Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lee v R [2012] NSWCCA 123
• Hearing dates: 15 May 2012
• Decision date: 08 June 2012
• Before: HOEBEN JA at [1]; HIDDEN J at [69]; BEECH-JONES J at [70]

Decision

Leave to appeal granted.

Appeal dismissed.

• Catchwords: CRIMINAL LAW - sentence appeal - conspiracy to deal with money in excess of $1 million, conspiracy to import not less than the trafficable quantity of heroin, conspiracy to traffic in a marketable quantity of heroin and methamphetamine - whether adequate effect given to role of applicant in conspiracy - application of parity principle - whether applicant's "good character" appropriately dealt with by sentencing judge - whether discount for plea of guilty appropriately applied - need to take into account prospects for rehabilitation.
• Legislation Cited: Commonwealth Crimes Act 1914; Customs Act 1901 (Cth); Evidence Act 1995
• Cases Cited: Cameron v R [2002] HCA 6; 209 CLR 339; Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36; Lowe v R [1984] HCA 46; 154 CLR 606; Okafor v R [2007] NSWCCA 147; Onuorah v R [2009] NSWCCA 238; 76 NSWLR 1; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451; R v Hammoud [2002] NSWCAA 254; 118 A Crim R 66; R v Thomson, R v Houlton (2000) NSWCAA 309; 49 NSWLR; Rees v R [2012] NSWCCA 47; Regina v Barrientos [1999] NSWCCA 1
• Category: Principal judgment
• Parties: Thomas Ty Phu Lee - Applicant; Regina - Respondent Crown (Commonwealth)
• Representation: Counsel: B Stratton QC/G Niven - Applicant; L Crowley - Respondent Crown; Solicitors: Philip Sim & Associates - Applicant; Commonwealth Director of Public Prosecutions - Respondent
• File Number(s): 2009/10895

Decision under appeal

• Date of Decision: 2010-12-14 00:00:00
• Before: Latham J
• File Number(s): 2009/10895

Judgment

1 HOEBEN JA:

Offence and sentence

On 9 July 2010 the applicant was arraigned before Latham J in the Supreme Court of New South Wales on an indictment charging the following counts:

Count 1 - Conspiracy to deal with money, being to the value of $1 million or more, intending it would become an instrument of crime contrary to sections 11.5(1) and 403(1) of the Criminal Code 1995 (Cth). The maximum penalty for count 1 was imprisonment for 25 years and/or a fine of $165,000.

Count 2 - Conspiracy to import prohibited imports, being not less than a trafficable quantity of heroin, contrary to s233B(1)(a)(iii) of the Customs Act 1901 (Cth) and s11.5(1) of the Criminal Code 1995 (Cth). The maximum penalty for count 2 was imprisonment for 25 years and/or a fine $550,000.

Count 3 - Conspiracy to traffic in a marketable quantity of controlled drugs, heroin and methamphetamine, contrary to s11.5(1) and 302.3(1) of the Criminal Code 1995 (Cth). The maximum penalty for count 3 was imprisonment for 25 years and/or a fine of $550,000.

2 Thereafter the applicant was tried upon the indicted offences before Latham J and a jury. On 29 July 2010, towards the end of the Crown case, on the eleventh day of the trial, the applicant was re-arraigned and changed his pleas to guilty. Sentence proceedings were then conducted before Latham J on 16 August, 8 October, 12 November, 17 November, 2 December and 14 December 2010.

3 On 25 February 2011 her Honour sentenced the applicant as follows:

(i) In respect of count 1 imprisonment for a term of 5 years and 6 months to date from 12 June 2010, expiring on 11 December 2015.

(ii) In respect of count 2 imprisonment for a term of 7 years to date from 12 June 2010 and expiring 11 June 2017.

(iii) In respect of count 3 imprisonment for a term of 6 years to date from 12 June 2016 expiring 11 June 2022.

The sentences provide for a non-parole period of 8 years to date from 12 June 2010, the applicant being eligible for release on 12 June 2018. The aggregate sentence was therefore imprisonment for a term of 12 years with a non-parole period of 8 years.

4 By Notice of Appeal filed 18 November 2011 the applicant seeks leave to appeal from the sentences imposed for each of the three counts. The grounds of appeal are:

Count 1

Ground of Appeal 1 - The learned sentencing judge erred by failing to give adequate effect to the finding that the applicant played a lesser role in the commission of the dealing with the money to the value of $1 million or more which they intended would become an instrument of crime such that the sentence imposed was manifestly excessive.

Ground of Appeal 2 - The applicant has a legitimate grievance when his sentence is compared with the sentence imposed upon his co-offenders, Khanh Hoang Tran, Hong Phong Le and Ngoc Thuan Nguyen such that the sentence imposed was manifestly excessive.

Ground of Appeal 3 - The learned trial judge erred by using "good character" of the accused as a feature of aggravation such that the sentence imposed was manifestly excessive.

Ground of Appeal 4 - The learned sentencing judge erred in that she failed to indicate the proportionality of discount to be applied by reason of the offender's plea of guilty.

Count 2

Ground of Appeal 5 - The learned sentencing judge erred by failing to give adequate effect to the finding that the applicant played a lesser role in the commission of the offence of conspiring with Khan Hoang Tran and Hong Phong Le to import into Australia goods to which s33B of the Customs Act 1901 applied, namely prohibited imports consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin such that the sentence imposed was manifestly excessive.

Ground of Appeal 6 - The applicant has a legitimate grievance when his sentence is compared with the sentence imposed upon his co-offender Khan Hoang Tran, Hong Phong Le and Ngoc Thuan Nguyen such that the sentence imposed was manifestly excessive.

Ground of Appeal 7 - The learned sentencing judge erred by using "good character" of the accused as a feature of aggravation such that the sentence imposed was manifestly excessive.

Ground of Appeal 8 - The learned sentencing judge erred in that she failed to indicate the proportionality of discount to be applied by reason of the offender's plea of guilty.

Count 3

Ground of Appeal 9 - The learned sentencing judge erred by failing to give adequate effect to the finding that the applicant paid a lesser role in the commission of the offence of trafficking substance, being a controlled drug, namely heroin and methylamphetamine, and the quantity being a marketable quantity such that the sentence imposed was manifestly excessive.

Ground of Appeal 10 - The applicant has a legitimate grievance when his sentence is compared with the sentence imposed upon his co-offenders Khan Hoang Tran, Hong Phong Le and Ngoc Thuan Nguyen such that the sentence was manifestly excessive.

Ground of Appeal 11 - The learned sentencing judge erred by using "good character" of the accused as a feature of aggravation such that the sentence imposed was manifestly excessive.

Ground of Appeal 12 - The learned sentencing judge erred in that she failed to indicate the proportionality of discount to be applied by reason of the offender's plea of guilty.

Counts 1, 2 and 3

Ground of Appeal 13 - The learned sentencing judge failed to address issues relating to prospects for rehabilitation as required by s16A of the Commonwealth Crimes Act 1914 appropriately at sentence.

Factual background

5 In June 2005, the Australian Crime Commission commenced an investigation into the money laundering activities of several money remittance businesses based in Melbourne and Sydney. The businesses were collectively known as the "Long Tan Money Company ("the LTMC"). The investigation was later expanded to include the alleged importation and trafficking of drugs by clients of the LTMC. Investigators identified various illegal drug syndicates that were using the LTMC to deal with illicit drug money.

6 The scope of the investigation involving the applicant focused principally upon members of a syndicate dubbed the "Ken Syndicate", so known because the head of the syndicate was Khan Hoang Tran, who was also known by the anglicised names "Ken" or "Kenny".

7 Tran and another man, Hong Phong Le ("Phong Le"), were the principal members of the syndicate. The pair was based in Sydney and worked closely together during the commission of the Ken Syndicate's money laundering, drug trafficking and drug importation offences.

8 Between November 2005 and July 2006 the syndicate was involved in the business of importing and selling illegal drugs on a day-to-day basis. Throughout this period a number of discrete importations and instances of trafficking illegal drugs were identified.

9 The Ken Syndicate and its members in Sydney sold drugs to buyers in Melbourne. The drugs were couriered to Melbourne by various syndicate members. The buyers would remit money to Sydney for the purchase of the drugs. Purchase monies were remitted both before and after the delivery of the drugs.

10 Tran or Phong Le would acquire the drugs through various means, including through the importation of drugs from Vietnam and through purchases from domestic suppliers. The drugs would then be warehoused in Sydney until couriers were arranged to transport the drugs to Melbourne. Various types of drugs were acquired and sold by the syndicate, including heroin and methamphetamine.

11 Tran or Phong Le would arrange with various members within the syndicate to act as couriers to transport the drugs to Melbourne, either by personally carrying the drugs with them on commercial airline flights or by transporting the drugs to Melbourne by car. The actual delivery of the drugs in Melbourne was arranged and facilitated through the Melbourne based members of the syndicate, including Ngoc Thuan Nguyen ("Ngoc Nguyen") and the applicant.

12 Payment for the drugs was effected by a number of different methods. On occasions the purchasers would deposit the money with the LTMC businesses based in Melbourne and request that it be sent to the corresponding businesses in Sydney for collection by Tran or Phong Le. On other occasions the purchase money would be provided directly to the couriers, who would either use the money remitting business to send it back to Sydney or simply bring the money back with them on their return. On other occasions, Ngoc Nguyen or the applicant would receive money for the buyers in Melbourne and would deposit it with the LTMC business in Melbourne for transfer to Sydney.

13 The applicant, who was previously known as Be Van Tran, lived in Melbourne. He is the uncle of Phong Le. Throughout the period of the activities, the applicant was commonly referred to as "Be" or "Uncle B". The applicant carried out various tasks for the syndicate as and when required. The Applicant would generally carry out these tasks as directed or instructed by either Phong Le or Tran.

14 The applicant was involved in each of the three conspiracies throughout the entire period of the charges. The Crown characterised the applicant as the Melbourne based "branch manager" for the syndicate. In the course of the three conspiracies, the applicant carried out a number of overt acts in furtherance of the conspiracies including:

(a) arranging for the transfer of money from Melbourne to Sydney for the purchase of drugs;

(b) physically collecting money from buyers and couriers in Melbourne and depositing that money for transfer to Sydney;

(c) meeting with drug couriers who brought drugs from Sydney to Melbourne;

(d) warehousing drugs in Melbourne when required;

(e) arranging buyers for drugs in Melbourne when required;

(f) liaising with other syndicate members;

(g) arranging for couriers in Vietnam to bring drugs into Australia;

(h) arranging for money to be provided to the syndicate's Vietnam heroin suppliers and couriers;

(i) travelling to Vietnam, together with Tran, in order to meet the syndicate's heroin suppliers;

(j) negotiating prices and amounts for the purchase of drugs with the Vietnam heroin suppliers;

(k) attending to the syndicate's operations in Melbourne according to the

instruction of Tran and Phong Le.

15 Each of the three conspiracies was inter-related and formed the basis for the

syndicate's day-to-day illegal drug enterprise. The syndicate would use the proceeds from the sale of drugs sold to buyers in Melbourne to finance further importations and purchases of drugs, which in turn were then further on sold to buyers in Melbourne. The cyclical process continued in this way throughout the entire course of the conspiracy, with the proceeds of the sale of the drugs being partially reinvested back into the enterprise.

Sentence proceedings

16 The applicant's plea of guilty occurred on the eleventh day of trial after the Crown's principal witness, the applicant's nephew, Phong Le, had given evidence in chief, including extensive evidence regarding telephone intercepts that were tendered during the course of his evidence. The applicant's plea occurred after the cross-examination of Phong Le had commenced.

17 In the sentencing proceedings, the Crown tendered a Statement of Facts. The applicant disputed certain aspects of the Statement of Facts, principally those that dealt with his role and participation in the conspiracies. To enable the sentencing judge to resolve the dispute as to the facts, the Crown tendered excerpts of the telephone intercept material that had been relied upon and tendered during the trial. The sentencing proceedings occupied six days in total.

18 Having heard submissions, her Honour accepted the Crown's interpretation of the telephone intercept material and all of the facts as alleged in the Statement of Facts document tendered by the Crown.

19 In relation to the objective circumstances of the offences, her Honour found:

"(a) The applicant carried out various tasks for the syndicate as and when required. He would generally carry out these tasks as directed or instructed by either Phong Le or Tran.

(b) One of the applicant's main roles in Melbourne was to collect and remit drug purchase monies to facilitate the movement of drugs between New South Wales and Victoria.

(c) The applicant liaised with drug couriers for various purposes when they had arrived in Melbourne to deliver drugs. On occasions the applicant also received or warehoused drugs that had been returned or rejected by the Melbourne buyers. On occasions the applicant attempted to sell those drugs on behalf of the syndicate.

(d) The applicant introduced the syndicate to his drug contact in Vietnam (i.e. "Dung") and thereafter, together with Phong Le and Tran, the applicant was involved in the arrangements for the importation of heroin on behalf of the syndicate.

(e) On occasions when the applicant was in Vietnam, he would deal directly with the suppliers and couriers there. At other times he would contact the same people by telephone from Australia and discuss prices, amounts and courier arrangements. On other occasions, the applicant met or made arrangements to meet with couriers arriving in Australia, or paid couriers for importing drugs into Australia, on behalf of the syndicate.

(f) The applicant contributed money to partly finance the first importation of heroin from Vietnam for the syndicate in December 2005.

(g) In the latter half of May 2006, the applicant travelled to Vietnam and met with Tran for the purpose of arranging an importation of heroin for the syndicate. While in Vietnam, the applicant contacted members of the syndicate and discussed arrangements for the importation and prices of heroin. The applicant and Tran met with the supplier Dung in Hanoi where further negotiations took place. The evidence established that the applicant was responsible for "getting better rates" for the heroin.

(h) In May, June and July 2006 the applicant was engaged in the selling of quantities of heroin that had been trafficked by the syndicate from Sydney to Melbourne, but which had been returned by disgruntled purchasers.

(i) Between 28 November 2005 and 23 July 2006 a minimum of 110 money remittances took place on behalf of the syndicate totalling in excess of $4,380,205. Approximately $515,000 of this amount was sent from Australia to Vietnam on behalf of the syndicate.

(j) The applicant personally deposited or collected $533,000 during this period on behalf of the syndicate.

(k) The Ken syndicate was involved in an ongoing open-ended criminal enterprise involving the importation and domestic trafficking of substantial quantities of illicit drugs and the laundering of money to facilitate and finance these activities.

(l) The applicant's participation in the syndicate was within its upper ranks. The applicant communicated directly with Tran and Phong Le, both of who were acknowledged as principals of the syndicate.

(m) The applicant's criminality was subordinate to Tran and Phong Le, although his role as the principal Melbourne agent for the syndicate's activities suggested that the extent of the departure from the sentences imposed upon Tran and Phong Le would not be great, after allowing for such factors as the pleas of guilty and the provision of assistance.

(n) The sentences imposed upon the applicant had to reflect his agreement to participate in three extensive criminal conspiracies as evidenced by the nature and number of overt acts carried out by the applicant over the course of the conspiracies.

(o) The substantial amount of the drug imported and/or trafficked in the course of the conspiracies was a relevant factor in assessing the applicant's criminality. Similarly, the amount of money laundered by the syndicate and the fact that those funds were ploughed back into the purchase and distribution of illicit drugs, to the knowledge of the applicant, were important factors in sentencing on count 1 of the indictment.

(p) the offences were committed for financial gain, which must have been considerable. The scale of the syndicate's activities had the potential to reap huge financial benefits for those involved, particularly in the upper echelons of the organisation."

20 Her Honour recognised that general deterrence was a fundamental factor in sentencing for these offences.

21 With respect to the subjective circumstances of the applicant, her Honour took into account the following matters:

(a) He was born in South Vietnam in 1975 and was the second youngest of ten children. The family arrived in Australia as refugees in 1982 and settled in Melbourne. He was married in 2000 and has two young sons, both of whom reside with his wife in Melbourne.

(b) He had no criminal history and was of prior good character. Her Honour noted that this was a factor that allowed him to travel freely for the purpose of engaging in drug trafficking, uninhibited by the scrutiny of the authorities.

(c) He had been in reasonably regular employment since leaving school after year 12 in Victoria. He had operated a real estate agency between 1999 and 2005. While on bail after his arrest, he had been working as an apprentice electrician and had completed the second year of his apprenticeship and wished to pursue a career in that field.

(d) He reported using methamphetamines during the period of the offences, largely under the influence of his co-offenders.

(e) He had expressed some remorse for the commission of the offences to the probation and parole officer and to the psychologist, Ms Seidler. In doing so, however, he had not accepted full responsibility for his offending and had minimised his involvement by describing it as that of a "debt collector", "runner" and "general factotum" for one of the co-offenders in Sydney.

22 In relation to discounts, her Honour noted that the applicant had pleaded guilty to the offences, albeit on the eleventh day of trial and after the principal Crown witness had given evidence, and was partway through cross-examination. Her Honour accepted that the applicant had facilitated the efficient conduct of the trial by making admissions under s184 of the Evidence Act 1995. Her Honour noted that lesser sentences than might be appropriate were to be imposed to recognise his willingness to facilitate the course of justice.

Grounds of Appeal 1, 5 and 9 - The learned sentencing judge erred by failing to give adequate effect to the finding that the applicant played a lesser role in the commission of the offences such that the sentences imposed were manifestly excessive.

23 The applicant referred to her Honour's finding that his criminality fell to be determined as a subordinate to Tran and Phong Le. The applicant drew attention to that which was stated in the Agreed Facts at par 8, p 3:

"The offender carried out various tasks for the syndicate as and when required. The offender would generally carry out these tasks as and when directed or instructed by Khan Hoang Tran and Hong Phong Le."

The applicant also referred to the Crown's submission in the sentencing proceedings at par 47, p 16.

"The offender did not have the same level of authority in the syndicate as the latter two and in most cases was subject to their authority and followed their instructions in relation to the overall operations of the syndicate ...

The Crown submits that the offender occupied a midlevel position in the syndicate hierarchy being below Tran and Phong Le, but well above that occupied by the syndicate's couriers and runners."

24 The applicant submitted that it was clear from these findings, the Agreed Facts and the Crown submissions, that her Honour sentenced him on a higher ranking than that material would warrant. That error on the part of her Honour, he submitted, was reflected in the sentence which she imposed.

25 The applicant submitted that although 110 remittances of money took place between 28 November 2005 and 23 July 2006 totalling in excess of $4,385,205, he was only personally involved with the deposit and collection of $533,000 during that same period. The applicant submitted that this was a significantly lesser amount than the total remittances for the period and significantly less than the amount of $938,600 which was personally deposited by Ngoc Nguyen. The applicant submitted that the remittances with which he was personally involved amounted to approximately 13 percent of the total. He submitted that this percentage was a realistic indication of his subordinate role in the syndicate.

26 The difficulty with those submissions is that her Honour had available to her the evidence which had been given in the Crown case over 10 days and in particular, the telephone intercepts and evidence of Phong Le. Her Honour was not restricted to the Statement of Agreed Facts and the Crown submissions in making her factual findings.

27 There was no issue that the applicant's role was subordinate to that of Tran and Phong Le. Nevertheless, her Honour characterised him as participating within the upper ranks of the organisation and as performing the role of the principal Melbourne agent for the syndicate's activities.

28 Specifically, her Honour said:

"55 I accept the offender's criminality falls to be determined as a subordinate to Tran and Phong Le, although the offender's role as the principal Melbourne agent for the syndicate's activities suggests that the extent of the departure from the sentences imposed upon Tran and Phong Le ought not be great, after allowing for relevant factors such as the pleas of guilty and the provision of assistance. The sentencing exercise should not be distorted by somewhat strained attempts at positioning the offender precisely within a notional hierarchy.

56 The sentences imposed upon the offender must recognise the offender's agreement to participate in three extensive criminal conspiracies, as evidenced by the nature and number of overt acts carried out by the offender over the course of the conspiracy. These included arranging the transfer of money from Melbourne to Sydney for the purchase of drugs, physically collecting money from buyers and couriers in Melbourne and depositing that money for transfer to Sydney, meeting with drug couriers who brought drugs from Sydney to Melbourne, warehousing drugs in Melbourne when required, arranging buyers for drugs in Melbourne when required, liaising with other syndicate members, arranging for couriers in Vietnam to bring drugs into Australia, arranging for money to be provided to the syndicate's Vietnam heroin suppliers and couriers, travelling to Vietnam together with Tran in order to meet the syndicate's heroin suppliers, negotiating prices and amounts of drugs with the Vietnam heroin suppliers and attending to the syndicate operations in Melbourne, according to the instructions of Tran and Phong Le."

29 The evidence clearly supported her Honour's findings with respect to those matters and therefore her conclusion as to the applicant's role and participation in the syndicate's operations. As the evidence and her Honour's findings reveal, the applicant was involved in every facet of the illegal drug and money laundering enterprise and on occasions, exercised a substantial degree of autonomy and decision making, such as when he was entrusted with selling the poor quality drugs that had been returned by the Melbourne buyers.

30 The difference between the amount of money remitted by the applicant to Sydney and that remitted by other syndicate members, such as Ngoc Nguyen, was not an appropriate basis for a submission that the applicant was in a subordinate or even equal position necessarily to Ngoc Nguyen. Such an approach focuses upon the physical act of transferring the money and ignores the organisational nature of the conspiracies and the part played by the applicant in them. The submission also fails to acknowledge the gravamen of the money laundering conspiracy offence. The offence involved an agreement between the applicant and others to deal with money well in excess of $1 million with the intention that that money be used in part as a means of financing the ongoing drug importation and trafficking activities of the syndicate.

31 These grounds of appeal have not been made out.

Grounds of Appeal 2, 6 and 10: The applicant has a legitimate grievance when his sentence is compared with the sentence imposed upon his co-offenders, Khanh Hoang Tran, Hong Phong Le and Ngoc Thuan Nguyen such that the sentence imposed was manifestly excessive.

32 The applicant submitted that his position within the syndicate was analogous to that of Ngoc Nguyen. He noted that she had been sentenced to a term of imprisonment of 8 years with a non-parole period of 5 years, a significantly lesser sentence than he had received. This was despite the fact that she was the person in charge of syndicate activities in Melbourne and had been more active than him in remitting monies to Sydney.

33 The applicant relied upon the description given by the Crown in submissions concerning the position of Ngoc Nguyen as follows:

"Ngoc Nguyen, she was the middle woman, the person in the syndicate who acted as the buyers' agent down in Melbourne. ... She was involved in the same offence in terms of conspiracy of trafficking a commercial quantity ... She was more involved than Mr Tuan in the matter. She had pleaded guilty as well and was involved in the same money laundering as this offender.

In my submission, she was a person who was in the middle of the hierarchy. In terms of their position, viz a viz one another, in my submission you will see the way Ms Nguyen was dealt with by Judge Solomon. In terms of her involvement in the syndicate operation, in my submission whilst she was more heavily involved in the trafficking aspect she wasn't involved in the importation side;" (T.7.21-14.12.2010)

34 The applicant submitted that the significantly greater involvement of Ngoc Nguyen in the syndicate's activities in Melbourne was to be balanced against the importation activities of the applicant. When that was done, even allowing for the significant discount which she received for her plea of guilty, the applicant said that he had a justifiable sense of grievance when her sentence was compared with his own.

35 The applicant submitted that in order to appreciate his sense of grievance in relation to the sentences imposed upon Tran and Phong Le, it was necessary to assess as best one could what discount he had received from her Honour. The applicant suggested that her Honour must have allowed a discount of about 15 percent. If that were so, the starting point for the head sentence imposed by her Honour on him must have been about 14 years.

36 The applicant submitted that one should compare that sentence with the sentence imposed on Tran of imprisonment for 18 years with a non-parole period of 11 years, and on Phong Le of imprisonment for 12 ½ years with a non-parole period of 8 years and 3 months. The applicant submitted that even allowing for a discount of 50 percent for an early plea and assistance granted to Phong Le and 40 percent for an early plea and assistance granted to Tran, the sentences imposed on him did not reflect the lower level of his criminality. He submitted that his sentence was almost identical to that of the principals in the syndicate.

37 The parity principle is an expression of the concept of equal justice. It requires that like offenders should be treated in a like manner. However, the parity principle also allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances (Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301; Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36 at [28] - [30] ; Lowe v R [1984] HCA 46; 154 CLR 606 at 610). For the Court to intervene on the grounds of disparity, the difference in sentences between co-offenders must be "marked" or "clearly unjustifiable" or "manifest" ... "such as to engender a justifiable sense of grievance". A sense of grievance is "justifiable" when a reasonable mind looking over all of what happened would see that a grievance was justified (Green [30] - [32]; Rees v R [2012] NSWCCA 47 at [50]).

38 In the present case there are substantial differences between the objective and subjective circumstances of the offences and the offenders such as to justify any difference in the sentences imposed upon the applicant and his co-offenders.

39 With specific reference to Ngoc Nguyen, she was only charged in respect of two conspiracies, i.e. to traffic in a commercial quantity of heroin and methamphetamine, and dealing with money to the value of $1 million or more intending that it would become an instrument of crime. She was not charged with, nor was she involved in, the drug importation conspiracy. This is a significant difference and it is not answered by the submission that Ngoc Nguyen's greater involvement in criminal activities in Melbourne is to be offset against the applicant's involvement in the drug importation conspiracy.

40 The applicant's involvement in drug trafficking and money laundering in Melbourne was, as her Honour found, substantial. She described him as the "principal Melbourne agent" of the syndicate. Unlike Ngoc Nguyen, he also had a connection with Sydney in that much of the heroin importation came through Sydney. Moreover, the applicant's involvement in the importation conspiracy was significant. He introduced the syndicate to his drug contact in Vietnam, he dealt directly with suppliers and couriers from Vietnam, he negotiated prices with suppliers in Vietnam and travelled to and from Vietnam for the purposes of the syndicate. The quantity of the drug imported was substantial.

41 Not only was the criminality of the applicant greater than that of Ngoc Nguyen because of his involvement in the importation conspiracy, but she had the advantage of findings which were not available to him. Because she had pleaded guilty at an early stage, a discount of 25 percent was allowed to reflect her willingness to facilitate the course of justice. In her case, the sentencing judge accepted that her plea of guilty indicated contrition. She was found to be suffering from depression which would make her time in custody more onerous than otherwise would have been the case. Finally, the sentencing judge noted that there had been great delay before she was sentenced.

42 In the applicant's case, her Honour was not prepared to find any significant level of remorse. Although her Honour did not specify the extent of the discount which she was prepared to allow in the applicant's favour, it is clear from her comments that the discount would have been modest and much lower than the 15 percent suggested by the applicant in submissions. The applicant's guilty pleas came after the Crown case was almost completed and were clearly an acceptance of the inevitable, rather than a genuine expression of remorse. Of themselves they did not greatly facilitate the course of justice. In that regard, her Honour said:

"64 The offender's remorse for the commission of these offences was expressed to the Probation and Parole officer responsible for preparing a report on 8 October 2010 (Exhibit B), and to a psychologist (Exhibit 1). The offender acknowledged that he had done "the wrong thing" and that illicit drugs cause considerable damage within the wider community. The offender was regretful that his incarceration had left his wife and children without support and had caused embarrassment within his local community in Melbourne. To the extent that the offender accepted responsibility for his offending, he has minimised his involvement in the offences as a "debt collector", "runner" and general factotum for one of the co-offenders in Sydney. It is difficult to accept the offender's statement that "he thought his involvement at the time was all right because he was not the one who instigated the drug deals", given the offender's undoubted sound intelligence and functioning.

65 I have already made findings of fact which completely undermine the offender's professed role in the syndicate's activities. The equivocal nature of the offender's contrition and his attempts to avoid punishment commensurate with his criminality, explain the delay in entering pleas of guilty to the offences. That is one of the significant distinguishing features between the offender and the majority of his co-offenders, including Tran and Phong Le, both of whom pleaded guilty at a relatively early stage following their arrest and received a substantial discount for the promise of assistance to the authorities.

