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8
Court of Criminal Appeal 13 August 2001

R v Pham

[2001] NSWCCA 307

Drugs
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE SUPPLY OF COMMERCIAL QUANTITY OF HEROIN 1 COUNT SUPPLY OF METHYLAMPHETAMINE EXPRESSION AMBIGUOUS

Citation: Pham v R [2001] NSWCCA 307
Court: NSW Court of Criminal Appeal
Date: 13 August 2001
Judge(s): Wood CJ at CL; Sperling J

Background

The applicant was convicted in the District Court of supplying 2.1 kilograms of heroin (more than twice the large commercial quantity), two counts of supplying small heroin samples, and one count of supplying methylamphetamine. He was sentenced to a principal term of ten years and six months imprisonment with a non-parole period of seven years and eleven months, with concurrent terms for the lesser offences.

The offences arose from a targeted National Crime Authority operation in April 2000. The applicant was involved in a sophisticated drug distribution network headed by a person known as "Uncle Cuong." The applicant's role included travelling from Melbourne to negotiate a heroin sale, providing drug samples to undercover operatives, and coordinating the physical exchange of 2.1 kilograms of heroin for approximately $306,000.

A co-offender, Nguyen, was convicted of the same principal supply charge and received a sentence of seven and a half years with a non-parole period of four years. The applicant sought leave to appeal against his heavier sentence on several grounds.

  • Whether the sentencing judge correctly characterised the applicant's role as a "secondary principal" in the drug supply hierarchy, given the ambiguity of that expression
  • Whether the disparity between the applicant's sentence and the lighter sentence imposed on co-offender Nguyen constituted a sentencing error warranting intervention
  • Whether the sentencing judge adopted the correct starting point when fixing the head sentence
  • Whether the applicant's past drug use was a relevant mitigating factor that the sentencing judge failed to weigh appropriately

Decision

Role classification. The Court acknowledged that the label "secondary principal," used by the sentencing judge, was of uncertain meaning. However, it interpreted the term to mean that both the applicant and Nguyen were entrusted with authority to arrange drug sales and effect deliveries. On that understanding, the characterisation was substantively accurate and disclosed no error.

Parity. The Court found that the applicant's greater sentence, compared with Nguyen's, was justified by meaningful differences between the two offenders. The applicant had a prior criminal history, including Victorian convictions for dishonesty offences resulting in a 12-month sentence (10 months suspended) in 1999. Nguyen had no such history. The applicant also pleaded guilty to three additional supply charges, whereas Nguyen was convicted of only one. These distinctions warranted the sentencing disparity, and no error in applying parity principles was established.

Starting point. The Court rejected the submission that the head sentence was excessive. The offence involved more than twice the large commercial quantity of heroin with an estimated street value of approximately $2.1 million. The Court noted that the applicant entered the trade voluntarily and with the expectation of reward, and that the fact the supply was made to undercover operatives provided no mitigation, as the applicant would have proceeded regardless of their involvement.

Drug use as mitigation. The sentencing judge had acknowledged the applicant's past drug use but declined to treat it as a significant mitigating factor given the level at which the applicant operated. The Court of Criminal Appeal confirmed this approach was correct. The potential for clemency on the basis of a drug habit is relevant for street-level user-dealers but does not extend to principals or those operating higher in a supply hierarchy.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing disparity between co-offenders is justified where one offender has a prior criminal history and faces additional charges, even where both are characterised as playing equivalent roles in a drug operation.
  • A drug user's personal addiction or past drug use carries diminished mitigating weight at sentencing where the offender operates as a principal or at a significant level in a drug supply hierarchy, as distinct from a street-level user-dealer.
  • In dismissing the appeal, the Court confirmed that supply to undercover operatives does not operate in mitigation of sentence where the offender would plainly have committed the offence without law enforcement involvement.
  • Imprecise judicial labels for an offender's role in a drug operation (such as "secondary principal") will not in themselves constitute a sentencing error, provided the court's substantive assessment of the role is accurate.
  • Under s 25(2) of the Drug Misuse and Trafficking Act 1985, supply of a commercial quantity of heroin carries a maximum penalty of life imprisonment, a consideration that informs the significant sentences available even at the middle ranges of the sentencing hierarchy.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Lackany (NSWCCA, 1 December 1992) (supply to undercover operatives not mitigating where offender would have offended regardless)
- Bernath (1997) 1 VR 271 (drug use as mitigation limited to street-level user-dealers)