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[2007] NSWCCA 2
Court of Criminal Appeal (NSW)
2007-01-24
Adams J, Howie J, Price J, Mr P, Ms J
Original judgment source is linked above.
The applicant on the other hand had travelled with the co-offender to the informant's house in Brisbane where the sale of the drug was discussed and knew why the co-offender was there. He was the carrier of the heroin on the day of the arrest. The applicant had not previously been involved in the supply of heroin. 40 The applicant's head sentence of 10 years and 8 months equates to 89% (round figures) of the undiscounted starting point of the co-offender's sentence of 12 years. The differential of 1 year and 4 months does not adequately reflect, in my view, his Honour's finding that the applicant's involvement in the offence was "substantially less" than the co-offender. The disparity is such as to give rise to the appearance of justice not having been done and is such as to justify the intervention of this Court.
41 In R v Shi [2004] NSWCCA 135, Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, emphasised at [34] the importance of giving consideration:
"……to the well recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehouse men and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentiu and Becheru (1962) 63 A Crim R 402." 42 Notwithstanding the applicant's lesser role, the offence involved in this appeal is a serious offence. The applicant was knowingly involved in the commercial supply of 792.1 g of heroin of about 57% purity. 43 His Honour properly considered the harm and potential harm to the community in the case of heroin as being "enormous." 44 The sentencing judge correctly identified the standard non-parole period as offering a reference point, although he found the applicant's offending fell just below the middle range of objective seriousness. In so doing he was following what was said in Way (supra): see also R v AJP (2004) 150 A Crim R 575, MLP v Regina [2006] NSWCCA 271.
45 The standard non-parole period is 10 years. 46 The findings of this Court on the co-offender's appeal do not give rise to any justifiable sense of grievance on the part of the applicant. The appeal to this Court succeeded only to the extent that the Court found that there were a sufficient number of relevant factual matters to justify a finding of special circumstances in the case of the co-offender: Vu v Regina (supra) [at 127]. The statutory ratio of the non-parole period taking into account accumulation of the offences was varied so as to equate to approximately 64% of the total term of imprisonment. The non-parole period of the offence in which the applicant was a co-offender was varied in effect by being converted into a fixed term.
47 This Court made a finding of special circumstances in the case of the co-offender. The sentencing judge did not find special circumstances in the case of the applicant and it was within his discretion not to do so. 48 It is unnecessary to consider Ground 3 of the appeal. 49 The Court, in my view, should form as required by s 6 (3) of the Criminal Appeal Act 1912 an opinion that "some other sentence….is warranted in law and should have been passed" and proceed to re-sentence the applicant. 50 I consider that an appropriate sentence is a non-parole period of 6 years with a balance of term of 2 years. Such a reduction will not produce a result disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 51 The orders I propose are:
(i) The extension of time in which to seek leave to appeal be granted; (ii) Leave to appeal be granted; (iii) Quash the sentence and non-parole period imposed by Williams DCJ (iv) Sentence the applicant to imprisonment for a non-parole period of 6 years to date from 11 July 2004 and expire on 10 July 2010 with a balance of term of 2 years expiring on 10 July 2012.
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Vu
Regina
Lowe v The Queen (1985) 154 CLR 606 MLP v Regina [2006] NSWCCA 271 Postiglione v The Queen (1997) 189 CLR 295 R v AJP (2004) 150 A Crim R 575 R v Anderson NSWCCA 25 March 1993 R v Boney [2001] NSWCCA 432 CASES CITED: R v Ilbay [2000] NSWCCA 251 R v Kollas & Mitchell [2002] NSWCCA 491 R v Laurentiu & Becheru (1962) 63 A Crim R 402 R v Le Cerf (1975) 13 SASR 237 R v Olbrich (1999) 199 CLR 270 R v Shi [2004] NSWCCA 135 R v Way (2004) 60 NSWLR 252 Tien Vu v Regina [2006] NSWCCA 188
24 January 2007 Van Phu VU v REGINA Judgment 1 ADAMS J: I agree with the judgment of Price J. 2 HOWIE J: I agree with the orders proposed by Price J for the reasons given by him. 3 PRICE J: The applicant Van Phu Vu seeks leave to appeal against the severity of the sentence imposed upon him by Judge Williams in the District Court of New South Wales at Sydney on 28 January 2005. 4 The applicant requires an extension of time in which to make an application for leave to appeal against that sentence which the Crown does not oppose. 5 On 13 October 2004 the applicant upon arraignment pleaded not guilty to a charge that he on 25 July 2003 at St Peters in the State of New South Wales did supply a prohibited drug, namely heroin, being an amount which was not less than the commercial quantity applicable to that prohibited drug and stood trial before Judge Williams and a jury of twelve. The Jury entered a verdict of "Guilty" on 18 October 2004. 6 The offence being contrary to s 25 (2) of the Drug Misuse and Trafficking Act 1985 is punishable by 20 years imprisonment and/or 3,500 penalty units. A standard non-parole period of 10 years imprisonment has been prescribed: s 54B Crimes (Sentencing Procedure) Act 1999 and table in Division 1A. 7 The applicant was sentenced to a term of imprisonment of 10 years and 8 months to date from 11 July 2004 and to expire on 10 March 2015 with a non-parole period of 8 years to date from 11 July 2004 and expire on 10 July 2012. 8 The Notice of Appeal identifies three grounds namely: Ground 1 His Honour erred by imposing a sentence that failed to adequately reflect the substantially less significant role played by the applicant compared with the role played by his co-offender, Tien Hung Vu. Ground 2 His Honour erred by imposing a sentence that has left the applicant with a justifiable sense of grievance. Ground 3 The sentence is, in all the circumstances, manifestly excessive. 