SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  I agree with the reasons of Atkinson J and the orders she proposes.

[2]  CHESTERMAN JA:  I agree with the orders proposed by Atkinson J for the reasons given by her Honour.

[3] I add my opinion that the sentence imposed on Pham for producing methylamphetamine would, but for the disparity described by Atkinson J, have been appropriate.  However the degree of difference between the applicant’s sentence and that imposed on Obradovic, who was a co-accused and whose offending was similar, makes the applicant’s sentence excessive.  That, in my opinion, is the only reason why it is excessive.

[4] The result of the “parity principle” is, in this case as in some others, to reduce a sentence below its appropriate level.

[5]  ATKINSON J:  The applicant, Dung Ngoc Pham, was convicted after pleading guilty to one count of supplying a dangerous drug and one count of producing a dangerous drug.  The dangerous drug involved was methylamphetamine.  The dates between which the first count was committed were 1 September 2007 to 2 May 2008.  The dates between which the count 2 was committed were between 1 September 2007 and 18 May 2008.

[6] The applicant was sentenced on 24 September 2009 to three years imprisonment on count 1 to be released on parole on 24 September 2010 (after serving 12 months in custody).  On count 2 he was sentenced to six years imprisonment with an order that the date on which he was eligible for parole was fixed at 24 September 2011 (after serving two years in custody).  The sentences are taken to be served concurrently.

[7] The applicant was sentenced at the same time as a co-accused Tony Obradovic, who pleaded guilty to one count of producing the dangerous drug methylamphetamine between 1 September 2007 and 31 May 2008 and was sentenced to three years imprisonment suspended after he had served six months with an operational period of four years.

[8] The applicant and Mr Obradovic were employed by Ace Waste Pty Ltd, a private company contracted by other private companies and government agencies for the destruction of medical waste, out of date pharmaceutical drugs and quarantine items by Australian customs service, the Queensland police service and Queensland Health.  Mr Pham was approached by a man called Uprichard and agreed to participate in a scheme whereby pseudoephedrine based tablets were to be stolen and provided to Uprichard so he could manufacture methylamphetamine. 

[9] Starting in September 2007, the applicant either stole out of date tablets himself or paid others to assist him.  He offered other employees in the company $30 to $35 for each packet of tablets they assisted him to obtain.  Two employees were paid a total of about $60,000 to $70,000 in return for their setting aside tablets to give to the applicant.  The two employees put aside bins for the applicant on approximately 15 occasions.  When notified of the bins, the applicant would attend and search through them, removing the pseudoephedrine based tablets.  In addition another employee advised the applicant on about five occasions of the arrival of trucks carrying waste tablets so that the applicant could recover tablets to pass on to Uprichard. 

[10] The scheme continued until police searched the homes of various participants in April 2008.  Based upon the amount of money paid by the applicant to the employees who assisted him, it was estimated that more than 1,700 boxes of pseudoephedrine based tablets were taken by the applicant for the purpose of facilitating the production of methylamphetamine.  It was possible that more than two kilograms of methylamphetamine could have been produced from this quantity of tablets.  Those facts constituted count 2.

[11] Count 1 was committed when the applicant supplied one of the other employees with methylamphetamine on a number of occasions between September 2007 and May 2008.  The purchaser paid $200 per gram or $650 for 8 grams.

[12] When the police conducted a search of the applicant’s residence they found an amount of $28,300 in cash which gave some indication of the amount of profit made by the applicant from his activities.

[13] Mr Pham who appeared for himself on his application said that his grounds of appeal were that “the head sentence was in the high range for the offence”.  A sentence may of course be within the high range for an offence but if it is within range then it cannot be successfully appealed against unless it was manifestly excessive or there was an error in the exercise of the sentencing discretion.

[14] This was a very serious example of this offence.  It was an organised operation involving a serious breach of trust as an employee.  The offending took place over a substantial period of time and had the capacity to produce a substantial amount of methylamphetamine.  The applicant’s conduct bore a higher degree of criminality than other participants in the scheme. 

[15] The applicant’s personal circumstances were unremarkable.  He completed Year 12 but then took up relatively unskilled work.  He started using drugs after he left school.  He was first convicted of a drug offence on 25 January 2000 when he was dealt with for possession of utensils or pipes.  He was again dealt with in the following month for the same type of offence.  On the first occasion he was fined $200 and on the second $250 without any conviction recorded.  Unfortunately his offending continued and indeed escalated.

[16] On 6 December 2001 he was dealt with in the Inala Magistrates Court in relation to unauthorised and prohibited explosives, supplying dangerous drugs, possessing dangerous drugs, possessing utensils or pipes and possessing a thing used in the commission of crime.  He was fined $1,200 but again no conviction was recorded.  On 6 October 2003 he was convicted of possessing dangerous drugs and possession of utensils or pipes.  He was convicted and fined $1,200.

[17] He started a relationship with his present wife in 2003 and purchased a home.  His wife fell pregnant with their first child at the end of 2007.  He therefore decided to stop using methylamphetamine and stop stealing the pseudoephedrine tablets.  He was able to reduce his usage of methylamphetamine over a couple of months.  He informed the person who had been buying the pseudoephedrine from him that he was not going to do it any more.  He was however pressured by that person that if he did not continue to do so there would be trouble.  Pham continued on a less regular basis and others took a more predominant role while his offending reduced.  He lost his job as a result of his offending but was able to obtain further regular employment.  He was aware that he had let down his family and that he was unable to return to Vietnam when his grandmother died recently and would be unable to go with his wife to visit her parents in Vietnam with their child because of his criminal record.

