R v William [2001] VSCA 130

Court of Appeal (Vic)|2001-08-15|Before: WINNEKE, P., BROOKING and BUCHANAN, JJ.A.

Criminal law - Sentence - Trafficking in heroin - Several co-offenders - Appellant's sentence disparate from that of co-offender - Appeal allowed.

I will ask Buchanan, J.A. to give the first judgment in this appeal.

The appellant obtained the heroin sold to Lewis from Lan Thi Tran. The heroin the subject matter of the first three sales was supplied directly to the appellant by Tran. On the other occasions the appellant was introduced by Tran to the persons who supplied the appellant with the heroin. In respect of the fourth sale, the supplier was Trong Sinh Truong. On the fifth occasion, Tran made arrangements with Nga Thi Thanh Huynh and Kim Van La.

The appellant was interviewed by the police and readily admitted his guilt. He said that he was taking the place of Tony Lam while the latter was on holiday in Vietnam. Orders were placed with him by telephone and he passed the orders on to Tran. The police searched his house but apparently found no heroin. The reward obtained by both the appellant and Tran from these transactions was a commission, in the case of the appellant the commission amounting to $200 or $250 in a day.

5 The appellant pleaded guilty to a charge of trafficking in heroin between 15 September and 8 November 1999 and was sentenced to a term of five years' imprisonment. A minimum term of three years' imprisonment was fixed.

The appellant was granted leave to appeal against his sentence. The grounds of appeal are that the sentence infringes the principle of parity among co-offenders and is manifestly excessive.

In order to set the grounds of appeal in context, I need to say something of the appellant's history and the punishment imposed upon his co-offenders. The appellant is 34 years of age. He has no prior convictions. The appellant was born in Vietnam. He came to Australia via a refugee camp in Malaysia when he was 17 or 18 years of age, without any relatives or ability to speak English. He studied English and learned welding at a TAFE college. He worked as a welder for two years and then commenced a business as a clothing manufacturer. Six years later he sold the business and commenced another business of a small supermarket in Smith Street, Collingwood. In 1990 the appellant married. There are two children of the marriage. The supermarket business failed and the appellant returned to manufacturing clothing. He worked extremely hard (his accountant said he worked 58 hours a week), for a relatively modest return. In the course of the plea it was submitted that the appellant was induced by his financially straitened circumstances to accept Tony Lam's offer to fill in while Lam was absent from his business as a heroin dealer.

The appellant's co-offenders were sentenced as follows. Tran was sentenced to a term of 30 months' imprisonment for trafficking in heroin and a minimum term of 15 months was fixed. Nga Thi Thanh Huynh was sentenced to a term of 10 months' imprisonment for trafficking in heroin, a term which was wholly suspended. Kim Van La was sentenced to a term of 12 months' imprisonment for trafficking in heroin, again a term which was wholly suspended. Trong Sinh Truong was sentenced to a term of 18 months' imprisonment for trafficking in heroin and a 12 months' sentence for possessing equipment for trafficking. The sentences were made concurrent, and the total effective sentence of 18 months' imprisonment was wholly suspended.

The transcript of the plea and sentence of Truong shows that he pleaded guilty to a charge of trafficking in heroin and a charge of possessing equipment for trafficking in heroin. The sentence imposed upon him for trafficking was 18 months' imprisonment. The judge in the present case said, apparently incorrectly, in the course of sentencing the appellant:

"Truong was dealt with by His Honour Judge Nixon for being in possession of a press and other paraphernalia and was charged pursuant to s.71A of the Drugs, Poisons and Controlled Substances Act, but not with the count of trafficking."

The sentencing judge said that he suspended the sentence imposed on Kim Van La after she promised to give evidence against others, and said that many of the matters in her case were applicable to Nga Thi Thanh Huynh.

The sentencing judge did not state how the appellant's role in the trafficking differed from that of Tran, and I am unable to discern any significant difference in the material that was before his Honour. Both were essentially the media for the transmission of heroin. The appellant received orders from Lewis and others and passed them on to Tran. She in turn obtained the required heroin from others further up the chain and gave it to the appellant, or arranged for others to give it to the appellant. Both were rewarded by commission at relatively low rates. Nor am I able to see a distinction between the personal circumstances of the appellant and Tran which explains the imposition on the appellant of double the head sentence imposed on his co-offender. Tran came to Australia in 1981. Unlike the appellant, she had family support. At the time of the commission of these offences she was separated from her husband and was alone, apparently, bringing up three children on a supporting parent's benefit. What is of some significance, however, is that Tran had a prior conviction from 1998 for trafficking in heroin, for which she was fined $1,500. While the appellant made full admissions to the police, Tran for the most part denied any wrongdoing.

11 In my opinion, the disparity in the sentences imposed upon the appellant and his co-offender cannot be explained by any differences in their roles or personal circumstances and would give rise to a justifiable sense of grievance on the part of the appellant. I should say that I do not regard the sentence imposed on the appellant, viewed by itself, as one which was outside the range available to the sentencing judge. The only ground upon which I would grant this appeal is that of parity.

Accordingly, I am of the view that the disparate sentences disclose an error which re-opens the sentencing discretion. I would propose that the appellant be sentenced to the same term as that imposed upon his co-offender, Tran.

I agree. Very rarely a matter comes before this Court which suggests an injustice has occurred as a consequence of disparity between sentences imposed upon co-offenders. I agree with Buchanan, J.A. that this is such a case. There is little to distinguish between the part played in the trafficking alleged by this appellant and that played by the co-offender Tran, who stood for sentence at the same time. If anything, Tran's conduct was even more culpable than the appellant's because she had a prior conviction for similar offending. The disparity leads to the unfortunate consequence that the injustice will have to be remedied by quashing the sentence imposed upon the appellant and imposing a less severe sentence, even though the sentence imposed upon him was well within the range of sentences open to be imposed for this class of offence. The truth is that the sentence imposed upon the co-offender was in my opinion far too low. But justice between co-offenders must prevail, and the only way in which justice can be done is to lower the sentence imposed upon the appellant to the same sentence which was imposed upon the co-offender.

I agree with both judgments which have been delivered.

The formal order of the Court is that the appeal will be allowed.

The sentence imposed by the judge below is quashed and in lieu thereof the Court substitutes for the sentences imposed by the judge a sentence of two-and-a-half years, and it is ordered that he serve a period of 15 months before being eligible for parole.

Pursuant to the provisions of s.18 of the Sentencing Act 1991, we declare that a period of 220 days has already been served pursuant to the sentence imposed and we order that the fact of the declaration and its details be entered in the records of the Court.

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