And:
"I will set a non-parole period recognising all of the offender's subjective features, including his pleas and any other particular discount; and so as not to extinguish any glimmer of hope for parole after a suitably long non-parole period has been served."
32 In R v Neale [2004] NSWCCA 311 it was held to be open to a sentencing judge, where a statutory maximum term was appropriate, to afford mitigation in setting the non parole period.
33 Applicable statutory provision is to be found in the Crimes Act 1914:
"16A …..
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
………………………..
(g) if the person has pleaded guilty to the charge in respect of the offence - that fact ….. "
34 As a plea of guilty could not conceivably operate to the detriment of an offender, it follows that what is required is consideration of the fact of pleading guilty to the potential advantage of the offender. Of course, the statute does not mandate sentence reduction for that reason but the obligation to consider the mere fact does not make it necessary to determine as isolated matters, the utilitarian value, remorse or any other specific before a benefit can be assessed.
35 It is argued by the appellant that his Honour's remarks demonstrated that he applied restraints upon granting leniency for pleas of guilty which exceeded any appropriate level. By reference to the Shorter Oxford English Dictionary, the meanings of "bribe" convey corruption, dishonesty and perversion of judgment, hence his Honour's description of an available discount sanctioned by authority as a "utilitarian bribe" indicated an erroneous application of principle. Similarly, it was indicative of at least departure from orthodoxy to criticize a plea of guilty as a "willingness to facilitate the course of justice" as being "somewhat unworldly" having regard to those exact terms being sanctioned in the joint judgment in Cameron v The Queen 2002 209 CLR 339 @ 343.
36 Both the Crown and counsel for PHAM made reference to the circumstance whereby the pleas of guilty were not entered until the day after the scheduled trial date although it was conceded that PHAM had much earlier indicated his intention to plead guilty. The timeliness of a plea of guilty is primarily relevant to the utilitarian value of saving the Crown expense and saving witnesses the inconvenience and pressures of giving evidence.
37 Whether the approach adopted by his Honour was productive of a sentence in respect of which this Court should intervene will need to be determined in the light of this and other grounds including the assertion that the life sentence was manifestly excessive.
38 PHAM (ground 2) complained that his Honour gave insufficient weight to assistance by the offender to authorities. Again, for Federal offenders, there is applicable statutory obligation:
"16A …..
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…..
(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences
……… "
39 His Honour's reference in his remarks on sentence to this aspect was limited to the allusion to exhibits which can be identified as exhibits C3 and VHP1. Exhibit C3 was a letter of comfort by Robert McDonald, the National Director of the Australian Crime Commission. It was stated that PHAM's assistance was "moderate in value". The exhibit VHP1 was a statement by a National Crime Authority investigator Mr Purchas, who gave evidence. This showed that PHAM gave a comprehensive statement which included material concerning the involvement of ANTOUN, some information categorized by Mr Purchas as previously unknown to the NCA, and an offer by PHAM to testify against ANTOUN if required.
40 The Crown Prosecutor observed that ANTOUN was discharged at committal and ultimately it was decided (presumably by the Director of Public Prosecutions) that no further proceedings would be taken against him, and therefore, it was submitted "the significance of (PHAM's) statement in that respect dissipated". That submission overlooks that the obligation imposed by s 16A(2)(h) is to take account of the degree to which the person has cooperated in distinction from mere consideration of the consequences of cooperation.
41 PHAM (grounds 3 and 4) complained of the setting of the maximum life term on the MDMA charge and a failure to take into account subjective features in his favour when so doing. PHAM had no prior conviction.
42 The approach of his Honour to determination that the MDMA importation was a "worst case" was stated thus:
"In Twala (unreported, 4 November 1994) the Court of Criminal Appeal, constituted by Carruthers, Finlay and Badgery-Parker JJ, endorsed the following proposition:
'However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime as distinct from subjective features mitigating the penalty to be imposed.'
That proposition, if applied to the known facts concerning this importation, must surely result in a conclusion that the MDMA importation was an example of the worst case of the importation of prohibited narcotics. The quantity imported was 52.702 kilograms by pure weight: that is to say, between 105 and 106 times the minimum quantity prescribed by law as constituting a commercial quantity. If that does not constitute a Twala -type worst case of drug trafficking, then the very notion of a worst case in that context ceases to have any rational content."
43 His Honour later added:
"In my opinion this MDMA importation was from first to last an enterprise breath-taking in its contempt for the law; in its disregard for the public order and welfare of this country and its citizens; and in its cynical amorality. Anybody instrumental in the planning and execution of so wicked an undertaking is criminally culpable in high degree."
44 A claim by PHAM that he was, to an extent, tricked and intimidated by LAM and his associates into participating in the venture was rejected. That was a matter for his Honour's judgment and I perceive no flaw in his conclusion. Following this rejection, his Honour stated:
"I am satisfied beyond reasonable doubt that the prisoner's culpability is that of a principal; that his motive was huge financial gain; and that there are no 'facts mitigating the seriousness of the crime ' as described and explained by the decision in Twala ."
45 It is implicit in his Honour's stated reasons that the categorization into a "worst case of drug trafficking" was determined by reference to the quantity of drug involved. In Wong v The Queen 2001 207 CLR 584 it was observed in the joint judgment (Gaudron, Gummow and Hayne JJ) @ 609:
"The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament's distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities ( Customs Act s 235) . No doubt, within both of those categories, the particular amount of narcotics involved can have significance in fixing the sentence that is to be imposed on an offender. But is weight generally the chief factor to be taken into account in fixing a sentence?
It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.
It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.
These are reasons enough for concluding that the Court of Criminal Appeal was in error in attributing chief importance to the weight of narcotic in fixing sentences for the offence. The error of the Court is, however, more deep seated than the factual difficulties to which reference has been made. The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle."
46 Their Honours, in explanation of the reasons for this opinion, made reference to the explicit obligations imposed by s 16A(2) of the Crimes Act 1914 (@ 610):
"… To the extent that the matters identified in s 16A(2) are relevant and known to the Court, the sentencer must take those into account. This group of matters is very diverse. It includes not only 'the nature and circumstances of the offence' but also matters such as the degree to which the offender has shown contrition (s 16A(2)(f)), the offender's character, antecedents, cultural background, age, means and physical or mental condition' (s 16A(2)(m)) and 'the need to ensure that the person is adequately punished for the offence (s 16A(2)(k)). What is notably absent from 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence. There is no statement of the kind found, for example, in the Sentencing act 1991 (Vict) (s 5) of the purposes for which sentences may be imposed, and there is no statutory requirement which obliges a sentencer to give particular weight to one or other of those purposes in sentencing certain kinds of offender (cf Sentencing Act 1991 (Vict) s 6D(a), which directs the court sentencing a 'serious offender' to regard the protection of the community from the offender as 'the principal purpose for which the sentence is imposed'. Section 16A obliges the sentencer to take all of them into account and effect must be given to that legislative command."
47 It is not necessary to recite the whole of the statutory provision. It is correct, as contended by the Crown, that all of the provisions within the subsection do not provoke mitigation, and indeed some would tend to increase sentence, but the form of s 16A is such that it imposes an obligation to take all the tabulated features into account to the extent that they are known. The process must be undertaken when setting the head sentence and, whilst I accept that if, on the exercise being undertaken, a maximum sentence becomes determined appropriate, mitigation may be reflected in setting the non parole period, it remains obligatory to take into account the known matters when making the initial assessment of head sentence. The contentions of the appellant concerning the focus upon quantity of narcotic as a chief factor in determining that this was a "worst case" and the severance of favourable subjective matters when assessing head sentence have been made good.
48 The potential for apparent unfairness in dealing with different offenders, if quantity were taken to be the chief factor in fixing sentence, is incidentally exemplified by a recent appeal in R v Moore [2005] NSWCCA 212 where possession of prohibited imports consisting of a quantity of pure MDMA exceeding 90 kilogrammes (as opposed to under 53 kilogrammes in the present instance) had attracted a sentence of 20 years imprisonment with a non parole period of 15 years. Whilst it must be acknowledged that Parliament has set scales of punishment by reference to quantities of different drugs and that regard should be paid to what has been said in R v Nai Poon [2003] NSWCCA 43, it cannot be without significance that no case was pointed to where a life sentence for dealing with MDMA was recorded.
49 That is not to say that the prescription by Parliament of an available sentence of life imprisonment is to be ignored when assessment is made. It is a circumstance of importance to be taken into account. Nor is it to be said that a crime dealing with MDMA may not be of such heinousness that the maximum sentence becomes appropriate. A critical consideration when the criminality of a participant in drug importation stands for sentence is to determine what the particular offender did.
50 NGUYEN THANH (ground 1) complained of insufficient weight being accorded to her by reason of her pleas of guilty. I have already set out his Honour's remarks under the heading "Discounting for the pleas of guilty of the prisoners". As appears therein, it was acknowledged that all the appellants were entitled to some consideration on this account but not "to much". There was no obligation to specify what that amounted to, nor to express the "undiscounted" term assessed, but it is difficult to derive an appreciation of what benefit the appellant may have in fact received.
51 The principal thrust of submissions in support of NGUYEN THANH (ground 2) was based upon a report from a psychologist, Professor Hayes. It was contended that his Honour omitted reference to the opinion of the latter that NGUYEN THANH was suffering from an anxiety disorder and serious clinical depression which had an effect on her ability to concentrate and to reason through problems in a consistent and rational manner.
52 Even taken at face value, that opinion is distant from the sorts of mental disorders and abnormalities which would give rise to a conclusion, that, for such a reason, the offender was an unsuitable vehicle for manifesting general deterrence. His Honour did not ignore the report of Professor Hayes and referred to it with some particularity:
"Exhibit THN 1 on sentence is a lengthy report dated 5 September 2003 and prepared by Associate Professor Susan Hayes, Head of the Centre of Behavioural Sciences in the Department of Medicine at the University of Sydney. The report is a clinical psychological assessment of the prisoner. The background material for the report appears to have been information supplied by the prisoner through a Vietnamese interpreter during an interview of the prisoner by Professor Hayes at Mulawa Correctional Centre on 4 September 2003. It seems that Professor Hayes had access to documents, but it is not quite clear what they were or quite what they said.
The report contains this statement:
'As noted above, Ms Nguyen has pleaded guilty, although she claims that she did not know what was to be hidden in the bottle in relation to the heroin charge and that she did not know what drug was involved in relation to the ecstasy charge and nor did she know the size of the shipment. She claims that her husband did not directly tell her that the marble shipment contained illegal drugs although she suspected something, and she advanced some cash and purchased air fares, although she understood the cash and air fares were helping in the organisation of the 'bottle business'.'
It seems to me that those self-serving statements cannot be accepted: first , because they are inconsistent with the pleas of guilty; and, secondly , because they are inconsistent with the surveillance evidence.
The report details a family and social history. It derives largely, I infer, from the prisoner's own statements and assertions made to Professor Hayes. The report notes the prisoner's age as having been 38 at the time of the assessment. The report describes the prisoner's completion of secondary schooling and her projected entry into a business and commerce course at a university. According to the report, the prisoner left Vietnam before commencing that projected course. She left as a refugee; reached Hong Kong in very difficult circumstances; was befriended and cared for by Van Pham whom she married in 1983; was interned with him as previously herein described; and was eventually sponsored with him as an immigrant to Australia.
According to the report, the prisoner's marriage with Van Pham was volatile, sometimes violent, and, from her point of view, very unhappy. She and Van Pham divorced in 1993. Sometime thereafter there was a cautious reconciliation. It was not helped by her discovery of Van Pham's Hong Kong liaison with another woman.
The report expresses this opinion:
'Although Ms Nguyen had a number of psychological/psychiatric symptoms in the months leading up to the offences and she still suffers from depression and suicidal ideation occasionally, in my opinion none of these disorders are of a nature which would increase the likelihood of her re-offending. Furthermore, she does not have any substance abuse problems which would increase the likelihood that she might re-offend. She has very positive prospects for rehabilitation and for not re-offending once she is released back into the community.'
I take a guarded view about these opinions. I think that they are weakened by the inconsistencies to which I have previously referred. A fair view of the whole of the relevant surveillance evidence seems to me to justify an inference that, beyond reasonable doubt, this prisoner knew a lot more than she was prepared to tell Professor Hayes about what was being done, and by whom, in connection with both the MDMA importation and the heroin importation."
53 It requires only some attention to the content of intercepted conversations to which NGUYEN THANH was a participant, for example with family members in Canada, to confirm the very substantial basis for his Honour's findings about the appellant's knowledge and her devotion to improving her financial resources by engaging in criminal activity.
54 It is accurate, as counsel drew to attention, that no express reference to the absence of any prior conviction was recorded. However, his Honour found that there was an irresistible inference from NGUYEN THANH's own words that she was an experienced drug trafficker engaged in what was her largest, and she hoped, most profitable venture. The inference was clearly not only open but correct. Antecedent absence of conviction was unlikely, in these circumstances, to work in favour of the offender (or against her) in any practical way: Weininger v The Queen 2003 212 CLR 629 @ 639.
55 I am unpersuaded that his Honour omitted to give proper weight to this appellant's subjective circumstances.
56 Grounds 1 and 2 advanced by the appellant TO asserted that the life sentence and the non parole period received by him were, in each case, manifestly excessive. There are some observations which should be made about the role of TO who, it will be recalled, pleaded guilty to possession of a commercial quantity of MDMA. He was not involved in either the heroin bottle charge or the postal charges. In connection with his participation, focus must be had on what he did rather than on classification of his role but that is not to say that the role was irrelevant. The correct approach was discussed in The Queen v Olbrich 1999 199 CLR 270 @ 279:
"Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports (contrary to Customs Act, s 233B(1)(cb)), or being knowingly concerned in the importation of such imports (contrary to Customs Act, s 233B(1)(d)). If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did."
57 TO came to Australia after the importation had taken place. He was "LAM's eyes and ears at the Sydney end of the importation". He was in frequent contact with LAM reporting on progress and receiving instructions which included LAM's directions to him to guard the contraband before delivery to the anticipated customer.
58 His Honour described him as a "participant at the highest level after that of a participant who had a direct entrepreneurial stake in the importation". (My emphasis).
59 It was acknowledged on behalf of the Crown at the sentencing hearing that what TO did required no great expertise and no special physical skill, and those acknowledgements were repeated in submissions to this Court. It was also expressly stated that it was not suggested by the Crown that TO was a "principal" but he was a supervisor and monitor of LAM's interests. He was, however, physically involved in removing the inert substitute from the reconstructed tiles.
60 Attention was directed to the comment in R v Stanbouli 2003 141 A Crim R 531 @ 533 where Spigelman CJ (Carruthers AJ in agreement) said:
"The matter on which I have reservations is his Honour's reference to life imprisonment being 'the norm for those who provide important assistance in the importation of quantities of the order of that here'.
I would myself reserve the term of life imprisonment as 'the norm' for persons at the top of the importation hierarchy, rather than those who 'provide important assistance'. …."
61 The "order" involved in that case concerned forty six shipments of computer peripherals to differently named consignees, at least twenty three of which contained heroin, amounting in all to a pure weight approximating 375 kilogrammes. Stanbouli was an employee of customs agents. He received $200,000 in total for his assistance to the criminal importers. Using his position, he oversaw receipt, clearance and delivery. He monitored possible customs interest and made suggestions about how the offenders could avoid it. On Crown appeal a sentence of 13½ years imprisonment with 10 years non parole period was increased to 19 years imprisonment with a non parole period of 12 years.
62 The case is also useful in providing a reference by the collation in a schedule to the dissenting judgment of Hulme J which is supportive of the appellant's observation that the Crown had not been able to point to any instance where a person whose actions were like to those of TO received a sentence of life imprisonment. It is recognized that some caution must be applied to looking at terms of imprisonment which were imposed prior to the repeal of s 16G of the Crimes Act 1914, nevertheless the sentence received by TO seems, on any view, to be higher than could conformably be accommodated within detectable patterns of sentencing.
63 It is not to be ignored that TO had served a sentence for a serious drug related matter in Hong Kong but, notwithstanding this, in my view the life sentence received by TO (an offender found not to be at the level of criminality of an entrepreneur) should be set aside and a determinate sentence substituted. That course will necessarily involve a non parole period being set which is appropriate to the new sentence and it is not necessary to deal with ground 2 separately.
64 VU (ground 1) complained of the lack of adequate weight being given to his pleas of guilty in the assessment of sentence. VU was taken into custody on 16 October 2001. He was charged with conspiracy to import a commercial quantity of MDMA and in the alternative, to being knowingly concerned in that importation. He was eventually committed for trial on those charges but intimated through his lawyers that he might plead guilty to a charge more limited in scope than a charge of conspiracy. In July 2003 he confirmed that he would plead guilty to conveying prohibited imports and he was arraigned and so pleaded on 11 August 2003. Hence his plea of guilty was prompt, once the opportunity in respect of that charge was offered. A further indictment on the postal charges was presented on 10 December 2003 and VU pleaded guilty.
65 His Honour made no remark about the value of VU's pleas of guilty beyond those which I have recited which were of common application to all the appellants although, when referring to subjective matters concerning VU earlier in his remarks, he had said that he would return to a consideration of "what, if any, particular leniency (the prisoner) ought justly to receive for his pleas of guilty". (Emphasis added).
66 As those passages of the remarks on sentence, which I have already quoted show, his Honour assessed any entitlement to mitigation by reason of guilty plea as minimal. He had, however, found VU to be at the lowest level of culpability of the four appellants and regarded his activity as, in effect, fetching and carrying as directed. The sentence, expressly assessed on an approach of "instinctive synthesis" gave no indication of what it would have been in the absence of guilty plea and it would appear that the matter of "particular" leniency remained undetermined.
67 Ground 2 contended that his Honour erred in disregarding the evidence concerning VU's relationship with, and perceived obligations to, NGUYEN DINH, his father in law. VU gave evidence at the sentencing hearing. As his Honour observed, much of it was directed to the postal charges but when asked why he became involved in helping other people (in criminal enterprises) he said:
"A. Because it was very difficult for me to refuse my father-in-law request because in the past he had helped me with my marriage and also he had helped me to trying to take over the laundry business, so I felt very difficult to say no to him.
………
In my own family the discipline was very strict and when my father-in-law came back to Vietnam and he went to see my parents what my parents told him that the power of the family, all the disciplines in the family was given to him."
68 His Honour expressed his understanding to be that this evidence was directed to facts mitigating the seriousness of the crime in the sense of the judgment in Twala which he had cited. He ruled that it was for the prisoner to establish mitigation on the probabilities according to the Briginshaw principles previously discussed.
69 This was a reference to his earlier dealing with evidence given by PHAM when he quoted a passage from the judgment of Dixon J in Briginshaw v Briginshaw 1938 60 CLR 336 @ 361-2. The quotation was:
"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes ……. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences."
70 There is nothing in that quotation, or in Sully J's express adoption of "that analytical method" to support the proposition that he was imposing on the offender a higher standard of proof than on the balance of probabilities: see R v Storey 1998 1 VR 359 which was expressly approved in Olbrich @ 281. The appellant's submission, articulating a proposition that a "heavier burden of proving facts" was imposed can readily be seen to be flawed when put in clear terms as whether his Honour, as he patently did not, had proposed a higher standard of proving facts.
71 His Honour continued to record his reasons for his lack of persuasion concerning VU's claims:
"The laws proscribing the importation of specified narcotics are laws made for the protection of Australian society. They cannot have that operation if Courts allow any watering down of them by some woolly-minded generalising about familial discipline and cultural idiosyncrasies. The proper and effective operation of those laws requires that it be understood clearly and by all concerned that a person, - any person, - who is knowingly concerned in any way, - I repeat, any way, - with illicit drug trafficking can expect to be dealt with by the Courts with all appropriate severity; and cannot expect to side-step those just desserts by generalised self-serving statements of the kind exemplified by this prisoner's relevant evidence-in-chief. Those propositions must be applied, as a matter of simple common sense it seems to me, with even greater firmness in the case of an enterprise of the scale of the MDMA importation."
72 It is one of the express requirements in s 16A(2)(m) of the Crimes Act 1914 that a sentencing court have regard to the cultural background of an offender. Against the argument that his Honour failed to comply with this statutory mandate, the Crown Prosecutor submitted that attention should be directed to a transcript of exchange with senior counsel then appearing for VU, which was said to reveal "his Honour's legitimate scepticism at the proposition that the nature of the relationship with (NGUYEN DINH) was determinative of the applicant's involvement in either offence."
73 Whilst it is accepted that it was open to his Honour as a tribunal of fact to reject the testimony of VU, the language which he chose suggests that he applied a forceful view that such consideration should not be a factor of mitigation ("watering down"). Such an approach was incompatible with the command in the statute.
74 To the extents above indicated, the contentions on behalf of the appellant VU are made out.