Citation: Cao v Regina; Phan v Regina; Nguyen v Regina [2009] NSWCCA 273
Court: New South Wales Court of Criminal Appeal
Date: 11 November 2009
Judge(s): Macfarlan JA, Howie J, Hislop J (Hislop J delivered the principal judgment, with which the other members agreed)
Background
Three applicants, all Sydney residents of Vietnamese background, pleaded guilty to conspiring to import heroin into Australia from Vietnam between 2005 and 2006. The conspiracy involved recruiting couriers who carried heroin concealed in suitcases on return flights from Vietnam, with Perth International Airport as the main point of entry. Police identified six separate importations by the syndicate during the relevant period.
The first applicant, a man born in 1975, was a principal organiser of the enterprise and was in a relationship with the second applicant, a woman born in 1957. Both were described by the sentencing judge as principals who recruited and financed couriers, liaised with overseas contacts, and arranged distribution of the drugs in Sydney. The third applicant, the first applicant's sister, was born in 1979 and played a significant coordinating role, meeting couriers on arrival in Perth and travelling to coordinate importations.
None of the three applicants had prior convictions. The first applicant received 24 years imprisonment (non-parole period of 14 years 6 months), the second received 18 years (non-parole period of 11 years), and the third received 15 years (non-parole period of 8 years 6 months). All three sought leave to appeal against their sentences in the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred by overstating the quantity of heroin imported when determining the objective seriousness of each offence
- Whether the sentences were manifestly excessive
- Whether the third applicant had a justifiable sense of grievance arising from a lack of parity with sentences imposed on co-offenders, specifically Anh Dung Vu and Kim Anh Ly
- Whether the first applicant had a justifiable sense of grievance arising from a lack of parity with the sentence imposed on the second applicant
Decision
The Court rejected the contention that the sentencing judge overstated the quantity of heroin imported. The applicants argued that the judge had attributed too great a quantity of heroin to the conspiracy when assessing objective seriousness, but the Court found no error in her Honour's approach to the factual dispute on this question.
On manifest excess, the Court found that the sentences were within the range appropriate to the applicants' respective roles and the seriousness of the offending. The maximum penalty for the offence was life imprisonment. The discounts applied for early pleas of guilty (25 per cent for the first and second applicants, 15 per cent for the third applicant, whose plea was entered at a relatively late stage) were also considered appropriate.
On the parity grounds, the Court found no marked disparity giving rise to a justifiable sense of grievance in any of the comparisons made. As between the third applicant and Vu, the Court accepted it was open to the sentencing judge to treat their objective criminality as equal, and the subjective factors did not produce a result that was markedly disparate. As between the third applicant and Kim Anh Ly, the Court identified two significant differences: the third applicant occupied a higher position in the syndicate hierarchy than Ly, who was a courier, and Ly had recently given birth and the sentencing judge had found exceptional hardship warranting substantial weight in mitigation. Those differences sufficiently explained the gap in sentences.
The first applicant's parity complaint, comparing his sentence with that of the second applicant, was also rejected. The Court considered the differences in their roles and circumstances adequately accounted for the difference in sentences.
Orders Made
In each case:
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A finding that two co-offenders share equal objective criminality is a matter open to the sentencing court, and where that finding is reasonably available, a difference in final sentences attributable to subjective factors will not necessarily give rise to a justifiable sense of grievance.
- Parity between co-offenders does not require identical sentences. The Court of Criminal Appeal confirmed that differences in hierarchical role within a criminal syndicate, and differences in personal circumstances such as exceptional hardship, are legitimate bases for imposing materially different sentences.
- Where a courier's sentence is lower than that of a higher-ranking co-offender, that disparity is explicable if the sentencing court has properly identified and weighted the distinction in roles.
- No error was established in the sentencing judge's resolution of the factual dispute about the quantity of heroin attributable to the conspiracy, reinforcing that appellate courts will not lightly disturb a primary judge's fact-finding on contested sentencing issues.
- In dismissing all three appeals, the Court confirmed that sentences at this level of severity for a commercial-scale heroin importation conspiracy, involving principals with no prior convictions but significant organisational roles, were not manifestly excessive.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth)
- Customs Act 1901 (Cth), s 233B
- Criminal Code 1995 (Cth), s 11.5
Cases
- Crampton v The Queen [2000] HCA 60; (2001) 206 CLR 161
- Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
- Markarian v R [2005] HCA 25; (2005) 215 ALR 213
- N v R; AP v R [2009] NSWCCA 108
- R v Bell [1999] NSWCCA 423
- R v Boney [2001] NSWCCA 432
- R v Holder [1983] 3 NSWLR 245
- R v Lee [2000] NSWCCA 234
- R v Palu (2002) 134 A Crim R 174
- R v Steele (NSWCCA, 17 April 1997, unreported)
- R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340; 108 A Crim R 531
- Regina v Jack Chick Chen [2003] NSWCCA 328
- Regina v Togias [2001] NSWCCA 522; 127 A Crim R 23
- Wong v R [2001] HCA 64; (2001) 207 CLR 584