R v Nguyen; R v Pham

R v Nguyen; R v Pham - [2010] NSWCCA 238 - NSWCCA 2010 case summary — Zoe

[23]

The Hearing of the Appeals 9 As the Respondents are co-offenders, the Crown appeals were heard together. 10 The written submissions of Ms Loukas, counsel for Mr Nguyen, raised a question concerning the constitutional validity of s.68A Crimes (Appeal and Review) Act 2001 in its application to the determination of Crown appeals for offences against the Criminal Code Act 1995 (Cth) and the Crimes Act 1914 (Cth). As notices under s.78B Judiciary Act 1903 (Cth) had not been given, the parties agreed that the Court should make an order severing that question from other issues in the appeals, and such an order was made. The initial question for the Court is whether the Crown has established error with respect to the sentences imposed upon the Respondents. The effect of the order made on 13 May 2010 was that the Court was in a position to continue to hear argument concerning these issues which do not raise a constitutional question: s.78B(2)(c) Judiciary Act 1903 (Cth). 11 A five-member Bench of this Court in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 had reserved judgment on similar constitutional arguments concerning the application of s.68A Crimes (Appeal and Review) Act 2001 to federal offences. 12 Following the giving of judgment, on 17 September 2010, in Director of Public Prosecutions (Cth) v De La Rosa, further submissions were sought from the parties to the present appeals concerning the remaining issues in the appeals. Written submissions were provided by Ms Loukas to which reference will be made later in this judgment. The submissions invited the Court to proceed to determine the appeal in light of the decisions of the majority in Director of Public Prosecutions (Cth) v De La Rosa, and the Court will proceed to do so. The Crown provided further submissions, which touched upon the s.68A issue and discretionary considerations, as well as submissions concerning the case analysis in Director of Public Prosecutions (Cth) v De La Rosa. Ms Nash, counsel for Ms Pham, provided submissions in reply to the Crown submissions. Separate Sentencing Hearings Before Different Judges 13 Before embarking upon the substance of the appeals, it is appropriate to observe that these cases illustrate the strong desirability of sentencing proceedings concerning co-offenders going ahead before the same Judge, and preferably at the same time. 14 Separate hearings resulted before different Judges because application for an adjournment was made on 16 October 2009 by counsel for Ms Pham. It seems that Ms Pham had been interviewed without the assistance of an interpreter, by a Probation and Parole Officer for the purpose of a presentence report, and had traversed her plea. His Honour Judge Walmsley SC made clear that he would not be available to preside at the sentencing hearing concerning Ms Pham then fixed for 10 December 2009. Counsel for Mr Nguyen wished to proceed on 16 October 2009 and the Crown did not oppose this course. The sentencing hearing concerning Mr Nguyen proceeded before his Honour that day. 15 At the sentencing hearing concerning Mr Nguyen on 16 October 2009, his counsel tendered certain documents, including statements of Canadian police officers which were said to shed light upon the role of Mr Nguyen in the overall criminal enterprise surrounding the importations (Nguyen AB16, 105-138). Counsel for Mr Nguyen sought to rely upon some of this material, which referred to meetings between a principal in the enterprise and Ms Pham in Toronto on 2 April 2008 in support of an argument that Ms Pham, a Canadian national, had met the principal, described as an "organised crime figure", and that this could be contrasted with Mr Nguyen who was described as being "very much a cog in a larger organisation" (Nguyen AB16). Mr Nguyen did not give evidence at the sentencing hearing. 16 His Honour Judge Walmsley SC sentenced Mr Nguyen on 6 November 2009. On 2 December 2009, the Commonwealth Director of Public Prosecutions gave notice of appeal (filed on 4 December 2009) under s.5D Criminal Appeal Act 1912 asserting that the sentences imposed upon Mr Nguyen were manifestly inadequate. 17 The sentencing hearing concerning Ms Pham proceeded before his Honour Judge Berman SC on 10 December 2009, with his Honour proceeding to sentence that day in an ex tempore decision. His Honour was informed that a Crown appeal had been filed with respect to the sentences imposed upon Mr Nguyen (Pham AB36). The Crown did not seek an adjournment of the sentencing proceedings concerning Ms Pham. 18 At the sentencing hearing concerning Ms Pham on 10 December 2009, counsel for Ms Pham did not initially call her client to give evidence. However, after some discussion between the presiding Judge and counsel concerning the absence of evidence with respect to a number of subjective matters referred to in defence counsel's written submissions, counsel elected to call Ms Pham to give evidence (Pham AB22-30). In the course of her evidence, Ms Pham appeared to deflect questions, or answer them in a manner which seemed to minimise the role she had played in the offences, compared with that of Mr Nguyen. This led to the Crown Prosecutor, in cross-examination, putting to Ms Pham that she was "just trying to blame your cousin to minimise your own role", a proposition denied by Ms Pham (Pham AB27.22). 19 The practical consequences of the separation of the proceedings included the making of submissions by counsel for the co-offenders that the other offender had, in some respects, played a more significant part in the enterprise. It was left to the two sentencing Judges, following separate hearings, to make findings upon the basis of the evidence before that Judge. 20 It is, at the least, highly desirable that co-offenders appear for sentence before the same Judge, preferably at the same time. This is especially so when submissions may be made on behalf of one offender which seek to compare and contrast the role of that offender as against the co-offender, as an issue bearing upon an assessment of the objective seriousness of the relevant offences. 21 These observations are not intended to serve as criticism of the sentencing Judges in these cases. Their Honours proceeded to hear and determine the matters on the appointed hearing dates. Counsel for the relevant parties did not urge the Court to proceed only by way of a joint hearing of the sentencing proceedings before the same Judge. 22 It was noted by the Crown Prosecutor on 10 December 2009, at the hearing before his Honour Judge Berman SC, that Mr Nguyen and Ms Pham were to be sentenced for different offences, albeit arising from the same series of related events so that this was "not a case where there is an issue really about parity" (Pham AB36.8). 23 The application of the parity principle (or analogous concepts), where co-offenders are being sentenced for different offences, has been considered recently by this Court: Jimmy v R [2010] NSWCCA 60; 240 FLR 27. Howie J, at 85 [246], observed that a principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who had been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. However, Howie J agreed that this principle was subject to the limits stated by Campbell JA in that case at 77-78 [203], where his Honour observed that limits on the use of the parity principle in such a case included the following:

[96]

"35. In summary, I conclude from those facts that the offender did the following. He obtained an ABN. He registered two business names. He took a lease of commercial premises in Victoria for two years at $22,000 per annum. He set up and used a Yahoo email account. He paid two invoices from IPE to obtain clearance for the consignment. The emails that he sent to and received from IPE included emails relevant to delivery instructions. He rented space at Lansvale and gave his own mobile number. He booked accommodation at the Lansvale Hotel and Resort. He arranged for the consignment's delivery and was present for the delivery and helped unload it. He returned later with Pham driving a hired Mitsubishi Outlander and he helped cut the bases of the foot spas. He bought tools to cut the foot spa bases and took them to the storage area. With Pham he removed from the spas fifteen packages and took them to the Lansvale Hotel and Resort. He went with Pham to Heckenberg where Pham handed over the packages. It is clear to me, therefore, that the offender was a significant person in the Australian end of the operation ." 32 After summarising the submissions put concerning the role of Mr Nguyen in these offences, the sentencing Judge made the following further findings (at remarks on sentence [45]-[46]) (emphasis added): "45. In my view, these offences are objectively extremely serious . As appears from the list of functions which I am satisfied that the offender performed the offender was one of a number of people involved in the importation of a large [quantity] of drugs from Canada. He was, as the Crown put to me, involved in two stages. The preparation stage included setting up the business names, getting accommodation and the second involved assisting once the drugs had arrived in Australia. I find that he was engaged in significant matters of preparation to enable the smooth entry of the consignment and that once the consignment had arrived he provided significant assistance in the warehousing and storage and in the unsuccessful location of the drugs or obtaining of the drugs from the foot spas .

[97]

I am satisfied beyond reasonable doubt that he used the name Vivian on the Yahoo email account. I find that his role was very important to the enterprise. I think it unhelpful to put a label on his role. I am not persuaded he was a financier or a principal organiser or an entrepreneur . There were statements in evidence from Canadian police officers from which I infer that the parts played by the Canadian offenders were far more significant than that played by this offender. Nor was his on the other hand a minor role. The expression, 'middle man' is not necessarily apt because of the wide range of functions undertaken . However, I do note the following and I am satisfied of these matters. The offender appears not to have had direct contact with Canadian links when the person known as Pham was on the scene. Secondly, he appears not to have been involved with acquiring or financing or shipping of the goods to Australia. Thirdly, his as I see it, is a role concerned rather with preparation and then the reception of the drugs in Australia, their storage and the like and then to a limited extent their dispersal once they arrived. His role was more concerned with the physical aspects than the entrepreneurial . Since he used his own name and his own telephone number when engaging in some parts of the enterprise such as registering the business names there was, I think, a lack of sophistication shown on his part. Despite that I find that he knew that he was involved in a significant importation concealed in an apparently innocent consignment cargo. From evidence of conversations that he had when he was not being observed I find that he was motivated by a desire to make a significant sum and that that was among other reasons to pay off a gambling debt of at least $50,000 . That factor alone, however, does not serve to mitigate but it rather explains his position given his history of having been in the workforce in a legitimate way for such a long time. His legitimate employment for such a long time and his lack of any criminal history does add weight to the submission from Mr Pickin that this was out of character and I do find it to have been out of character." 33 The reference (at [46] of the remarks on sentence) to statements of Canadian police officers is a reference to those statements tendered by counsel for Mr Nguyen referred to earlier in this judgment (at [15] above). It appears that his Honour accepted the defence submission, by reference to this material, that the "parts played by the Canadian offenders were far more significant than that played" by Mr Nguyen. It may be taken that Ms Pham is included amongst the "Canadian offenders" for this purpose.

[98]

Ms Pham 34 After reciting the facts of Ms Pham's offences, his Honour Judge Berman SC summarised her role in R v Pham [2009] NSWDC 362 at [11]-[15] (emphasis added): "11 The offender thus played a very significant role in this offence . She was responsible for liaising with the Canadian end of the operation about various aspects of the operation, including the payment of money, the deconstruction of the foot spas, the destination of some of the packages, and it was she who communicated with Canada about the problems that were identified when the packages were found not to contain any drugs. She physically assisted with the removal of the packages as well. This is not a case where she simply told someone else what to do, but she did a lot herself and she also delivered fifteen packages of what she thought were drugs to a purchaser. This is offending at the higher end of the range . Both the offence on the indictment and the offence on the schedule involved quantities of drugs many times that which exposes the offender to life imprisonment. Of course the quantity of the drug is but one factor in assessing the objective seriousness of an offence. But when one looks at the offender's involvement and the role she played and what she actually did it can be seen that she placed herself in a significant position within this criminal enterprise. That is why I say that this is offending at the higher end of the range . 12 … She has two older sisters and two older brothers who also live in Canada. Whilst there she was employed in both a car company and also did some cooking in a restaurant. It was whilst she was at the restaurant that she met the man who asked her to become involved in this offence. When she first met him she did not know that he was involved in sending drugs to Australia, but she did find out that that is what was sent. She said in evidence today that she did not know what the drugs were, but she recognised that they could have been cocaine, could have been methylamphetamine, could have been heroin for that matter. The fact that she did not know precisely what the drugs were is scarcely a matter of mitigation.

[107]

The Crown Submissions 48 The Crown submitted that the sentence imposed in each case was manifestly inadequate and that this Court should intervene to maintain adequate standards of punishment for offences of this kind: Everett v The Queen [1994] HCA 49; 181 CLR 295 at 299; R v Wall [2002] NSWCCA 42; 71 NSWLR 692 at 707 [70]. 49 It was submitted that the sentences imposed fell outside the appropriate range of sentences that could legitimately and reasonably have been imposed by the sentencing Court. It was said that the appropriate range had been clearly identified in R v Lee [2007] NSWCCA 234 at [37]. The Crown contended that it can be clearly shown that, having regard to the relevant circumstances of each case, the sentences are so plainly unreasonable or unjust that this Court may infer that in some way there has been a failure by the sentencing Judges to properly exercise their sentencing discretions: House v The King [1936] HCA 40; 55 CLR 499 at 504-5; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 329, 340. 50 The Crown submitted that the quantities of the drugs involved were very substantial - 27.153 kilograms of pure cocaine (13 times the commercial quantity) and 13.04 kilograms of pure methamphetamine (17 times the commercial quantity). 51 With respect to Mr Nguyen, the Crown submitted that the sentencing Judge misunderstood and misstated a Crown submission on sentence. At [42] of the remarks on sentence, the sentencing Judge said that "the Crown put to me that the starting point for the head sentence ought to be 20 years". However, the Crown submission (made by reference to R v Lee), had been "In terms of where … a range of sentence lies, in my submission we're talking above 20 years and at the higher level really as [a] starting point here" (Nguyen AB31.6). It was submitted that the sentencing Judge's misunderstanding of the Crown's position may have contributed to the sentences imposed. 52 In any event, the Crown submitted that the sentencing Judge made correct findings concerning the role of Mr Nguyen, but then imposed a sentence which failed to properly reflect his objective criminality so that the sentences imposed fell outside the appropriate range of sentence. 53 It was submitted that the offender in R v Lee took on a role which was almost identical to that undertaken by Mr Nguyen in this case. As a result, an appropriate starting point for the sentences in this case was somewhere in excess of 20 years. The Crown submitted that it was plain, from the sentences imposed, that his Honour commenced with a notional starting point that was much less than 20 years. 54 The Crown submitted that the sentences imposed upon Mr Nguyen were in fact below the range identified by this Court as being the appropriate range for couriers or others low in the hierarchy, and where the amount of drugs was between 3.5 kilograms and 10 kilograms: R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340; R v Bezan [2004] NSWCCA 342; 147 A Crim R 430 at 434 [18]. 55 With respect to Ms Pham, the Crown submitted that a significant error had been made by the sentencing Judge at [4] of the remarks on sentence, where his Honour observed that the "weight of the cocaine totalled slightly more than twenty-seven kilograms with its total pure weight being thirteen kilograms". In fact, the weight of pure cocaine seized was slightly in excess of 27 kilograms. Although it was acknowledged that his Honour had stated correctly the estimated street value and wholesale value of the cocaine, the Crown submitted that this was a significant misstatement of the quantity of cocaine, which may serve to explain the sentence ultimately passed. 56 It was submitted that the sentencing Judge had characterised correctly Ms Pham's role in the offences but that, having made these findings, the sentence imposed did not appropriately reflect the findings as to Ms Pham's criminality so that the sentence was definitely outside the appropriate range for the case in hand. 57 The Crown submitted that the findings of the sentencing Judge confirmed that Ms Pham's offending was of a higher order than that of Mr Nguyen, as was submitted by the Crown Prosecutor (Pham AB34.33). In these circumstances, it was not clear why the sentence imposed upon Ms Pham was significantly lower than the sentence imposed upon Mr Nguyen. 58 The Crown submitted that the sentence imposed upon Ms Pham was below the range identified by this Court as being the appropriate range for couriers or others low in the hierarchy, and where the amount of drugs was between 3.5 kilograms and 10 kilograms. In this respect, the Crown submitted that the sentencing range adopted in R v Wong and Leung is equally applicable to cases of possession or attempted possession: R v SC [2008] NSWCCA 29. 59 It was submitted that this Court should intervene in each case and resentence the Respondents.

[108]

Submissions of Respondents 60 Ms Loukas submitted that the sentences imposed upon Mr Nguyen were not manifestly inadequate. It was submitted that there were differences between the present case and the quantity of drugs and the role of the offender in R v Lee, so that R v Lee provided no real assistance on sentence. 61 Ms Loukas submitted that caution was required when the Crown sought to rely upon the guideline judgment in R v Wong and Leung, given the approach of the High Court on appeal from that decision in Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584. 62 Although acknowledging that Mr Nguyen's sentences lay towards the lower end of the appropriate range, it was submitted that there was no patent or latent error demonstrated. 63 Ms Loukas submitted that in the event the Court found error and proceeded to resentence Ms Pham, this should not lead to an increase in Mr Nguyen's sentences, as parity does not apply to Crown appeals: R v Radloff (1996) 88 A Crim R 26 at 31-32. Ms Loukas acknowledged that this submission would not apply if the Court was satisfied that the sentences of both Respondents were manifestly inadequate. 64 Ms Nash submitted that the sentence imposed upon her client was within the range of the proper exercise of sentencing discretion. It was submitted that the Crown had unduly elevated the weight of the drug as the crucial factor to be taken into account on sentence, when it was but one factor relevant for that purpose. 65 With respect to the suggested error concerning the weight of pure cocaine, Ms Nash submitted that the sentencing Judge well understood the street value of the drugs and acknowledged that these figures demonstrated a "large scale offence". Accordingly, it was submitted that the misstatement with respect to the weight of pure cocaine was not material. 66 Ms Nash sought to distinguish R v Lee by reference to features peculiar to that case. Submissions were also made seeking to distinguish on the facts the decisions in R v Wong and Leung and R v El Hassan [2003] NSWCCA 139. 67 Ms Nash submitted that it was erroneous for the Crown to submit that the sentencing Judge's findings confirmed that Ms Pham's offending was of a higher order than that of Mr Nguyen. 68 Further, it was stressed that Mr Nguyen was to be sentenced for two counts of importing a commercial quantity of drugs, cocaine and methamphetamine, and a further two matters were to be taken into account on a schedule for the purpose of s.16BA Crimes Act 1914 (Cth) in relation to the attempt to possess each of these drugs. In contrast, Ms Pham was to be sentenced for attempting to possess a commercial quantity of cocaine, with a similar offence concerning methamphetamine to be taken into account on a s.16BA schedule. Ms Nash submitted that the difference in the offences for which sentences were to be imposed was relevant and assisted Ms Pham in this Court. 69 It was submitted that the sentencing Judge had imposed a sentence which appropriately reflected Ms Pham's criminality and that the Crown had failed to establish error on sentence.

[126]

Mr Nguyen 76 Mr Nguyen was a resident of Australia. The evidence points to him being a major participant in this criminal enterprise inside Australia. He was aware that substantial quantities of drugs were to be shipped from Canada to Australia for distribution within this country. Mr Nguyen was engaged in this activity for substantial financial reward involving, at least, a benefit to him in the sum of $50,000.00. He was aware that his cousin, Ms Pham, a Canadian national, was involved in the enterprise at the Canadian end, and he worked with her following her arrival in Australia. 77 Mr Nguyen performed a range of acts which indicated a responsible managerial role at the Australian end over a significant period of time in 2007 and 2008. His was not a transient or menial role. He exercised a range of responsible functions within Australia, including the making of administrative and physical arrangements for the importation. In the first phase of his activity (between 18 September 2007 and 2 May 2008), before the drugs had arrived in Australia, Mr Nguyen acted as an organiser to make the necessary arrangements so that his company in Australia could receive the consignment containing the concealed drugs. In this period of activity, Mr Nguyen was the main player within Australia concerning the pending drug importations. 78 There was a second phase of Mr Nguyen's activity after the drugs had arrived in Australia on 2 May 2008. He acted first as a warehouser or storeman where he accepted the safe delivery of the drugs, and then performed the further role of breaking into and extracting the drugs, so they could be made available to others. In this phase, he worked closely with Ms Pham, but subject to her direction. 79 The range of activities undertaken by Mr Nguyen pointed clearly to him being the physical organiser in Australia for the importation. As his Honour Judge Walmsley SC found (see [31]-[32] above), he played a substantial and important part in the offences and the expression "middleman" was "not necessarily apt because of the wide range of functions undertaken". 80 It must be kept in mind that Mr Nguyen pleaded guilty to two offences involving the importation of a commercial quantity of different types of border controlled drugs. The quantity of pure cocaine was more than 13 times the commercial quantity for that drug. The quantity of pure methamphetamine was more than 17 times the commercial quantity for that drug. It is entirely clear that he understood that a very large quantity of illicit drugs was being imported, sufficient to warrant a substantial financial reward to him and the need for elaborate and protracted planning, undertaken at both the Canadian and Australian ends, so that the importations could take place. 81 The s.16BA schedule offences of attempted possession did not add a substantial level of criminality to Mr Nguyen's case. He was to be sentenced for the two actual importation offences concerning the cocaine and methamphetamine introduced into Australia. The attempted possession offences on the s.16BA schedule resulted from the discovery of the drugs by authorities and their substitution to allow for a controlled delivery and the apprehension of the Respondents. Ms Pham 82 Although Ms Pham was to be sentenced for attempted possession of a commercial quantity of cocaine (with a similar offence concerning methamphetamine on a s.16BA schedule) it is necessary to consider her involvement in the overall drug smuggling enterprise to determine the degree of moral culpability attaching to the attempted possession offence: El-Ghourani v R at [33]-[37] (see 72 above). Of course, the attempted possession offence carries the same maximum penalty as importation of a commercial quantity of a drug, namely life imprisonment. 83 Ms Pham was a Canadian national who was engaged to participate in the criminal enterprise at the Canadian end, and was entrusted with the task of travelling to Australia to work with (and supervise) Mr Nguyen with respect to the importations. She was the point of contact, following her arrival in Australia, with the Canadian end of the operation. 84 It may readily be inferred that the selection by the Canadian principal of Ms Pham to undertake these responsible tasks on the other side of the world, meant that she was entrusted to play a major role in the criminal enterprise and to exercise control and judgment whilst in Australia for that purpose. It should be inferred that she came to Australia for these purposes and was to return to Canada when she had discharged these duties. Substantial financial reward was to flow to her and others. 85 Following her arrival in Australia on 24 April 2008, Ms Pham performed an overseer/supervisor role in relation to the extraction and removal of the drugs and the subsequent supply of the 15 packages of drugs to a person who comprised the next link in the chain of distribution. 86 It is apparent that Ms Pham played a critical and extensive role in securing, extracting and removing the drugs after their importation in Australia. It is apparent that Ms Pham had knowledge of the importation process and the method of concealment of the drugs. It may readily be concluded that Ms Pham travelled from Canada to Australia with this knowledge, in order to supervise and manage the subsequent collection and distribution of the drugs after their importation and delivery. Once in Australia, Ms Pham, at different times, gave instructions to Mr Nguyen with respect to activities. 87 The sentencing Judge found that Ms Pham "played a very significant role" in the offence and that "this was offending at the higher end of the range" (see [34] above). 88 Ms Pham's indictment offence involved more than 13 times the commercial quantity of cocaine and the s.16BA schedule offence involved more than 17 times the commercial quantity of methamphetamine.

[128]

38 To my mind the objective criminality of the respondent and the amount of the illegal drugs imported warrants a very severe penalty, toward the top of the available penalties, although not a term of life imprisonment (see the remarks of the Chief Justice in R v Stanbouli (2003) 141 A Crim R 531 at 533). There is little, apart from the fact that he has no prior criminal history, to ameliorate the sentence and that is of minimal significance. But for the fact that this is a Crown appeal a non-parole period significantly in excess of 20 years was appropriate. However, being a Crown appeal this Court should impose a sentence at the bottom of the available range. In my opinion that would require a non-parole period of 19 years and 6 months with an additional term of 8 years and 6 months making a total term of 28 years. Allowance must be made for the time he served in custody prior to his extradition to Australia. Although this provides a sentence where the non-parole period is greater than 66% of the total sentence the objective criminality of the offender more than justifies this term of full time custody (see Bick v R [2006] NSWCCA 408 at [21]-[23]; R v Sweet [2001] NSWCCA 445 at [18]-[20])." 92 The offender in R v Lee was resentenced to a term of imprisonment for 27 years and five months with a non-parole period of 18 years and 11 months. 93 In my view, the functions discharged by Mr Nguyen (see [76]-[81] above) were similar to those undertaken by the offender in R v Lee. Although Ms Pham performed different functions to Mr Nguyen (see [82]-[88] above), her moral culpability was high and, in some respects, greater than that of Mr Nguyen. 94 In the words used to describe the offender in R v Lee (at [33]-[37]), the present Respondents may not have been "at the pinnacle" but they "were key organisers" who were "critical to the success of the operation". Their roles were greater than having a "middle level of responsibility for the importation". 95 Of course, the quantities of the drugs are less in the present cases than in R v Lee, and the Respondents pleaded guilty and did not proceed to trial. However, their acts were those of persons who were more than middlemen in this criminal enterprise. Their criminality was of a high order.

[130]

Submissions Concerning Updated Schedule 98 Ms Nash submitted that, of the 68 cases in the schedule, 34 cases involved imposition of sentences with a non-parole period of seven years or less. It was submitted that included in these cases were offences which involved higher levels of criminality or culpability than in the present case. Ms Nash submitted that comparative cases which specifically involved charges of attempted possession of cocaine were confined to five cases. It was submitted that the schedule assisted Ms Pham on this appeal. 99 Ms Loukas submitted that the range revealed in the schedule demonstrated that the sentences imposed upon Mr Nguyen lay within the appropriate range. 100 The Crown submitted that the updated schedule generally supported its contention that the sentences imposed upon the Respondents were manifestly inadequate. It was acknowledged that there was a range of different factors, including discounts for assistance to authorities in a large number of cases, this not being a factor applicable to the Respondents (beyond appropriate credit for their pleas of guilty). 101 Insofar as the sentences imposed upon a number of persons in the schedule fell below the sentences imposed upon the Respondents, the Crown submitted that an analysis of the cases indicated that in the majority of them (20 of the 34 cases), the role of the offender was at a much lower level than that exhibited by the present Respondents, or the particular offender was given a significant discount for assistance to the authorities. When allowance was made for these factors, the Crown submitted that about 75% of the cases noted in the schedule supported the appropriateness of the range put forward by the Crown. 102 The Crown submitted that, generally speaking, the sentences imposed by the Supreme Courts in New South Wales, Victoria, Queensland and Western Australia supported its submission regarding the appropriate range of sentence for offenders who undertook "senior roles", or who were "key organisers critical to the success" of the enterprise in large-scale importations. 103 The Crown submitted that the appropriate interpretation of the schedules (both in 2007 and 2010) was that the range identified in R v Lee was the appropriate starting point for sentences involving offences of this kind. It was said that there will always be cases which fall either side of the range, and there will be a number of different reasons why that occurs. However, the Crown submitted that such occurrences did not detract from the general principle. Further, the Crown submitted that the sentencing Judges in the cases of these Respondents did not make findings which would explain why the sentences imposed were lower than what would lie within the appropriate range.

[131]

Conclusions Concerning Updated Schedule 104 The gathering of sentencing decisions into a schedule, to assist both intermediate appellate courts and sentencing courts, has proved useful in a number of circumstances. The analysis contained in the decision of this Court in R v Lee identified sentences which had been imposed over a period of time for commercial drug importation offences, and has served to promote consistency where sentences for federal offences of that type are passed in a range of courts throughout the States and Territories of Australia. 105 Of course, R v Lee did not (and cannot) purport to be a guideline judgment. The fact that this Court has been provided with an updated schedule for the period 2007 to 2010, and has received submissions concerning that schedule for the purpose of determining these Crown appeals, does not translate the present judgment into a form of guideline judgment. 106 Comparable cases can be useful guides, but care remains necessary in the use of case schedules given the objective and subjective differences between cases and the need to render individual justice: R v Todoroski [2010] NSWCCA 75 at [26]. 107 The submissions to this Court by reference to the updated schedule have been made in relatively general terms and it is appropriate that the Court respond in similar terms. Having considered the cases referred to in the updated schedule, I am satisfied that the schedule continues to support the analysis contained in R v Lee. 108 Of course, there are differences between offences and offenders in the cases referred to in the schedule, including quantities of drugs involved, the offender's plea and the timing of the plea, the giving of discounts for assistance to authorities and the role of the particular offender in the various cases. 109 An examination of these cases, however, supports the Crown submission with respect to manifest inadequacy in this case, where the Respondents played senior roles, and were key organisers critical to the success of the enterprise, being large-scale importations of border controlled drugs. The position reached by reference to arguments advanced on the appeals is supported by the fact that the Respondents appear to fall within the second group of commercial quantity offenders identified by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa at [210]-[211], [224], being part of an analysis which Simpson J (at [291]-[305]) and Barr AJ (at [313]) regarded as helpful. 110 I do not consider that Ms Pham derives any assistance from the sentencing decisions in attempted possession cases in the schedule. As Spigelman CJ noted in El-Ghourani v R at 218 [41]-[44], care must be taken in the use of sentencing decisions and the use of Judicial Commission sentencing statistics for attempted possession offences, given the range of moral culpability which may exist in particular cases. Given the high moral culpability of Ms Pham for her attempted possession offence, comparison with other cases involving lesser moral culpability does not assist. 111 In my view, application of the general principles in R v Lee, taken in conjunction with an examination of the cases contained in the schedule, supports a conclusion that the sentences imposed upon each of these Respondents was manifestly inadequate.

[134]

114 The question for determination is whether the sentences imposed upon Mr Nguyen and Ms Pham are manifestly inadequate in the well-recognised sense that they were unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. 115 I am satisfied that the sentences imposed upon Mr Nguyen were manifestly inadequate. This conclusion has been reached after assessing the objective seriousness of his crimes, and his subjective circumstances. In my view, consideration of the principles set out at [72] above, and application of the principles in R v Lee to his case, leads to such a conclusion. I keep in mind the differences between R v Lee and this case, being the substantially lesser quantities here and Mr Nguyen's plea of guilty. Nevertheless, Mr Nguyen stood for sentence for two offences involving importation of a commercial quantity of different drugs. Mr Nguyen was heavily involved in a substantial drug importation. A total effective sentence of imprisonment for 14 years and six months with a non-parole period of nine years and six months is manifestly inadequate. 116 The findings of fact concerning Ms Pham's involvement in the offence (see [34] and [82]-[88] above) demonstrate a high degree of moral culpability on her part: El-Ghourani v R at [33]-[37] (see 72 above). 117 The s.16BA schedule offence in her case attracts further comment. During the hearing of the appeals, the Court raised with the Crown the charging practice whereby an offence punishable by imprisonment for life was placed on a s.16BA schedule to be taken into account on sentence. Such a course is not available for a State offence which is punishable by imprisonment for life: s.33(4)(b) Crimes (Sentencing Procedure) Act 1999. However, s.16BA does not exclude offences carrying a life sentence from being dealt with in this way. 118 Where an offence carrying a maximum penalty of life imprisonment is included on a s.16BA schedule, it is ordinarily necessary for the sentencing court to reflect in the sentence imposed for the primary offence that a most serious offence has been taken into account, with the expectation that a significant additional increment will result in the sentence. This is especially so in the case of Ms Pham, where the only method to take into account her criminality with respect to the commercial quantity of methamphetamine was via the s.16BA schedule offence. Application of relevant sentencing principles in El-Ghourani v R required a substantial sentence to be passed for the primary offence, with a significant additional component for the s.16BA schedule offence. 119 The Crown has made good its submission that Ms Pham's sentence of imprisonment for 11 years with a non-parole period of seven years is manifestly inadequate. 120 As a finding of manifest inadequacy has been made with respect to sentences imposed upon both Respondents, it is not necessary to address Ms Loukas' submission by reference to R v Radloff (see [63] above). 121 The conclusion of manifest inadequacy has been reached by examination of the objective seriousness of the offences in each case and the subjective circumstances of each Respondent, compared and contrasted with the sentence imposed upon each Respondent.

[135]

Discretionary Factors 122 In Director of Public Prosecutions (Cth) v De La Rosa, all five members of the Court concluded that there was no inconsistency arising under s.109 of the Constitution as between s.68A Crimes (Appeal and Review) Act 2001 and s.16A Crimes Act 1914 (Cth) since the State provision could not operate of its own force. The majority of the Court concluded that s.68A, as construed in R v JW [2010] NSWCCA 49 and R v Carroll [2010] NSWCCA 55; 239 FLR 11, applied to Crown appeals concerning federal offences. 123 Ms Loukas submitted that, in the event that the Court determined to resentence, the relevant law to be applied was as stated in Director of Public Prosecutions (Cth) v De La Rosa. The Crown made a similar submission. 124 It is for this Court to approach the question of resentence of each Respondent by reference to applicable principles, and the evidence admitted in the District Court with respect to each Respondent as supplemented (in the case of Mr Nguyen) by affidavits relied upon by him in this Court. 125 Ms Loukas relied upon affidavits of Mr Nguyen affirmed 24 April 2010 and 24 September 2010 and her instructing solicitor, Frances Low, affirmed 5 May 2010. I have taken the content of these affidavits into account both on the question of whether the Court should exercise its discretion to intervene and, if the Court determines to do so, in determining sentence to be passed upon Mr Nguyen. The first affidavit of Mr Nguyen reveals efforts undertaken by him in custody by way of employment and the provision of psychological assistance to him. His second affidavit refers to aspects of his custodial experience and conditions and the anxiety and distress which he has experienced as a consequence of the Crown appeal. The affidavit of Ms Low annexes a work reference which speaks positively concerning Mr Nguyen's prison employment. 126 Ms Loukas submits that, if the Court finds error, it should exercise its discretion not to intervene having regard to the actual anxiety and distress suffered by Mr Nguyen as a consequence of the Crown appeal, his progress towards rehabilitation since the imposition of sentence and the delay in finalising the appeal as a result of the need for a judicial determination whether s.68A applied to Crown appeals concerning federal offences (cf R v Hersi [2010] NSWCCA 57 at [55]). The Crown submits that no discretionary basis has been demonstrated for the Court to decline to intervene and resentence the Respondents. 127 I am not persuaded that any discretionary consideration exists in these cases so that the Court should not proceed to resentence each of the Respondents. The sentencing process at first instance in each case was marked by error leading to the imposition of an unreasonable or plainly unjust sentence. The interests of justice require the imposition of appropriate sentences for these serious offences: R v Dinh [2010] NSWCCA 74 at [79]. The sentences are so inadequate that they cannot be allowed to stand: R v Hersi at [57]. The delay in the hearing and determination of the appeals is not such that this Court ought refuse to intervene. Nor are the matters relied upon with respect to Mr Nguyen such that the Court should decline to intervene given the public interest in the imposition of appropriate sentences. 128 In fixing sentences in this Court, I have applied the discounts allowed in the District Court with respect to Mr Nguyen (15%) and Ms Pham (10%) flowing from their pleas of guilty, with some rounding down to achieve a practical result. 129 Although the parity principle has no application, I have borne in mind, to the extent that it is possible, the principles in R v Jimmy (referred to at [23] above) in approaching the question of sentences to be imposed upon the Respondents as co-offenders. It remains the case, however, that leaving aside the s.16BA schedule offences, Mr Nguyen is to be sentenced for two importation offences, whilst Ms Pham is to be sentenced for one attempted possession offence. Despite her high level of moral culpability, Ms Pham can only be sentenced for this offence, albeit with a significant increase for the serious offence on the s.16BA schedule 130 Having taken into account the matters required by s.16A Crimes Act 1914 (Cth), including the objective gravity of the offences and the subjective circumstances of Mr Nguyen, and other factors bearing upon the imposition of sentence, I consider that an appropriate sentence for each of the offences of importing a commercial quantity of cocaine and methamphetamine is one of imprisonment for 16 years. 131 I turn to the issues of cumulation, concurrency and totality. Although the two drugs were imported in the same object and as part of the one transaction, there are two serious offences involving significant commercial quantities of different drugs. In my view, some degree of cumulation is appropriate. The sentences should be accumulated by a period of two years, resulting in a total effective head sentence of 18 years. A single non-parole period ought be fixed in accordance with s.19AB(1) Crimes Act 1914 (Cth). A non-parole period of 12 years is appropriate, being 66% of the total term. 132 The offences on the s.16BA schedule will be taken into account in fixing sentence for importing a commercial quantity of cocaine. The sentence on the importation of methamphetamine count reflects the greater relative quantity of that drug by reference to the commercial quantity. 133 With respect to Ms Pham, having taken into account the matters required by s.16A Crimes Act 1914 (Cth), including the objective gravity of the offence and her subjective circumstances, and other factors bearing upon the imposition of sentence, and taking into account the serious offence on the s.16BA schedule, an appropriate sentence is one of imprisonment for 15 years commencing on 19 May 2008 and expiring on 18 May 2023, with a non-parole period of 10 years expiring on 18 May 2018, being 66% of the full term. 134 In the case of each Respondent, the non-parole period to be fixed represents the minimum period that each Respondent should spend in prison having regard to all the elements of punishment, including the objective seriousness of the offences, specific and general deterrence, denunciation and the subjective circumstances of each Respondent R v MA [2004] NSWCCA 92; 145 A Crim R 434 at 440-441 [33]-[34]. 135 I propose the following orders. With respect to Hai Van Nguyen:

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