84 That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [102]."
47 The passage from the Remarks on Sentence which I have extracted above (at [32]), reflecting the sentencing judge's approach to the assessment of the seriousness of the offences, was a passage specifically in reference to the money laundering offences. However, those offences were also charged as conspiracy offences and not discrete offences. It may be assumed that her Honour took the same approach to the drug offences. Different considerations do apply where the offence charged is conspiracy.
48 It is necessary to consider whether in so approaching the offence, her Honour did overlook the nature of the offence charged.
49 I have concluded that the CDPP has not made good this proposition. Her Honour did set out in considerable detail what each of the respondents actually did - the acts performed, his authority, the period of time, the quantity of drug involved, the number of transactions in which he was involved, and the degree of planning. However, it is clear that she was also fully aware that those acts took place in the context of a much larger and more complex enterprise. She referred to the Syndicate as "a group headed by Khanh Hoang Tran", and to the role of the "second in charge", Le. She noted that the respondents had no authority, but simply did as they were told and were "runners at the lowest level of the organisational hierarchy".
50 In the circumstances of this case, I would not conclude that the fact that the respondents were shown to be part of a conspiracy elevates the seriousness of their offences. In Tyler and Chalmers, I also pointed out that positions in the hierarchy of an organisation is an important sentencing factor ([79]). That is a matter of fact that significantly distinguishes these respondents from the offenders in that case.
51 In written submissions prepared before the decision in Hili and Jones was published, the CDPP also relied heavily upon statistical material. However, in the light of the decision of the High Court in Hili and Jones, and the form in which that material was presented to this Court, the weight that can be given to that material is limited. I will, however, return to it.
52 Finally, both the sentencing judge and counsel for the CDPP made considerable reference to the sentencing of other individuals involved in the Ken Syndicate. However, only one could be shown to be truly comparable to the respondents.
53 That was a participant called Minh Tuan Vuong, who was sentenced, together with another participant (Ngoc Thuan Nguyen) by Solomon DCJ on 9 April 2009. Counsel for the CDPP accepted that Ngoc Thuan Nguyen was involved to a significantly greater degree than the two respondents, and charged with more serious offences, and therefore is not a suitable case for comparison. He contended, however, that Minh Tuan Vuong is significantly comparable.
54 Vuong was charged identically to the respondents. He entered a plea of guilty, for which he was allowed a 25 per cent reduction in the sentence that otherwise would have been imposed. Vuong was involved in two instances of delivery of heroin; the money laundering offence involved $572,000. Solomon DCJ found him to be a "low-level facilitator" and to have voluntarily extricated himself from the conspiracy prior to apprehension; his offence was therefore classified as "below the mid range of objective seriousness". His pleas of guilty, of course, significantly distinguished his case from the cases of the respondents. Another distinguishing feature - pointing in the opposite direction - is that Vuong had a prior conviction, for drug supply. That was in 1993, and resulted in a sentence of imprisonment for 6 months to be served by way of periodic detention. Although the lapse of time since that conviction, and the relatively modest penalty, might suggest that that offence had only a limited bearing on the sentence to be imposed by Solomon DCJ, nevertheless the judge considered that it deprived Vuong of the leniency that might otherwise have been afforded to him if he were a person of good character.
55 In the result, on the drug trafficking offence, Solomon DCJ sentenced Vuong to imprisonment for 5 years; on the money laundering offence, he sentenced Vuong to imprisonment for 3 years, to be served concurrently. He fixed a single non-parole period of 3 years. Those sentences were identical to the sentences imposed on John Nguyen.
56 On behalf of the CDPP, it was therefore argued that because, prior to reduction in recognition of the pleas of guilty, the starting point of Vuong's total sentence was 6 years and 8 months, the sentences imposed on the respondents can be seen to be manifestly inadequate.
57 The salient feature of the present cases is the low level occupied by the respondents in the hierarchy.
58 The sentences imposed on Vuong, like those imposed on other participants in the Ken Syndicate, were drawn to the attention of Sweeney DCJ. Her Honour noted that Solomon DCJ found Vuong to be a "low-level facilitator" who had voluntarily ceased his activity, and that his criminality was below the middle of the range of objective seriousness. She then said:
"On the evidence in the trial before me, I do not consider Minh Vuong's involvement in the conspiracies to be comparable to Mr Nguyen's and Mr Nguyen's. There was evidence that he was a recipient of drugs couriered to Melbourne and sent money to Mr Le. There were phone conversations between him and Hong Phong Le in which he complained about the quality of the drugs and that his customers would not accept it. While I do not disagree with Judge Solomon's assessment of his offences his conduct in the conspiracy was at a higher level than Mr Nguyen's and Mr Nguyen's. Therefore his sentence does not assist in sentencing them."
59 Counsel for the CDPP submitted that this approach was "misconceived". That is because, for the purpose of comparison of sentences, it was necessary to set the relevant findings of fact in the one case (Vuong) against the relevant findings of fact in the other cases (the respondents), even if the evidence before Sweeney DCJ did not support the findings of fact made by Solomon DCJ. To the extent that Vuong was put forward as a comparator, or his sentence was put forward as a guide to Sweeney DCJ, that argument is correct.
60 But that is not the only consideration. Because Sweeney DCJ had presided over a two-month trial, she was in a good position to appreciate, on the basis of sworn evidence, the roles of the various participants. If, on the evidence before her, she concluded that Vuong was involved at a higher level than the respondents, then the respondents were entitled to have that taken into account in the selection of sentences.
61 On the basis of the findings of fact made by Solomon DCJ in relation to Vuong, his case was an appropriate comparator. Of course, the various points of distinction to which I have referred to above had to be taken into account, but they did not deprive the decision of its relevance.
62 But neither did its relevance elevate the decision into a binding precedent. It was one, even one important, precedent against which to measure the sentences contemplated by Sweeney DCJ. Parity in sentencing, in the sense discussed in Lowe v The Queen [1984] HCA 46; 154 CLR 606 and Postiglione v The Queen [1997] HCA 26; 189 CLR 295, is not a concept available to the prosecution. A judge cannot be expected to pass a heavier sentence than he or she otherwise would, merely because another judge had, in a related or comparable case, done so: see Steer v R [2000] FCA 462; 171 ALR 463.
63 Sweeney DCJ did not depart from the findings of fact made by Solomon DCJ. She accepted them, but, having regard to relativity, determined that lesser sentences were here appropriate.
64 There is nothing in Hili and Jones that suggests that sentences imposed in cases "most closely comparable with" that under consideration acquire greater status than that. The phrase I have quoted was given as one of the reasons that the High Court upheld the finding of this Court that, in those cases, the sentences imposed were manifestly inadequate. The other reason was "the nature of the offending" which the High Court then went on to detail.
65 Counsel for the CDPP also pointed to the decision of this Court in another, (unrelated) Nguyen v R [2010] NSWCCA 132. That involved a severity appeal against a sentence of 13 years with a non-parole period of 8 years and 6 months, after a plea of guilty to a charge of trafficking a marketable quantity of heroin. After appeal, the sentence was reduced to one of imprisonment for 9 years with a non-parole period of 6 years. Before the reduction referrable to the plea of guilty, the starting point was a head sentence of 11 years with a non-parole period of 7 years and 6 months. However, a significant point of departure in that case is that the offender was found to be a "valued, high level functionary" whose role was "integral" and "indispensable" to the overall enterprise. No comparable finding was made in relation to either of the present respondents.
66 It is well recognised that, in virtually every sentencing decision, there is a range available to the sentencing judge. If the judge sentences within that range, the sentence will be neither manifestly inadequate nor manifestly excessive. To put forward a single decision as evidencing manifest inadequacy (or manifest excess) is to overlook that essential fact.
67 In Hili and Jones, the High Court firmly rejected the proposition that "manifest error [in sentencing] is fundamentally intuitive". This Court is required to consider all of the matters relevant to fixing sentence - in much the same way as a sentencing judge is required to do. In addition to the facts and circumstances of the offences, and the personal circumstances, the court (at either level) ideally has available to it sentences imposed in comparable cases, including, importantly, the reasons for the selection of those sentences.
68 With that in mind, I turn to the relevant circumstances in relation to each respondent. They can be shortly stated. Each respondent was involved in the drug trafficking over a period of between 2 and 3 months. Each made three separate excursions to Melbourne carrying drugs. Each was otherwise involved by being in close contact with Le. John Nguyen showed some signs of aspiring to be involved at a higher level, but the evidence did not disclose that he succeeded in doing so.
69 The personal circumstances of each were similar; although their personal histories warranted a level of compassion, there was little to suggest that sentences appropriate to the objective criminality ought to be substantially ameliorated for that reason.
70 That brings me to the statistical material provided on behalf of the CDPP. I do so for the purpose of using this a yardstick against which to examine the sentences imposed by Sweeney DCJ.
71 Commonwealth offences of this nature being relatively recent in origin, the statistical material yielded by analysis of Code offences is too sparse to be of use. Indeed, it is very likely that some, at least, of the small number of sentences constituting the basis of the statistics are the sentences imposed on the respondents and other members of the Ken Syndicate. However, consistently with the view I expressed in R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244 at [131] I consider it appropriate to have regard to sentences imposed under comparable, and much longer established, State law. The most nearly comparable offence is the supply of not less than the commercial quantity of heroin which, pursuant to s 33 of the Drug Misuse and Trafficking Act 1985, carries a maximum penalty of imprisonment for 20 years. The commercial quantity is 250 grams. The range of sentences imposed after pleas of guilty (17 cases) is 3 years to 12 years, with the majority lying in the range of 4 to 5 years. Assuming universal reduction of 25 per cent for the pleas of guilty, the range is 4 years to 16 years. After conviction following a plea of not guilty (4 cases only) the range is 4½ years to 7 years. Exposing those figures dramatically exposes one of the limitations on the use of statistics - they do not say anything about the vast range of relevant circumstances, including the quantity of drug and the role of the offenders.
72 All that I can say is that, using these statistics as a yardstick, with all their limitations, I am not persuaded, by that reason, that the sentences here imposed were below the range legitimately available.
73 Although I consider that the sentences were lenient, there is nothing else provided which persuades me that error of the third kind identified in House affects these sentences. I would therefore, in each case, dismiss the Crown appeal.
74 HALL J: I agree with Simpson J.
75 GARLING J: I agree with Simpson J.
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