14 As I have said, Mr. Tehan submitted that the sentencing judge in this case had offended against the very principles outlined in the case of Olbrich and, in doing so, had failed to adequately assess the moral culpability of his client in comparison to the moral culpability of the other offenders charged with the same level of offending as Nguyen. Thus, so Mr. Tehan submitted, his Honour failed to ask himself such fundamental questions as "Why did Nguyen get involved in this operation?"; "Was it because of her propensity for gambling?"; "What effect will the sentence have upon her family, and particularly the young children?". Accordingly, so Mr. Tehan submitted, his Honour had guided himself by the process of "categorization" into failing to give sufficient weight to mitigating factors; and particularly to the fact that Nguyen was the mother of four young children.
15 For my own part I cannot accept these submissions. This was a sentencing exercise where his Honour was entitled, and indeed obliged, to have regard to the levels at which the various offenders fitted into the "hierarchy" in order to determine the level of their culpability - moral and otherwise. As I have already indicated, his Honour was not only sentencing the three applicants before this Court; he was sentencing 13 members of a rather elaborate heroin distribution organization. He entertained pleas on behalf of 13 accused who had pleaded guilty before him over a period of some four days, during the course of which he was taken through a large number of transcripts of telephone intercepts and listening devices; and had placed before him medical, psychiatric and psychological reports from Dr. Walton, the Northern Hospital and Dr. Christopher Wong in respect of the applicant Nguyen, psychological reports from Dr. Kennedy in respect of the applicant Cao; and psychiatric and medical reports from Dr. Walton and Dr.Pham in respect of the applicant Luong. It is therefore not surprising that his Honour, having outlined the part played by each of the prisoners in the enterprise, said that he found it unnecessary "to recount in any further detail the facts of the matter (because) they were on the transcript, the matter having been opened in ... detail by the learned prosecutor ... and also discussed in detail between myself and all counsel during a plea hearing lasting several days".
16 His Honour did, however, go on to discuss the respective roles played by the three applicants and "Ky"; the four persons who had pleaded guilty to trafficking in "commercial quantities" of heroin. In the course of doing so, he seems to me to have concentrated on their individual culpability demonstrated from the material of police observations, intercepts and listening devices. In this regard the "hierarchy", which his Honour perceived, was synonymous with involvement and culpability. It was patently apparent that the applicant Nguyen was heavily involved with Cao in organizing the distribution of heroin in accordance with orders taken, in ensuring that the heroin was of a satisfactory quality, and in arranging for delivery - mainly through "Ky" - to Luong and others; and in ensuring that prompt and appropriate payment was received. In some respects the level of Nguyen's involvement was itself demonstrated by the fact that the records of Crown Casino showed that in the year between May 1999 and May 2000, she had gambled hundreds of thousands of dollars at the Casino - a fact that indicated not only the level of her addiction to gambling, but also that the only trade in which she was involved (that of heroin trafficking) was the source of her gambling income.
17 Accordingly, I do not accept the proposition made on behalf of Nguyen that the sentencing judge failed to adequately determine the applicant's "moral culpability"; or that he failed to properly identify her moral culpability in relation to that of her co-offenders.
18 It was next submitted on behalf of the applicant Nguyen that his Honour had failed to adequately apply principles of parity, resulting in unjust disparity in the sentences given to Nguyen and, particularly, the sentence given to "Ky". Furthermore, it was submitted, although it seemed to me with less enthusiasm, that the sentence imposed on Nguyen was unjustly disparate from the sentence imposed upon Cao, who had been identified by the judge as the "ringleader".
19 Once again, I do not regard these submissions as having any proper foundation. The nine years maximum term given to the applicant Nguyen is to be compared with the six year maximum term given to the applicant "Ky". In my view, that level of disparity would not be regarded as unjustifiable in the eyes of the independent observer when one takes account of the different levels of involvement which were identified by his Honour. His Honour described the level of involvement of the applicant Nguyen, correctly in my view, as the main organizer of distribution of the heroin - both wholesale and retail. On the other hand, his Honour regarded Ky as the "senior runner" or courier delivering the heroin at the behest of Nguyen. His Honour was, in my view, entitled to differentiate the lesser role played by Ky in fixing the sentences which he did. The fact that Ky misappropriated some of the heroin, and/or the proceeds of its sale, is not relevant to assessing the respective roles of Nguyen and Ky.
20 Nor do I regard as "unfairly disparate" the sentences imposed upon Nguyen and Cao. Once again, Mr. Tehan submitted that it was the "adoption of the rigid hierarchical structure" which led to his Honour failing to have adequate regard to the differentiation of sentencing factors existing in respect of this applicant and Cao respectively. In my view, there is nothing in this submission. His Honour was of the view that there was very little difference in moral culpability between Cao on the one hand and Nguyen on the other. There is nothing in the material which was before his Honour which would indicate to me that he was in error in so regarding the respective offending.
21 Mr. Tehan submitted, in support of a further ground, that the judge had failed to give adequate weight to mitigating factors. In particular, he submitted, inadequate weight was given to the fact that the applicant was the mother of four children, one of whom was only 10 months old; and the others aged 11, 9 and 5 years respectively. He submitted that it was open to the sentencing judge to take into account in mitigation of the applicant's sentence the fact that Nguyen would be separated from her children for a number of years, but that he had failed to have regard to those matters. Furthermore, he submitted, the learned sentencing judge was informed that the father of the youngest child was a co-accused, Minh Tho Ly, and that if he also was imprisoned for any period of time (in fact he was sentenced to four months' imprisonment) the child would be deprived of both parents for that period. Mr. Tehan, in this regard, relied upon the decision of this Court in Carmody[2], where Tadgell, J.A.[3] referred to the common law principle that "hardship to a prisoner's family resulting from imprisonment [is] relevant only if exceptional circumstances are shown". His Honour went on to point out that he could not regard that case as one where exceptional circumstances had been shown but that, nevertheless, the Court could take into account material which was before it, demonstrating the "actual impact" which the applicant's incarceration had had upon her young son. His Honour said: