R v Con Chi Huynh, Kim Ngoc Ta, Long Tan Pham, Thuy Phuong Ngo & Binh Tan Pham [2004] VSCA 128

Court of Appeal (Vic)|2004-08-05|Before: BATT, VINCENT and EAMES, JJ.A.

CRIMINAL LAW - Sentence - Trafficking in heroin in not less than a commercial quantity - Trafficking heroin in less than commercial quantity - Findings of fact as to volume of drugs trafficked and profits made - Parity as between offenders for same and different offences - Gambling addiction - Non-parole period - Youthful offender - Drugs Poisons and Controlled Substances Act 1981, ss.71(1)(a) and (b).

As regards Ta, I am not persuaded that the difference or disparity in sentence between Huynh and Ngo on the one hand and Ta on the other is manifestly inadequate or such as to engender a justifiable sense of grievance. In my view, the difference of two years in the head sentence is adequate to reflect the different offence and the derivative nature of Ta's business as well as the relatively minor fact that she was "seduced" into the trade by Ngo. I agree with Eames, J.A. that the sentence is not manifestly excessive. There were other grounds relied on for Ta, namely, that the sentencing judge failed to give any or sufficient weight to the plea of guilty, the delay and the applicant's prospects of rehabilitation and gave too much weight to general deterrence having regard to the applicant's personal circumstances. In view, however, of the seriousness of the offending, as demonstrated by Eames, J.A., general deterrence was the paramount sentencing consideration and the mitigatory factors relied on had, in substance, largely to yield to it. In essence, I consider that the sentencing judge's sentence upon Ta places her in the appropriate relative position and at the appropriate distance from the other offenders in the calculus of penalties even after Ngo's non-parole period is varied by this Court.

Accordingly, I would dismiss the application by Ta.

I agree with the disposition of these matters as proposed by Eames, J.A. for the reasons advanced by him in his judgment.

These are applications for leave to appeal against sentence brought by five persons who pleaded guilty to offences concerned with the trafficking of substantial quantities of heroin at both wholesale and street levels in 2000. The charges arose out of a number of operations by law enforcement authorities.

The applicants Con Chi Huynh ("Huynh"), Thuy Phuong Ngo ("Ngo"), Long Tan Pham ("Long Pham"), and Binh Tan Pham ("Binh Pham") each pleaded guilty to one count of trafficking a drug of dependence, namely heroin, in not less than a commercial quantity contrary to s.71(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty by way of imprisonment for trafficking in a commercial quantity was 25 years' imprisonment. Their trafficking occurred between dates which varied as between them but which fell within the year 2000. Kim Ngoc Ta ("Ta") pleaded guilty to trafficking heroin which was not of a commercial quantity, contrary to s. 71(1)(b). That offence carried a maximum of 15 years' imprisonment.

The commercial quantity of heroin is defined by s.70 of the Act, and by column 2(a) of Part 3 of Schedule 11, as 500 grams. A trafficable quantity of heroin is defined in the same provisions as three grams.

Huynh resided in St. Albans with his wife and child, and from his home he ran a clothing business as well as a drug trafficking business. Huynh obtained heroin from a supplier and in turn supplied heroin to Ngo. The Crown alleged that Huynh also supplied heroin to Thi Ngo, the sister of the present applicant. Thi Ngo is not one of the present applicants, and is awaiting trial, and insofar as this summary mentions her those facts must be taken to be mere assertions only.

On the Crown case Huynh supplied heroin to the Ngo sisters in varying amounts up to and including what surveillance disclosed on three occasions to be 50 gram blocks of 50% pure heroin at a price negotiated between $45,000 and $52,000. Over the period of his trafficking, Huynh made a large number of telephone calls which were intercepted by police. He frequently changed his telephone numbers by purchasing prepaid SIM cards but prosecution authorities were able nonetheless to trace the telephone calls to his mobile phone. The prosecution asserted that the only inference that could be drawn from the chronological tables of telephone conversations was that they were about heroin trafficking on a large scale. The learned sentencing judge found that to be so.

Phuong Ngo lived in St. Albans with her husband, the applicant Long Tan Pham and her brother-in-law, the applicant Binh Tan Pham. Over the 3 months period of her offending, telephone intercepts and surveillance disclosed that she sold substantial amounts of heroin which could not be precisely quantified. She would receive telephone orders on her mobile phone from various customers and would then instruct her brother-in-law, Binh Pham, to deliver the heroin and to collect money for it. Among the people to whom she supplied heroin was the applicant Kim Ta, to whom she sold an ounce or so every one or two days, at a price of approximately $4,000 per ounce. She provided premises to Ta, at flat 90, 125 Napier Street, Fitzroy, out of which Ta conducted a street-level wholesale and retail distribution business. Ngo was occasionally assisted by her husband Long Tan Pham, as I shall discuss, but the judge concluded that most of Ngo's transactions were conducted without his knowledge. The role of Ngo's brother-in-law, Binh Tan Pham was solely as a courier.

Ngo rented a property at 25 Avondale Avenue, St. Albans solely for the purpose of storing drugs. She was arrested at that address on 21 September 2000 when she was obtaining heroin from a cache of 663 grams of heroin of 50% purity, which was concealed on the premises.

The learned sentencing judge concluded that Huynh was providing heroin in substantial quantities to Ngo. Whilst his Honour said that on the balance of probabilities he could conclude that Huynh and Ngo were trafficking at the highest level of seriousness of commercial heroin trafficking, he could not make that finding beyond reasonable doubt, but he said he was satisfied beyond reasonable doubt that they were engaged in a full-time business of trading in heroin and that Huynh was acquiring and passing on heroin in large blocks worth tens of thousands of dollars. He concluded that the criminality of Huynh and Ngo was very great and demanded condign punishment.

Having broadly outlined the facts as found by the judge I return to the situation concerning each individual applicant.

His Honour sentenced Huynh to nine years' imprisonment and set a non-parole period of seven years. His trafficking was between 17 July 2000 and 9 November 2000. Huynh had no prior convictions and was aged 33 years at the time of sentencing.

The two original grounds of appeal with respect to Huynh complained that his head sentence and non-parole periods were manifestly excessive, in particular having regard to the personal circumstances of the applicant and to the fact that the prosecution was unable to determine the quantity of the drug which had been trafficked by him and the money obtained by him in that regard. On the application for leave to appeal with respect to Huynh, Mr Croucher was given leave to add two additional grounds of appeal which raised parity complaints.

On the grounds concerned with manifest excess Mr Croucher conceded that Huynh's was a serious example of a serious offence but submitted that having regard to his plea of guilty, the absence of prior convictions, and concessions made by the Crown, the head sentence and non-parole period were manifestly excessive. It was submitted that the sentence disclosed that his Honour could not have given adequate weight to those mitigating factors as well as to the fact that there was limited evidence of the quantity of drugs trafficked. Counsel contrasted this case with R. v. Berisha & Ors[1], a drug trafficking case where the head sentence imposed on one offender who pleaded guilty was eight years imprisonment and for two offenders convicted after trial was ten years. The Court held that those sentences were not manifestly excessive but the sentences were said to be "severe" and "at or near the top of the appropriate range".

Mr Croucher submitted that Huynh acted merely as a broker between the group who supplied heroin to him and the other applicants in this case. Counsel relied generally upon three concessions made by the Crown, and accepted by the learned sentencing judge: first, that there was no evidence of Huynh mixing or diluting the heroin which he obtained and on-sold; secondly, that Huynh obtained the heroin on credit rather than using his own funds, and, finally, that he acted as a middle man in the transactions, with his profit being the difference between the price for which he obtained the heroin and the price for which he on-sold it, that figure on some occasions being as low as $1,000.

In the course of a large number of intercepted telephone conversations Ngo dealt with transactions involving amounts of $15,000 to $35,000 and said on one occasion that she had sent $40,000 to her mother in Vietnam. On 21 August 2000, in another conversation, she told an associate in Vietnam that she would rather go to gaol than give up trafficking heroin and said that she was making almost $100,000 per month.

Given a concession by the prosecutor that "there were occasions when he might have made as little as a thousand dollars on a particular block that he acquired and on-sold" the judge sought and obtained a concession from the prosecutor that the profits being obtained by Huynh, whilst difficult to precisely determine, should be regarded as being at an equal level of criminality to that concerning Ngo, and therefore his Honour declined to find that Huynh was making greater profits than Ngo, notwithstanding that he was higher in the chain of heroin trafficking.

