13 Before addressing the individual grounds of appeal, and the common ground concerning parity, it is appropriate to make this general observation. In my view, the sentencing remarks in this case, which were lengthy and detailed, reflect that her Honour brought considerable care to the sentencing task. In particular, she was extremely careful to make an appropriate evaluation of the respective roles of each of the offenders and, even more importantly, her Honour was at pains to ensure that principles of parity were met. The difference in the three sentences imposed on Pham, Manh and Allan Nguyen, in my view, reflects that care.
PHAM'S APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
14 Pham's grounds of appeal complained, under Ground 1, that the sentence was manifestly excessive; under Ground 2 as to application of the principles of parity in sentencing; under Ground 3, that inadequate weight was given to the applicant's plea of guilty.
Ground 2: Parity
15 Mr Meredith, counsel for Pham, primarily focussed his attention on comparison of the sentence imposed on Pham with that imposed on Ngoc. He submitted that the roles played by Pham and Ngoc were substantially the same in the enterprise. Pham's sentence should have reflected that fact, he submitted, but it did not.
16 Ngoc was not convicted of trafficking in a commercial quantity of heroin, but was charged with and pleaded guilty to trafficking simpliciter, thereby facing a maximum sentence of 15 years imprisonment. Pham, on the other hand, faced a maximum sentence of 25 years' imprisonment, for trafficking in a commercial quantity of heroin, to which count Pham pleaded guilty. Counsel submitted that whilst the difference in maximum penalties would justify a slightly heavier sentence for Pham than for Ngoc, it could not justify so great a disparity as existed between the respective head sentences of Pham and Ngoc (7 years c.f. 4 years) and their non-parole periods (5 years six months c.f. 2 years 6 months).
17 Mr Meredith submitted that her Honour placed too much weight on the quantity of drugs found in the possession of Pham and allowed that fact to override what he submitted was the primary consideration concerning parity, namely, whether there was any real difference in their respective roles in the drug enterprise. Mr Meredith submitted that there was little difference between Pham, Ngoc and Manh as to their roles.
18 In the intercepted conversations Manh was shown to be supplying heroin to Pham and to other persons who were below Pham in the chain of distribution. Pham was supplying heroin to Allan Nguyen, and to others. Her Honour accepted that Pham and Ngoc both had direct contact with heroin suppliers in New South Wales. Her Honour also accepted that the telephone intercepts revealed that there were times when Pham was directed to collect heroin from Ngoc, "and visa versa". In the case of Allan Nguyen her Honour found that the heroin which was supplied to him was in part being dealt directly to end users and in part was being distributed by him to dealers below him. Her Honour accepted that the dealing as between Pham and Allan Nguyen was significant, substantial, and ongoing, and her Honour accepted evidence from intercepted telephone and listening device conversations that, at times, Allan Nguyen was speaking to persons about drugs being supplied at a price of $140,000 to $150,000.
19 Her Honour found that the trafficking by Manh and Pham was significant, substantial and ongoing and that Manh engaged in extensive discussions about the supply of samples of heroin and about the supply and sale of larger quantities.
20 Mr Meredith submitted that although his client alone was guilty of trafficking in a commercial quantity of heroin the complaint of disparity was justified because the issue of parity required that attention focus on the role they each played, not on the quantity of heroin that happened to be in the house where and when Pham was arrested. Thus, while the maximum penalty attached to a count was relevant the more important factor that the judge had to take into account was the respective roles of the offenders. Where the roles were much the same, then that factor, rather than the maximum penalty, deserved to be given particular weight in achieving sentences which were not disparate.
21 In Lowe v R[2] Gibbs, C.J. stated the parity principle in terms that "persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal . . ." (emphasis added). Likewise, Mason, J.[3] and Brennan, J.[4] identified the principle as being one concerned with disparity in the sentence of co-offenders, convicted of the same offence.[5] It is well-recognised that when considering a complaint of disparity as between co-offenders who had committed the same offence, a discernable difference in their respective roles and as to their respective criminality in committing the offence might justify disparity, thereby precluding any justifiable sense of grievance[6] arising.
22 Although the parity principle would ordinarily apply only to co-offenders who committed the same offence, I leave open the question whether a justifiable sense of grievance, one justifying appellate intervention, might be capable of arising even where the elements of the offences being compared had some identical or similar features but where there were also significant differences. For present purposes I will assume that it might be so[7]. In this case, however, although the relevant offenders have all been convicted of offences concerning heroin trafficking, and the conduct in all cases had common features, important differences remained between the offences.
23 As Callaway, J.A. emphasised in R v. Taudevin[8], in a passage approved by Gummow, J. in Postiglione v R[9], for an appellate court to intervene on grounds of disparity the difference in the sentences imposed on co-offenders must be manifestly excessive and be such as to engender a justifiable sense of grievance on the part of the offender who received the heavier sentence. For there to be a justifiable sense of grievance the disparity must be such as to give the appearance of injustice to an objective observer.
24 In this case the seriousness of proven or admitted conduct in trafficking in commercial quantities of heroin (in comparison to trafficking simpliciter), if not self evident, is made clear by the maximum penalty which is fixed by Parliament.[10] In my opinion, the difference in the relative seriousness of the two offences, as reflected by the maximum penalties available, is so great as, by virtue of that factor alone, to prevent an objective observer concluding that Pham could entertain a justifiable sense of grievance.[11] That is so even if Ngoc may be considered fortunate not to also have been convicted of the more serious offence. The fact is, he was not so convicted and did not admit trafficking to that degree. There is no injustice to Pham in his being convicted on his plea to trafficking in a commercial quantity of the drug. Indeed, Ngoc may himself have had a justifiable sense of grievance had he been sentenced to the same or a similar term of imprisonment as Pham, having regard to the significantly lower maximum sentence available for the count on which he was convicted.
25 In any event, whilst, in my opinion, the different maximum sentence of itself provided an answer to the complaint as to parity as between Pham and Ngoc, that was not the only factor of difference between them which justified different treatment. The following distinguishing factors may be noted: