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2
Court of Criminal Appeal 24 January 2007

Vu v Regina

[2007] NSWCCA 2

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PARITY OF SENTENCES EVALUATION OF ROLES JUSTIFIABLE SENSE OF GRIEVANCE APPLICANT RE

Citation: Vu v Regina [2007] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 24 January 2007
Judges: Adams J, Howie J, Price J

Background

The applicant was found guilty after trial in the District Court of supplying not less than a commercial quantity of heroin (792.1 grams at approximately 57% purity) at St Peters on 25 July 2003. He had travelled with a co-offender to Brisbane two days earlier, where the co-offender negotiated to supply 700 grams of heroin to an informant. The applicant sat apart during that meeting and took little active part in the discussion, though the sentencing judge was satisfied he understood the purpose of the visit.

On the day of the offence, the applicant was stopped nearby in a separate vehicle, which contained the heroin packed inside a rice cooker. The co-offender, Tien Hung Vu, was arrested at the same time after collecting what was said to be the purchase money. Both were sentenced by Williams DCJ on 28 January 2005.

The co-offender had pleaded guilty to two counts, including a separate and more serious offence of offering to supply a large commercial quantity of heroin in which the applicant played no part. The co-offender subsequently appealed his sentences and obtained a reduction in his total non-parole period. The applicant then sought leave to appeal out of time, arguing that his sentence failed to reflect his lesser role compared to the co-offender on the shared count, and that the disparity left him with a justifiable sense of grievance.

  • Whether the sentence imposed on the applicant adequately reflected his substantially lesser role compared to the co-offender in the shared offence
  • Whether the disparity between the applicant's sentence and the co-offender's sentence for the same count gave rise to a justifiable sense of grievance
  • Whether the sentence was, in all the circumstances, manifestly excessive

Decision

The Court of Criminal Appeal granted the extension of time and leave to appeal, finding that the sentence imposed by Williams DCJ did not adequately reflect the applicant's lesser role in the commission of the offence compared to the co-offender.

On the shared count (count 2), the co-offender was serving the equivalent of a non-parole period of 6 years and 9 months, following the earlier CCA decision in Tien Hung Vu v Regina [2006] NSWCCA 188. The applicant, by contrast, had been sentenced to a non-parole period of 8 years for the same offence despite playing a more peripheral role. Price J concluded that this disparity, when the respective roles of the two offenders were properly evaluated, gave the applicant a justifiable sense of grievance.

The Court noted that the earlier appeal by the co-offender had succeeded only on the basis of special circumstances, not on the objective seriousness of the offence, and that the co-offender's greater criminality was separately reflected in his sentence for the first count. However, on the count common to both offenders, the difference in culpability required a more marked difference in sentence. The Court found it unnecessary to determine the ground of manifest excess once parity grounds were made out.

Price J, with the agreement of Adams J and Howie J, held that a non-parole period of 6 years with a balance of term of 2 years was appropriate, noting that this reduction would not produce a result disproportionate to the objective and subjective criminality involved.

Orders Made

  • Extension of time to seek leave to appeal granted
  • Leave to appeal granted
  • Sentence and non-parole period imposed by Williams DCJ quashed
  • Applicant re-sentenced to imprisonment with a non-parole period of 6 years, commencing 11 July 2004 and expiring 10 July 2010, with a balance of term of 2 years expiring 10 July 2012

Key Takeaways

  • A meaningful difference in the roles played by co-offenders in the same offence must be reflected in a meaningful difference in their respective sentences; failure to do so can give rise to a justifiable sense of grievance warranting appellate intervention.
  • Parity principles require courts to evaluate each offender's contribution to the shared criminal enterprise individually; a less active participant in a drug supply operation is not appropriately sentenced at the same level as the principal organiser.
  • The Court of Criminal Appeal confirmed that the co-offender's successful earlier appeal on special circumstances grounds did not itself generate the applicant's grievance; rather, it was the underlying failure of the original sentence to reflect the disparity in roles that required correction.
  • Under s 25(2) of the Drug Misuse and Trafficking Act 1985, the maximum penalty is 20 years imprisonment, and the standard non-parole period is 10 years; the sentencing court had placed the applicant's offending just below the mid-range of objective seriousness, which was accepted as correct.
  • In re-sentencing, the Court applied the principle from R v Boney [2001] NSWCCA 432 that any reduction for parity must not produce a sentence disproportionate to the overall criminality involved.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Tien Vu v Regina [2006] NSWCCA 188
- Lowe v The Queen (1985) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Olbrich (1999) 199 CLR 270
- R v Way (2004) 60 NSWLR 252
- R v AJP (2004) 150 A Crim R 575
- MLP v Regina [2006] NSWCCA 271
- R v Boney [2001] NSWCCA 432
- R v Shi [2004] NSWCCA 135
- R v Kollas & Mitchell [2002] NSWCCA 491
- R v Ilbay [2000] NSWCCA 251
- R v Anderson NSWCCA 25 March 1993
- R v Le Cerf (1975) 13 SASR 237
- R v Laurentiu & Becheru (1962) 63 A Crim R 402