9 The first ground of appeal makes reference to the co-offender Tien Hung Vu. Tien Hung Vu pleaded guilty to an indictment containing two counts, the first count being an offer to supply a large commercial quantity of heroin. The applicant was not involved in that offence. 10 A further offence on a Form 1 being a charge of supply of heroin was taken into account on sentence for the first count. The applicant was not involved in that offence. 11 The second count on the indictment charged that on 25 July 2003, Tien Hung Vu did supply a prohibited drug, namely, heroin, being an amount not less than the commercial quantity. The applicant was the co-offender in the commission of this offence and was, as previously stated, found guilty after trial. 12 In relation to the second count on the indictment, Tien Hung Vu was sentenced by Judge Williams on 28 January 2005 (the same day as the applicant) to a minimum period in custody of 6 years and 9 months. The commencement date of the sentence was 25 July 2003. A total term of 9 years was specified to expire on 24 July 2012. 13 In relation to the first count on the indictment and the Form 1, Tien Hung Vu was sentenced to a minimum period in custody of 9 years. The sentence was partially accumulated to date from 25 July 2005. The earliest date upon which the applicant was to be released on parole was 24 July 2014. A total term of 12 years was specified to expire 24 July 2017. 14 Judge Williams in sentencing Tien Hung Vu determined the offender was entitled to the benefit of a discount of 25% for his plea of guilty. His Honour, relevantly, identified the starting point of the non-discounted sentence for count 2 as 12 years imprisonment. 15 Tien Hung Vu sought leave to appeal to this Court against the severity of the sentences imposed. In Tien Hung Vu v Regina [2006] NSWCCA 188, Justice Hall, with whom James and Buddin JJ agreed, ordered that:
33 These grounds of appeal raise the issue of parity of sentences. 34 Wood CJ at CL (as he then was) in R v Kollas & Mitchell [2002] NSWCCA 491 [at para 45 - 50] provides a helpful synopsis of the relevant principles in relation to parity when he said: " 45 The parity principle of sentencing established in Lowe v The Queen (1985) 154 CLR 606 and in Postiglione v The Queen (1997) 189 CLR 295 requires, as a condition precedent to appellate intervention, that there should be a marked disparity between the sentences imposed on co-offenders of a degree of kind which gives rise to a justifiable sense of grievance. A sentence which offends that principle should be reduced. That may occur notwithstanding that it is otherwise appropriate, or within the permissible range of sentencing options (per Mason J in Lowe at 612 and per Dawson and Gaudron JJ in Postiglione at 301) and R v Anderson NSWCCA 25 March 1993 per Justice Hunt, Chief Judge at Common Law at p4. The Court, however, still retains a discretion to intervene in those circumstances, if to do so would be to produce a sentence which was totally inappropriate to reflect the objective criminality involved. 46 In determining whether the parity principle has been observed, as the judgments of Gibbs CJ (at 610) and of Mason J (at 613) in Lowe and of Dawson and Gaudron JJ (at 301), and of Kirby J (at 338) in Postiglione show the different circumstances of co-offenders, including the part which each played in the offence, as well as their subjective circumstances such as age, background, previous criminal history, remorse, rehabilitation prospects and the like, must be considered. 47 That follows from the circumstance, as Dawson and Gaudron JJ confirmed in Postiglione (at 301) that the parity principle is " an aspect of equal justice ". Equal justice requires, as their Honours pointed out, that " like should be treated alike, but that, if there are relevant differences, due allowance should be made for them." 48 The principle is enlivened only where the disparity is such as to give rise to justifiable sense of grievance, or to the appearance of justice not having been done. As Kirby J pointed out in Postiglione (at 337): "So long as the sentencing Judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders." 49 This is associated with the principle of appellate restraint, and with the circumstance that sentencing can never be reduced to a precise mathematical exercise, or to one involving analytical certainty. Room must be left for discretion, and or an individual assessment of the facts by the sentencing Judge who has the benefit of seeing and hearing the evidence first hand. 50 The test for determining the existence of a sense of grievance is objective. That is, a person complaining of disparity must show that a reasonable person, looking at the circumstances of the case, would regard the offender's grievance as justified: R v Ilbay [2000] NSWCCA 251 per Grove J (at par6)." 35 It was necessary for the sentencing judge to assess the applicant's degree of criminality by defining his role and the level of his actual participation in the criminal enterprise: R v Olbrich (1999) 199 CLR 270. 36 His Honour found that the applicant's involvement was "substantially less" than that of the co-offender. He noted there was no evidence before him of substantial profit made by the applicant nor was there a suggestion or evidence that he was involved in any way with the other activities of the co-offender. His Honour remarked (ROS at p3):
"He really is someone who should be sentenced on the basis he was prepared for financial reward to take part in the supply of a commercial quantity of heroin although not being the actual supplier but apparently the carrier of the drug for the purposes of supply." 37 His Honour "applying the approach suggested in Way's case [2004] NSWCCA 131" was satisfied that this offence "for this offender" fell just below the middle range of objective seriousness.
(1985) 154 CLR 606
(1997) 189 CLR 295
(1975) 13 SASR 237
(1999) 199 CLR 270
(2004) 60 NSWLR 252