Supreme Court of SA|2002-11-26

R v NGO AND LE No. SCCRM-01-262, SCCRM-01-263, SCCRM-01-271, SCCRM-01-272 [2002] SASC 373 (26 November 2002)

CRIMINAL LAW --- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION --- APPEAL AND NEW TRIAL --- PARTICULAR GROUNDS --- MISDIRECTION AND NON-DIRECTION --- JOINT TRIAL OF SEVERAL COUNTS CRIMINAL LAW --- JURISDICTION, PRACTICE AND PROCEDURE --- INFORMATION, INDICTMENT OR PRESENTMENT --- AVERMENTS --- UNCERTAINTY, DUPLICITY AND AMBIGUITY CRIMINAL LAW --- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION --- APPEAL AND NEW TRIAL --- APPEAL AGAINST SENTENCE --- APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER --- APPLICATIONS TO INCREASE SENTENCE

Controlled Substances Act 1984 ss 32(1)(d); 32(1)(e);

Criminal Law Sentencing Act 1988 s 18A;

Criminal Law Consolidation Act 1935 s 278, referred to.

R v GNN [2000] SASC 447; (2000) 78 SASR 293;

R v Nieterink (1999) 76 SASR 56;

R v Shepperbottom [2001] SASC 31; (2001) 121 A Crim R 69;

The Queen v MacGowan (1986) 42 SASR 580, applied.

Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, distinguished.

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461;

R v Hogan and Hadley (1991) 161 LSJS 494;

R v Katsambas and Ors (1997) 97 A Crim R 51, discussed.

R v Bilick (1984) 36 SASR 321;

Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50;

R v Palaga (2001) 80 SASR 19;

R v Kostaras [2002] SASC 326, considered.

Counsel: MR S HENCHCLIFFE - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Counsel: MR D PEEK QC - Solicitors: MICHAEL DADDS AND ASSOCIATES

Counsel: MR S ABBOTT - Solicitors: MICHAEL DADDS AND ASSOCIATES

Counsel: MR D PEEK QC - Solicitors: MICHAEL DADDS AND ASSOCIATES

Counsel: MR S ABBOTT - Solicitors: MICHAEL DADDS & ASSOCIATES

Counsel: MR S MILLSTEED QC WITH MR S HENCHCLIFFE - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Counsel: MR S MILLSTEED QC WITH MR HENCHCLIFFE - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Counsel: MR D PEEK QC - Solicitors: MICHAEL DADDS AND ASSOCIATES

Counsel: MR S ABBOTT - Solicitors: MICHAEL DADDS AND ASSOCIATES

SCCRM-01-262, SCCRM-01-263, SCCRM-01-271, SCCRM-01-272

Judgment No. [2002] SASC 373

On Appeal from DISTRICT COURT (HER HONOUR JUDGE VANSTONE)

(Court of Criminal Appeal: Doyle CJ, Wicks and Besanko JJ)JUR JUR

Court of Criminal Appeal: Doyle CJ, Wicks and Besanko JJ

DOYLE CJ: I would dismiss the appeal by Mrs Ngo and Mr Le against their convictions. I would refuse the application by the Director of Public Prosecutions for leave to appeal against the sentence imposed on Mrs Ngo and Mr Le. I agree with the reasons given by Besanko J. There is nothing that I wish to add to those reasons.

WICKS J: I agree with the orders proposed by Besanko J for the reasons he gives. I have nothing to add.

BESANKO J: Tuyet Thi Ngo and Anh van Le were charged on an Information with various offences under the Controlled Substances Act, 1984 ("CSA").

The first three counts in the Information alleged that Mrs Ngo and Mr Le were in joint possession of heroin for sale on 15 November 1997 and at two places on 17 August 1998 respectively, contrary to s 32(1)(e) of the CSA. Counts 4 to 22 inclusive alleged that between April and August 1998 inclusive, Mrs Ngo, on 19 occasions, took part in the sale of heroin contrary to s 32(1)(d) of the CSA. Counts 23 to 28 inclusive alleged that between May and June 1998, Mr Le, on six occasions, took part in the sale of heroin contrary to s 32(1)(d) of the CSA.

After a trial by jury in the District Court, verdicts of guilty in relation to all counts were brought in against Mrs Ngo and Mr Le.

Mrs Ngo and Mr Le appeal against the respective convictions recorded against them.

On 23 August 2001, a Judge of the District Court sentenced each appellant. In the case of each appellant the Judge utilised the power to impose one sentence for all counts pursuant to s 18A of the Criminal Law Sentencing Act, 1988.

The appellant Ngo was sentenced to a term of imprisonment of ten years with a non-parole period of five and a half years, and the appellant Le was sentenced to a term of imprisonment of seven years with a non-parole period of four years.

The Director of Public Prosecutions seeks leave to appeal against the sentences imposed on the grounds that they are manifestly inadequate and fail to maintain an adequate standard of punishment for offences of the type committed.

The appellant Ngo and the appellant Le were married in January 1965. There are nine children of the marriage.

Between November 1997 and August 1998 the appellants owned a house and land at 55 Addison Road, Pennington in the State of South Australia. For convenience, I will refer to this property as 55 Addison Road. The appellants lived in the house. At the rear of the property at 55 Addison Road there was a homette and a garage. The appellants also owned a house and land at 39 Addison Road, Pennington in the State of South Australia. For convenience, I will refer to this property as 39 Addison Road.

The prosecution case at trial was that the appellant Ngo conducted a large-scale heroin wholesaling operation. The appellant Le was a principal in the business, but played a lesser role. The prosecution case was that the appellants purchased heroin primarily from their son-in-law, Mr Nghia Quang Bui who lived in Melbourne, and Mr Thanh Minh Nguyen who lived in Sydney. By April 1998 the appellants had a well-established group of retailers in Adelaide to whom they sold heroin. The appellant Ngo went to Vietnam between 9 May and 24 May 1998, and during this time the appellant Le played a more direct role in the procuring and selling of heroin.

The police carried out a raid at the property at 55 Addison Road on 15 November 1997. They searched the garage at the rear of the property and found five balloons and other wrappings each containing one ounce of heroin inside drink cans which had been cut in half and then taped back together. The prosecution case was that the value of the five ounces of heroin was between $22,500 and $45,000. The level of purity of the heroin was higher than that usually found in heroin sold on the street directly to users.

There were a number of people on the property at 55 Addison Road at the time of the raid. In addition to the appellants, the appellants' eldest son, Mr Tung Thanh Le and his wife, Mrs Oanh Pham were present. Mr Tung Thanh Le and Mrs Oanh Pham lived in the homette at the rear of the property. On the prosecution case, Mr Tung Thanh Le had no direct involvement in the heroin business. Mrs Oanh Pham was involved in the business but she played a role which was subordinate to that of the appellants. Another son of the appellants, Hien Thanh Le, was also present on the property. There was evidence on the voir dire, but it seems not at the trial, that another daughter of the appellants, Hang Thanh Thi Le, was also present on the property.

The appellants' daughter, Ms Zuan Thanh Thai Le, and son-in-law, Mr Bui, were also present on the property at the time of the raid on 15 November 1997. The prosecution case was that they usually resided in Melbourne, and that Mr Bui was a regular supplier of heroin to the appellants. A rental motor vehicle with Victorian number plates was parked outside the front of the property. The heroin found at 55 Addison Road on 15 November 1997 formed the basis of Count 1.

I mention at this point that on 15 November 1997 the police also carried out a raid at the property at 39 Addison Road. The prosecution case was that at that time two sons of the appellants were living at the property, Mr Vu Thanh Le and Mr Nha Le. Also present at the time of the raid was an associate of Mr Vu Thanh Le and Mr Nha Le, Mr Vu Nguyen Le. Mr Vu Nguyen Le is not related to the appellants. The police found heroin on the property at 39 Addison Road on 15 November 1997 and Mr Vu Thanh Le and Mr Vu Nguyen Le were arrested.

In early 1998 the police placed an intercepting device on the telephone service at 55 Addison Road. A large number of telephone calls were recorded by this device, and the recordings of 87 telephone calls were placed before the jury. One or more of these telephone calls formed the basis of each of the 19 counts of taking part in the sale of heroin against the appellant Ngo, and of the six counts of taking part in the sale of heroin against the appellant Le. A rudimentary code was used during these telephone calls, and the prosecution case was that references to bowls of rice, bottles of wine and the like were in fact references to ounces of heroin. There was an important issue at the trial as to the identification of the persons whose voices were recorded during the telephone calls.

The prosecution called a Mr Ho who gave expert evidence identifying the respective voices of the appellants. The Judge gave the jury a detailed direction about the evidence of Mr Ho and the need to scrutinise his evidence with care. In supplementary written submissions, counsel for the appellant Ngo pointed to a number of weaknesses in the voice identification evidence. This was not done with a view to arguing that the verdicts on the "take part in sale" counts were unsafe because of the weakness (which was not a ground of appeal) but rather to highlight the possibility that the jury used the evidence on Counts 1, 2 and 3 as a make-weight in relation to the "take part in sale" counts.

Clearly, the jury needed to scrutinise the voice identification evidence with care. Assuming that was done, the evidence in relation to the "take part in sale" counts was very strong indeed.

The police went to the property at 39 Addison Road on 18 June 1998. Mr Vu Thanh Le and Mr Vu Nguyen Le were present and the police saw the former throw away a small amount of heroin in the backyard. The police found scales, knives and white powder inside the house and considered that someone had been involved in the packaging of heroin.

On 17 August 1998, the police raided the property at 55 Addison Road. They found a small quantity of heroin (.14 grams weight, .01 grams pure heroin) on the side table of the bedhead in the appellants' bedroom and a quantity of five grams of heroin in a blue balloon in a tissue box on the same bedhead. They also found half an ounce of heroin wrapped in wrapping tape around white tissue in the pocket of a pair of men's tracksuit pants in the washing machine in the rear of the house. The clothes were wet but the heroin was dry, suggesting (according to the prosecution) that the heroin was put there just prior to the search. Other items were found in the house which could have been used in the process of weighing and packaging heroin. According to the appellant Le in an interview with the police at that time, he and his wife and his 11 year old son were residing in the house on the property at 55 Addison Road, and Mr Vu Nguyen Le was living in the homette at the rear of the property.

The heroin found at 55 Addison Road on 17 August 1998 formed the basis of Count 2.

The police also carried out a raid at the property at 39 Addison Road on 17 August 1998. They found four one ounce balloons containing heroin under a stove in the kitchen, four one ounce balloons containing heroin in a bin inside the house and three one ounce balloons containing heroin in an inspection pit outside the house.

No one was present at the property at 39 Addison Road at the time of the raid. The property was owned by the appellants and the keys to open the house were located on a dresser in the appellants' bedroom at 55 Addison Road. The prosecution case was that there were no signs of anyone living at 39 Addison Road on 17 August 1998. The prosecution called evidence to the effect that there were chemical similarities between the heroin found in the tissue box and in the washing machine at 55 Addison Road and some of the ounces of heroin found at 39 Addison Road suggesting that they could have come from the same batch of heroin.

The heroin found at 39 Addison Road on 17 August 1998 formed the basis of Count 3.

There was other evidence put forward by the prosecution to establish that the appellants were conducting a large-scale and well organised business of procuring and selling heroin. It will suffice if I mention the main features of this evidence.

First, the prosecution called extensive evidence as to the financial position of the appellants in order to show that the appellants had large amounts of cash which, it could be inferred, came from trading in heroin. As part of this evidence, they called evidence to the effect that during 1998 the appellants had made large loans to their church, the Vietnamese Christian Community Church Incorporated. There was evidence of an interest-free loan of $60,000 on 23 March 1998 and an interest-free loan of $40,000 on 2 June 1998. Both these amounts were brought to the office of the Church in cash. There was evidence that the appellants lodged a cash surety of $20,000 in August 1998 to enable one of their sons to obtain bail. The prosecution also put forward evidence of other possible sources of income and details of the appellants' expenses. Secondly, the police had conducted raids on the rubbish coming from 55 Addison Road, and in evidence these raids were called "bin raids". The prosecution asserted that the items discarded from the property were items, or the remnants thereof, which, it could be inferred, were used in the processing and packaging of heroin. Thirdly, the prosecution called expert evidence about the heroin trade dealing with a number of matters including the way in which heroin is packaged, the size of the packages, and the prices obtained from various sized packages. Finally, the prosecution called evidence about the involvement of other persons in the operation of the business and their contact with the appellants. For example, on 4 June 1998 at 9.00 am one of the appellants' suppliers, Mr Bui, hired a car in Melbourne for two days. At about 5.15 pm on the same day he was arrested in Mildura and 10.4 ounces of heroin were found in the air filter of his hire car. The prosecution case was that on the previous day there was a telephone conversation (which was recorded) between the appellant Ngo and Mr Bui during which Mr Bui advised the appellant Ngo that there would be a delivery of 10 kilograms of "prawns" and half a kilogram of "lobster".

The amended grounds of appeal are effectively identical in the case of each appellant. It is sufficient to summarise the appellant Le's amended grounds of appeal. His counsel addressed the Court first and Mrs Ngo's counsel made supplementary submissions.

In Ground 1 the appellant Le complains that Counts 1, 2 and 3 and the convictions based on each count are, as a matter of law, bad for latent duplicity and/or uncertainty.

