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CUMMINS, A.J.A.:

1 The applicant, Mr Thanh Ngoc Duong, by notice of 31 May 2004, seeks leave to appeal from a sentence imposed upon him on 17 May 2004 in the County Court on the ground of manifest excess. By amended notice of 8 February 2005 a second ground, of infringement of the principle of parity, has been added as a ground.

2 The applicant pleaded guilty to one count of trafficking in heroin in Melbourne between 11 December 1999 and 1 March 2000 (Count 1) and one count of trafficking in methylenedioxy-n-methylamphetamine (MDMA) between 13 June 2000 and 20 November 2000 at Melbourne in a quantity which was not less than a commercial quantity. On Count 1, trafficking in heroin, he was sentenced to five years' imprisonment. On Count 2, trafficking in MDMA (which hereafter I shall call ecstasy), he was sentenced to nine years' imprisonment. The learned sentencing judge directed that two years of the sentence on Count 1 be served cumulatively upon the sentence on Count 2, making a total effective sentence of eleven years' imprisonment. She directed that a minimum term of eight years' imprisonment be served before the applicant became eligible for parole. As is evident, they were substantial sentences; but, as will become apparent, they were for very substantial offences. The maximum penalty on Count 1 was 15 years' imprisonment and on Count 2 was 25 years' imprisonment. The applicant had some prior convictions but not in relation to drugs and they were of no effective consequence below or before this Court.

3 The applicant is now aged 38 years, having been born on 6 August 1966, and was 33 years of age at the time of the offending.

4 On 22 October 2002 at the Magistrates' Court at Melbourne the applicant was committed for trial in the County Court on the two charges and reserved his plea. On 23 February 2004 the matter became a plea of guilty and was adjourned over to 5 March 2004. On 5 March 2004 he was presented in the County Court before the learned sentencing judge on the two counts and pleaded guilty. A full day plea occurred on that day, and on the second day, 27 April 2004, including with four other co-accused, Lin Zhang, Dieu Duong, Hong Tau Luo and Buu Chi, a proceeding occurred in relation to pecuniary penalty orders. Ultimately, on 17 May 2004 Her Honour sentenced the applicant in the terms that I have stated. On 22 October 2004 s.582 leave was refused by Eames, J.

5 Of the four co-offenders who were sentenced at the same time as this applicant by Her Honour, Hong Tau Luo, on one count of trafficking in a commercial quantity of ecstasy, was sentenced to imprisonment for five years with a minimum term of one year and nine months before eligibility for parole; Lin Zhang, on one count of trafficking in a commercial quantity of ecstasy, was sentenced to imprisonment for four and a half years with a minimum term of one and a half years before eligibility for parole; Dieu Duong, on one count of trafficking in heroin, was sentenced to imprisonment for three years and on one count of trafficking in ecstasy was sentenced to six months' imprisonment to be served concurrently with the sentence on the first count, and two years of the sentences were suspended for a period of two years; and Buu Chi, on one count of trafficking heroin, was sentenced to imprisonment for four years with a minimum term of 21 months before eligibility for parole. A fifth co-offender, Zi Min Zhang, the principal, had escaped the jurisdiction.

6 The circumstances of the matter which came before the Court below were in essence these. On 11 December 1999 undercover police operatives working with and targeting the applicant conducted an operation in which the applicant and a co-offender Buu Chi met undercover police and exchanged a quantity of heroin in the amount of 351.4 grams, 245.98 of which was pure. The amount of $52,000 was exchanged for the purchase of the heroin. This quantity of heroin was 4.02 grams short of the commercial quantity; thus on Count 1 it is not a commercial quantity, just. On 10 January 2000 a covert operative paid $2,000 to the applicant, which represented an outstanding amount from the earlier transaction. The applicant continued to traffic unknown quantities of heroin at street level up until the end of February 2000, which trafficking was revealed by numerous telephone intercepts. Between 23 June and 14 September 2000 a number of transactions involving the purchase of heroin took place between Dieu Duong and police operatives, and between 21 September and 23 September 2000 the applicant supplied covert operatives with samples of heroin on two further occasions.

7 Turning to ecstasy, on 13 June 2000 a covert police operative and an informer met the applicant who offered to supply between 10,000 and 20,000 ecstasy tablets to the operative. The applicant travelled to Hong Kong for that purpose and in his absence his brother Dieu Duong for a short period acted on his behalf. Arrangements were made between 14 November and 19 November 2000 for the applicant to supply ecstasy to police covert operatives. The agreement was for $1,700,000 to be paid for 100,000 Ecstasy tablets in two transactions involving 50,000 tablets for $850,000. On 20 November 2000 police drove the vehicle containing $850,000 in cash to a car parked at Crown Casino where that car and the car containing the drugs were exchanged between the buyers and sellers. The applicant succeeded in removing himself from the area before he was arrested, as did other offenders.

