R v Nguyen [2005] VSCA 40

9. The applicant pleaded guilty in the County Court to one count of trafficking in a drug of dependence, namely heroin, between 7 July 2002 and 1 November 2002. The applicant's offending had been discovered as a result of a large scale police investigation into two Vietnamese syndicates engaged in drug trafficking. Telephone interception revealed that the applicant and another person, Dinh Pham, made arrangements by telephone to meet drug users, to whom they sold heroin.

12. The learned sentencing judge concluded that it was not possible to accurately determine the quantity of the drug which had been trafficked, or the prices obtained for the sales by the applicant. In submissions to the judge, the prosecutor alleged that the applicant and Dinh Pham were first involved in purchasing heroin from two dealers for the purposes of further sale to street level heroin users. Although the applicant was dealing more frequently than Dinh Pham, they were both engaged at the same level, namely at low level street distribution. During submissions on sentence the prosecutor agreed with the judge that the level of dealing was in the order of purchasing from his supplier every few days, one or two grams of heroin for the purpose of resale.

15. The applicant was aged 47 at the time of sentencing and had no prior convictions.

18. On 30 September 2004, the County Court judge sentenced the applicant to 18 months imprisonment and ordered that he serve nine months before being eligible for parole.

21. On the application before us, complaint was not made that that sentence was manifestly excessive in itself. The sole complaint which was pursued was that the sentence offended the principle of parity when regard was had to the sentence which had been imposed on the co-offender, Dinh Pham.

24. The Office of Public Prosecutions elected to have Dinh Pham dealt with in the Magistrates' Court and on 13 November 2003 a Magistrate sentenced him to six months imprisonment, to be served by way of an intensive correction order.

27. The question whether principles of parity had been offended in sentencing, requires the court to consider whether, in the circumstances, the applicant would have a justified sense of grievance which would be shared by an objective observer: see Lowe v. R. [1]; R. v. Taudevin[2]; Postiglione v. R.[3]; R. v. Izzard[4].

30. In R. v. Bernath[5], Callaway, J.A. placed emphasis on the component elements of the test. The disparity between the sentences had to be manifestly excessive and had to be such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice had not been done. Mr Palmer, counsel for the applicant, submitted that the complaint about disparity in this case met those criteria.

33. The prosecutor told His Honour that there were many offenders who had been charged as a result of this police operation and it was the Crown's view that the offending by Dinh Pham was closest in character to that of the applicant. Nonetheless, whilst they traded at the same level as street traffickers, the applicant trafficked more frequently than Dinh Pham, and the decision was taken by the Crown not to have the applicant's case dealt with in the Magistrates' Court.

36. Defence counsel told His Honour that Dinh Pham, like the applicant, was both a drug addict and had no prior convictions. His Honour concluded that Dinh Pham's circumstances were, indeed, similar to the applicant's. Mr Palmer submitted, therefore, that there was no good reason why their sentences should have been so different. The disparity was manifest, he submitted, and such as to create a justifiable sense of grievance in the eyes of his client and of the objective observer.

39. In his sentencing remarks, His Honour said that the applicant must have appreciated that by trafficking in heroin, he was risking imprisonment. He said, rightly, that heroin trafficking required the principles of general and specific deterrence be given particular weight and then His Honour added:

"Whilst I give weight to considerations of parity with Dinh Pham, I must also give considerations of parity to those who have pleaded guilty before me to trafficking offences arising out of similar circumstances to yours. Whilst it may be that your role is towards the lower end of the scale of gravity, nevertheless it is worthy of condign punishment. By that I mean significant punishment by way of imposing upon you a term of imprisonment to be served immediately."

43. The disparity principle applies only to co-offenders.[6]

46. His Honour's reference to offenders whose offences arose "out of similar circumstances" was intended, I believe, to refer only to those offenders who had been charged in the same police operation, out of which the applicant and Dinh Pham were also charged. His Honour had dealt with all of the other offenders, save for those who had been proceeded against in the Magistrates' Court. Thus he was considering the offences of persons who were, in fact, co-offenders, although they were prosecuted in separate proceedings. We were supplied a chart setting out the sentences of those offenders and that disclosed a wide range of sentences had been imposed upon those offenders for trafficking in heroin, but as was acknowledged during the submissions on sentence to the judge, some of the other offenders had substantial prior convictions and some were involved at a higher level than the applicant and Dinh Pham.

"Principles of parity require me to take into account Dinh Pham's sentence and to frame a sentence that is in accordance with Dinh Pham, as best as can be achieved in terms of reflecting appropriate sentencing principles and it does mean that I have to sentence you to the same term of sentence of Dinh Pham."

53. The approach adopted by His Honour was in accordance with principles.[7] As His Honour made clear during the course of submissions, he regarded the sentence which was imposed on Dinh Pham as being inadequate and not a sentence that could be imposed by him in accordance with proper sentencing principles.

56. Mr Palmer acknowledged that during the submissions on sentence, counsel then appearing for the applicant conceded that notwithstanding the sentence imposed on Dinh Pham, the applicant had to receive a sentence of immediate imprisonment. The thrust of his submission was that to achieve parity with Dinh Pham's sentence the applicant ought not be sentenced to a term longer than 12 months.

59. Mr Palmer submitted that although the sentence imposed by the judge was only six months above that limit suggested to him by counsel in the court below, it represented a significant difference and was sufficient to constitute a manifest disparity.

62. It is true, as Mr Palmer pointed out, the prosecutor did not contend below that Dinh Pham's sentence was manifestly inadequate, nor did the Director appeal that sentence. Nonetheless it was so low for offending of this kind, in my opinion - offending which took place over three months - as to be either manifestly inadequate or else it must have been explained by some factor which had not been identified either to the judge or to us. Where the comparator sentence is excessively low, the

correct approach of the sentencer is not to seek to match that lenient sentence with one of his or her own, but to have regard to the other sentence, taking it into account in a broad way, when exercising his or her own discretion, and giving it such weight as it deserves in the circumstances of the case.[8] In my view, that is the approach which the judge adopted in this case.

66. In my opinion the patent inadequacy of Dinh Pham's sentence would not require intervention, on parity grounds, by the judge so as to have him reduce the sentence which he was to impose to one which was, of itself, manifestly inadequate.

69. In my view, no error has been shown by the judge in the exercise of his sentencing discretion with respect to the principle of parity.

72. Given the way the hearing of the application proceeded before us, it becomes unnecessary to consider the complaint of manifest excess, which was initially raised in one ground of appeal. Notwithstanding the many mitigatory factors in the applicant's background, all of which were considered by the judge, that ground could not have succeeded, once the parity complaint was set to one side, as Mr Palmer sensibly conceded.

75. I would dismiss the application for leave to appeal against sentence.

[1] [1984] HCA 46; (1984) 154 C.L.R. 606.

[2] [1996] 2 V.R. 202.

[3] (1997) 189 C.L.R. 298.

[4] [2003] VSCA 152; (2003) 7 V.R. 480 at [12].

[5] [1997] 1 V.R. 271.

[6] See Lowe v. R. at 609 per Gibbs, C.J., at 611 per Mason, J., at 617-618 per Brennan, J. and see, too, Postiglione v. R. at 325 per Gummow, J.

[7] See Lowe v. R. at 623 per Dawson J.

[8] See R. v. Wilson [2000] VSCA 202; (2000) 116 A.Crim.R. 90 at 97-98 per Chernov J.A. and see, too, R. v. Izzard at 484 [17] per Callaway J.A. See too R. v. Pekora [1980] VicRp 47; [1980] V.R. 499 at 503.