In Ground 2 the appellant Le complains that Count 1 should not have been joined in the same Information as the other counts, or alternatively, the District Court Judge erred in rejecting an application to order a separate trial in relation to Count 1. Ground 4 raises a related issue. The appellant Le complains about various rulings of the Judge concerning the admissibility of the evidence directly relevant to one count on other counts, and of various directions given by the Judge as to the use of the evidence directly relevant to one count on other counts.

In Ground 3 the appellant Le complains that the Judge erred in ruling that there was a case to answer in relation to Counts 1 and 3. I mention at this point that neither appellant gave evidence or called evidence at the trial. In those circumstances, the appellants accept that it is appropriate to consider this ground and the complaints it raises in conjunction with a later ground of appeal (Ground 8).

In Ground 5 the appellant Le complains that the trial Judge misdirected, or failed adequately to direct, the jury as to the legal requirements of "possession" and failed adequately to relate such directions to the evidence relevant to Counts 1, 2 and 3.

In Ground 6 the appellant Le complains about the trial Judge's directions to the jury in relation to the onus of proof and the meaning of proof beyond reasonable doubt.

In Ground 7 the appellant Le complains about the trial Judge's direction in relation to the fact that neither of the appellants gave evidence.

In Ground 8 the appellant Le complains that the verdicts in relation to Counts 1, 2 and 3 are unreasonable and/or cannot be supported having regard to the evidence and/or are unsafe and unsatisfactory and/or a miscarriage of justice has occurred. Various particulars are put forward in support of this ground of appeal.

Finally, in Ground 9 the appellant Le complains that having regard to all the matters raised, the verdicts on Counts 23 to 28 inclusive must be quashed. In the case of the appellant Ngo it is the verdicts on Counts 4 to 22 inclusive which it is said must be quashed.

It is not submitted that Count 1 was bad for duplicity and/or uncertainty.

In relation to Count 2, the prosecution case was that three quantities of heroin were found in the house at 55 Addison Road on 17 August 1998. Two quantities were found in the appellants' bedroom and one quantity was found in the laundry. In relation to Count 3 the prosecution case was that three quantities of heroin were found on the property at 39 Addison Road on 17 August 1998. As I have said, two quantities of heroin were found inside the house, and one quantity was found in an inspection pit outside the house.

In R v GNN [2000] SASC 447; (2000) 78 SASR 293 the accused was charged with two counts of possessing heroin for sale. The charges related to two quantities of heroin found in a house occupied by the accused on 26 June 1999. Two packages of heroin were found in the kitchen of the house, and those quantities were the subject of Count 2. A further quantity of heroin was found in the bedroom of the house. There was evidence that a man temporarily shared the bedroom with the accused. The quantity of heroin found in the bedroom was the subject of Count 1. The accused was found not guilty in relation to Count 1. The accused was found guilty in relation to Count 2. She appealed to this Court against her conviction on Count 2.

The appeal to this Court was allowed and an order for a re-trial was made. The Court held that the trial Judge's directions in relation to one of the elements of the offence, namely possession, were inadequate.

A submission was made by the appellant in that case that Count 2 was bad for duplicity. The heroin found in the kitchen consisted of a quantity of heroin found in a flower pot on top of the fridge, and a quantity of heroin found in a video tape box.

The reasons for judgment of the Court were written by the Chief Justice with whom the other members of the Court (Prior and Olsson JJ) agreed.

In relation to the submission that Count 2 was bad for duplicity, the Chief Justice referred to the various reasons for the rule against duplicity. The rule is designed to prevent unfairness at trial, and to facilitate proper rulings on the admissibility of evidence and proper directions to the jury. It also avoids uncertainty as to the basis upon which a person has been convicted and is to be sentenced. The Chief Justice referred to the fact that the law in Australia is not settled in the sense that it is not clear whether a court should take a strictly analytical approach to the application of the rule against duplicity, or is entitled to take a more practical approach to the application of the rule. The practical approach enables a court to hold that if the circumstances are such that a person could be found to be in possession of all the heroin found in several places, or in possession of none of it, and the same evidence is relevant to proof of possession and the several items are closely linked and the possession if proved could be regarded as composite possession, then those circumstances do not give rise to a breach of the rule against duplicity. The Chief Justice did not need to decide whether the practical approach was one which was open to an Australian court. He held that having regard to the circumstances in the case, to the extent that latent duplicity or uncertainty emerged, there was no possibility of a miscarriage of justice having occurred. He expressed the view however, that it would have been preferable if Count 2 had been split into two separate counts.

I think it would have been preferable in this case if Count 2 had been split into two separate counts, one relating to the two quantities of heroin found in the appellants' bedroom and one relating to the quantity of heroin found in the washing machine in the laundry. It would have been preferable if Count 3 had been split into two separate counts, one relating to the two quantities of heroin found inside the house at 39 Addison Road, and one relating to the quantity of heroin found in the inspection pit outside the house.

However, for similar reasons to those which led the Court in R v GNN to the conclusion that there was no possibility of a miscarriage of justice having occurred, I do not think that there is any possibility of a miscarriage of justice having occurred in this case.

The prosecution opened the case on the basis that all quantities of heroin should be treated in the same way, and it closed its case on the same basis. Although the Judge did not say to the jury that they should only convict on Counts 2 and 3 if satisfied beyond reasonable doubt of the elements of the offence in relation to all the quantities of heroin, no suggestion was made to the jury that they might convict if satisfied as to only some of the quantities of heroin. It would have been preferable if the Judge had told the jury that they should only convict if satisfied that the appellants were in possession of all the quantities of heroin. As in R v GNN, I think the explanation for her failure to do so is that it did not occur to anyone that any distinction might be drawn between the various quantities of heroin. I note that the Judge sentenced each appellant on the basis that they had been found guilty of possession of all the quantities of heroin. That was the basis upon which the case had been conducted.

Grounds 2 and 4 - Severance, Cross-Admissibility and Directions as to the Use of Evidence

The appellants submitted that Count 1 should not have been joined on the same Information as the other counts, or, alternatively, an order for a separate trial of Count 1 should have been made. Central to the appellants' submissions in this regard was the submission that evidence relating to the other counts in the Information was not admissible on Count 1.

More generally, the appellants argued that evidence directly relevant to each of Counts 1, 2 and 3 was not admissible in relation to each of the other counts. They also argued that the evidence directly relevant to Counts 4 to 28 inclusive was not admissible in relation to Counts 1, 2 and 3. Finally, they argued that the evidence directly relevant to Counts 1, 2 and 3 was not admissible in relation to Counts 4 to 28 inclusive.

