R v Pham & Nguyen [2006] VSCA 68

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 I have had the advanta_g_e of reading the draft reasons for judgment of Eames, J.A. and agree that, for the reasons given by his Honour, the application by Manh Huong Nguyen to amend the grounds of appeal should be refused and the applications for leave to appeal against sentence should be dismissed.

2 These are applications for leave to appeal against sentence brought by two persons who were part of a large scale heroin trafficking enterprise conducted between Sydney and Melbourne in 2001. The same judge, her Honour Judge Jenkins, sentenced these two applicants, and also a third person. Some of their co-offenders were sentenced by other judges. As is so frequently the case when circumstances arise which make it impossible for all co-offenders in a criminal enterprise to be sentenced by the same judge, one common complaint made by these applicants is that their sentences offend the principle of parity in sentencing, with respect to the sentence imposed on the co-offenders. As will emerge, I conclude that that complaint is without substance with respect to either applicant. Each raises other grounds of appeal, too, but I have concluded that those grounds are also without substance.

3 The applicant Quang Hung Pham ("Pham") pleaded guilty to one count of trafficking in a commercial quantity of heroin between 1 August 2001 and 30 October 2001, contrary to s.71(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act"). On 11 June 2004 he was sentenced to seven years' imprisonment with a non-parole period fixed of five years and six months' imprisonment.

4 The applicant Manh Huong Nguyen ("Manh"), having been committed for trial on a count of trafficking in heroin between 18 September 2001 and 30 October 2001, contrary to s.71(1)(b), and pleading not guilty, was convicted upon verdict of a jury. On 11 June 2004 he was sentenced to six years' imprisonment with a non-

parole period of four years and six months being fixed.

5 A third person, Allan Nguyen, was committed for trial on the same presentment as Pham and Manh, on one count of trafficking in heroin between 5 October 2001 and 30 October 2001. He pleaded not guilty but was found guilty by a jury and was also sentenced by Judge Jenkins on 11 June 2004. Her Honour imposed a sentence of five years' imprisonment with a non-parole period of three years and six months. Allan Nguyen applied for leave to appeal against both conviction and sentence and his applications came before this Court at the same time as the applications of Pham and Manh. Upon the prosecutor conceding that ground 1 of his grounds of appeal had been made out, and that a substantial miscarriage of justice may have occurred by virtue of the error therein disclosed, the Court ordered,[1] on 20 February 2006, that the application by Allan Nguyen for leave to appeal against conviction be granted, that his appeal be allowed, the conviction be quashed and a new trial was ordered.

6 Notwithstanding that Allan Nguyen's conviction and sentence have been quashed, the grounds of appeal and submissions advanced on behalf of Pham and Manh make reference to his sentence and to the judge's findings concerning his role in the enterprise. It must be understood, however, that although I make reference in these reasons to the sentence referable to Allan Nguyen, no findings made by the judge, nor any of my observations in response to arguments by counsel for the two applicants, can impinge upon the presumption of innocence which has been restored in Allan Nguyen's case upon his conviction being set aside.

THE CIRCUMSTANCES OF THE OFFENCES

7 All three applicants were arrested on 30 October 2001 following a police investigation into large-scale heroin trafficking involving persons in Sydney and Melbourne. The investigating police monitored 628 telephone calls between 26 July 2001 and 30 October 2001. In those phone calls the participants used code words when trafficking. On the Crown case the three applicants had been important cogs in a major heroin syndicate which was distributing high-grade heroin in half gram samples, single grams, 3.5 gram lots, quarter ounces, half ounces, single ounces, and multiple ounces, up to 12.5 ounce blocks. The range of prices quoted to potential purchasers varied from $200 for a half gram, to between $6,000 and $10,000 per ounce, and between $90,000 and $120,000 for a block of 12.5 ounces.

8 Pham was the occupier of premises at 14 Jamieson Street, St. Albans, which were owned by his wife. At those premises he received wholesale quantities of heroin which was then mixed with cutting agents, recompressed and distributed through a range of people, including Manh.

9 Between 9 August 2001 and 5 September 2001 Pham made or received 140 telephone calls, on the same telephone, relating to drug distribution. On two days, 17 and 18 September 2001, he made a further ten telephone calls using another phone and between 19 September and 30 October 2001, on a third mobile telephone, a further 155 calls were monitored. All calls related to drug distribution. For the most part the calls were with two drug suppliers in New South Wales and with other persons later charged with Pham.

10 A listening device was planted in the St. Albans home of Pham and a covert surveillance camera disclosed that Manh attended the premises on five occasions in October 2001 and (according to the prosecution) so too did Allan Nguyen, on six occasions. The monitored and recorded conversations between Manh and Pham indicated that Pham acted on Manh's directions.

11 On 30 October 2001 police executed a search warrant at the St. Albans address and arrested Pham. There they found, wrapped in silver foil, rock heroin and also 524 grams of heroin, which was ten per cent pure. In addition, they found cutting agents, including 950 grams of Mannitol, and also drug trafficking equipment, including two heavy duty large hydraulic jacks, a pair of stilsons with chain tensioner, metal plates and presses, blenders, disposable gloves, scales, and silver foil for packaging of heroin. The street value of the heroin found in the house was estimated to be in the range of $280,000 to $560,000, depending on how it was cut.

12 Eight people were charged with offences arising out of the same heroin operation. Apart from the three applicants, other people were dealt with as follows:

• Anh Dung Thai ("Thai") pleaded guilty to trafficking heroin and was sentenced to three years' imprisonment with two years non-parole period, by Judge Duggan.

• Ngoc Lam Pham ("Ngoc") pleaded guilty to one count of trafficking in the period between 28 August 2001 and 30 October 2001. He was sentenced by Judge Coish to four years' imprisonment with a non-parole period of two years six months.

• Xang Cuong Nghiem ("Nghiem") pleaded guilty to possession of money reasonably suspected of being the proceeds of crime and was convicted and fined $5,000.

• Catherine Nguyen, had pleaded guilty to an offence but not been sentenced at the time when the applicants were sentenced.

• Thi Hai Phan was discharged at committal.

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:

• The offending conduct on the part of Pham occurred over 12 weeks whereas it was eight weeks in the case of Ngoc.

• It was the premises of Pham which was the hub of the heroin distribution in Melbourne. In the course of submissions counsel then appearing for Pham responded to her Honour's statement that Pham's house "was key to the whole operation" by saying "there's no doubt about that". Quite apart from the substantial quantity of drugs found on the premises, there was also a great deal of equipment for cutting, packaging and compacting heroin.

• Further, although Pham gains the benefit of a plea of guilty it was a plea made late in the day and at a time when a trial date had been fixed. In the case of Ngoc the judge who sentenced him regarded his plea of guilty as reflecting "true remorse".

• Judge Jenkins found that there was a risk of re-offending in Pham's case, a finding which was not challenged on appeal. Judge Coish, in sentencing Ngoc, considered he had some prospects of rehabilitation.

26 Mr Meredith next contrasted Pham's sentence with that imposed on Manh. He acknowledged that complaint of disparity as between Pham and Manh was more difficult to sustain, than as to Ngoc's sentence, but he submitted nonetheless that there was also manifest disparity as between those offenders. He submitted that Manh had been treated by the investigating police as higher on the organisational scale than Pham yet his sentence was significantly less than that imposed on Pham.

27 In my opinion, the differences in their situations was appropriately reflected by the learned sentencing judge. The following factors were relevant:

• Manh was found guilty of the less serious offence, one which carried 15 years rather than 25 years' imprisonment.

• Manh's criminality was regarded by the judge as significant. The sentence imposed on Manh was a stern one when regard is had to the maximum sentence; he received no sentencing discount by virtue of a plea of guilty, since he pleaded not guilty and was convicted by a jury.

• Manh's conviction related to offending over six weeks rather than the three months of offending in Pham's case.

28 Having regard to those differences in their respective positions, I do not consider that there is a manifest disparity between their sentences in any event, but even if the disparity is manifest it is not such as could give rise to a justifiable sense of grievance on Pham's part with respect to Manh's sentence.

29 This ground has not been made out.

Ground 3: Plea of guilty

30 As to ground 3, Mr Meredith submitted that her Honour did not say expressly that she was giving a sentencing discount to Pham because he had pleaded guilty. The sentence imposed, he submitted, of seven years imprisonment with a five year six months non-parole period, confirms that her Honour could not have given any or any sufficient discount for that plea.

31 The contention that her Honour may have overlooked the plea of guilty is untenable. Her Honour said:[12]

"The following matters generally were addressed in mitigation of your sentence which I will deal with in turn. First you have pleaded guilty to this offence and it is accepted that a plea of guilty is ordinarily a matter to be taken into account in mitigation. First because it is usually evidence of some remorse on the part of the offender and secondly on the pragmatic grounds that the community is spared the expense of a contested trial. However, the extent of the mitigation may vary depending on the circumstances of the case."

32 Her Honour went on[13] to say that in this case the guilty plea "comes late in the proceedings", but her Honour continued, "I accept your plea of guilty as a mitigating factor taking into account also the timing and circumstances in which it was made." In my view, it is plain that her Honour did have proper regard to the plea of guilty in this case. The sentence was severe, but a much heavier sentence would have been within range, and would have resulted, had there been no guilty plea. Her Honour was entitled to reduce the weight to be given to the plea, given its late entry (the plea was entered at a directions hearing, the trial date having been set).[14] Furthermore, the evidence against Pham was so strong that an acquittal was highly unlikely.

Ground 1: Manifest excess

33 Mr Meredith noted that the applicant had only one minor prior conviction, was aged 44 years at the time of sentencing, had been a refugee in Hong Kong after fleeing Vietnam, was socially isolated, and had suffered a back in jury in 1997, which was a factor in his decision to use heroin, because, so it was said, he suffered pain and depression. As to the last matter, the judge noted the absence of independent evidence of the back injury, but the other matters, and the plea of guilty, were acknowledged by the judge to be mitigatory factors.

34 As is often stated, whether a sentence is manifestly excessive is a matter of impression and a conclusion, either way, requires little elaboration. The complaint that Pham's sentence was manifestly excessive is without substance, in my view. His offence involved trafficking in a commercial quantity of heroin across two States, in an organised way and for very high profits. Even allowing for the plea of guilty and other mitigating circumstances the sentence imposed was in my view plainly within range, having regard to the 25 year maximum penalty that was available and to the very substantial heroin enterprise and the role in it engaged in by Pham.

35 None of the grounds relied on by Pham have been made out.

APPLICATION BY MANH HUONG NGUYEN ("MANH"):

36 In the case of Manh the only existing ground of appeal is one asserting that the sentence was manifestly excessive. However, notice of intention to apply to amend the grounds of appeal was filed on the hearing of the application for leave to appeal. The Court heard argument on those grounds, reserving a decision as to whether to allow amendment of the grounds of appeal.

37 The proposed new grounds were ground 2, that the learned sentencing judge erred in finding that the applicant was, in effect, involved in the trafficking of a quantity of heroin not less than a commercial quantity; ground 3, that the judge erred in finding that the applicant was at risk of re-offending, and ground 4, that the learned sentencing judge erred in the application of the parity principle.

38 Mr Boyce first argued proposed ground 2.

Proposed ground 2: A finding as to commercial trafficking?

39 Mr Boyce submitted that although counsel who then appeared for Manh stressed to the judge that his client was not being dealt with for trafficking in a commercial quantity of the drug, her Honour's sentencing remarks disclosed that that distinction was all but ignored by her Honour. He cited the following passages of the sentencing remarks, addressed by her Honour to Manh:

"[27] There is discussion about having to get people to help in compressing the heroin and you request the gear or heroin to be ready so that it can be taken for sale. There are discussions where you give instructions to (Pham) to leave the heroin in its current form, not to touch it whilst you wait on a call-back from another person. There are discussions where (Pham) asks you whether the heroin is still in block form, meaning a size of 350 grams of heroin. There are discussions which Detective Miller interpreted as referring to a quantity of heroin of value of $110,000 as it is to which can be added another 600 to 700 grams to that particular heroin.

[28] I do not propose to refer to further extracts from the transcript which were examined in detail at your trial. However, on the evidence before me, I am satisfied beyond reasonable doubt that your activities extended to not only the supply and sale of heroin in a range of quantities including large block quantities but also organising the cutting and reprocessing of heroin."

40 Mr Boyce conceded that, for the purposes of determining where in the hierarchy of the syndicate Manh fitted, it was relevant for her Honour to have regard to the larger quantities of drugs being handled or dealt with by him, but he submitted it would be wrong to punish him, in effect, for trafficking a commercial quantity, and that is what had occurred here. In the above passages, so it was submitted by Mr Boyce, her Honour was plainly sentencing Manh as though he was trafficking in heroin in quantities greater than 500 grams mixed (the commercial quantity threshold); he was being treated for sentencing purposes as though, in reality, he was trafficking in commercial quantities.

41 In my view, however, those passages must be read in the light of what her Honour said in the following passage:

"[29] I therefore conclude that you were operating at a more senior level in the syndicate and your criminality was somewhat greater than that of Allan Nguyen. Surveillance evidence at your trial placed a car driven by you when you were arrested in the driveway of Quang Pham's home. When you were arrested, the keys to Quang Pham's home were found in your possession."

42 Paragraph [29] represented the conclusion of an analysis by her Honour, which started at paragraph [24], that analysis not relating the quantities of heroin which Manh handled or dealt with as bearing upon sentence but, rather, being part of the assessment which her Honour was making as to where he stood on the syndicate's totem pole. That is clear from the first sentence of paragraph [29]. It was a necessary evaluation, required in order to determine the relative importance of each offender to the criminal enterprise, so as to inform the sentence for the offence on which each stood convicted. In making that assessment the judge was entitled to have regard to the fact that the applicant had involvement at such a high level that he was dealing in substantial quantities of the drug and was entrusted to make deals involving substantial sums of money.

43 What the judge would not have been entitled to do would be to increase the sentence on the basis that he was trafficking in a commercial quantity of the drug, that is, on the basis that he had committed the more serious offence.[15] I do not consider that the judge's remarks demonstrate that her Honour fell into that error. As Mr Holdenson pointed out, there are many passages in the sentencing remarks of her Honour where she very clearly emphasised the distinction between trafficking simpliciter and trafficking in a commercial quantity.

44 The proposed ground is without substance.

Proposed ground 3: Risk of re-offending

45 Her Honour said of Manh, at paragraph [79]:

"In your case, Manh Nguyen, you do have a history of more extensive prior offending although none of such serious nature as the subject offence. More significantly, you have also participated in the most serious type of offence at a senior level, at a mature age and in the context where you have demonstrated a capacity to pursue continuous productive employment. I also note that at no stage have you admitted to your offending conduct or expressed any remorse whatsoever. Your instructions to your counsel remained unchanged at the plea hearing. I must regard you at risk of re-offending."

46 In paragraph [82] her Honour said of all three offenders that none of them had made any admissions, and that they were part of a much larger network which spanned two States. The telephone intercepts showed them to be confident and informed operators who executed the operation in a sophisticated way, and her Honour added, "For these and the reasons previously indicated, you should each be regarded as at risk of re-offending and your sentence should reflect this."

47 There is no doubt that by the expression, "your sentence should reflect this", her Honour was treating the risk of re-offending as an aggravating factor, and as such it had to be proved beyond reasonable doubt.[16] Mr Boyce conceded that her Honour's finding that Manh was at risk of re-offending was, indeed, a finding made by her beyond reasonable doubt. He submitted, however, that it was not open to her Honour to have been so satisfied.

48 It is to be noted that her Honour did not make a finding that Manh probably would re-offend or that it was likely that he would re-offend. The judge simply found that he was at risk of re-offending. In my view, it was entirely open to her Honour to be satisfied of that beyond reasonable doubt. In my view, the matters to which her Honour referred, when taken together, would have justified that finding beyond reasonable doubt. Furthermore, as her Honour noted, Manh had prior convictions which, although not particularly serious, involved discrete episodes in four separate court appearances of, in turn, stealing, larceny, stealing and, finally, hindering a police officer in the execution of his duty. Her Honour acknowledged that those prior convictions were not of the same nature or seriousness as the present offence but she observed that the fact that he did acquire four such convictions within two years could not be ignored and that those convictions were relevant both as to his attitude to the criminal justice system and as to his prospects of rehabilitation. Those findings were entirely open to her Honour.

49 Additionally, there was the absence of remorse, a plea of not guilty, the fact that he was not desperate for money when he became involved, the role he played and the serious level of the offending (keeping in mind that he was not convicted of trafficking a commercial quantity). All of those factors would more than justify the finding made by her Honour.

50 Ground 3 is without substance.

Proposed ground 4: Parity

51 As to ground 4, the complaint of parity, Mr Boyce compared Manh's sentence of six years' imprisonment with a non parole period of four and a half years with that imposed on Allan Nguyen (five years imprisonment with a non-parole period of three years and six months) and the sentence imposed on Ngoc (four years, with a non-parole period of two years and six months). He referred also to Anh Thai's sentence for trafficking which had taken place over three months (three years with a two year non-parole period).

