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Court of Criminal Appeal 8 August 2007

MA and PHAM v R

[2007] NSWCCA 240

Drugs

Citation: MA and PHAM v R [2007] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 8 August 2007
Judge(s): McClellan CJ at CL, Hulme J, Hoeben J

Background

Two co-offenders appealed against sentences imposed in the District Court following guilty pleas to charges of supplying heroin in a commercial quantity. The offending occurred between September and November 2003, when the appellants participated in a well-organised heroin distribution syndicate operating primarily out of premises in Bonnyrigg and Warwick Farm in south-western Sydney.

The syndicate ran morning and afternoon shifts, served large numbers of customers daily, and supplied heroin in quantities ranging from small retail amounts to larger lots. Surveillance recordings showed up to 170 persons attending a single premises in a single day. The total heroin supplied by the syndicate over the monitored period was estimated to be well into the high range of commercial quantity.

The first appellant (Ma) was identified as a highly active and organised manager responsible for arranging larger purchases of heroin for on-supply. The second appellant (Pham) played a lower-level role as a street-level supplier and runner. Both pleaded guilty after the trial judge ruled that telephone intercept evidence was admissible. Ma received a non-parole period of 7 years with a total term of 10.5 years; Pham received a non-parole period of 5.5 years with a total term of 9 years.

  • Whether the sentencing judge erred by failing to apply the parity principle correctly when comparing Ma's sentence with that of co-offender Ngao (who had offended while on conditional liberty)
  • Whether the sentencing judge incorrectly assessed the objective seriousness of Pham's offending
  • Whether the sentencing judge failed to give proper weight to Pham's personal circumstances
  • Whether the sentencing judge failed to apply the parity principle in Pham's case
  • Whether the sentences imposed on Ma and Pham were manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal in both cases, given the length of the sentences, but dismissed both appeals.

On the question of manifest excess regarding Ma, the Court (Hulme J, with McClellan CJ at CL and Hoeben J agreeing) observed that the sentencing judge had in fact treated Ma's offending generously by placing it in the middle range of objective seriousness, and that the reduction allowed for subjective matters was difficult to justify as being as large as it was. Despite those observations, the Court concluded that the sentence was not manifestly excessive when the full range of objective and subjective factors was taken into account.

On the parity argument concerning Ma and Ngao, the Court acknowledged that Ngao had offended while on conditional liberty, a factor that should have been reflected in a disparity between their sentences. However, it applied the principle that this Court retains a discretion not to intervene where reducing a sentence would produce a result disproportionate to the offender's actual criminality. A lower sentence for Ma would have been disproportionate on that basis.

In Pham's case, the Court found no error in the sentencing judge's assessment of objective seriousness or in the treatment of his personal circumstances. The parity complaints and the manifest excess ground were similarly rejected.

Orders Made

In each appeal:
- Leave to appeal granted
- Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a finding of disparity arising from the parity principle does not automatically compel intervention; the Court retains a discretion to decline where reducing the sentence would produce a result disproportionate to the offender's objective and subjective criminality.
  • A sentencing court's generous treatment of an offender's role or subjective circumstances does not in itself make a sentence manifestly excessive; the question remains whether the sentence actually imposed falls outside the permissible range.
  • Where a co-offender has committed offences while on conditional liberty, that factor should ordinarily be reflected in a disparity between sentences, but its absence does not automatically warrant appellate interference.
  • In dismissing both appeals, the Court affirmed the sentences imposed by Morgan DCJ notwithstanding observations that certain mitigating allowances appeared generous on the facts.
  • Under the standard non-parole period scheme applicable to commercial drug supply offences, the 10-year standard non-parole period set a relevant benchmark against which both sentences were measured.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B et seq.
- Police Powers (Drug Premises) Act 2001 (NSW), s 14(1)

Cases:
- R v Pan [2005] NSWCCA 114
- Lewins v R [2007] NSWCCA 189
- R v Boney [2001] NSWCCA 432
- R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported)