Citation: Tran, Thi Doan v R [2020] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 12 August 2020
Judges: Macfarlan JA, Fagan J, Cavanagh J
Background
The applicant pleaded guilty in the District Court to two counts of supplying a prohibited drug in a quantity exceeding the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences related to her role in a cannabis distribution syndicate that sourced bulk cannabis from a supplier and on-supplied it to customers across Australia via Australia Post, with orders placed through the dark web and paid in bitcoin.
The applicant's specific role was to negotiate price and quantity with the supplier, arrange cash payments, and coordinate handover meetings between the supplier and her co-offender. She was sentenced in the District Court alongside three co-offenders. The sentencing judge imposed an aggregate sentence of 4 years and 6 months imprisonment with a non-parole period of 2 years and 3 months.
On appeal, the applicant initially raised two grounds: that she had a justifiable sense of grievance arising from sentencing disparity with two co-offenders, and that her sentence was manifestly excessive. The second ground was abandoned at the hearing.
Legal Issues
- Whether the applicant was left with a justifiable sense of grievance due to the disparity between her sentence and those imposed on two co-offenders, one of whom received the same head sentence and another a significantly lesser sentence.
Decision
The Court of Criminal Appeal unanimously dismissed the appeal. On the disparity ground, the Court examined the respective roles, objective criminality, and subjective circumstances of the applicant and her two co-offenders.
Regarding the co-offender who received the same head sentence but a longer non-parole period, the Court found no meaningful distinction in objective criminality. Both were directly involved in procuring bulk cannabis and in the postal on-supply operation. The difference in non-parole periods reflected differing subjective circumstances, with the applicant benefiting from factors including an abusive marital history, mental health difficulties, and the impact of imprisonment on a young child. The Court found no justifiable sense of grievance could arise from that comparison.
Regarding the co-offender who received a lesser sentence, the Court identified substantial objective and subjective differences that explained the gap. That co-offender was sentenced for one offence only, on the lesser basis of knowing concern, and was not sentenced for involvement in the bulk procurement phase of the operation. Her subjective circumstances were also more compelling: she was a reluctant participant drawn in by a relationship and family financial pressures, and had become pregnant and diabetic while charges were pending. The gradation in sentences was consistent with those distinctions.
The Court also noted an important procedural point. At first instance, counsel for the applicant had submitted that parity applied as between the applicant and the co-offender who received the same head sentence, but that both their sentences would be more substantial than that of the third co-offender. The disparity appeal on the latter comparison was therefore inconsistent with the position advanced below. The Court found the applicant had not established any ground upon which the appeal could succeed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A justifiable sense of grievance from sentencing disparity requires the applicant to identify objective criteria demonstrating that the comparison sentence cannot be explained by legitimate differences in offending or subjective circumstances.
- Where co-offenders are charged with different offences and on different factual bases (such as knowing concern versus active procurement), a significant difference in aggregate sentences may be entirely explicable and not give rise to a disparity complaint.
- In dismissing the appeal, the Court confirmed that it will not second-guess a sentencing judge's differentiation between co-offenders sentenced in the same proceeding, and will only intervene if the disparity cannot be justified as a proper exercise of judicial discretion.
- Subjective factors such as pregnancy, health conditions, reluctant participation, and separation from young children can legitimately influence both the quantum of sentence and the custodial component, producing different outcomes for co-offenders with comparable objective criminality.
- A ground of appeal asserting disparity may be undermined where it is contrary to a concession made by the same party at first instance.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25
Cases:
- Dayment v R [2018] NSWCCA 132
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Greaves v R [2020] NSWCCA 140
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Pecora v The Queen [1980] VR 499
- R v Deng (1996) 91 A Crim R 80
- R v Tisalandis [1982] 2 NSWLR 430
- Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460