52 In my view none of those other sentences constituted a manifest disparity with Manh's sentence or could give rise to a justified sense of grievance on Manh's part.

53 The situations of Ngoc and Thai may be clearly distinguished from the situation of Manh. Neither Ngoc nor Thai had prior convictions, whereas Manh did have prior convictions. Manh's role in the organisation, on any view, was at a high level, whereas both Ngoc's and, to an even greater extent, Thai's role were plainly subordinate to Manh. Ngoc and Thai pleaded guilty, whereas Manh did not. Ngoc was found to be remorseful and to have prospects of rehabilitation, but no similar findings were made as to Manh.

54 With respect to Allan Nguyen, the complaint as to disparity was dependent on Manh succeeding as to his complaint under ground 2. For reasons earlier given, he does not succeed on that ground and it is unnecessary to further consider parity with respect to Allan Nguyen's sentence.

55 In my view, this ground also fails.

Ground 1: Manifest excess

56 The complaint that Manh's sentence was manifestly excessive was said to be made out by virtue of the fact that his trafficking was confined to a six week period, was not of a commercial quantity, that he had no prior convictions for drug trafficking and had good prospects for rehabilitation. In addition, there had been a 31-month period of delay between the offence and sentencing, during which time he complied with bail conditions.

57 Manh was 35 years of age at the time of sentencing, had fled Vietnam in 1987, had been in a refugee camp, had two sons, worked hard whilst in Australia and had references saying that he was good Christian. His offending was confined to a six weeks period and her Honour accepted that his employment record and personal

attributes demonstrated good prospects of rehabilitation, but her Honour found that the circumstances of the offending did not justify a longer than normal parole period.

58 In my opinion, this sentence cannot be regarded as manifestly excessive, having regard to the seriousness of the offending and the role played in the offending by Manh. Her Honour found that Manh engaged in a most serious offence at a senior level The sentence imposed was within range.

CONCLUSION

59 The application by Pham for leave to appeal against sentence should be dismissed.

60 The application by Manh to amend the grounds of appeal should be refused and the application for leave to appeal against sentence should be dismissed.

[1] R v Allan Nguyen [2006] VSCA 27.

[2] [1984] HCA 46; (1984) 154 C.L.R 606, at 609.

[3] At 611-612.

[4] At 617.

[5] In R v Taudevin [1996] VICSC 7; [1996] 2 V.R. 402, at 403, Hampel, AJ.A., in a dissenting judgment observed, in a passage that was not the subject of comment by the other members of the Court, that the parity principle meant that it was desirable that parties to "the commission of the same offence should receive the same sentence". I note that in Postiglione v The Queen [1997] HCA 26; (1997) 189 C.L.R 295 Kirby, J., whilst relating the principle to co-offenders (at 338, note 7) also spoke of "co-offenders or offenders in a similar situation demanding comparison and contrast" (at 338 note 5.)

[6] See Postiglione v The Queen at 303-4, per Dawson and Gaudron, JJ., at 311-3, per McHugh, J., at 318-320, per Gummow, J., at 338, 341, per Kirby, J.

[7] It has been held that the parity principle involves an evaluation of "the overall criminality" of the offenders: see Postiglione, at 308, per McHugh,J.; see, too, Dawson and Gaudron, at 301, Gummow, J., at 318, see too Kirby, J., at 338, who held the parity principle applied to persons convicted of "like" offences.

[8] [1996] VICSC 7; [1996] 2 V.R. 402, at 404.

[9] (1997) 19 C.L.R. 295, at 323.

[10] Whilst the maximum penalty which is available is not the only factor which demonstrates the seriousness of the offence, it remains an important indicator: see R v Pearce, unreported, Court of Appeal, 19 September 1996, at 8, per Callaway, J.A.

[11] R v Taudevin, at 404.

[12] At [36].

[13] At [37].

[14] The time of entry of the plea is a relevant consideration: see s.5(2)(e) of the Sentencing Act 1991.

[15] See R v De Simoni (1981) 147 C.L.R., at 394, per Gibbs, C.J.

[16] R v Pickard [1998] VSCA 50 at [3]- [5], per Winneke, P. and Charles, J.A.