and Thanh Hai Pham v The Queen , , Thi Nho Le and the Queen
[2015] VSCA 34
•6 March 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2014 0211 | |
| THANH HAI PHAM | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCI 2014 0213 | |
| THI NHO LE | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | OSBORN, PRIEST and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 March 2015 | |
DATE OF JUDGMENT: | 6 March 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 34 | |
JUDGMENT APPEALED FROM: | DPP v Le & Pham (Unreported, County Court of Victoria, Judge Taft, 5 September 2014) | |
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CRIMINAL LAW – Sentence – Trafficking in a drug of dependence – Large commercial quantity – Plea of guilty – Timing of plea of guilty – Remorse – Sentence of 12 years with non-parole period of 9 years not manifestly excessive – Sentence of 8 years and 6 months with non-parole period of 5 years and 6 months not excessive – Parity – Applications for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Thanh Hai Pham | Mr D A Dann | Turnbull Lawyers |
| For the Applicant Thi Nho Le | Mr O P Holdenson QC with Mr L R C Gwynn | Lethbridges |
| For the Respondent | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
OSBORN JA
PRIEST JA
BEACH JA:
Introduction
The applicants, Thanh Hai Pham (referred to as ‘Hai’) and Thi Nho Le (referred to as ‘Chi Ba’) were each involved in trafficking heroin. They, along with Khai Sin Mong (referred to as ‘Mong’) were arrested on 12 August 2010 after a nine month police investigation into their activities.
Hai is Chi Ba’s husband, and Mong was the de facto partner of Chi Ba’s younger sister, Thai Nho Em Le (referred to as ‘Chi Tu’).
On 17 April 2013, Mong pleaded guilty to one charge of trafficking in a drug of dependence namely diacetylmorphine (heroin) in a quantity that was not less than the large commercial quantity applicable to that drug, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981. Mong pleaded guilty on the basis that he was a party to a joint criminal enterprise with Chi Ba and Chi Tu that trafficked heroin from Fitzroy, Carlton and Keilor Downs. A conservative calculation of the quantity of heroin sold by the joint enterprise was 11.1 kg.
On 17 February 2014, Chi Ba pleaded guilty to one charge of trafficking in a drug of dependence (heroin) in a quantity not less than the large commercial quantity applicable to that drug. Chi Ba pleaded guilty on the basis that she was involved in a joint criminal enterprise with her husband Hai (but not Mong or Chi Tu). The sentencing judge, who had previously sentenced Mong for the same offence, found that the precise quantity of heroin could not be determined, but it was multiples of a large commercial quantity.[1]
[1]DPP v Le & Pham (Unreported, County Court of Victoria, Judge Taft, 5 September 2014) (‘Reasons’) [4].
Following a plea on 20 February and 27 June 2014, Chi Ba was sentenced on 5 September 2014 as follows:
Charge on Indictment Offence Maximum Sentence 1 Trafficking in a drug of dependence – large commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] Life imprisonment [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] 12 years Total Effective Sentence: 12 years’ imprisonment Non-Parole Period: 9 years Pre-sentence Detention Declared: 1,485 days 6AAA Statement: 15 years and 6 months with a non-parole period of 12 years and 6 months
On 26 February 2014, Hai pleaded guilty to one charge of trafficking in a drug of dependence (heroin) in a quantity not less than the large commercial quantity applicable to that drug. Hai pleaded guilty on the basis that he was involved in a joint criminal enterprise, with his wife Chi Ba, that trafficked at least 6.076 kilograms of heroin from their house at Keilor Downs.
Following a plea on 14 May and 27 June 2014, Hai was sentenced on 5 September 2014 as follows:
Charge on Indictment Offence Maximum Sentence 1 Trafficking in a drug of dependence – large commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] Life imprisonment [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] 8 years, 6 months Total Effective Sentence: 8 years and 6 months imprisonment Non-Parole Period: 5 years and 6 months Pre-sentence Detention Declared: 1,485 days 6AAA Statement: 11 years with a non-parole period of 8 years
The applicant Chi Ba seeks leave to appeal against her sentence on the following grounds:
1.The sentencing judge has erred in the exercise of his discretion by:
(a)failing to impose sentence upon the basis that the applicant had pleaded guilty to the offence charged at first reasonable opportunity available to her;
(b)imposing sentence upon the basis that the applicant could have pleaded guilty to the offence charged at an earlier stage of the proceeding; and thereby
(c)reducing the weight which would otherwise have been given as a mitigating factor to the applicant’s plea of guilty to the offence charged.
2.The sentencing judge has erred in the exercise of his discretion in that he has erred in his application of the sentencing principle of parity.
3.The sentencing judge has failed to accord any, or sufficient, weight to the sentencing principle of parity.
4.The sentence imposed by the sentencing judge upon the applicant, relative to the sentence imposed upon co-offender Khai Sin Mong, is such as to:
(a) engender a justifiable sense of grievance; and/or
(b)give the appearance in the mind of an objective observer that justice has not been done.
5.The sentence imposed upon the applicant is, in all the circumstances, manifestly excessive.
The applicant Hai seeks leave to appeal against his sentence on the following grounds:
1.The sentencing judge failed to properly take into account the applicant’s plea of guilty.
2.The sentencing judge erred by failing to properly take into account parity.
3.The total effective sentence and the non-parole period are manifestly excessive.
Circumstances of the offending
The circumstances of the applicants’ offending may be summarised as follows.
Chi Ba and her husband Hai ran a heroin trafficking business from their family home in Keilor Downs. They both pleaded guilty to participating in a joint criminal enterprise with each other, but not with Mong or Chi Tu. Chi Ba managed the business but Hai knowingly and willingly participated in it and benefited from its proceeds.
Chi Ba purchased heroin from her own suppliers and/or in conjunction with Chi Tu and Mong. She would dilute the heroin to 25% purity before on-selling it. Chi Ba sold the heroin with the assistance of Hai who delivered drugs for the business. Hai was present when heroin was being cut and mixed for re-sale and when the business was being discussed, he also assisted Chi Ba with counting money.
Chi Ba and Hai sold heroin to a number of customers. They delivered heroin to their customers’ houses, and also supplied the drug to customers who visited their home.
Chi Ba and Hai sent some of the money they made from heroin trafficking to Vietnam for investing in property. Between February and June 2010, Hai arranged for three separate transfers of $200,000 to Vietnam. On 3 July 2010, Hai attempted to organise for the transfer of $320,000 to Vietnam, but the money was not sent as the AFP raided the business premises associated with the transfers and confiscated a large amount of cash. Chi Ba also arranged for money to be sent to Vietnam. On 21 April 2010, she organised for $100,000 to be transferred through one of her suppliers.
The applicants used code words to refer to heroin and to discuss its quantity and quality. Customers wanting to purchase heroin used terms such as being ‘bored’, wanting to ‘have fun’, and invitations to come over for ‘chit chat’, or play Xap Xam, Tu Sac or cards. Money was often referred to as paper and was generally spoken of in multiples of 100 or 1000, depending on context. The police were referred to by terms such as ‘big brother’ and ‘paternal grandfathers’. Safe houses were used to store drugs and money with Chi Ba sometimes storing drugs at her children’s houses.
Police searched Chi Ba and Hai’s home and seized $379,740 in cash, $54,500 in casino gambling chips and jewellery valued in total at $198,925. 168.6 grams of heroin with an approximate purity of 25% and 22.8 grams of heroin with an approximate purity of 70% were also located at the property. Additional jewellery valued at $47,635 was recovered from a bank safety deposit box
Hai was interviewed by police and denied any involvement in drug trafficking.
Chi Ba was interviewed by police and admitted to trafficking heroin ‘a little bit’, and selling to only one or two people. She told police that she sold the heroin in one ounce lots. She further admitted to having obtained six ounces from Mong at $10,000 per ounce and then re-selling them for $11,000 per ounce, but denied cutting the drugs before re-selling them.
The circumstances of Mong’s offending
Having regard to the parity complaints made by the applicants in relation to Mong’s sentence, it is necessary to set out some of the detail of Mong’s offending. The circumstances of Mong’s offending may be summarised as follows.
Mong was a senior member of the heroin trafficking enterprise managed by Chi Tu and Chi Ba, he pleaded guilty to participating in a joint criminal enterprise with both Chi Tu and Chi Ba. His primary role was sourcing and arranging the purchase of heroin from suppliers.
Mong had almost daily contact with suppliers. Chi Tu and Chi Ba would then re-package the heroin by ‘cutting’ it and re-packing it into smaller amounts for sale. The sales aspect of the enterprise was separated into two parts. Chi Tu ran one side, assisted by Mong, while Chi Ba and her husband Hai ran the other. The two sides sometimes shared the purchased heroin between each other.
Mong arranged the purchases of heroin made by Chi Tu and himself, with Chi Tu providing advice and funds.
During the first part of the charge period Chi Tu used a flat in Lygon Street, Carlton, to do the cutting and packaging of heroin. The flat was also used to store drugs and money derived from the sale of drugs. It was searched by police on 29 April 2010 and 1.67 kilograms of heroin, $595,000 cash and $50,000 in casino gambling chips were seized. After that seizure, Chi Tu used other houses to store and cut the drugs, including her own in Hope Street, Brunswick, where her children lived, and her sister Sau Thi Le’s house in Lahy Street, St Albans. Mong went to the Hope Street house on many occasions to collect drugs or deliver money.
Chi Tu also sold drugs out of the flat that she lived in with Mong in Napier Street, Fitzroy. Mong would not conduct transactions with purchasers who came to the flat, but would refer them to either Chi Tu, or Chi Tu’s younger brother Muoi and his wife Nga who also lived in the flat. Nga and Muoi acted as shop assistants, selling heroin, receiving money and recording entries. Mong personally sold heroin in one-ounce lots on a regular basis to his friend and associate, Thanh Van Dinh.
The applicants
Chi Ba and Hai were 50 years of age at the time of sentencing. They were born in the same town in rural Vietnam. They married each other when Chi Ba was 17 and Hai was 18. They escaped from Vietnam on a fishing boat and, after spending three months in a refugee camp in Singapore, arrived in Melbourne in 1981.
On arriving in Australia, Chi Ba worked for some years sewing as an outworker, before setting up a childcare business. Hai, on the other hand, initially obtained jobs in factories, before starting his own business selling sewing machines. The applicants have children who have completed tertiary qualifications and have obtained employment commensurate with those qualifications. At the time of sentencing, Hai was the carer of a grandson whose mother had returned to school.
In 1993, each applicant was convicted of trafficking heroin. Each received a suspended term of imprisonment.
Chi Ba and Hai’s family home has been forfeited as a consequence of its connection with their offending the subject of the present applications for leave to appeal against sentence.
The judge’s reasons for sentence
The judge described the objective gravity of the offending and Chi Ba and Hai’s involvement in it in the following terms:
In assessing the objective gravity of your offending, [Chi Ba], I consider that your overall culpability is very high and is denoted by the following factors:
·you were the director and principal of a business which conducted the sale of many kilograms of heroin, which cannot be precisely determined, but is conservatively estimated by the prosecution to be in excess of six kilograms;
·you were motivated by greed;
·the duration of your offending extended over a substantial period of some eight and a half months;
·you arranged for the purchase of the heroin and its preparation for sale;
·you conducted the trafficking from your residential home in Willys Avenue, Keilor Downs;
·you sold heroin to customers in 28‑gram lots for resale;
·you derived great benefits from the sale of heroin;
·your business was professional, camouflaged by code and buttressed by family loyalty; and
·you sold heroin despite witnessing the destructive effects of that drug upon your own daughter … .
You, [Hai], were a knowing and willing participant in the joint criminal enterprise you conducted with your wife. I accept that your role and culpability is significantly lower than that of your wife.
Your counsel … conceded that you were well and truly in the inner sanctum but that while you could be characterised as being on the board of directors, the company was run on a day-to-basis by your wife. You were familiar with the volume of drugs which were being sold, their value and the scale of profits. You actively assisted in transmitting money abroad but, upon an analysis of telephone intercept and listening device product, there is clear evidence that you were subject to the direction of your wife.
You did not purchase any of the heroin that was sold. You did not have your own independent customers, and while you had full knowledge of what was occurring around and through the business conducted at the family home, your involvement was subordinate to that of your wife. You assisted her by counting money, supplying heroin to customers who came to your house, and delivering heroin to customers at their homes, and you were present when your wife prepared heroin for resale.