In considering whether a sentence is manifestly excessive little assistance can be gained from a comparison of the sentences in one case with another. In my view, notwithstanding the absence of precise evidence as to the quantities of heroin trafficked by Huynh the judge was entitled to act upon the admission that it was a commercial quantity and, without determining more precisely the size of the enterprise, conclude, as he did, that Huynh's criminality was very great and demanded condign punishment. If he was merely a broker of the drug then he so acted at a very high level, and if his profits were made only in that way, and not also by being involved in the cutting and distribution of the drug at a lower level then that confinement in his role also minimised his risk of apprehension. The judge was entitled to conclude, as he plainly did, that Huynh's profits were much greater than a mere $1000 every now and then. However, even if his profits were low that was not a matter of mitigation; his high level position meant that he was a significant participant in this enterprise.

As is so frequently said, whether a sentence is manifestly excessive does not admit of much argument. This was a major drug ring, whose activities were nipped in the bud only by good police work. If there is uncertainty about how much profit was being reaped that is only because the participants chose to keep that information secret, and declined to facilitate the decoding of their telephone messages. This court has made it clear that offences of this kind require emphasis to be given to considerations of deterrence[2]. In my opinion, the complaint as to the head sentence and non-parole period being manifestly excessive has not been made out.

The added grounds of appeal for Huynh raised, first, by ground (c), the question of disparity as between Huynh's sentence and those imposed on Long Pham and Binh Pham. Separately, ground (d) was a parity complaint of a contingent kind. It was contended that the sentences imposed on Ta and Binh Pham were excessive, for reasons of parity with Long Pham's sentence, and those sentences, in turn, unbalanced all the remaining sentences, including that on Huynh, it being contended that the judge must have had regard to Ta's sentence in determining the appropriate sentence for Huynh and the other applicants.

The primary complaint for Huynh as to disparity related to the sentence imposed on Long Pham. Mr Croucher submitted that Long Pham was more than a mere courier and that whilst Huynh had to receive a greater sentence than Long Pham the difference in their respective roles was not such as to justify a three year difference in the head sentence and non-parole period. I will deal separately with the sentences imposed on Long Pham and Binh Pham but, as I shall discuss, in my view the disparity between the sentence of nine years with a seven years non-parole period for Huynh and that of six years with a non-parole period of four years for Long Pham was perfectly appropriate given their respective positions in the trafficking, among other factors.

The separate disparity complaint raised by new ground (d) gains relevance only if the court concludes upon considering their applications that the sentence imposed on Ta and Binh Pham, or either, ought be reduced by reason of parity error. I will deal separately with the applications for each of those other applicants, and, as will emerge, in my opinion any variation of those other sentences will have no impact on the sentence of Huynh, whether on the basis of parity or for any other reason.

Subject to consideration of the impact of the outcome of the other appeals on Huynh, I conclude therefore that the sentence imposed on Huynh was within range and was neither manifestly excessive nor tainted by any sentencing error.

His Honour sentenced Ngo to nine years' imprisonment with a non-parole period of seven years. Her trafficking related to the period from 21 June 2000 to 21 September 2000.

The grounds of the application for leave to appeal with respect to Ngo complained first as to the adequacy of the disparity between the maximum and minimum terms which were fixed for her and complained that insufficient weight was given to the plea of guilty and to the delay between the time of arrest and sentence. Complaint was also made that the sentence was manifestly excessive having regard to her personal circumstances as the judge found them to be, to the fact that there was no finding as to the quantity of drugs trafficked or the profit made, and to the finding of her lack of insight. In addition, it was said the probable effect of imprisonment on the applicant and the absence of the need for specific deterrence were factors to which sufficient weight was not given by the judge.

An additional ground which was added by leave complained that applying principles of parity the judge ought to have imposed a lesser sentence on Ngo than that imposed on Huynh.

In sentencing Ngo the judge noted that she was 32 years of age and had no prior convictions. She had come to Australia in 1995 after marrying her husband in Vietnam. A report from psychologist Mr Jeffrey Cummins disclosed that Ngo was of below average intelligence, a conclusion also reached by psychologist, Ms Nikki Lefkovits. The judge accepted that she was suffering a reactive depression due to her incarceration and separation from her children and that she had little insight into the seriousness of her predicament.

The judge accepted that Ngo was unlikely to offend again and that specific deterrence and reformation were of little relevance, but concluded that retribution and general deterrence were the primary purposes of punishment in a case such as this. Nonetheless his Honour said he would take into account the mitigating factors, in particular the plea of guilty. His Honour found, however, that Ngo was at the centre of a nest of heroin distributors and had engaged in a full-time business of trading in heroin, including being engaged in the cutting of the heroin with Panadeine Forte and Glucodin and passing it on for further distribution. He concluded that she set up the safe-house to store heroin in ounce lots, set up the pressing plant, at yet another location, in order to re-press the heroin for distribution, and also provided the flat to Ta to facilitate Ta's own business of selling heroin. His Honour concluded that Ngo's criminality was very great and deserved condign punishment.

Initially the Crown had contended that Ngo was involved on a lower level in the drug operation than Huynh but subsequently adopted a different position when his Honour announced his preliminary conclusion that "their criminality is much the same in so far as it depends upon consciously organised criminal behaviour. If Huynh is further up the ladder of supply, Ngo seems to have made more profit and to have seduced others".

In my opinion his Honour was justified in his conclusion that Huynh and Ngo were operating on a similar level of criminality and that the same sentences were justified for them. This was a very serious and determined heroin business which merited condign punishment. Notwithstanding the plea of guilty, the lack of prior convictions and other mitigating factors the sentence was bound to be severe. In my opinion, the complaint that the head sentence is manifestly excessive is without merit.

I turn then to the question of the non-parole period set for Ngo. Mr Carter did not contend that this was an instance where the non-parole period on its face suggested error, but he submitted that the period of seven years' non-parole, below a head sentence of nine years, suggested that the judge had found no factors which might have been expected to produce a lower non-parole period. However, as Mr Carter submitted, his Honour did make specific findings that Ngo was unlikely to offend again and that specific deterrence was of little relevance in her case. Furthermore, there were additional factors which might also have suggested that a lower non-parole period ought to have been set. Not only had she entered a plea of guilty at an earlier stage than Huynh, there was additional evidence of remorse provided by sworn evidence led on her behalf. The good prospects of her rehabilitation were emphasised by the fact that in the almost three years between her arrest and sentencing she had not again offended whilst on bail. In that time she had given birth to a second child.

The judge gave no reasons for fixing the non-parole period he did and in particular did not offer any explanation why, having regard to the positive findings to which I have referred, a lower non-parole period than that set for Huynh was not appropriate.

I have concluded that the non-parole period of 7 years was too high in the case of Ngo. Whether that is a finding of manifest excess or constitutes a finding that the judge had made a specific sentencing error may be arguable. No ground of appeal asserted sentencing error, for example to complain that the judge failed to have regard to favourable findings of fact as to matters relevant to rehabilitation. Mr McArdle said that if the Court was minded to interfere in the sentence no point would be taken as to the failure of the ground of appeal to assert specific error. In the circumstances, and under cover of ground (a), the manifest excess ground, I conclude that the judge was in error in fixing the non-parole period as high as he did and that a new non-parole period should be fixed. That is the only respect in which any error has been shown in the sentencing of Ngo.

I mention for completeness, the complaint of delay as between arrest and sentence. Delay can be a relevant sentencing consideration[3] and was not mentioned by the judge, but omission of mention of delay does not disclose error, in my opinion. The primary reasons for the delay was that each of the applicants (apart from Binh Pham) was negotiating with the Crown as to the version of facts to which he or she would be willing to plead guilty. Given the huge amount of evidence in the case, much of it needing interpreting, it is not surprising that the negotiations took time. The time could have been much reduced had the applicants been frank as to the quantities of drugs trafficked by them or the profits made. In any event, for Ngo, the delay suited her interests as she was able to show that she had made substantial progress towards rehabilitation in the interim.

His Honour sentenced Long Pham to six years' imprisonment with a non-parole period of four years. His trafficking was between 21 June and 21 September 2000.

The grounds of appeal with respect to Long Pham are that the sentence was manifestly excessive, generally and, in particular, having regard to his role, to his motivation, to the absence of a finding as to the extent of his benefit or profit, to his the lack of appreciation of the seriousness of the offences, to the period of his criminality, to his plea of guilty and the finding that he was unlikely to re-offend. Further grounds asserted that the judge failed to give adequate weight to the plea of guilty and to the factor of delay.

In ground 4 it was contended that in the event of Ngo's application, or anyone else's, being successful, so as to have a reduction in their sentence, then because of the relationship between the respective sentences Long Pham's sentence should be correspondingly reduced.