Before the trial, the appellants applied for an order that Count 1 be severed from the other counts. That application was refused. The Judge held that the joinder of Count 1 was justified in terms of s 278 of the Criminal Law Consolidation Act 1935, and there was no argument put to this Court that the Judge's conclusion was incorrect. The Judge said that the question whether Count 1 should be severed from the other counts turned on whether the evidence going to the balance of the charges was admissible in relation to Count 1. The Judge noted that the prosecution case was that in the period covered by the Information, namely, from 15 November 1997 to 17 August 1998, the appellants were conducting or carrying on a large-scale business involving the procuring and sale of heroin. The events which were the subject of the various counts were merely instances or examples of the carrying on of that business. The prosecution submitted that there were a number of events between the date of the first offence, namely, 15 November 1997, and the last offence namely, 17 August 1998 which showed the ongoing and continuous nature of a business. In that regard, the Judge referred to the following by way of examples:

1. Mr Nghia Quang Bui who usually resided in Melbourne was present at 55 Addison Road on 17 November 1997 and he was linked to the conduct of the business in a number of later telephone calls. As I have said, the prosecution case was that on 4 June 1998 Bui was arrested in Mildura where police found 10.4 ounces of heroin in the air filter of his hire car. The prosecution case was that in a telephone call on 3 June 1998 Mr Bui advised the appellant Ngo that there would be a delivery of 10 kilograms of prawns and half a kilogram of lobster.

2. The appellants made a number of loans to the Vietnamese Christian Community Incorporated, the first being an interest-free loan of $60,000 on 23 March 1998. The prosecution submitted that this fact, together with other evidence excluding other possible sources for these monies, was evidence from which the jury was entitled to infer that by 23 March 1998, and for some time before that date, a substantial business of dealing in heroin had been operating.

3. The first of the intercepted telephone calls was on 28 April 1998, and the prosecution submitted that it could be inferred from the contents of the telephone call that by this time a business was well and truly established. It is convenient to mention at this point that the early telephone calls were capable of establishing more than just the involvement of the appellants in an ongoing business. They were also capable of establishing that the appellants were jointly involved in the business, that there was an existing ability to obtain significant amounts of heroin at about the time of the first recorded telephone call, that the appellants were obtaining large amounts of heroin and distributing the heroin in smaller quantities, and that they had a network of distributors, including their children.

With some minor exceptions which are not relevant for the purposes of the appeal, the Judge admitted all the evidence in the trial on all counts.

The appellants submitted that the Judge erred in doing so. First, they submitted that some of the evidence relevant to the earlier counts could only have relevance to the later counts as propensity evidence, and that such evidence did not satisfy the test for the admission of propensity evidence (Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461). Secondly, it was submitted that even if the evidence was tendered for a purpose other than a purpose revealing propensity, because it had that tendency it must satisfy a test for admission expressed in terms of the probative value of the evidence clearly transcending its prejudicial effect. It was argued that this is a test of admissibility and it is separate and distinct from the residual discretion to reject evidence where the prejudicial effect of the evidence outweighs its probative force. The respondent accepted that there is such a test of admissibility.

In my opinion, there was a basis for the admission of the evidence other than a propensity basis. The prosecution was entitled to put forward evidence which as a whole showed the operation of a well organised and substantial business of buying and selling heroin. The jury was entitled to use the evidence of the telephone calls between April and August 1998 in assisting it in determining who was in possession of the heroin in the main bedroom and laundry of the house at 55 Addison Road on 17 August 1998 and in the various places at 39 Addison Road. Equally, the jury was entitled to use the evidence of the telephone calls as assisting it in determining who was in possession of the heroin at 55 Addison Road on 15 November 1997. Such a use of the evidence does not involve the jury reasoning on a propensity basis. The evidence, together with the evidence of the financial position of the appellants, was capable of establishing the fact that as at the time of the first recorded telephone call in April 1998 and for some time prior to that date there was a well-established and large- scale business in operation. In other words, the evidence was not put forward to support a conclusion that the appellant was a person likely from his criminal conduct or character to have committed the offences (R v Nieterink [1991] SASC 560; (1999) 76 SASR 56). The evidence did not have to meet the criterion identified in Pfennig v The Queen.

The appellants' alternative submission was that the evidence was only admissible if the probative force of the evidence clearly transcended its prejudicial effect. They based this argument on certain statements made by various members of the High Court in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590. In my opinion, Harriman v The Queen is not authority for such a test of admissibility of evidence which discloses criminal conduct but is not used for a propensity purpose. In my respectful opinion, for the reasons given by Doyle CJ, the correct position is that stated in R v Nieterink, a decision which has been applied in later decisions of this Court (see for example, R v Palaga (2001) 80 SASR 19; R v Kostaras [2002] SASC 326).

As the reasons for judgment in R v Nieterink make clear, if evidence revealing other criminal conduct is admitted for a non-propensity purpose it is necessary for the trial judge to give careful directions to the jury as to precisely how the evidence might be used. That was important in this case because there was a danger the jury would use the evidence in an impermissible way. The prosecutor conceded during his closing address to the jury that there was a reasonable doubt in relation to Count 1 if the jury looked only at the evidence relating to the events of that day. He submitted that there was no reasonable doubt as to the fact that the appellants were in possession of the heroin on 15 November 1997 if the jury also took into account evidence of the events between April and August 1998. In those circumstances it would have been impermissible for the jury, having used the evidence relating to the events between April and August 1998 to assist them in reaching a conclusion as to who was in possession on 15 November 1997, to then use the evidence relating to the events on 15 November 1997 to assist them in identifying the voices on the later telephone calls.

The Judge was alive to these dangers, and, in the course of her direction to the jury, she gave the jury advice as to how they should proceed. It is important that I set out her direction in full:

"I wish now to give you some advice as to what I consider to be the appropriate and most helpful way in which you could approach your task. I suggest to you that you first look at the objective evidence, that is such things as the items located in the bin runs and the raids, the loans to the church, the arrests at Mildura, Yamba and Pennington. I am not suggesting you look at the question of guilt early on, just first establish what facts you accept about what was found where and when events occurred. Then I suggest you turn straight to the telephone calls and work through those chronologically, a bit as we have done this morning, paying particular attention to those which relate to a count on the information. In P62, of course, that document, cross-referencing the calls, gives you the link.

Look at particulars of the information for that count and consider the relevant calls, just as I have done this morning. That means that your order would be the order of telephone calls, not the order of the information, but that does not matter. By the end of that process you would have gone through all the taking part in the sale of heroin counts.

At some stage you will need to consider, of course, Mr Ho's evidence that voice A recurs and voice B recurs. You will have your own views on that. If you accept that opinion as to any or all of the calls said to involve A, then consider whether you are satisfied whether Mrs Ngo is the speaker A in that phone call, and then whether the prosecution has proved that in the things she said, that she committed the offence in taking part in the sale of heroin. So there are two aspects to consider. Of course, the same applies to the counts concerning Mr Le.