66 However, the offender did substantially facilitate the efficient conduct of the trial, by way of the admissions made under s184 of the Evidence Act 1995. The confinement of the issue at trial to the offender's participation in the relevant conspiracies significantly streamlined the Crown case. In the absence of those admissions, it may have been necessary to play a very large number of intercepted telephone calls, in addition to proving a number of translations. Accordingly, I have determined that a lesser sentence than might otherwise be appropriate ought be imposed in order to recognise the offender's willingness to facilitate the course of justice. Ultimately, the sentence must not be unreasonably disproportionate to the nature and circumstances of the offences."

43 In those circumstances, the applicant can have no justifiable sense of grievance with respect to the sentence passed on Ngoc Nguyen.

44 While Phong Le and Tran were sentenced for the same offences as the applicant, and were the principals in the syndicate and in the three conspiracies, there were significant differences in the circumstances relating to their sentences when compared with the applicant. Phong Le had the advantage of a 50 percent discount for his early plea of guilty and substantial assistance to the authorities. Accordingly, the starting point for his sentences, before the application of discounts, was imprisonment for 25 years with a non-parole period of 16 years and 6 months. This was significantly higher than the sentence imposed on the applicant and it reflected the greater criminality of Phong Le when compared with that of the applicant. The sentencing judge found genuine contrition and remorse on the part of Phong Le, a finding which her Honour was not prepared to make in respect of the applicant.

45 Similarly, the co-offender Tran received a discount of 40 percent for his early plea of guilty and assistance provided to authorities. Allowing for that discount, the start point for his sentences was imprisonment for 30 years with a non-parole period of 15 years. That is significantly greater than that imposed on the applicant and adequately reflects the greater criminality of Tran. Tran also had the advantage of a finding of genuine contrition and remorse for his offending and that there had been delay in sentencing.

46 It follows that the applicant has not established a basis for any justifiable sense of grievance on his part by reference to the sentences imposed on Phong Le and Tran.

47 On the issue of parity, the applicant submitted that her Honour had erred in partially accumulating the sentences which she imposed on him rather than making them concurrent, as had occurred with Ngoc Nguyen, Phong Le and Tran. This, of course, does not raise a parity issue, but can be conveniently dealt with here.

48 No error is disclosed in her Honour's approach to the structure of the sentences which she imposed, in particular the partial accumulation of the sentences for counts 2 and 3. The question of whether to accumulate sentences is a discretionary matter for the sentencing judge (R v Hammoud [2002] NSWCAA 254; 118 A Crim R 66 at [7]).

49 While the three conspiracies were interrelated and formed part of the one overall criminal enterprise, there was discrete criminality involved in each aspect of the offending. In the applicant's case wholly concurrent sentences would produce a total head sentence of just 7 years imprisonment and would not adequately reflect the total criminality of his offending. As her Honour specifically noted, anything less than a non-parole period of 8 years would fail to adequately give effect to the principle of general deterrence and would come perilously close to a penalty which was unreasonably disproportionate to the gravity of the offences.

50 To the extent that it is legitimate to compare the sentences imposed on the applicant with those imposed on Ngoc Nguyen, Phong Le and Tran on this issue, it is noteworthy that each received a high head sentence in respect of their drug trafficking conspiracy offences and lesser fixed term concurrent sentences for the other conspiracy offences. In contrast, the applicant received a 7 year sentence of imprisonment for his drug trafficking conspiracy offence. It was not only open to her Honour to conclude that some accumulation of sentences was warranted in the case of the applicant, any lesser sentence would have failed to fully reflect the totality of the criminality associated with his active participation in three substantial conspiracies.

Grounds of Appeal 3, 7 and 11: The learned sentencing judge erred by using "good character" of the accused as a feature of aggravation such that the sentence imposed was manifestly excessive.

51 The applicant submitted that he had not previously been charged or convicted of any criminal offence. He submitted that he was entitled to benefit from his prior good character. He submitted that instead of doing so, her Honour had used his previous good character against him when she said:

"He has no criminal history but his prior good character was a fact that allowed him to travel freely for the purposes of engaging in drug trafficking, uninhibited by the scrutiny of the authorities." (ROS [61])

52 The applicant submitted that this was not a case where he had held a position of public responsibility or trust, where good character may well have provided a special opportunity to embark upon criminal activity. In a case such as this, he submitted, his previous good character should not have been relevant to penalise him for his criminal conduct.

53 Prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence. This is because good character is not an unusual characteristic of persons involved in drug importation (Regina v Barrientos [1999] NSWCCA 1 at [52] - [57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457; Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 76 NSWLR 1).

54 It is not at all clear from what her Honour said that her Honour was taking the applicant's prior good character into account as an aggravating factor. It is equally open to read her Honour's observation as going no further than to say in accordance with authority, that in this case the applicant's prior "good character" would not be of assistance to him. Self-evidently, as her Honour noted, the applicant's prior good character was a factor which enabled him to travel freely and thereby engage in drug trafficking uninhibited by the scrutiny of the authorities.

55 I am not persuaded that error of the kind identified has occurred. These grounds of appeal have not been made out.

Grounds of Appeal 4, 8 and 12: The learned sentencing judge erred in that she failed to indicate the proportionality of discount to be applied by reason of the offender's plea of guilty.

56 The applicant submitted that even though he entered a late plea of guilty, some discount should have been allowed. Unfortunately, the authorities quoted by the applicant in support of this proposition were authorities which referred to the utilitarian value of a plea of guilty, an approach which is not appropriate in Commonwealth offences. The applicant suggested a discount of 10-15 percent.

57 The applicant submitted that in any event, her Honour should have specified the extent of any discount that she was going to grant. He submitted that her Honour should have allowed a further discount for his remorse because his early plea of guilty was itself indicative of remorse. The applicant submitted that a finding of remorse should be made in circumstances when an early plea of guilty is entered.

58 When sentencing for a Commonwealth offence, there is no requirement for the sentencing judge to specify a quantifiable discount for an offender's guilty plea. The principles set out in R v Thomson, R v Houlton (2000) NSWCAA 309; 49 NSWLR at [155], do not apply to sentencing for Commonwealth offences. When a Commonwealth offence is involved, a sentencing judge is required to take the offender's guilty plea into account in accordance with the principles stated in Cameron v R [2002] HCA 6; 209 CLR 339. The plea of guilty is taken into account as recognition of an offender's willingness to facilitate the course of justice but not on the basis that the plea has saved the community the expense of a contested hearing.

59 Since the test in a Commonwealth offence is the willingness of the offender to facilitate the course of justice, a relevant consideration (particularly in this case) is the strength of the Crown case. This is because the strength of the Crown case may bear upon the question of whether the plea of guilty was motivated by a willingness to facilitate the course of justice, or simply a recognition of the inevitable. In this case the plea of guilty comes within the latter description.

60 While a plea of guilty might of itself be indicative of remorse, her Honour was not bound to accept it as such. This is particularly so when there were other indicia identified by her Honour to contrary effect, i.e. the late timing, the circumstances in which the plea was entered and the applicant's attempts to downplay his role in the conspiracies. Significantly, the applicant did not give evidence himself to express remorse for his offending and the only references to remorse came from third party reports and letters of reference.

61 These grounds of appeal have not been made out.

Ground of Appeal 13 - The learned sentencing judge failed to address issues relating to prospects for rehabilitation as required by s16A of the Commonwealth Crimes Act 1914 appropriately at sentence.

62 The applicant submitted that for the reasons which follow, he was a very good candidate for rehabilitation. He had a good working history. While on bail prior to the commencement of the trial, he had undertaken an apprenticeship as an electrician which he had partially completed. It was his intention upon release to complete that apprenticeship. He had a supportive family background with a wife and two children which was conducive to a successful rehabilitation. A presentence report, dated 7 October 2010, identified the applicant as suitable to attend programs which would address his illicit drug use. This recommendation was supported by the psychologist's report.

63 Pursuant to s16A(2)(n), a court sentencing a federal offender is required to take into account matters that are relevant and known with respect to the offender's prospects of rehabilitation. In the present case, the sentencing judge did not specifically refer to or make any particular finding with respect to, the applicant's prospects of rehabilitation.

64 Given the requirement of s16A(2)(n), it would have been preferable had her Honour made a finding in relation to the applicant's prospects of rehabilitation. There was clearly evidence which would have enabled her Honour to make a positive finding on that issue. Equally, however, there was evidence which pointed the other way.

65 Had her Honour considered the question of rehabilitation, she may well have found that the applicant's refusal to accept responsibility for the extent of his offending and his continued attempts to minimise his involvement in the offences, did not bode well for rehabilitation. Her Honour's apparent unwillingness to find genuine remorse on his part was also not a positive factor suggesting successful rehabilitation.

66 Accordingly, had her Honour turned her mind to the question of rehabilitation, it is by no means clear that her Honour would have made a finding favourable to the applicant.

67 Alternatively, if the applicant's complaint of specific error with respect to the absence of a finding or assessment with respect to his rehabilitation prospects is made out, this is not demonstrative of error in the sentencing process. It follows that I am of the opinion that the Court should not intervene and re-sentence the applicant since no other lesser sentences are warranted in all the circumstances.

Orders

68 The orders which I propose are as follows:

(1) Leave to appeal is granted.

(2) The appeal is dismissed.

69 HIDDEN J: I agree with Hoeben JA.

70 BEECH-JONES J: I agree with Hoeben JA.

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Decision last updated: 12 June 2012