R v Pham [2001] NSWCCA 307

New South Wales Court of Criminal Appeal

CITATION : R v Pham [2001] NSWCCA 307 FILE NUMBER(S) : CCA 6024/01; 60273/01 HEARING DATE(S) : 13 August 2001 JUDGMENT DATE : 13 August 2001

PARTIES : Regina Tuan Ba Pham JUDGMENT OF : Wood CJ at CL at 1; Sperling J at 48

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0093 LOWER COURT JUDICIAL Woods DCJ OFFICER :

COUNSEL : E A Wilkins (C) M C Ramage QC with Ms Michael (A) SOLICITORS : S E O'Connor Mark Klees & Associates CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence – supply of commercial quantity of heroin – two counts of supply of sample of heroin - 1 count supply of methylamphetamine – whether role of the applicant was that of "secondary principal" – expression ambiguous – whether parity in sentencing – whether correct starting point of sentence – whether court should have taken into account applicant's past drug use – no substance to submissions LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 s 25(2) DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60241/01 60273/01 WOOD CJ AT CL SPERLING J MONDAY 13 AUGUST 2001 REGINA v TUAN BA PHAM

JUDGMENT

1 WOOD CJ AT CL: The applicant seeks leave to appeal from a sentence of imprisonment for ten years and six months with a non parole period of seven years and eleven months, imposed upon him for the offence of supplying 2.1 kgs of heroin, being an amount just over twice the large commercial quantity applicable to that substance. That is an offence for which the maximum available penalty is one of imprisonment for life: S 25(2) Drug Misuse & Trafficking Act 1985. 2 The applicant was, at the same time, sentenced for two counts of supplying two samples of heroin, respectively in amounts of 0.38 grams and 0.19 grams, and for one count of supplying 0.2 grams of methylamphetamine. In respect of these two further heroin offences, concurrent terms of imprisonment for three years with non-parole periods for two years and three months were imposed. For the methylamphetamine offence, a concurrent fixed term of one year was imposed. In respect of that matter, a further offence of possession of 0.14 grams of that substance was taken into account on a form 1. 3 The offences were detected during a targeted NCA operation, and involved a somewhat sophisticated and well organised criminal venture on the part of those involved. It is common ground that the offender occupying the highest rung in the distribution chain was a person Cuong, known by the honorific "Uncle". It was he who initially held the drugs, and it was from him that the others took instructions. However both the applicant and a co-offender Nguyen were significantly involved in the operation, being persons described by his Honour as "secondary principals". This was a term of somewhat uncertain meaning and of dubious value. However, it can be taken to mean that these two offenders were the persons entrusted with authority to arrange the sale of drugs and to effect their delivery once a sale had been negotiated. 4 In the case of the applicant, his involvement began in Melbourne, where he met a covert operative Alex on 4 April 2000, and offered to him six blocks of heroin each of 12.5 ounces for sale in Sydney. A price of $51,000 per block was negotiated between the applicant and Alex. Arrangements were made for a meeting in Sydney. That meeting took place at the Star City Casino on 12 April 2000. It was attended by the applicant, by Alex and by another covert operative, Dat. 5 On this occasion Alex and Dat showed the applicant $200,000 in bank notes in a sports bag. The applicant gave to Alex three paper packets containing the two small quantities of heroin (one being white in colour and one beige), and the small quantity of methylamphetamine, which were respectively the subject of the three lesser supply charges. They were offered as samples, the applicant asking Alex what kind of heroin he preferred, and also indicating that he could supply "ice", or methylamphetamine, of good quality at the price of a $120,000 per kilo. Arrangements were made for a further meeting on the following day. 6 On the afternoon of 13 April Alex met the applicant and a co-offender Nguyen in Ultimo. They were joined by Dat who was carrying $306,000 as show money in the boot of his vehicle. After some discussion the applicant, Nguyen and Alex drove to a block of home units in Illawarra Road Marrickville. They were followed by Dat in his vehicle. Further discussions took place at those premises concerning the arrangements for the exchange of the heroin and the money. 7 At this point Alex and Dat changed their roles, Alex remaining in Dat's vehicle with the money, while Dat went with the applicant and Nguyen to a unit inside the Illawarra Road building. Dat was there introduced to another person, Le, with whom further discussion took place in relation to the way in which the exchange would be effected. 8 Le indicated that the transaction would take place at another location. She then walked with Dat to Ewart Street in Dulwich Hill where they were both picked up by an Asian male driving a motor vehicle registered to Le. 9 The driver of this vehicle then took them a short distance down Ewart Street before stopping at another block of home units. Le drove off leaving Dat and the Asian driver behind. On their way into the building they were met by an unidentified Asian male and an Asian female in the courtyard. The former handed a shopping bag to the driver, and then left with the female. Dat and the driver went into unit 13, where Dat was given the shopping bag which upon inspection was found to contain three packages each containing two blocks of heroin. 10 Dat contacted Alex by mobile phone to confirm that he had received the heroin, and also to make arrangements to bring the money to the unit. In the meantime, Alex, the applicant and Nguyen had remained together at Marrickville in or near the vehicle which contained the money. 11 During this period, Nguyen had engaged in a number of conversations by mobile phone with Le, whom he referred to as "Aunt Phuong" and with the driver of the motor vehicle. 12 After the call from Dat was received, the money was counted and Nguyen confirmed with the driver of Le's vehicle, whom he addressed as "Uncle", that the money was correct. 13 Nguyen then directed Alex to drive to Ewart Street. When they arrived there Nguyen left the vehicle and went into the unit where Dat was waiting. The applicant and Alex waited outside for them. They were, at this point, arrested and the bag containing the $306,000 was recovered. When Nguyen and Dat left the unit carrying the shopping bag, with its heroin packages, they were also arrested as was Le a short time later. 14 The arrests of Alex and Dat were naturally enough show arrests. When the applicant was interviewed, he admitted his involvement in the supply offences. Examination of his personal property turned up the residual quantity of methylamphetamine which gave rise to the offence included in the Form 1. 15 Nguyen, it may be observed, declined to be interviewed at this stage. 16 The estimated street value of the 2.1 kgs of heroin, which upon analysis was found to constitute 893 grams of pure heroin, was about $2.1 million. 17 Both the applicant and Nguyen pleaded guilty, and were sentenced by his Honour Woods DCJ in the District Court. The sentence imposed upon Nguyen for the single offence of which he was convicted, namely the supply of the 2.1 kgs of heroin was one of seven and a half years with a non parole period of four years. 18 At the time of the offence the applicant was aged about 30 years, and had a prior criminal history including several convictions in Victoria for offences of burglary, theft, and breaches of community based orders. He also had convictions for a number of offences of dishonesty involving the obtaining of financial advantage by deception, obtaining property by deception and making false documents. These had been dealt with on 11 November 1999, and had led to a total sentence of 12 months imprisonment, of which 10 months had been suspended. He came from a good family, but experienced the significant difficulty and hardship associated with his experience when, after escaping from Vietnam with his father and brother in 1980, he had lived for two months or so in a refugee camp in Malaysia, before gaining entry into Australia. 19 Once in this country he completed his Higher School Certificate, and entered the Royal Melbourne Institute of Technology before abandoning his tertiary studies to embark upon a business career in the area of loan finance. 20 He married in 1993, but later separated from his wife in about 1997. He did not become involved in delinquent behaviour or drug abuse in his teens, but began to use drugs after the breakdown of his marriage. There was some evidence of him having been hospitalised at one time in 1999, after an episode of drug induced psychosis, and of suffering some degree of depression associated with his business difficulties. 21 In a letter addressed to the Court he expressed contrition and an intention to abstain from drug abuse. That letter was however significantly self-serving so far as it sought to minimise his criminality, and it does not suggest that he has much by the way of insight into the seriousness of his involvement in the drug trade at a commercial level. 22 Nguyen was a 19 year old at the time of the offence. He had been living in Australia on a student visa and had a lesser criminal history although it included convictions for drug related offences. In his case, the evidence showed that he had been dislocated from his family, had a limited command of the English language, and was drug dependent. He was assessed by his Honour to have been "vulnerable", and his youth was something which, it was said was a matter "which very greatly distinguished him from his co-offender". 23 In the case of the applicant special circumstances were expressly not found. In the case of Nguyen, while his Honour did not expressly deal with the question, it is evident from the sentencing order, which involved a non-parole period of the order of 53 percent of the head sentence, that they were found to exist. Properly would that been so, having regard to his age, his background and his lack of family and community ties, which did require that there be a significant period of post release supervision. 24 Four grounds were argued in support of the application.

Finding that the role of the applicant was that of a "secondary principal" 25 As I have observed the expression "secondary principal" is somewhat ambiguous, and so far as it may have been used to reflect a measure of the objective seriousness of the applicant's criminality by reference to some arbitrary classification of those involved in the drug distribution chain, then it was unhelpful. More relevant was the assessment of the part actually played by the applicant so far as that could be discerned. See Olbrich (1999) 73 ALJR 1550 and Wong and Leung (1999) 108 A Crim R 531. 26 In this regard it is clear that the applicant was working in close association with the person known as "Uncle", the man who was holding the heroin and to whom the others deferred. It is also clear that he occupied a significant role in a well organised and sophisticated operation for the supply of drugs in a quantity, and in circumstances, which were only consistent with its ocurrence at a wholesale and not a street level. The number of persons used, the steps taken to avoid detection, and the awareness of those involved as to the risks which they were undertaking attests to that fact. Moreover, it was the applicant who conducted negotiations with a prospective buyer, and who offered ongoing supply. 27 To the extent that a submission was made that the applicant was "big noting" himself, and was merely a pawn in the operation, there was no support whatsoever in my view for that proposition. 28 The evidence concerning the circumstances in which the sale was negotiated in Melbourne, the applicant's conduct in supplying samples associated with his enquiry as to the type of heroin which Alex preferred, and his supply of the 2.1 kgs of this substance revealed the contrary. This submission has no substance.

Finding that the applicant was at the same level of involvement as Nguyen 29 In essence this submission involved a parity argument, in which it was contended that, upon the evidence, Nguyen stood at a higher level in the distribution chain than the applicant, and that as a consequence he is entitled to have a justifiable sense of grievance by reason of the heavier sentence which he received. 30 Upon the evidence there is no basis whatsoever for attributing any higher level of involvement to Nguyen. In fact there is good reason to find that Nguyen's involvement began only after the negotiation of the sale, and was more related to the implementation, or delivery stage of the transaction. Otherwise there was good reason for distinguishing between them for the purpose of sentence, having regard to the differences in their ages, in their family circumstances, in their criminal antecedents, and in the fact that the applicant was being sentenced for four offences while Nguyen was being sentenced for one. 31 It is clear that his Honour sentenced the applicant upon the basis of the total criminality involved, regarding the other two heroin supply offences as intrinsically bound up with the relevant offence. The distinguishing features noted establish that there was no occasion for the applicant maintaining a legitimate sense of grievance as that expression has been explained in Lowe (1984) 154 CLR 606, and Postiglione (1997) 71 ALJR 875. This submission is also without merit. 32 The starting point of the sentence 33 It was next submitted that his Honour erred in proceeding upon the basis that but for the plea of guilty, the appropriate starting point for the applicant was one of 14 years, which was then discounted by 25 per cent for the plea of guilty and contrition. 34 In this regard our attention has been drawn to the Judicial Commission statistics, and in particular to the fact that for a similar offence during the period which they cover, that is April 1993 to March 2000, no offender has received more than ten years following a plea of guilty, and that no offender has received a minimum term in excess of seven years. 35 Those statistics however reveal that 20 per cent of the offenders sampled did receive a full term in the order of ten years, and 25 per cent received a minimum term in the order of seven years. 36 The difficulty with statistics relates to the fact that unless the sample is large they can be quite misleading. In the present case, the sample size is very small being confined to sixteen cases. As a consequence they were of limited value. As has also been pointed out on many occasions, there are infinite differences in the subjective and objective circumstances of offenders which can be concealed within the statistics, as well a different quantities of drugs falling within a relevant range. 37 It is for this reason that they provide a guide which while helpful, is to be used with a considerable degree of caution. 38 A submission was advanced by senior counsel for the applicant, in the written submissions, to the effect that his Honour may have fallen into error in applying the guideline in Wong & Leung to a State offence. There is, however, no suggestion in the reasons for sentence that his Honour took that course, or if he did that he failed to understand the difference between Federal and State drug offences. I see no reason to speculate in that regard. 39 The question for this Court ultimately is whether the starting point, when considered against the maximum available sentence, and in the light of the objective and subjective circumstances, was too high. I am not persuaded that it was. Certainly it was at the top of the range, and was a heavy sentence. However the fact remains that trafficking in a large commercial quantity of drugs, in the course of an operation which is as sophisticated as that seen in this case, is an offence for which condign sentences are expected both by way of punishment and in the interests of specific and general deterrence. See Pilley (1991) 56 A Crim R 202 and Chan (1999) NSWCCA 103. 40 No greater threat is posed to the community, and to its young, than that which is presented by those who stoop to engage in this evil trade. Inevitably such offenders are selfishly heedless of the disastrous consequences which narcotics have for the law and order and health budgets for those who fall into their snare as users, and for their families, who suffer the despair and anxiety associated with the inevitable degradation which follows. 41 The stakes in the drug trade are high, but so are the risks. Any person who seeks to enter into this trade must accept those risks which inevitably include the fate of a heavy sentence of imprisonment if caught. 42 While there is no evidence, in the present case, as to precisely what financial reward the applicant expected from his role, it is clear that he was not doing it without the expectation of some reward either monetary or in kind. As such he is disentitled to any clemency beyond that evidenced by his plea and his contrition. 43 Moreover, the fact that the supply was to undercover operatives, in circumstances where it is perfectly clear that the applicant would have committed the offence, even without their encouragement, does not operate in mitigation of sentence. See Lackany NSWCCA 1 December 1992. 44 I am accordingly not persuaded that his Honour fell into error in relation to the starting point.

Applicant's drug use 45 It was finally submitted that his Honour fell into error so far as he found that while the applicant had been a drug user in the past, he then dismissed its relevance upon the basis that it was a past use. There was indeed evidence that the applicant had been, and was using drugs, but it is not a fair reading of the reasons for sentence to conclude that its relevance was dismissed upon the basis that he had no current habit. His Honour in fact said, "The fact that he has been a drug user in the past would be a significant factor if he was a person offending at street level." 46 This was an observation that was entirely correct, and it was well supported by authority. In the case of the street level user/dealer there is room for a measure of clemency. That consideration does not, however, apply to a principal or an offender operating at the level at which the applicant operated in the hierarchy of a drug supply operation, see Bernath (1997) 1 VR 271. This submission is also not made good. However. 47 I would accordingly grant leave to appeal, but I would dismiss the appeal. 48 SPERLING J: I agree. 49 WOODS: The order of the Court will be as I have proposed. ************

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