The judge accepted that Long Pham acted under the direction of his wife, who was the dominant personality and the controller of the operation in their part of the business. His Honour said he could not find precisely how much of Ngo's business was facilitated by her husband nor what financial reward he obtained for it but he was satisfied that he was actively engaged in helping to run the business. He found that Long Pham had from time to time negotiated with Huynh for the purchase of heroin and had also transported the drug to the safe house and to purchasers.

Long Pham came to Australia in 1985 and a report of Mr Cummins disclosed that he was below average intelligence and a dependent personality type. Long Pham told Mr Cummins that his main reason for helping his wife and her business was to maintain a relationship with her, since she had deserted her husband for "the bright lights" of gambling, but he wanted to stay close to her and to their son. His Honour said he was inclined to accept those matters, but he also found that Long Pham was himself a casino gambler. His Honour found that he had less than a sensible appreciation of the seriousness of his own or his wife's conduct. He had no prior convictions, but as Charles, J.A. observed in Berisha[4] that factor carries less weight as a mitigating factor in a case concerning drug offences such as these. Long Pham pleaded guilty and his Honour found it was unlikely that he would offend again. His Honour found that his role was a lesser one than his wife's and he had regard to his dependent personality and that he had been led into the offence.

Mr Holdenson submitted that the plea of guilty was deserving of much greater weight than the judge had allowed it in this case. He submitted that a trial of many months had been avoided. He complained, too, of delay, but as to that I make similar observations as I made with respect to Ngo. Mr Holdenson referred to his Honour's statement that he would adopt a sentencing disposition for Long Pham similar to that adopted for his wife, and submitted that that betrayed error since the factors in Long Pham's case, in particular those of relevance to setting the non-parole period, dictated a dissimilar approach. I am not persuaded that there is any substance in these complaints. His Honour made a close evaluation of all relevant matters and no error in his evaluation of them has been shown in Long Pham's case.

I am not persuaded that any of the grounds raised by Long Pham have been made out. As to parity between his own and his wife's sentence, the relationship between their head sentences seems to be to have been appropriate, given the findings made by his Honour. I will return, later, to the contingent parity issue raised by ground 4, but subject to that I conclude that the application by Long Pham should be dismissed.

His Honour sentenced Binh Pham to six years' imprisonment with a non-parole period of four years. His trafficking period was from 21 June 2000 to 21 September 2000.

In his grounds of appeal Binh Pham complains as to parity between his sentence and that imposed on the other applicants, in particular his brother, and also complained that the sentence was manifestly excessive. As to parity, the judge held that he was unable to draw any satisfactory basis for discriminating between his role and that of his older brother and considered that parity dictated that their sentences should be alike.

Binh Pham, the brother of Long Pham, was only 23 years of age at the time of sentencing and 21 years of age at the time of the offending. His brother was 27 years of age at the time of the offending, and aged 30 at sentencing. His Honour accepted that Binh Tan Pham was drawn into the business by the family connections and was engaged solely to deliver heroin to the customers of Ngo. He was, however, an integral part of the business, as was disclosed by the telephone intercepts, and he was employed on a day-to-day basis. A report by psychologist Ms Gina Cidoni disclosed him to be of low average intelligence, but better educated than his brother.

Given his age at the time of offending Binh Pham was entitled to be treated as a youthful offender (or close thereto), whereas his brother was not. That fact alone suggested that there might have been a difference in the sentences the brothers each received. Binh Pham had no relevant prior convictions and as a youthful first offender, and having pleaded guilty, the encouragement of rehabilitation was a factor of particular importance[5].

Surprisingly, the judge made no finding as to this applicant's prospects of rehabilitation or as to his risk of re-offending, and yet favourable findings as to those matters had been made for Ngo, who was instrumental in bringing Binh Pham into the heroin business which she ran at a level much above him, and also for his brother Long Pham, whom the judge found had actively helped his wife to run the business. The omission of favourable findings is surprising because during the plea counsel specifically referred to a number of factors which suggested that Binh Pham's prospects of rehabilitation were favourable, including the fact that he had gained employment.

The Crown conceded that Binh Phan worked at the direction of Ngo and had acted solely as a courier. In contrast to his brother, he was found to have no role other than as a courier. Of particular importance was the fact that he alone, of all the applicants, co-operated when interviewed by police. The account he gave them proved not only to be accurate but became the basis for the factual matrix which was presented to the judge by the prosecutor. Binh Pham made a relatively small sum from his role in the business, in the order of $10,000.

