This matter concerned an appeal against three sentences for drug importation offences on the ground of manifest inadequacy. It provides a useful discussion of the relevant principles and, in particular, it considers the relevance of both the quantity of the drug and the role that the particular defendant plays in the drug importation scheme as a whole to the sentence to be imposed.
Margaret McMurdo P, and Morrison and Philippides JJA
23 March 2017
This matter concerned an appeal against three sentences on the grounds of manifest inadequacy. It contains a useful discussion of the relevant principles, particularly in the context of drug importation operations.
The circumstances of the offending were as follows. In October 2012, a consignment of furniture inside a shipping container arrived at the Port of Brisbane. . Authorities intercepted the container, and found concealed inside two wooden altars a large quantity of heroin. . The authorities substituted an inert substance for the heroin, and installed listening and tracking devices. .
In November 2012, the altars were delivered to a residence, where two of the respondents, Tran and Pham, together with a third man, loaded the altars into a trailer, and delivered them to another address. . The altars were then placed inside a shed, and for approximately half an hour, “the listening device transmitted sounds consistent with the altars being dismantled using tools”. .
The police approached the shed and found the three respondents inside, covered in dust. . The third respondent, Mr Dang, had hired a Nissan X-Trail, which was located inside the shed with one of the door trims loosened, so as to facilitate the concealment of heroin inside the vehicle. .
The first and second respondents, Pham and Tran, were convicted after an eight-day trial. . The third respondent, Dang, pleaded guilty to the offence the day before the trial. . In December 2015, the following sentences were imposed:
1.In relation to Pham, 12 years’ imprisonment with a non-parole period of seven years.
2.In relation to Tran, 10 years’ imprisonment with a non-parole period of six years.
3.In relation to Dang, 10 years’ imprisonment, with a non-parole period of five and a half years.
The Director of Public Prosecutions (Cth) (“DPP”) appealed on the ground that the sentences imposed were manifestly inadequate. .
Philippides JA (with whom Margaret McMurdo P and Morrison JA agreed) considered the principles governing an appeal against sentence on the basis of manifest inadequacy.
The DPP relied on observations in R v Nguyen; R v Pham (2010) 205 A Crim R 106 at 127 that in many cases, the only factor to distinguish between the severity of importations is the amount of the drug involved. . The DPP also relied on the judgment of Maxwell P in Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, where his Honour said that “[t]he sentencing regime being quantity-based, the scale of the importation will be a very significant factor in sentencing”. .
Philippides JA explained that Maxwell P’s statement recognises that quantity will be “one of the appropriate considerations for determining whether one case is worse than another where the circumstances of importation are the same or similar”. . Her Honour agreed with this statement, but noted that the “weight to be given to the quantity of the drug involved varies with the circumstances of each case”. . In this regard, her Honour observed that in Wong, the High Court stated that “not all offenders will know or even suspect how much pure narcotic is to be imported”, and that accordingly, “there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved”. .
Her Honour considered there had been no error demonstrated in respect of the sentencing judge’s approach to this factor.
Role of the respondents
The DPP contended that, “whilst the respondents were all low level workers, the task performed was a necessary step in the process of retrieving and distributing over 33 kilograms of recently imported heroin”. . It relied on Wood J’s judgment in R v Laurentiu (1992) 63 A Crim R 402 (endorsed in R v Oprea  QCA 184), which suggested that no distinction should be drawn between the moral culpability of “bit-players” participating in the importation/distribution chain. .
Philippides JA held that:
“Laurentiu and Oprea do not by any means detract from the need to calibrate, so far as possible, objective criminality and moral culpability and neither authority provides support for the blanket proposition that, in appropriate cases, distinctions can and should be made between the roles of bit players in an enterprise.” .
Her Honour considered that the sentencing judge had correctly approached the task, and that it was open to the judge to be “concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved”. .
Her Honour also considered the comparable cases, and concluded that the facts in Dao v The Queen  NSWCCA 183 had the closest parallel to the present circumstances. –. Importantly, on appeal in that case, “the Court endorsed the correctness of the sentencing judge’s approach in ‘focus[ing] upon what the applicant did in committing the offence, rather than attempting to identify with any precision his particular role, function or position in any hierarchy of offending relative to other offenders’”. .
Philippides JA affirmed the correctness of the sentencing judge’s reliance on this case, and noted that her Honour had also given “close attention to a number of other authorities put forward by the Crown”. .
In the result, the DPP was unable to demonstrate any error in the approach of the sentencing judge. The appeals were dismissed. .