non-parole period, not as of determinative significance in the sentencing exercise, but one of a number of matters that are required to be considered in the context of the judgment of the High Court in Markarian v R (2005) 228 CLR 357, particularly in the judgment of McHugh J at [51], having regard to the decision of the High Court in Muldrock v R earlier cited, for example between [20] and [29]. 49I point out in this matter in sentencing both offenders I have made a finding of "special circumstances" which is a relevant consideration in the determination of the non-parole period. I have referred to Mr Bui's nonparole period. The adjustment in a percentage sense is greater for Mr Tran because his criminal history and other material before me leads me to the conclusion he has available to him better prospects of avoiding further offending and of rehabilitation. I am not saying for a moment Mr Bui is without redemption. Mr Tran likewise will need an extended period to adjust to community living. He will need some assistance I would imagine in relation to his choice of associates and perhaps in relation to drug usage and counselling in that regard. With regard to Mr Bui, of course in assessing him, noting his role in sourcing the heroin for the Thais, the quantity and the quality of the heroin in context and the fact the conduct was in the principal offence not uncharacteristic, I have already referred to the assessment of his offending by reference to the middle range of objective seriousness. 50The Crown submitted the fake blocks were blocks created by one or other of the two prisoners. I note what was found on the search. I accept they attended Botany or Banksmeadow to assist the Thais in the supply of heroin and Mr Bui had an ongoing financial interest in the transaction. I could not conclude beyond reasonable doubt that either one of these prisoners created the fake blocks. It was interesting to note on the facts presented to me by the Crown, it was the Thais who created the blocks of heroin that were given to the undercover officers on 8 August, not Bui or Mr Tran. 51Submissions were put concerning the Crown contention that the fact the ultimate supply of the drugs to undercover officers does not diminish the culpability of each of the offenders. It is an objective fact the heroin ultimately was not destined to the consumers with the consequent damage to individuals in the community. I wish to place on the record that commendation should be extended to the police for their thoroughness in this investigation. This investigation involved people who were substantially involved in the supply of prohibited drugs. 52I return now to the sentences that were imposed on Ms Thai for the moment, because they are of considerable significance, notwithstanding the fact I was taken to a number of supposedly comparative sentences. I have borne in mind various comparative sentences that were drawn to my attention plus others I will refer to in a moment. In the context, particularly of setting an appropriate sentence for Mr Bui against which Mr Tran's sentence would be measured, the sentences imposed on Ms Thai are of considerable significance. The Crown points out firstly that Ms Thai was given what could be called an indicative sentence ultimately, being sentenced pursuant to the provisions of s 53A Crimes (Sentencing Procedure) Act, of twenty-four years imprisonment with a fifty per cent discount for cooperation and pleas of guilty. The indicative sentence for the "supply large commercial quantity" offence on 8 August was eighteen years and for each of the other offences to which he pleaded guilty was twelve years. She had an additional charge to the two charges that might be said to be common to Mr Bui, of supplying not less than a commercial quantity of methylamphetamine, which of course carries a maximum penalty of twenty years imprisonment. 53At p 5 of his judgment the learned Chief Judge recites very briefly the fact that a significant quantity of methylamphetamine was found in her premises. This significantly aggravates, if I could use that expression, the totality of the criminality for which he was to be sentenced. The "common" offence on 8 August to the two offenders I am concerned with now, that she pleaded guilty, to had a greater maximum penalty. The learned Crown Prosecutor in his oral submissions said the starting point of any sentence to be imposed by Mr Bui would be, considering what the learned Chief Judge had indicated to be an appropriate sentence to which the prisoner Thai pleaded guilty to, supplying not less than the commercial quantity of heroin in July 2012. I have already dealt with the particulars of that. That is the offence which currently concerns the prisoner on a Form 1. 54There are, as I have said earlier, some very substantial distinctions however to be drawn between Ms Thai and Mr Bui. There was firstly the fact she was on parole for supplying heroin. She committed the offences for which the Chief Judge sentenced her within a year of being released to parole. As I understand it she had been in custody a number of years before she had been granted parole. She was substantially involved in the trafficking of heroin. She was the person who was involved with her brother in negotiating with the police, arranging for heroin to be sourced, had access to sums of cash and sought to substantially profit from these transactions. The negotiations in the facts relating to her suggest Tommy Thai and then she were concerned with dealing with the police over a number of months before the events of July and August. 55In the context of taking into account her sentence, I do so in the way in which the Court is required to, having regard to decisions such as the High Court judgment of Postiglione, (1997) 189 CLR 292, particularly the judgment of Dawson and Gaudron JJ (at 601), the general of principles in Lowe v R (1984) 154 CLR 606 and the matters discussed in Court of Criminal Appeal decisions, such as the decision of Jimmy, [2010] NSWCCA 60. Rothman J in that judgment, where the three judges agreed but gave separate reasons, spoke of the concept of parity of sentencing as being another artefact of what is described as "equal justice" or the "Aristotelian" principle of justice, which, if I may paraphrase his words amounts to treating alike alike and unalike unalike to the extent of their unalikeness. Both in relation to the objective facts and subjective circumstances, even allowing for the serious criminality reflected against Mr Bui, there are distinctions to be drawn between him and Ms Thai. 56With regard to aggravating factors to be taken into account in relation to the matter, I accept the Crown's submission of the aggravating factor of committing the offence I am to sentence each prisoner for was committed for financial reward. It is quite clear in my view Tran's financial reward was the lesser. 57The issue of planning and involvement in organised crime looms in the background, but ultimately I could not be satisfied beyond reasonable doubt that was relevantly an aggravating factor beyond what is self-evident from the facts of the matter. As Howie J once pointed out, in relation to drug supply matters, there is clearly a degree of planning that must give effect to the principal offence without being of itself an aggravating factor as contemplated under s 21A(2). It must be fairly said this conduct, to which particularly Mr Bui has pleaded guilty, is not conduct that arises by happenchance. There were no other aggravating factors arising under s 21A(2) of the Act. 58With regard to the particularisation of the role of the offenders, in fairness, the Crown generally accurately described what was self-evident from the agreed statement of facts. 59In sentencing the offenders I am required to have regard to s 3A Crimes (Sentencing Procedure) Act for the purposes of sentencing and ensuring that matters of general deterrence and personal deterrence are recognised as well as, the denunciation of the conduct of the prisoners, making them accountable for their actions. I am also required to have regard to the consideration of the prospects of their rehabilitation. These factors of sentencing, as the High Court said in Veen No 2, are guideposts that sometimes point in opposing directions but in a lesser extent I would think, particularly in relation to Mr Bui's matter. 60One matter I wish to finally deal with in relation to this matter is what discount should be given for the pleas of guilty. The Crown Prosecutor said in this Court, when the pleas of guilty were entered - and I wrote it on my copy of the indictment - that the pleas of guilty were entered at the first reasonable opportunity. In the course of oral submission the learned Crown Prosecutor obviously forgot that he had said that some weeks before. He sought to argue that the pleas of guilty were not entered at the first reasonable opportunity. There was some unhappiness at the bar table and I reminded the learned Crown of the fact that he had told me that this was conceded by the Crown. In the context of what the Crown was now alleging against the accused it is clear that this is so. Ultimately the Crown was prepared to accept his earlier concession and made no further comment about it, as he said in his own words. 61However, this does not necessarily lead to an automatic discount of 25% on the otherwise appropriate sentence. Anyone who closely reads the guideline judgment in relation to Thomson and Houlton, handed down 15 or 16 years ago, would know that this was so. I need not revisit that particular judgment. However, I have had brought to my attention since the sentence proceedings the decision of Morton ([2014] NSWCCA 8). 62The history of the matter is set out in various paragraphs of the judgment of the learned Chief Judge at Common Law, Hoeben J, but he goes on to discuss the matter in greater detail in principle from [30] onwards and refers to decisions such as Stambolis from 2006, Borkowski [2009] NSWCCA 102 and other judgments. 63In this particular matter what is important to note by way of factual background, although I was given a very slim outline of relevant matters, the prisoners were committed for trial to this Court in relation to the matters - or largely in relation to the matters concerned with the charges in the indictment first preferred. They were presented with that indictment, they were required to plead to that indictment in order for me to deal with pre-trial issues. There was no indication of a willingness to plead to a lesser charge at that point. It was open to the prisoners if they so desired to offer to plead guilty to lesser charged at the committal, or write to the Director of Public Prosecutions and place on record their willingness to plead to the charges that were ultimately preferred. 64I hasten to say I am aware of cases decided by the Court of Criminal Appeal, let alone at first instance, where even though an accused person has been tried and found guilty of an alternative count, if the offer to plead to that alternative count was made before trial or at trial, discounts of up to 25% have been given notwithstanding that a trial was conducted. 65In the decision of Borkowski, Howie J talked about the fact that matters relating to the assessment of the utilitarian value of a plea of guilty, particularly after a person has been committed for trial, include where the offender has waited to see what charges are ultimately brought by the Crown, where the offender has delayed the plea to obtain some forensic advantage, or where there has been some type of plea bargain. I do not suggest there has been a 'plea bargain' in this matter, but there certainly were plea negotiations. The transcript reveals events that occurred before this court. 66Whilst I accept that the prisoners have pleaded guilty to the charges preferred by the Crown at the first reasonable opportunity, in the context of what had occurred up until the time of the entering of those pleas, including the matters that I have already adverted to, in my view I could not provide a discount of 25% on the facts available to me. I will however provide the prisoners each with a discount of 20% on the otherwise appropriate sentence in accordance with the guideline judgment of Thomson and Houlton. Noting the discussion of these matters in Morton v R where, admittedly in totally different factual circumstances but after plea negotiations relating to offences of supplying heroin including placing matters on a Form 1, the trial judge gave a discount of 15% which the Court of Criminal Appeal upheld. 67Having regard to those matters I have identified, namely the submissions of the parties taken into account, I will move to imposing the sentences that are to be imposed. Stand up please Mr Bui. In relation to the offence to which you pleaded guilty, the principal offence, taking into account the matter on the Form 1, I sentence you to a term of imprisonment by way of non-parole period of 5 years 8 months to commence from 8 August 2012 and to expire on 7 April 2018. The balance of sentence you will be required to serve is 3 years and 6 months. As I said, that sentence takes into account the matter on the Form 1. Take a seat thank you very much; you are convicted of course of the offence to which you pleaded guilty. 68Mr Tran, in relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of a nonparole period of 2 years and 4 months. That sentence will date from 8 August 2012 and expire on 7 December 2014. The balance of sentence as I would calculate it is one year and 8 months, and the balance of sentence will expire on 7 August 2018. Take a seat thank you. I cannot direct that either of you be released to parole. Your release to parole will be a matter for the Parole Authority. It will depend of course on your performance in custody. 69SIMONE: A destruction of drugs order under s 39P, I think this is the finality of all matters your Honour. 70HIS HONOUR: I certainly would order that the drugs that have been seized would be destroyed. I would assume that someone else has made that order in any event. What's happened to Tommy Thai by the way? 71SIMONE: They have all been sentenced your Honour. 72HIS HONOUR: Right. I was never informed of the sentence imposed on Tommy Thai, when was he sentenced? 73SIMONE: It was only a couple of weeks ago. 4 April. It was after all these matters were finalised your Honour. 74HIS HONOUR: Ms Thai was sentenced 11 February 2014. The prisoners can be removed.