Whilst acknowledging the youth of this applicant Mr McArdle submitted that youth was much less of a factor when sentencing for an offence as serious as this, and that is undoubtedly so[6], but it remained of some relevance. Quite apart from his age, his role in the enterprise, in my opinion, was also less than that of his brother and he became involved by virtue of living in the same house as his brother and his sister-in-law, which was the hub of the trafficking. Given that he had admitted his guilt at a very early stage the factor of delay is more significant in his case than for others, and his plea of guilty might also be accorded more weight as having been indicated at a very early stage.

In my opinion, Binh Pham's sentence ought to have been lower than his brother's. The complaint as to parity under ground 1 has been made out. and this applicant ought be re-sentenced.

Mr Kowalski conceded that the offence was most serious and called for condign punishment, but submitted that the sentence appropriate for Binh Pham, on re-sentencing, was substantially less than that imposed on his brother, and that the mitigating factors in his case ought be reflected both in the head sentence and in the non-parole period. I do not accept, however, that a very significant reduction in the head sentence is appropriate, having regard to the fact that even as a mere courier his role was an important one to the business.

The applicant Kim Ta pleaded guilty to trafficking heroin, but not in a commercial quantity, between 29 April 2000 and 21 September 2000. His Honour sentenced Ta to seven years' imprisonment with a non-parole period of five years.

The grounds of appeal for this applicant complained, first, that insufficient weight was given by the judge to the plea of guilty, to the delay between arrest and sentencing, and to the applicant's prospects of rehabilitation. Next, it was claimed that too much weight was given to general deterrence. Finally, a broad complaint was made that the sentence was manifestly excessive, both generally and having regard to a range of listed factors, including the applicant's role, the absence of a finding as to the profits made by her, the period of her offending, her age and background, the probable effect of imprisonment on her, her plea of guilty, "her pathological gambling addiction", her rehabilitation, and the finding that she was unlikely to re-offend.

Ta was supplied heroin by Ngo in ounce lots every one or two days[7] and worked from the flat at 90/125 Napier Street, Fitzroy which had been provided to her by Ngo. From that flat she supplied numerous street-level dealers and users in the Fitzroy area with deals from $20 to $300 or more. For the most part the largest quantity of heroin she would supply there would be seven grams, save for her dealings with one Russell Putland. The heroin was supplied from the flat through a hole cut in the front security door. She engaged Huong Thi Pham to assist her in the sales from those premises. She would receive phone calls on her mobile phone from customers and she would then telephone Huong Thi Pham or the latter's husband and instruct them to provide the heroin at the flat. On occasions Ta would drive herself in her own vehicle in order to supply heroin at locations away from the flat.

Over the five month period to which the count relates telephone intercepts and police undercover activities established Ta's involvement in multiple purchases of heroin. On one occasion she purchased 28 grams, for a price of $5,200. In telephone intercepts she would typically talk about paying amounts between $4,000 and $9,000 to Ngo. The average amount discussed with Ngo was $4,500.

The Crown conceded that the trafficking activities by Ta reduced or ceased after the arrest of another offender, Putland, on 28 August 2000. The summary of the prosecution case relating to Ta set out in great detail the numerous instances of drug deals arranged by undercover police operatives with Ta. Upon her arrest her residential premises were searched and 75 small water balloons were found consistent with those used to supply small quantities of heroin for sale. When interviewed by police she denied that she ever sold heroin.

The judge noted that Ta had been diagnosed by Mr Cummins as having a pathological gambling disorder. The fact that an offender had a gambling addiction and that played a part in the commission of the offences is a matter upon which little if any weight might be given by a sentencing judge: DPP v. Raddino[8]; R. v. Atalla[9].

Ta had met Ngo at the casino and borrowed money from her, as a result of which she was persuaded to sell heroin to pay off the debt. Her main customer was Putland, to whom she sold heroin in seven to fourteen gram amounts every few days, but she was also dealing with other street dealers. His Honour found that she was both a street-level trafficker herself and a provider of heroin to other street-level traffickers. He found that the telephone intercepts supported the conclusion that she was engaged in an organised business of trafficking heroin.

Ta was 30 years of age at the time of sentencing. His Honour accepted the report of Mr Cummins that it was unlikely that she would re-offend, that she was a person of low self-esteem, was suffering feelings of anxiety and depression and was remorseful. He noted, too, that since her arrest and release on bail she was earning an honest living. His Honour found, however, that the guilt of Ta was comparable to that of Ngo but had been lessened by the way in which she was seduced into joining the trade by Ngo, and by the fact that her own business was an offshoot of Ngo's and also by the fact that it was not alleged that she traded in a commercial quantity.

There is no doubt that she was an organiser in the heroin trade. As his Honour found, she obtained from Ngo ounce lots of heroin every one or two days. She operated out of a house provided by Ngo and was a very substantial street level trafficker. A very significant sentence was called for but it was contended that the sentence imposed in her case was manifestly excessive. The maximum sentence available in her case was ten years less than for the other applicants.

In sentencing Ta, the judge said that she fell for sentencing purposes between mere couriers such as Long Tan Pham and Binh Tan Pham and organisers such as Ngo and Huynh, and the sentences imposed reflected that relationship in the scale between them all, but, in my opinion, they clearly do so only if all of the offenders were being dealt with for trafficking commercial quantities. Once that factor is removed the sentence imposed on Ta suggests that despite his recognition that her different offence was to be taken into account, his Honour failed to do so when he came to fix the sentences. As against that suggestion, however, it must be noted that in his sentencing remarks the judge several times noted that Ta was not charged with trafficking a commercial quantity.

In one paragraph of his sentencing remarks his Honour held that Ta's role was less than Ngo's by virtue of the facts that she was seduced into the trade by Ngo and by virtue of the fact that her business was an offshoot of Ngo's. It was put to Mr McArdle that those two factors might of themselves have explained the difference in the respective head sentences of 7 years and 9 years, and thus no allowance (or an inadequate allowance) must have been made for the fact of the different charge. Furthermore, in the lengthy period between her arrest and sentencing the judge found that she had returned to earning an honest living. As Mr McArdle observed, however, in the sentence immediately before he made those findings distinguishing Ta's situation from Ngo's, his Honour had expressly noted that Ta, alone, was not charged with trafficking a commercial quantity.

Mr McArdle submitted that the sentence reflected that all relevant sentencing factors, including the different charges, were taken into account. The additional factors of being seduced by Ngo and operating an off-shoot business to hers, were of very minor importance and most weight would have been given to the non-commercial quantity factor. Mr McArdle submitted that although Ta was not convicted for a commercial quantity the sentence of seven years as against a maximum sentence of 15 years for trafficking was entirely appropriate. She was a very significant drug dealer and if the quantities in her case were not proved to amount to a commercial quantity they were nonetheless obviously very large.

There is much force in Mr McArdle's contention that it was improbable that the judge, having expressly mentioned the factor, had failed to have regard to the fact that Ta was pleading to a lesser count than the other applicants. I am not persuaded that sentencing error has been shown in that regard, nor that the sentence is manifestly excessive, but there remains a question of parity.

An appellate court will intervene on the basis of disparity only where the difference between the sentence of two co-offenders is manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance to an objective observer that justice has not been done[10]. Having regard to the fact that in Ta's case the maximum head sentence was ten years less than that of the others, and notwithstanding the significance of her role as one of the drug ring, a sense of grievance would be generated by the sentence imposed on her in contrast with those of Huynh and Ngo, who pleaded guilty to a charge carrying a much heavier maximum penalty. Whether that would constitute a justified sense of grievance is a question which causes me some uncertainty. In one sense Ta is not a co-offender with the others as she pleaded guilty to a different charge, and that of itself might in some cases be sufficient to dispel any appearance of injustice. Had Ta stood alone for sentence, after pleading guilty to the count she did, she might have had extreme difficulty contending on appeal that a sentence of seven years was manifestly excessive. But as it is recognised when parity questions are under consideration, it is sometimes preferable to err on the side of leniency so as to diminish the sense of grievance, even though a higher penalty might otherwise be thought to have been appropriate[11]. In this case, it seems to me, the reality is that all of the applicants were co-offenders in the same drug ring, albeit taking different roles within it. The role of Ta was, as the judge said, somewhere between Huynh and Ngo on the one hand and the brothers Pham on the other. But the sentence imposed, while reflecting that position, did not reflect the difference in the respective maximum sentences and in my view would give rise to a justifiable sense of grievance on that account.

With some hesitation, I have concluded that the sentence imposed on Ta, having regard to the fact that she was not charged with a commercial quantity, betrays inadequate disparity with the sentence imposed on Huynh and Ngo.

I conclude, therefore, that the application for leave to appeal ought to be allowed for Ta, and she should be re-sentenced. In re-sentencing her, however, I am of the view that the reduction of her sentence should be modest having regard to the fact that her offending conduct was very serious.

It was submitted on behalf of several of the applicants that in the event that the appeal was allowed for any applicant, with the consequence that the sentence of any offender was reduced, then each other applicant ought receive a consequential reduction because the sentences were so structured that the relationship between them set by the judge ought to be maintained. In my opinion that result ought not follow upon the re-sentencing which I propose in this case.

Whilst, in my view, the appeal for Ta should be allowed because her sentence discloses an error concerning parity, that error relates to the maximum sentence which solely applies in her case. There is no justification for making any consequential alteration to other sentences on that account. As I shall state, in my view her head sentence should be reduced to six years, but the fact that it would then be the same as that of Long Pham would not offend principles of parity, either with respect to him or with respect to the sentences imposed on Huynh and Ngo. The offences to they each pleaded guilty are not the same as hers, and the sentence which I propose for Ta is justified having regard to the serious nature of her trafficking, albeit in a non-commercial quantity.

In the case of Binh Pham I have concluded that the sentence imposed on him, contrasted with that of his brother, did not reflect appropriate disparity. That conclusion would have no impact on the sentences of any other offender. If Binh Pham is re-sentenced to a head sentence of five years, as I propose, the sentences imposed on the brothers will be those that are appropriate for their respective offending, and the relationship of those sentences to each other and to those of the other applicants, in my view, would not offend principles of parity.

I turn to the question of the non-parole periods.

In the case of Ngo I have concluded that I would reduce the non-parole period in her case to six years, producing a gap of three years below the head sentence. Huynh also complained of the length of the non-parole period imposed in his case, but I do not consider that a consequence of the proposed variation as to the non-parole period for Ngo should also apply to Huynh. The factors favouring reduction in Ngo's non-parole period to six years are personal to her, in particular the fact that in the case of Ngo the judge made an express finding that she was unlikely to re-offend. A similar finding was not made for Huynh, and although he too had no prior convictions he was found to be higher in the ladder of drug distribution than Ngo, albeit that the judge concluded that they shared equal criminality.

Findings that they would be unlikely to re-offend were also made for Ta and Long Tan Pham. I would reduce the head sentence to six years for Ta and her non-parole period to four years, which would be the same sentence as for Long Pham, producing a gap of two years between the head sentence and non-parole period. The fact that a three year gap would apply to Ngo on a head sentence of nine years would not necessitate that a three year gap also be established below a head sentence of six years for Ta or Long Pham. In their cases the two year gap would be a conventional one, but one appropriate to the factors which weigh in their favour, including as to rehabilitation, for the purpose of fixing the non-parole period. No factors favouring a greater gap, including parity issues, apply in the cases of Ta and Long Pham.

(a) That the applications for leave to appeal against sentence by Con Chi Huynh and Long Tan Pham be refused.

(b) In the case of Thuy Phuong Ngo, I would grant her application for leave to appeal against sentence, hear the appeal instanter and allow the appeal, to the extent that in lieu of the non-parole period of 7 years I would fix a non-parole period of 6 years. I would otherwise confirm her sentence.

(c) In the case of Kim Ngoc Ta, I would grant her application for leave to appeal against sentence, hear the appeal instanter, allow the appeal and set aside her sentence. I would substitute a head sentence of six years imprisonment and fix a non-parole period of four years.

(d) In the case of Binh Tan Pham, I would grant his application for leave to appeal against sentence, hear the appeal instanter, allow the appeal and re-sentence him to five years imprisonment and fix a non-parole period of three years imprisonment.

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[1] [1999] VSCA 112, at [31] per Charles, J.A., with whom Tadgell and Buchanan, JJ.A. agreed.

[2] R. v. Berisha & Ors,[32], [39]; R. v. Gim Siang Lim [2001] VSCA 60.

[5] As to the factor of youth, see R. v. Mills [1998] 4 V.R. 235, at 241-242, and see, too, R. v. Giles [1999] VSCA 208.

[6] See R. v. Thomas [1999] VSCA 204, at [16]; R. v. Harkness and Ors [2001] VSCA 87, at [18]-[20].

[7] There was some inconsistency as to this matter in passages in the prosecution case summary provided to the judge, but His Honour made this finding, and it was open to him to do so.

[10] R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402, at 404, per Callaway, J.A.

[11] Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606, at 612; Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295, at 301; R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402, at 404.

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Judgment (87 paragraphs)

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