8 The heroin purchased had a value between $210,000 and $350,000 per block. The street value of the ecstasy tablets at $80 per tablet was estimated to be $4,000,000.

9 The prosecution case in general terms was that initially Thanh Duong and Buu Chi were trafficking in heroin together, and then with Thanh Duong continuing with Dieu Duong. Van Vu was involved in trafficking heroin with Thanh Duong and supplied the heroin that was sold to the covert operative on 23 June 2000. Dieu Duong and Thanh Duong trafficked in ecstasy together. Zi Min Zhang, Lin Zhang and Hong Luo participated in trafficking in the ecstasy on 20 November 2000 by being involved in its transportation from Sydney and as security during the exchange at Crown Casino.

10 A tape-recorded interview was conducted with the applicant on 20 November 2003 in which he gave largely "no comment" answers.

11 It is profitless to rehearse further in detail the offences. They were plainly organised, deliberate and persistent and, particularly in respect of ecstasy, there were vast quantities involved both of illicit drugs and of money. It is plain that ecstasy is a pernicious substance which involves substantial harm physically, psychologically and socially.

12 The learned sentencing judge, as I have said, dealt with the offenders together, except the principal Zi Min Zjang who had escaped from the jurisdiction. In relation to the applicant, Her Honour rehearsed that he was of St Albans, that he had the same background as his brother Dieu Duong, which was rehearsed in detail by the sentencing judge and which I shall not repeat. She traced the applicant's history from his place of origin to Australia. She, in particular, traced his history of unfortunately becoming a heroin addict himself, having been introduced to heroin in 1991 and developing a habit in 1995, and that on at least five occasions had attempted to give up heroin with no success.

13 Her Honour concluded, and in my view entirely correctly, that the applicant was a person who was involved in the organisation. She did not accept that he was a "middle man". She found that he was higher up than that but not as high as the major principal Zi Min Zhang. Her Honour's conclusions in those respects appear to me to be unexceptionable.

14 Her Honour stated that the applicant spent the money on heroin, travel and gambling. She found, correctly in my view, that the applicant's prior convictions were of no real significance. She found that the applicant would be in poor health for some time, having serious problems concerning his bowel which doubtless was caused, at least in part, by heroin usage.

15 Her Honour, correctly in my view, concluded that while accepting that the applicant was an addict, the major part of his dealing was not street level dealing, but was at a much higher level and on a much greater scale. She defined the offence of trafficking as a vile offence.

16 In relation to ecstasy, she again correctly identified what she called "the sheer size of this trafficking". She conceded something which is not necessary to conclude here but I rather doubt, that ecstasy is lower down the chain in terms of its danger than heroin. Experience has shown courts now are less likely to state with precision a level of hierarchy of risk in drugs of this sort.

17 As I say, Her Honour dealt, in my view, very carefully and comprehensively with each of the persons before her and in particular this applicant and his relativity to the others.

18 It was put by Mr Croucher on behalf of the applicant before this Court that this was an extremely heavy sentence, particularly in relation to the ecstasy, and was especially so bearing in mind that the accused had pleaded guilty, had shown remorse, had no relevant prior convictions, had a young family, was a long-term heroin addict with a history of attempting to rid himself of it, and was in poor health because of the heroin use, and also had a history of work.

19 On the second ground, parity, Mr Croucher submitted that the sentence imposed upon the applicant was excessive, particularly in relation to Lin Zhang who received effectively half the sentence imposed upon the applicant.

20 I must say I consider that the sentence imposed was not only not in error, but was entirely appropriate. This was an extremely serious and substantial set of offences, particularly the ecstasy. In my view, bearing in mind the numerous matters which Mr Croucher argued, each of which the learned judge below directed her attention to, the sentence was not only not in error, but was entirely appropriate.

21 In relation to the parity argument, the holding of a substantial amount of ecstasy in New South Wales by Lin Zhang was not a charge before the Court below and, indeed, it would have been a sentencing error for the judge below to have treated Lin Zhang on the basis that he was guilty of that holding and that offence. It

was permissible of course for her to take into account in a general contextual and background way the holistic circumstances, including that fact, but she could not sentence Lin Zhang on that factual substantive basis.

22 Accordingly, I consider that there is no substance in the parity argument either, given the substantial difference between the role and facts applicable to the applicant and the role and facts admissible before the Court applicable to Lin Zhang.

23 All in all, I consider there is no substance in the submissions either to manifest excess or as to parity. I consider Her Honour below addressed the relevant matters fully, carefully and comprehensively and not only do I consider that no error has been shown below, but I consider Her Honour was entirely correct in the sentencing disposition in this matter.

VINCENT, J.A.:

24 I agree that this application should be dismissed and I do so for the reasons advanced by Cummins, A.J.A.

NETTLE, J.A.:

25 I also agree that the application should be dismissed for the reasons given by my brother, Cummins, A.J.A.

VINCENT, J.A.:

26 The order of the Court is that this application is dismissed.