[18] Fortunately there is no case very similar to that of the applicant.  The closest comparison which can be made is with the case of R v Lau [2002] QCA 542 where the applicant was a pharmacist, with no previous convictions, who sold tablets containing pseudoephedrine and iodine to a police undercover officer believing they were to be used to produce methylamphetamine.  The maximum amount of methylamphetamine that could be produced from the material sold was 958.56g.  Lau pleaded guilty and was sentenced to three years imprisonment, suspended after nine months, with an operational period of five years.  This sentence was not disturbed on appeal.

[19] The present case involved serious offending.  Count 2 involved the sale of very large quantities of the chemical precursor to the production of methylamphetamine in breach of trust as an employee in a workplace which must be able to be secured for the destruction of drugs and other harmful material.  He recruited other employees into criminal activity.  He did so for profit, although part of that was used to fund his own drug use.  To make matters worse, he sold methylamphetamine himself.  He had a criminal history and continued to offend whilst on bail for these offences.

[20] It is not useful to compare the sentences that were imposed upon Nixon and Uprichard as both of them gave significant information to the police including the information which led to the arrest of the applicant.  However it is useful for questions of parity to compare the sentence imposed on the applicant to that imposed upon his co-accused Obradovic.  Obradovic pleaded guilty to one count of unlawfully producing the dangerous drug methylamphetamine between 1 September 2007 and 31 May 2008.  In sentencing submissions, the prosecution did not distinguish between Pham and Obradovic in terms of the sentences which the prosecution submitted was appropriate; that is head sentences in the range of six to seven years for both although it was submitted that Pham was a larger participant in the scheme having a more hands on involvement in organising fellow employees to provide the tablets to him.

[21] However, unlike the sentence imposed on Pham, Obradovic was sentenced to a term of imprisonment of three years suspended after six months with an operational period of four years.  The statement of agreed facts first referred to Obradovic as approaching a co-worker in March 2008 saying “I know [the applicant] is not paying you enough for the boxes you give him, so if you give them to me I will get you more than he gives you.”  That co-worker then sourced pseudoephedrine for Obradovic.  Obradovic supplied 500 boxes worth about $10,000 to Uprichard on the first occasion and then supplied him on three further occasions.

[22] Obradovic had worked for Ace Waste for 13 years and did not lose his job as a result of his offending.  He left work after a back injury and was on Newstart Allowance at the time of sentencing.  He lived with his aged parents who relied upon him to pay the mortgage.  Like Pham, Obradovic has a criminal history for minor drug offences.

[23] The learned sentencing judge observed, correctly, that the applicant’s criminality was at a higher level than Obradovic; but there is no obvious explanation for the extent of the disparity in sentencing for the count of production: in the case of Pham, six years imprisonment with a parole eligibility date fixed after two years; and in the case of Obradovic, three years imprisonment suspended after six months with an operational period of four years.

[24] Such disparity in sentencing between co-offenders leads to a justifiable sense of grievance: see Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 at 610 and Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 301-302 where their Honours said:

“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice.  Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.  In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances.  If so, the notion of equal justice is not violated.  On some occasions, different sentences may indicate that one or other of them is infected with error.  Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice.  However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’.  If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence.  Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”

[25] Taking account of Pham’s greater role in the stealing of pseudoephedrine and that he was also involved in selling methylamphetamine, it was appropriate that he receive a heavier sentence than Obradovic, however the disparity between them was too great to be explained by their different roles and suggests error in the sentence imposed on the applicant, or that, even if the sentence imposed was within the permissible range of sentencing options, it should be reduced to accord equal justice between the co-offenders.  The respondent conceded on the hearing of the appeal that parity between the offenders required a reduction of the penalties imposed upon the applicant.  It was quite properly submitted by Mr Cash on behalf of the respondent that the appropriate sentence on Count 1 was 18 months imprisonment and a sentence of four to five years imprisonment on Count 2 with a parole eligibility date after one third of the sentence had been served.

[26] There was also, as the respondent conceded, a sentencing error when the sentences imposed on Count 1 and Count 2 are read together.  Section 160A of the Penalties and Sentences Act 1992 (“PSA”) provides that s 160B to s 160D of the PSA apply if a court is imposing a term of imprisonment on an offender for an offence and they are the only law under which a court may make an order relating to a person’s release on parole.  Section 160F of the PSA provides that one of the objects of s 160A to s 160E is to ensure that at any one time there is only one parole release date or parole eligibility date in existence for an offender.  Relevantly to this case, s 160F(2) provides that when fixing a date as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.

[27] The applicant’s period of imprisonment in this case was six years.  As such the sentencing judge could impose a parole eligibility date but not a parole release date.

[28] As there were errors in the sentencing process, it falls to this court to exercise the sentencing discretion anew.  Taking into account the serious nature of this offending, the applicant’s early plea of guilty and personal circumstances and the sentence imposed on his co-accused, the appropriate sentence to be imposed on Count 1 is 18 months imprisonment and four and a half years imprisonment on Court 2 to be served concurrently.  He should be eligible for release on parole after serving one-third of his period of imprisonment i.e. on 24 March 2011.

[29] I would allow the application for leave to appeal, allow the appeal and impose the sentence referred to in the previous paragraph.

Orders:

1.Application for leave to appeal allowed.

2.Appeal allowed.

3.Set aside the sentence imposed and instead sentence the applicant as follows:

  (a)Count 1: imprisonment for 18 months;

  (b)Count 2: imprisonment for 4½ years;

  (c)The applicant’s parole eligibility date be 24 March 2011.