Once you have considered Counts 4 to 28, then I suggest you return to Count 2. In considering the case against both accused on Count 2, you are entitled to use any conclusions you have drawn about the guilt of either accused in the 'taking part in' charges and you are entitled to throw those into the balance. That is, you could reason, if this were the way you saw it, that being satisfied that Mrs Ngo took part in the sale of heroin, on certain occasions, that that is relevant to the question of whether she was in possession of heroin on the 17th August 1998. Of course, you would not reason in this way, and I hardly need to say it, you would not say to yourself 'if Mrs Ngo took part in the sale of heroin on a number of occasions then she is the sort of person who would store heroin at her house or down the road'. Rather, it is a question of saying 'once I know that Mrs Ngo was obtaining heroin from suppliers and arranging to sell it to other persons, then that may help me in determining whose heroin it was in the main bedroom and the washing machine on the 17th August'.

Then I suggest you move to Count 3, on information concerning the heroin at 39 Addison Road and again you would be entitled there to use any conclusions that you had already drawn in relation to the phone calls and in relation to Count 2, to use them in the same manner that I have indicated.

Finally, I suggest you move to Count 1 and see what, if any, conclusion you can draw there, again having to resort to any conclusions drawn in relation to the other counts, but again, in the manner I have indicated.

If you work through the information in that way then there will not be any possibility of misusing any evidence."

There was a question from the jury as to what evidence of events after 15 November 1997 could be used to determine the question of who was in possession of the heroin on 15 November 1997. The Judge in substance repeated her earlier advice or suggestions to the jury (as set out above) and concluded with the following statement:

"To return, more directly, to your question, if you follow the order that I suggested, then certainly all that evidence is available to you to use in the way I have outlined in relation to Count 1."

I read the summing up a number of times. I think the jury would have followed the order suggested by the Judge. That order would not have involved any misuse of evidence. In those circumstances, I reject these grounds of appeal.

Grounds 3, 5 and 8 - Possession for Sale (Counts 1, 2 and 3)

The appellants submitted that the verdicts were unsafe because on the evidence the prosecution could not exclude as a reasonable possibility that other persons were in possession of the heroin. The appellants emphasised the following:

1. There were various people other than the appellants present at 55 Addison Road and 39 Addison Road on 15 November 1997. There were two people living in the homette and there were visitors. The doors to the garage at 55 Addison Road were never locked. Some of those people present were known to police to be involved in the sale of heroin.

2. In relation to the heroin found at 55 Addison Road on 15 November 1997 police initially suspected persons other than the appellants.

3. The police conducted a raid at 39 Addison Road on 15 November 1997. Two of the appellants' sons were there, and another man. Heroin was found at the property and two of the three men were arrested.

4. The police conducted a raid at the property at 39 Addison Road on 18 June 1998. Heroin and implements for packaging heroin were found and two of the men present on 15 November 1997 were also present on 18 June 1998.

5. Mr Vu Nguyen Le was said to be living in the homette at 55 Addison Road on 17 August 1998 and he was present on the property on that day. He was first observed by police in the backyard and he had access to the laundry through the back door. He had been arrested for being in possession of heroin at 39 Addison Road on 15 November 1997, and he was present on that property at the time police attended there on 18 June 1998. In addition, rubbish from the homette would be discarded with rubbish from the house at 55 Addison Road.

These were important matters which required careful consideration by the jury. Careful directions to the jury were necessary. Such directions were given (see below) and I do not think it can be said that the convictions are unsafe. In other words, I do not think that these matters mean that a jury, acting reasonably, must have entertained a sufficient doubt to have entitled each appellant to an acquittal (The Queen v Bilick (1984) 36 SASR 321). There was evidence put before the jury which was highly probative of a finding that the appellants were in possession of the heroin on the relevant dates. I have already mentioned the fact that the recorded telephone calls were capable of establishing not only the fact that the appellants were involved in an ongoing business, but also that they were jointly involved in the business, that they had an existing ability to obtain heroin at about the time of the first recorded telephone call, that they were obtaining large amounts of heroin and distributing the heroin in smaller quantities and that they had a network of distributors including some of their children. There was also the financial evidence to the effect that the appellants made large loans to the Vietnamese Christian Community Church Incorporated, first in April 1998 and then in June 1998. On the prosecution evidence, the possibility that these funds were lawfully obtained either as profits of the restaurant business conducted by the appellant Ngo, or as workers compensation payments which had been made to the appellant Le, could be excluded as a reasonable possibility. Finally, there was evidence of the equipment and packaging material consistent with the processing and packaging of heroin found at 55 Addison Road at the time of the police raids, particularly at the time of the raid on 17 August 1998. I reject the particular submission that the verdicts on Counts 1, 2 and 3 against the appellant Le are unsafe because the jury acting reasonably must have entertained a sufficient doubt about whether the appellant Le was in joint possession of the heroin with the appellant Ngo. The evidence which I have just identified, and in particular the telephone calls, was highly probative of the fact that the appellants were acting as a team and were jointly conducting the business.

Alternatively, the appellants submitted that the Judge's directions on possession were inadequate.

In addition to his general submissions about the inadequacy of the Judge's directions on possession, counsel for the appellant Le submitted that the Judge should have given a direction that it could not be assumed that a husband and wife will be in joint possession of articles in their house or on premises belonging to them.

The issue of the proper directions a trial Judge should give on what constitutes possession was considered by the Court in R v GNN. I have already set out a brief statement of the facts in that case. The Court said that the jury should be told that:

1. The fact that the heroin was found in a house occupied by the accused was not of itself enough to establish possession.

2. Knowledge of the possession of heroin was not enough in the circumstances.

3. The jury had to be satisfied on the facts of that case that the heroin was not in the exclusive possession of one of the men in the house on the night in question.

4. Possession involved physical control over the heroin and an intention to exercise control over it.

The Court said that the directions concerning possession needed to be related to the facts in a practical way.

It was held that the trial Judge's directions were inadequate because they did not make it clear that the fact that the accused knew heroin was hidden in her kitchen was not enough to constitute possession. The Court also said that,

"The jury should have been told that they would also need to be satisfied either that she had hidden the heroin there herself, and was intending to exercise or assert control over it, or that the heroin had been hidden there by one of the men at her request, she intending thereafter to assert control over it."

In this case, the Judge gave directions to the jury as follows:

1. The Judge gave a direction early in her summing up that each charge needed to be examined and evaluated separately. In particular, she pointed out to the jury that in relation to the joint charges (Counts 1, 2 and 3) the fact that they found one accused guilty did not necessarily dictate the same result in relation to the other accused. The Judge said:

"The same considerations or indeed different ones might lead you to the same result, but because the evidence directed to each accused is not identical, they may not."

2. In order to have possession of an object a person must knowingly have physical custody of the object and an intention in the future to exercise control over it. The Judge gave an example of members of a household having joint possession of a motor vehicle, but one member having possession of items such as jewellery or money to the exclusion of other members of the household.

3. Possession of an object can be exclusive or it can be shared with another (or others). Two or more persons may be in joint possession of an object.

4. The prosecution had sought to prove both accused were in joint possession of the heroin which was the subject of Counts 1, 2 and 3, but it did not have to prove that no other person was additionally in joint possession.

6. It is not enough to establish possession to show that the appellant Le (and by inference the appellant Ngo) acquiesced in the storage of the heroin at the premises.

7. In an important passage, the Judge said to the jury:

"You will remember the directions I gave you at the outset on this question of possession and you remember the example Mrs Shaw gave you in her address in relation to the parents knowing the child was smoking cannabis in his room and turning a blind eye to it. That does not constitute parents guilty of possession of cannabis. Remember there are two parts to possession: the question of physical custody or access, plus there is the matter of intention to exercise control over that possession in the future. If Mrs Ngo or Mr Le, or indeed both of them, were involved in placing the heroin in the shed, or if they directed someone else to do that for them, or if one of them did that on behalf of both of them and if they intended to exercise control over the heroin in the future, then they could be considered to be in possession of it, but only in those circumstances. Remember, mere knowledge that other people were using those premises for storage of heroin would not be enough."

8. The Judge repeated important parts of her direction as to possession later in her summing up in response to a question from the jury.

9. The Judge pointed to facts surrounding the offence alleged in Count 1 which might suggest that the jury could not be satisfied beyond reasonable doubt that the appellants were in possession of the heroin found at 55 Addison Road on 15 November 1997 and, in particular, the fact that there were a number of other people at 55 Addison Road on the day in question, that at least one of those other persons was an important participant in the heroin selling operation, and that some months passed by before the first bin raid on 9 April 1998 and the first interception of a telephone call on 28 April 1998. She also pointed to the fact that the heroin was found in the shed as opposed to the house and that there were other persons apparently occupying the homette. She told the jury to remember that it was not enough to convict the appellants (in relation to the first three counts) that someone on the premises, even a family member, had possession of heroin for the purpose of selling it even though that might have been known to the appellants.

In my opinion, the trial Judge's directions on possession were adequate. As to the particular complaint made by the appellant Le, I think it was made clear to the jury that it could not be assumed that a husband and wife will be in joint possession of articles in their house or on premises belonging to them. I reject these grounds of appeal.

Ground 6 - Directions in relation of onus of proof and proof beyond reasonable doubt

In her directions to the jury, the Judge made it clear that the prosecution bore the onus of proving guilt beyond reasonable doubt. The Judge made it clear that the accused persons did not have to prove anything. She directed the jury that the standard of proof was proof beyond reasonable doubt and that mere suspicion or a conclusion that the accused was probably guilty was not enough. She went on to say:

"You will bear in mind that this is a practical court of law and decisions must be made in a reasonable, sensible way, but if, at the end of the case, you are left with a reasonable doubt about the guilt of an accused person, on any or all charges, that is, a doubt reasonably arising on the evidence, then you must give him or her the benefit of that doubt and find him or her not guilty."

There was a question from the jury about the standard of proof and this prompted a further direction from the Judge which included the following:

"Ladies and gentlemen, I am afraid there is very little I can say to assist you with this question. I shall repeat what I said to you earlier, but the difficulty is that 'what is reasonable doubt?' is really for the jury to determine."

The appellants made a number of complaints about the effect such directions were likely to have had on the jury. First, it is said that it is misleading to tell the jury that it is for them to determine what is a reasonable doubt. Secondly, it is said that in some way the proper standard of proof is lessened by referring to "a doubt reasonably arising on the evidence". I do not think there is any substance in either of these complaints. The Judge's directions as a whole as to the onus and standard of proof were clear and correct (see ALJ [2000] SASC 357; (2000) 117 A Crim R 370). Thirdly, it is submitted that there was a significant risk that the jury would have interpreted the Judge's remarks as meaning that they could place no reliance on the exculpatory statements made by the appellant Le in his record of interview with the police. It was said that such exculpatory statements could be relied on by the jury if they saw fit, and that the Judge's directions about a doubt arising on the evidence might have dissuaded them from doing so. To my mind there is no reason to think that the jury would have interpreted the Judge's remarks as meaning that they could have regard only to evidence given in court by the person who had seen or heard the relevant event. In other words, there is no reason to think that the jury would not have understood that they could rely on the exculpatory statements if they saw fit. Furthermore, the Judge made reference to the record of interview between the appellant Le and Detective Abbott and certain exculpatory statements by the appellant Le during her directions to the jury. In addition, when summarising the defence case, the Judge referred to the fact that the appellant Le had said he had no knowledge of any heroin. There is no reason to think the jury would have been misled in the manner suggested by the appellants.

Ground 7 - Direction in Relation to the Fact that the Accused did not give Evidence

The Judge gave a direction to the jury as to what significance the jury should place on the fact that neither appellant gave evidence. She said:

"As to the failure of the accused persons to give evidence, I give you this direction. An accused person is entitled to give evidence in his or her defence, or to refrain from doing so. The choice is theirs. In this case, both accused persons elected not to give evidence. That is their legal right and no inferences adverse to the two accused are to be drawn from the exercise of that right. Your task remains to determine whether the prosecution has proved its case against one or both accused beyond reasonable doubt."

The appellants point to the Judge's use of the word "failure" and argue that the jury would have been left with the impression that the appellants had not done something which they should have done, namely, give evidence. I do not think that there is anything in this argument. The appellants also argued that the Judge failed to give a direction in accordance with Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 (paragraph 51). I do not agree. In my opinion, reading the Judge's direction on this issue as a whole, and having regard to her direction on the onus and standard of proof, the jury were properly directed that no inference adverse to the appellants was to be drawn from the fact that they did not give evidence.

I reject all grounds of appeal and I would dismiss the appeals by each of the appellants against their respective convictions.

The Director of Public Prosecutions submits that each sentence imposed was manifestly inadequate and failed to maintain an adequate standard of punishment for offences of the type committed. There was no complaint by the Director about the facts upon which the Judge sentenced the appellants.

The prosecution faces a high hurdle. There was no dispute about the relevant test. In R v Shepperbottom [2001] SASC 31; (2001) 121 A Crim R 69 Doyle CJ said:

"The High Court has held that leave should be granted to the prosecution to appeal against sentence only in a 'rare and exceptional case': Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299 - 300. The Court has affirmed remarks by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 to the effect that an appeal should be allowed to be brought only:

'to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.'

In other words, leave should not be granted to the Director simply for the purpose of correcting an error, even a clear error. Leave should be granted only when it is necessary to do so to establish a principle, or to ensure that adequate sentencing standards are maintained. It is not always necessary to correct an error to achieve this purpose.

This Court has consistently applied the principles stated by King CJ in R v Osenkowski (1982) 30 SASR 212 at 212 - 213. As King CJ said there, the purpose of a prosecution appeal is 'to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

The Judge said the amounts of heroin involved in the first three counts in the Information were substantial. The first count involved a quantity of about five ounces found at 55 Addison Road. The second count involved a quantity of about two thirds of one ounce found at 55 Addison Road, and the third count involved a quantity of about eleven ounces found at 39 Addison Road. All quantities were relatively pure, being more than sixty three per cent heroin.

The other counts in the Information (taking part in the sale of heroin) were based on the telephone calls which occurred over a five month period. The other persons involved in the telephone calls included the appellants' suppliers (Nghia Bui and Thanh Minh Nguyen) and various people to whom the appellants distributed heroin.

The appellant Ngo conducted a large-scale heroin wholesaling operation involving the ordering of heroin from interstate suppliers and by April 1998 the distribution of that heroin to a well-established and reliable network of purchasers in Adelaide. These purchasers were themselves retailers as opposed to end users. The appellant Le was a principal in the business but played a lesser role than the appellant Ngo. He took a more direct role during his wife's absence in Vietnam from 9 May to 24 May 1998.

The business generated substantial sums of money including profits. The Judge referred to the following:

1. On 23 March 1998, the appellants made a loan of $60,000 to the Vietnamese Community Church Incorporated.

2. On 2 June 1998, the appellants made a loan of $40,000 to the Church.

3. On the day of the appellants' arrest, the police located the sum of $47,000 in the possession of Su Chiem an associate of the appellant Ngo. Su Chiem said the appellant Ngo had given him the money for safekeeping.

4. Smaller amounts were found at 55 Addison Road on the same day being $9,700 in the appellant Ngo's handbag, $720 in the appellant Ngo's possession and $900 in a letter rack on top of the refrigerator.

The Judge found that the business was a large-scale operation, that the turnover of the business was substantial and regular and that the profits generated by the business were significant.

The Judge referred to the personal circumstances of each of the appellants. The appellant Ngo is 55 years old and one of 13 children. Over a period of time she has provided financial assistance to her mother who lives in Saigon. The applicants have a fifteen year old son who lives with them and attends school. The Judge was given no information as to what would happen to him during the appellants' period of imprisonment.

The Judge said that the appellant Ngo had worked hard since coming to Australia in 1984. She has health problems, but the Judge said these problems were not such that they could not be managed in the prison environment.

The appellant Le is 63 years old. He served in the South Vietnamese army and after the war he encountered significant difficulties. He came to Australia in 1981. He could speak virtually no English at that time. He suffered an injury at work for which he received compensation. He has health problems which are more serious than those of his wife, and the Judge found that because of those problems life in custody would be particularly hard for him.

Neither appellant had any relevant prior convictions and the Judge found that despite the difficulties they had faced they had remained loving and committed parents and have honoured commitments to their extended families.

The Judge referred to two authorities of this Court (R v Hogan and Hadley (1991) 161 LSJS 494; R v Katsambas and Ors (1997) 97 A Crim R 51) and to sentences imposed on others involved in the operation including the appellants' suppliers (Nghia Bui and Thanh Minh Nguyen) and the appellants' customers (Oahn Phan, Phung Nguyen and Zuan Le).

The Judge considered the sentences imposed by other Judges on the appellants' suppliers, Nghia Bui and Thanh Minh Nguyen, to be of particular relevance. Nghia Bui was sentenced after a plea of guilty in relation to three counts of taking part in the sale of heroin. The Judge sentenced Mr Bui on the basis that his involvement was below that of the appellants but above that of a street trader or courier. The starting point for the Judge was nine years imprisonment reduced to six and a half years in view of his plea of guilty.

Thanh Minh Nguyen was sentenced after a plea of guilty in relation to three counts of taking part in the sale of heroin and one count of possessing heroin for sale. He was sentenced on the basis that his role was higher in the supply chain than the distributors in South Australia. There were a number of mitigating factors. The starting point before taking into account those factors was a sentence of thirteen years imprisonment. The Judge said that the appellants' role was lower in the distribution scheme than that of Thanh Minh Nguyen.

In the case of the appellant Ngo, the Judge said that the appropriate starting point was a sentence of thirteen years imprisonment. She gave credit for prior good character and the "profound trials" the appellant Ngo had experienced in her own country and in re-establishing herself in Australia. The Judge allowed a reduction of six months for a period of ten months when the appellant Ngo was on home detention bail. In the result, she imposed a head sentence of ten years imprisonment and a non parole period of five and a half years.

In relation to the appellant Le, the Judge noted his lesser involvement in the business, and imposed a head sentence of seven years imprisonment and a non parole period of four years.

The Director submitted that the application for leave to appeal against sentence involved a matter of principle. He submitted that the sentences themselves were manifestly inadequate and involved a failure to adhere to established standards.

The Director submitted that the starting point of thirteen years imprisonment in the case of the appellant Ngo was too low. The appellant Ngo was the principal operator or controller of a large-scale heroin wholesaling operation and cases such as R v Hogan and Hadley and Katsambas suggested that for such a person a starting point in the order of fifteen years imprisonment is appropriate. The Director emphasised the number of offences in the case of the appellant Ngo and the fact that the maximum penalty in the case of each offence was a term of imprisonment of twenty five years. The Director also sought to emphasise the very substantial nature of the business. Various calculations were put to the Court allegedly showing the size of the business. Such calculations (which I will not set out) are helpful to a point, but there are some assumptions which one could not be confident are correct. I do not think that I need to resolve any question as to the accuracy of the calculations put forward by the Director. The fact is that the Judge proceeded on the basis that the appellant Ngo conducted or, to use the Judge's word, "ran" a large-scale heroin wholesaling operation. The Director did not argue that matters such as the fact that the appellant Ngo had no prior convictions and the profound ordeals she suffered in Vietnam and in Australia were not matters that might properly lead to a reduction of an otherwise appropriate starting point, but he did argue that the final figure of ten years reached by the Judge clearly illustrated the inappropriate starting point and an over-generous reduction of two and a half years. He emphasised the fact that the appellant Ngo had not pleaded guilty and was not entitled to a discount on that account.

As far as the sentence imposed on the appellant Le is concerned, the Director did not argue that the difference between the sentence imposed on him and the sentence imposed on the appellant Ngo was inappropriate. The Director seemed to accept that it was more difficult for him to argue that there were features relating to the sentence imposed on the appellant Le which would justify the grant of leave.

