Le v R

HOEBEN CJ at CL:

When imposing the sentence, Zahra SC DCJ took into account a further offence of trafficking a marketable quantity of a controlled drug, contrary to s 302.3(1) of the Criminal Code, on a schedule pursuant to the procedure provided by s 16BA of the Crimes Act 1914 (Cth). The maximum penalty for the s 302.3(1) offence is 25 years imprisonment.

By Notice of Application for Leave to Appeal, dated 30 September 2016, the applicant seeks leave to appeal his sentence. The applicant relies upon the following grounds:

In 2012 a Melbourne man, Suky Lieu, was running a drug trafficking business, selling and distributing drugs in Melbourne. Some of the drugs that were trafficked by Suky Lieu were sourced and supplied in Sydney through a Hong Kong resident named "John". Through “John”, Suky Lieu was able to place orders and arrange to collect drugs in Sydney.

When the drugs were required by Suky Lieu, and could be made available through "John", the two men would make arrangements via telephone for the supply and collection of the drugs in Sydney. Each of Suky Lieu and "John" used a network of intermediaries and associates to perform the physical acts of storing, supplying, collecting and transporting the drugs. When the drugs were available in Sydney, Suky Lieu would make arrangements for someone to travel to Sydney to collect the drugs from an intermediary of "John". In turn, "John" would make arrangements for one of his intermediaries to collect the drugs from a safe house location and transport the drugs to an agreed meeting place where the drugs could be handed over to Suky Lieu's associate.

In this fashion, the two men engaged in an ongoing enterprise of illicit drug trafficking between and in Sydney and Melbourne.

The applicant was a Sydney based intermediary of "John". At the direction of "John", on two occasions he collected a quantity of the controlled drug 4-methoxymethylamphetamine (also known as paramethoxymethamphetamine and referred to hereafter in shorthand as "PMMA") from the safe house, transported it to an arranged location and handed it over to Suky Lieu's associates.

At the time of the offending, PMMA was a controlled drug under s 314.1(2) of the Criminal Code because it was an analogue of other controlled drugs, i.e. amphetamine, methamphetamine and 3,4-methylenedioxymethamphetamine (MDMA). The table in s 314.1 provided different thresholds for the prescribed marketable and commercial quantities for each of these controlled drugs. Pursuant to ss 314.1(4) and (5), where a substance was an analogue of a controlled drug, the marketable and commercial quantity threshold for the analogue substance were taken to be the same as that for the prescribed controlled drug. Where the substance was an analogue of more than one controlled drug, the marketable and commercial quantity thresholds for the analogue substance were the smallest of the various marketable and commercial quantities applicable for the particular prescribed controlled drugs.

In this case s 314.1(4) and (5) required that the marketable and commercial quantity thresholds for the PMMA substance trafficked by the applicant be determined according to the prescribed thresholds for the controlled drug MDMA.

When committing the admitted offence, the applicant used a falsely subscribed telephone service, which had been provided to him, to make contact with Suky Lieu's intermediary from Melbourne, Van Son Thieu (VS Thieu). In advance of meeting with VS Thieu, the applicant contacted Anh Thai Pham (Pham) to arrange to collect drugs from the safe house. On 2 July the applicant met briefly with VS Thieu at Bankstown and the pair arranged to meet later that day. After the meeting with VS Thieu, the applicant travelled to the safe house and collected the PMMA from Pham. On the way to the safe house, the applicant communicated with VS Thieu using the falsely subscribed telephone with which he had been supplied. The applicant told VS Thieu that his instructions were that 1kg of the drug was to be supplied. After collecting the PMMA from Pham, the applicant travelled back to Bankstown, met again with VS Thieu and delivered the PMMA to him.

When committing the primary offence, the applicant used a falsely subscribed telephone service, which had been provided to him, to make contact with Suky Lieu's intermediary from Melbourne, Kathy Nguyen. The pair had a coded telephone conversation in which they arranged to meet at a location in Sydney. Once the meeting with Kathy Nguyen had been arranged, the applicant used a different telephone number to contact Pham, so that he could arrange to collect the drugs from the safe house occupied by Pham. The applicant travelled by a circuitous route to Pham's house, where he then collected the PMMA to be handed over to Kathy Nguyen. On 24 July, the applicant then travelled to the pre-arranged meeting with Kathy Nguyen at a location in the vicinity of the Canley Vale High School, where he delivered the PMMA to her.

Following her conviction after trial, the applicant's co-accused, Kathy Nguyen, was sentenced by Zahra DCJ for a single offence of supply of a prohibited drug, namely PMMA, in an amount not less than the large commercial quantity, contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW). His Honour imposed a sentence of 7 years and 9 months imprisonment, with a non-parole period of 5 years.

The offence committed by Kathy Nguyen was part of the same transaction which gave rise to the primary offence for which the applicant was sentenced. Kathy Nguyen was Suky Lieu's intermediary. She received the drugs in a shopping bag from the applicant at the handover location near Canley Vale High School in Sydney. Kathy Nguyen then took the drugs back to her mother’s house in Canley Vale and left them there. The drugs were then taken by someone (the evidence did not establish the identity of the person) to an address in Harrington Street and were placed into a hidden fuel tank compartment of a Toyota Prado vehicle driven by the couriers, Van Thai and To Ly (Thai and Ly). Kathy Nguyen had earlier directed Thai and Ly to the Harrington Street address but the evidence was not capable of establishing whether she played any role in the loading of the drugs into the fuel tank of the Toyota Prado.

On 12 June 2015, joint sentencing proceedings were conducted in respect of the applicant and Kathy Nguyen. The applicant was to be sentenced following his guilty plea to the primary offence. Kathy Nguyen was to be sentenced following her conviction after trial.

The nature and circumstances of the offences committed by the applicant were set out in the Agreed Statement of Facts tendered by the Crown. The nature and circumstances of the offence committed by Kathy Nguyen were established by the evidence adduced at her trial.

At the conclusion of the proceedings on sentence, Zahra DCJ reserved judgment in respect of each of the matters. Kathy Nguyen was subsequently sentenced on 3 July 2015 and the applicant on 13 July 2015.

In addition to reciting the factual background from the Agreed Statement of Facts, his Honour noted the following particular matters relevant to the objective gravity and seriousness of the applicant's offences:

In addition to these matters, the sentencing judge noted the need for general deterrence was particularly relevant when sentencing the applicant. His Honour noted the increasing prevalence of offences of the type committed by the applicant and the fact that such offences had substantial social consequences. His Honour stated that the interests of general deterrence were to be served by imposing a sentence that would signal to would be traffickers that the potential financial rewards to be gained from such activities would be neutralised by the risk of severe punishment. Although the sentencing judge did not make any express finding, it was uncontroversial that the applicant had committed the offences for financial reward.

In relation to the applicant’s subjective case, the sentencing judge noted that he did not give evidence during the proceedings on sentence and therefore caution had to be exercised when assessing the weight to be given to the histories provided by him which were untested.

In addition to the applicant's general background, the sentencing judge noted and took into account the following subjective features of the applicant:

Because of Ground of Appeal 2, it is necessary to set out in some detail the findings which the sentencing judge made in respect of Kathy Nguyen.

In addition to the identification of the general factual background established by the evidence adduced at trial, the sentencing judge noted the following particular matters relevant to the objective gravity and seriousness of the offence committed by Kathy Nguyen:

The sentencing judge noted that a strong measure of deterrence was called for when sentencing Kathy Nguyen. His Honour rejected Kathy Nguyen’s claim of non-exculpatory duress.

The sentencing judge took into account Kathy Nguyen’s subjective case:

The applicant’s focus was on Ground of Appeal 2 – the parity ground. Accordingly, that ground of appeal is dealt with first.

The applicant submitted that he had a justifiable sense of grievance because of the sentence imposed on Kathy Nguyen in that her offending was more serious than his or at the very least, at the same level of seriousness. He submitted that when regard was had to the fact that Ms Nguyen’s sentence was not reduced by a plea of guilty, the difference between the sentences became even more obvious, i.e. an undiscounted head sentence of 12 years compared with 7 years and 9 months and an undiscounted non-parole period of 7 years and 9 months, compared to 5 years for Ms Nguyen.

The applicant relied upon the following evidence to make out that argument.

Ms Nguyen’s offence involved the same drugs as those, the subject of the applicant’s primary offence. Her role was very similar to his. Her role complemented his. She was Suky Lieu’s “trusted” intermediary whereas he had a similar relationship with “John”. Each performed a “crucial role” which was "essential to the success of the enterprise". Ms Nguyen was involved in co-ordinating others at the direction of Suky Lieu. She was the applicant's direct counterpart in relation to the primary offence.

The applicant identified the following differences between the part played by Ms Nguyen in the primary offence and his role which indicated that Ms Nguyen’s offending was more serious than his.

Her participation involved an interstate element with her being required to fly from Melbourne to Sydney. She inspected the contents of the bag containing the drugs. She had control and the “stewardship” of the drugs for a period of time before transferring them to another person. There was a strong likelihood that she participated in secreting the drugs in the Toyota Prado. Unlike the applicant, Ms Nguyen had direct contact with her principal, Suky Lieu, when they met in person and discussed the price and quantity of the drugs before she departed for Sydney. She remained in direct phone contact with Suky Lieu for the next two days. She met with and directed the couriers Thai and Ly to the Harrington Street address.

The applicant submitted that he had a stronger subjective case than did Ms Nguyen. He had a relatively minor criminal history, comprising drink driving offences whereas Ms Nguyen had a prior conviction for possession of a prohibited drug and was prosecuted for trafficking in amphetamine for which she was placed on a 12 month bond without a conviction. While both had engaged in the offending for financial reward, the financial need of the applicant’s family as a result of his father’s cancer had also played a part. An intercepted coded conversation on 23 July between Ms Nguyen and Suky Lieu suggested some involvement in other drug trafficking leading to a conclusion by his Honour that her offending here was not isolated. Unlike the applicant, Ms Nguyen did not benefit from a finding of remorse. Unlike the applicant, there was no finding in favour of Ms Nguyen of demonstrated rehabilitation.

The applicant submitted that taken as a whole, the matters referred to above indicated that Ms Nguyen’s offending was more serious in important respects than was his and that her subjective circumstances were less favourable. Ms Nguyen was also subject to a standard non-parole period which did not apply in his case.

The applicant accepted that the admitted offence was an important distinguishing feature between his offending and that of Ms Nguyen. He submitted that that offending did not explain the disproportionately severe sentence imposed upon him and that his Honour gave too much weight to that offence. Given the other matters referred to above, the applicant submitted that the admitted offence did not justify the significant discrepancy between his sentence and that of Ms Nguyen. This was particularly so when his Honour made no mention of parity as between him and Ms Nguyen, leaving open an inference that he did not consider it.

While his Honour did not refer to parity, between the sentence imposed on the applicant and that imposed on Ms Nguyen, it is most unlikely that he did not have it in mind. This is because the sentence proceedings were heard together on 12 June and the sentences were handed down on 3 and 13 July 2015. In the remarks on sentence directed to Ms Nguyen, his Honour expressly referred to parity as it affected some of the other offenders.

When considering this issue, it is useful to keep in mind the following statements of principle.

In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 the plurality (French CJ, Crennan and Kiefel JJ) said:

The fact of the admitted offence and the circumstances surrounding it cannot be disregarded. It clearly played a significant part in his Honour’s exercise of the sentencing discretion. This can be seen from the detailed description given by his Honour of the actions taken by the applicant in relation to this offence. In that regard, the oft quoted passages from Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 in the judgment of Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) remain pertinent:

More recently in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Bathurst CJ (with whom Hoeben CJ at CL, Garling and Campbell JJ agreed) said:

The fact of the admitted offence goes further than explaining why in the case of the applicant the sentence for the primary offence should be substantially increased. It also provided an insight into the part played by the applicant in this drug supply enterprise. It made it clear that the applicant’s involvement extended from 29 June until 27 July 2012 when he was arrested. That contrasted starkly with the period of the involvement of Ms Nguyen which was in the order of two days.

The admitted offence made it clear that although in simple terms the applicant and Ms Nguyen could be styled as counterparts, their criminality was not the same. The applicant’s offending was more serious. He was involved in trafficking for the syndicate on two occasions over a significant length of time whereas Ms Nguyen’s offence was on a single occasion for a very short period. There is no challenge to his Honour’s finding that Ms Nguyen had no knowledge of the activities of the syndicate before she left Melbourne, nor had she been involved in any preparations.

In both the admitted offence and the primary offence, the applicant’s offending involved arranging for and carrying out the collection of drugs from the syndicate’s safe house and dealing with Mr Pham on two occasions, who was, in effect, the warehouseman in Sydney for the syndicate. The applicant’s communications over the period employed a number of different phones and were in code. Those communications were maintained over the entire four week period. During that period, the applicant was dealing with two of Suky Lieu’s intermediaries.

The applicant transported the drugs by car to prearranged meetings and engaged in the physical handover of the drugs to others. Ms Nguyen’s offending involved the collection of a bag of drugs from the applicant, walking with the bag back to her mother’s house where the bag was left and then directing the couriers, Thai and Ly, to another address where they collected the drugs. The fact that she was required to fly to Sydney to participate in her part of the offending adds nothing to her culpability nor does the fact that her offence carried a standard non-parole period.

It is also not without significance that the applicant throughout the period was in contact with “John” and receiving instructions from him concerning who to contact and the codes to be used for identification and other purposes. The fact that the applicant was in contact with “John”, who was based in Hong Kong, allows an inference to be drawn that he was well aware of the syndicate extending at the very least to Melbourne, Sydney and Hong Kong. He would also have been aware that the drug supply in which the syndicate engaged was not limited to a one off transaction, but had included at least two episodes of supply, the second of which involved a substantial quantity of drugs. There is no evidence that Ms Nguyen had any knowledge of any other drug supply by this syndicate before the one in which she was involved. The recorded conversation between her and Suky Lieu in which she expressed some knowledge of drug supply generally, goes no further than that. There was nothing in that conversation to connect Ms Nguyen with any other supply by this syndicate.

The exercise of adding to the applicant’s sentence the 12.5% discount which he received for his plea of guilty, is not determinative of there being an unjustified discrepancy between the length of his sentence and that of Ms Nguyen. While it is a relevant consideration, the true subjects of comparison are the actual sentences imposed. When considering that aspect of the matter, it also needs to be kept in mind that some unspecified allowance was made in favour of Ms Nguyen by his Honour because of her co-operation and assistance in making admissions during the course of her trial. While that discount was described as “minimal”, his Honour clearly intended to apply a discount.

There was not a great deal of difference in the subjective cases of the applicant and Ms Nguyen. She had a pre-existing depressive condition which would make her time in custody more difficult as did the applicant. Her time in custody would involve greater hardship because of the separation from her two youngest children, a problem which the applicant did not have to deal with.

Taking into account the admitted offence on the schedule and the much greater knowledge which the applicant had of what was described by his Honour as a “sophisticated drug trafficking operation capable of supplying large amounts of different types of drugs” and his involvement over a much longer period, i.e. four weeks compared to two days, there is ample justification for the difference in the length of his sentence compared to that of Ms Nguyen.

This ground of appeal has not been made out.

It was common ground that his Honour took the admitted offence into account in the following way:

It was common ground that s 16BA permitted a court, if it thinks fit, to take into account a further admitted offence when passing sentence for the offence of which the offender has been convicted. While the court might make certain ancillary orders in respect of the admitted offence, it was prohibited from imposing “any separate punishment”. The admitted offence is not to be regarded for any purpose as an offence of which a person has been convicted. It was also common ground that the approach of Spigelman CJ in Attorney General’s Application applies to Federal offences included on a s 16BA schedule (R v Lamella [2014] NSWCCA 122 at [48]).

The applicant submitted that the sentencing judge had misstated the relevant principle when he said that greater weight had to be given to the need for personal deterrence and the community’s entitlement to extract retribution “for the serious offence to be dealt with pursuant to s 16BA”. The applicant submitted that this amounted to error and that the correct approach was to consider whether the need for personal deterrence and retribution “in respect of the principal offence” was increased having regard to the admitted offence on the s 16BA schedule. The applicant submitted that his Honour erred by increasing the sentence for the principal offence in order to impose retribution “for the admitted offence”.

The main thrust of the applicant’s submission under this ground, however, was that the circumstances of the admitted offence were not such as would significantly increase the penalty for the primary offence. On that issue, the applicant relied upon the following matters:

The applicant submitted that because of those matters, the sentence for the primary offence was largely able to comprehend and reflect the criminality involved in the admitted offence so that there was no justification for imposing a “significantly higher penalty in respect of the primary offence”.

It is not correct to characterise what his Honour said as involving error. The better approach is to accept that the impugned remarks were an imprecise statement of the practical effect of taking into account a further serious offence when sentencing for the principal offence. While the language employed by his Honour was infelicitous, no error of principle actually occurred. While his Honour’s remarks made express reference to giving greater weight to personal deterrence and retribution “for the serious offence to be dealt with pursuant to s 16BA”, his Honour was doing no more than attempting to provide reasons regarding the effect of the admitted offence on the sentencing exercise as a whole.

The situation is not dissimilar to that which occurred in Hoskins v R [2015] NSWCCA 245. In that case, an offence on a Form 1 was taken into account when sentencing an offender for a principal offence. The impugned remarks said to reveal error of principle were to the effect that the Form 1 offence “aggravated” the principal offence and the penalty to be imposed for that offence. The particular statements in question were set out by Button J (Hoeben CJ at CL and Hall J agreeing) at [42] – [44] as follows:

Button J held that although the first statement was “infelicitously stated”, it was not erroneous. In contrast, his Honour concluded that each of the second and third statements were incorrect. In relation to whether the incorrect statements demonstrated a misapplication of principle however, Button J said at [55] – [56]:

I am satisfied that a similar situation occurred in the present case. While the express words of his Honour incorrectly stated the relevant principle, the incorrect statement was a slip in language and the use of shorthand with respect to a commonly encountered procedure and very well-established principles. In all the circumstances, the impugned remarks did not constitute a misapplication of principle. It is plain from the sentencing remarks, read as a whole, that the sentencing judge was always aware that he was sentencing the applicant only for the primary offence and not punishing the applicant for the admitted offence.

Contrary to the applicant’s submissions, it was well open to the sentencing judge to conclude that the circumstances of the offending warranted a significantly higher penalty in respect of the primary offence than that which would otherwise have been appropriate had the primary offence stood alone. The criminality involved in the commission of the admitted offence was significant and substantial for the reasons already given.

The admitted offence occurred several weeks before the primary offence. At the time of the commission of the admitted offence, the applicant demonstrated his knowledge and awareness of the bulk quantity of the drug involved. Despite knowing that he was trafficking a significant quantity of an illegal drug, he repeated the act again when committing the primary offence (which involved a substantially greater quantity of the drug). It is not appropriate to regard what occurred as a single criminal enterprise. The obvious fact is that the applicant committed two separate hand overs of drugs to different recipients on different occasions at different locations. The repetition of the trafficking conduct must have made plain to the applicant that he was involved in organised criminal activity of a high order. So too would the fact that the applicant was aware that he was communicating with “John”, a Hong Kong resident, to co-ordinate the hand over of drugs warehoused in a safe house in Sydney to a person representing Melbourne interests.

The applicant’s repeated trafficking in controlled drugs for financial reward meant that greater weight was to be given to deterrence and retribution when sentencing him for the primary offence. Such an approach meant that it was open to his Honour to impose a sentence that was longer than the sentence which would have been imposed had the primary offence stood alone.

The applicant’s submission that the sentence for the primary offence was largely able to comprehend and reflect the criminality involved in the admitted offence should not be accepted. As a matter of principle, it is wrong to expect that any increase in sentence brought about by taking into account an admitted offence can only be small. It is not correct that matters which are to be taken into account are to simply be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence (R v Lulham [2016] NSWCCA 287 at [57] per Bellew J (Bathurst CJ, Beazley P, Hall and Adams JJ agreeing)).

This ground of appeal has not been made out.

The orders which I propose are:

WALTON J: I agree with Hoeben CJ at CL.

LATHAM J: I agree with Hoeben CJ at CL.