In response to these submissions, counsel for the appellant Ngo made a number of points. First, he rightly emphasised the fact that on an application for leave to appeal by the Director, this Court will only interfere in rare and exceptional circumstances.

Secondly, he submitted that this Court should not grant leave because counsel for the Director had said in the course of sentencing submissions that the Judge should not adopt a starting point below thirteen years. It was argued that the Director was bound by this submission and that it is a powerful reason why this Court should not grant leave. I do not agree. While there may well be circumstances in which the submissions of the Director to a sentencing Judge will be relevant when he subsequently seeks leave to appeal to this Court, this case does not involve such circumstances. Counsel for the Director said to the Judge that she would be quite wrong if she started at a point below thirteen years. I do not think that this can be converted into a concession by the Director such that he or this Court is bound to accept a starting point of thirteen years. It is for the sentencing Judge and if necessary for this Court to fix the proper sentence.

Thirdly, counsel for the appellant Ngo referred the Court to the sentences imposed on various other parties involved in the operation of the appellant Ngo's business, and in particular, the sentence imposed on one of her suppliers, Thanh Minh Nguyen. This person was sentenced on the basis that his role was higher in the supply chain than the distributors in South Australia, and a different Judge adopted a starting point of thirteen years imprisonment. It was argued that the starting point in the case of the appellant Ngo should be lower, or at least no greater, than the starting point in the case of Thanh Minh Nguyen, otherwise unacceptable disparity will result.

This Court was given the sentencing remarks in relation to the other participants in the business. No doubt, the sentences imposed on the other participants, in particular the appellant Ngo's suppliers, Nghia Quang Bui and Thanh Minh Nguyen are a relevant consideration. However, I do not think the sentences imposed on the other participants are by any means conclusive or decisive of the Director's application for leave. First, I note the remarks of King CJ in The Queen v MacGowan (1986) 42 SASR 580 at 583 as follows:

"2. Sentences imposed by different judges on co-offenders should also be proportionate to the respective degrees of culpability and the individual circumstances of the co-offenders. In such circumstances, a sentencing judge should ascertain the punishment which has been imposed upon any co-offender previously sentenced. He should endeavour to assess a sentence which fairly reflects any relevant distinctions. If, however, the earlier sentence is, in the opinion of the judge imposing the subsequent sentence, outside the range of sentences properly applicable to the case, he may legitimately impose what he regards as the appropriate sentence, leaving any correction of disparity to the Court of Criminal Appeal. The sentencing judge should give reasons explaining any disparity between the sentence which he imposes and earlier sentences imposed on co-offenders.

3. Marked disparity of sentences imposed upon co-offenders by different judges is a ground upon which the Court of Criminal Appeal may intervene on an appeal by the Attorney-General or an offender. If both sentences are within the maximum authorized by law and are within the range of sentences properly open on the facts of the case, the Court of Criminal Appeal is not bound to intervene. In such circumstances disparity, although a ground for interference, will not necessarily lead the Court of Criminal Appeal to interfere. It is a matter for the discretion of the Court. There may be considerations against interference. The protection of the public may require the higher sentence to stand. The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest. But in the absence of strong countervailing considerations, the Court of Criminal Appeal will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case."

Secondly, in my opinion, having regard to the circumstances surrounding the offences committed by the appellant Ngo and having regard to the sentencing remarks in relation to Thanh Minh Nguyen I think there are a number of features which distinguish the two cases.

The Court was referred to a number of authorities by both parties with a view to establishing the relevant standards. In the circumstances, it is sufficient that I refer to two authorities.

In The Queen v Hogan and Hadley, Hogan was sentenced to a term of fifteen years imprisonment with a non parole period of twelve years in relation to four counts of taking part in the sale of heroin and one count of possession of heroin for sale. Hogan was the principal in a major drug enterprise involving the purchase, packaging and sale of heroin over a period of five months. Hogan was to be given credit for pleas of guilty, although there was a disputed facts hearing. The Attorney-General sought leave to appeal against the sentence imposed on Hogan. This Court refused leave to appeal.

In R v Katsambas & Ors (1997) 97 A Crim R 51, Katsambas pleaded guilty to taking part in the sale of heroin. The sentencing Judge sentenced Katsambas on the basis that he was a principal organiser of a group involved in the sale of heroin and that he was the ultimate problem solver. The Judge's starting point was fifteen years imprisonment. Katsambas appealed to this Court. The Court held that the sentencing Judge's starting point for Katsambas fell within the compass of his discretion. A reduction to twelve years for his plea of guilty was appropriate, and the non parole period of six years was quite moderate. The appeal was dismissed.

In my opinion, the sentencing Judge's starting point of thirteen years imprisonment was too low. Although the sentencing Judge did not err in allowing a reduction from that starting point for the reasons she did, the reduction of two and a half years was generous and led to a head sentence of ten years imprisonment (also taking into account the further reduction of six months which was not disputed) which, in my opinion, was too low having regard to the very substantial nature of the operation and the seriousness of the offences. In addition, in my respectful opinion, even accepting a head sentence of ten years imprisonment, a non parole period of five and a half years was too low having regard to the circumstances of the case. Having said that, I do not think the errors were of such a magnitude or of such a nature that they fall within the principles applicable in the case of an application for leave to appeal by the Director. I would refuse leave to appeal in the case of the appellant Ngo. The Director correctly accepted that the arguments in support of the application for leave to appeal in the case of the appellant Le were weaker, and in my opinion leave to appeal in relation to his sentence should also be refused.

In my opinion, the following orders should be made:

1. The appeal against convictions by Tuyet Thi Ngo is dismissed.

2. The appeal against convictions by Anh van Le is dismissed.

3. The application for leave to appeal by the Director of Public Prosecutions against the sentence imposed on Tuyet Thi Ngo is refused.

4. The application for leave to appeal by the Director of Public Prosecutions against the sentence imposed on Anh van Le is refused.

Controlled Substances Act 1984ss 32(1)(d)

Criminal Law Sentencing Act 1988s 18A

Criminal Law Consolidation Act 1935s 278, referred

Controlled Substances Act 1984ss 32(1)(d)

Criminal Law Sentencing Act 1988s 18A

Criminal Law Consolidation Act 1935s 278, referred

R v NGO AND LE No. SCCRM-01-262, SCCRM-01-263, SCCRM-01-271, SCCRM-01-272 [2002] SASC 373

At a glance

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Catchwords

Judgment (173 paragraphs)

R v NGO AND LE No. SCCRM-01-262, SCCRM-01-263, SCCRM-01-271, SCCRM-01-272 [2002] SASC 373 (26 November 2002)

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Legislation Cited (6)

Cases Cited (11)