Illustrative of your involvement was your conduct on 4 March 2010, when [Chi Ba] spoke to you on the phone, confirmed that you were at home, and told you that she had left ‘water’ out for someone. A few minutes later, you rang your wife back and told her that a customer was buying ‘food’ as well. [Chi Ba] told you that the bag was in the cupboard and that:
“There are two boxes of food in there. Get one box for him … in a bag and then inside that there’s a yellow bag as well … Altogether in there … The bag that contains the fishes”.[2]
[2]Reasons [32]–[36].
The judge described Chi Ba’s plea of guilty as ‘belated and proximate to the commencement of a jury trial’.[3] However, the judge accepted that this plea facilitated the course of justice and spared the community the expense and inconvenience of a lengthy trial. That said, the judge went on the say that while the plea was an acknowledgement of wrongdoing, he was far from satisfied that it reflected a high level of insight or remorse on the part of Chi Ba.
[3]Ibid [43]. We should say for the sake of completeness that in the course of argument on the plea, counsel for Chi Ba at one point accepted the sentencing judge’s characterisation of her plea as ‘belated’. However, senior counsel for Chi Ba before us said that this concession should be confined to the issue of delay.
In respect of Hai’s plea of guilty, the judge accepted a submission made on behalf of Hai that his plea also facilitated the administration of justice and that a lengthy trial was avoided. However, the judge went on to say that he was ‘less persuaded’ that the plea represented an expression of significant remorse, let alone insight on Hai’s part.[4]
[4]Ibid [54].
The judge dealt with the question of parity between the sentence he had previously imposed on Mong and the sentences he was about to impose upon the applicants in the following terms:
On 23 November 2013, I sentenced Khai Sin Mong to a term of imprisonment of 11 years and six months with a non-parole period of eight years and six months. He had pleaded guilty to trafficking a large commercial quantity of heroin. At that stage, the prosecution case was that you, [Chi Ba], and your sister, Chi Tu, were involved in a joint criminal enterprise involving the sale of at least 11.1 kilograms of heroin. Mong accepted culpability and was sentenced on that basis. Subsequently, the Crown case was reconfigured, and both you and Chi Tu, have pleaded guilty to running separate criminal enterprises rather than a single joint criminal enterprise. As a result, the quantity of heroin which you had transacted is of a lesser quantity than that to which Mong entered a guilty plea.
[Counsel for Chi Ba] emphasised the disparity between the amount of heroin that you trafficked and the amount that Mong trafficked. For sentencing purposes the distinction is clearly relevant. Further, as emphasised by your counsel, Mong had been released in May 2008 after completing a lengthy prison sentence for trafficking heroin and he speedily re-offended in a like manner.
The submissions made by your counsel are similar to submissions made on the plea of mitigation for your sister Thi Nho Em Le (Chi Tu) and which I dealt with in my sentencing remarks of 22 August 2014. In this respect similar considerations apply to you as applied to your sister.
In my view, [Chi Ba], your situation is to be adversely contrasted to Mong’s in respect of your position in the hierarchy, the benefits that you derived from trafficking heroin and the timing of your plea of guilty.
Mong was sentenced as a ‘senior manager’ of a heroin trafficking enterprise, whereas you were the founding and managing director of your enterprise. It was your funds that paid for the purchase of heroin, and it was you and your family who enriched themselves from such sales.
Further, and in contrast to you, when sentencing Mong I accepted that there was no evidence that he had derived great personal benefits from the large profits generated from trafficking heroin. The evidence is that his personal financial gain was confined to the cash purchase of a car for some $20,000 in June 2010.
Of additional relevance is the timing of your plea of guilty relative to that of Mong. Your plea of guilty was not formally entered until you were arraigned on 17 February 2014, whereas Mong was arraigned and pleaded guilty on 17 April 2013.
In determining the sentence to be imposed upon you, the lesser quantity of heroin that you trafficked vis-a-vis Mong is clearly relevant for sentencing purposes, as is Mong’s serious prior conviction. However, in my view, great weight must be accorded to your driving and directorial role in comparison to the lesser role that Mong undertook. Absent the distinction between the quantities trafficked, I would have sentenced you to a significantly lengthier term of imprisonment than that imposed on Mong.[5]
[5]Reasons [56]–[63].
Finally, in sentencing Hai, the judge said:
In sentencing you, [Hai], I have already observed that your role was subordinate to that of your co-accused. Your counsel has directed the court towards a number of conversations in which it was contended that you received and followed directions. It was submitted that this Court should not impose a sentence that resulted in a non-parole term that was much greater than the period of over four years that you have already spent in custody. I consider that the offending in which you engaged does demand a further period of incarceration.[6]
[6]Ibid [68].
The resolution of Chi Ba’s application
In summary, Chi Ba makes three principal complaints about the sentence imposed upon her: first, that the judge wrongly found that she did not plead guilty at the first reasonable opportunity available to her, and as a result the judge failed to give her plea of guilty sufficient weight; secondly, a complaint about a lack of parity between the sentence imposed upon Chi Ba and the sentence imposed upon Mong; and thirdly, a complaint that the sentence imposed upon Chi Ba was manifestly excessive.
In our view there is no substance in Chi Ba’s complaint that the judge wrongly found that Chi Ba did not plead guilty at the first reasonable opportunity available to her. It may be accepted for present purposes that the Crown case was reformulated between the time when Chi Ba was first arrested and the time of trial. It may also be accepted that, in this reformulation, the extent of the trafficking with which Chi Ba was charged was reduced. Nevertheless, at all times Chi Ba faced a charge of trafficking heroin in an amount not less than the commercial quantity applicable for that drug. The applicant initially offered to plead guilty but to a lesser offence and could have offered to plead guilty to a charge of trafficking a drug of dependence in a large commercial quantity considerably earlier than she did. There might or might not then have been a contested plea, dealing with any disputed matters of the degree or extent of Chi Ba’s trafficking.
While the judge noted that Chi Ba’s plea of guilty was ‘belated and proximate to the commencement of a jury trial’, we do not read the judge’s reasons for sentence as suggesting that his Honour did not give appropriate or sufficient weight to the plea of guilty, made as it was very soon after the Crown narrowed its case in respect of the amount of heroin trafficked, the number of people involved and the number of premises from which the heroin was trafficked. From his reasons for sentence, it is plain that the judge fully took into account the utilitarian benefit of the plea and no complaint is made about the judge’s conclusion with respect to remorse. In substance we read the judge’s reasons as saying no more than greater credit might have been given on sentence if an offer to plead guilty to trafficking a large commercial quantity had been made at an earlier point in time.[7]
[7]Cf Cameron v The Queen (2002) 209 CLR 339.
As to parity with Mong, we see no merit in the submissions made on behalf of Chi Ba. Indeed, we think the judge’s analysis of the parity issue was plainly correct. While Mong had a very serious prior conviction for trafficking heroin, Chi Ba[8] also had a relevant prior conviction. Further, the disparity in the evidence between Chi Ba’s position and Mong’s position in their respective enterprises, and the differences in the benefits each received from engaging in their criminal conduct, well justified the relative sentences that were imposed by the judge. In the result, we see no error in the judge imposing a slightly greater term of imprisonment and non-parole period in respect of Chi Ba than he imposed in respect of Mong.[9]
[8]And Hai.
[9]See further, Mong v The Queen [2015] VSCA 33.
As to Chi Ba’s complaint of manifest excess, this is wholly without merit. In our view, the sentence imposed upon Chi Ba (having regard to her background, the seriousness of her offending and the position she occupied, to which we have already referred) was entirely appropriate. The submission that the sentence imposed by the judge was wholly outside the permissible range of sentences available to him cannot be sustained. Even if we had been satisfied of some error in the judge’s sentence, there is no basis, in our view, for imposing any different sentence on Chi Ba.[10]
[10]Cf ss 280(1) and 281 of the Criminal Procedure Act 2009.
The resolution of Hai’s application
In essence, Hai makes the same complaints about the sentence imposed upon him as those made by Chi Ba in relation to the sentence imposed upon her: first, there is a complaint about the way the judge characterised and dealt with Hai’s plea of guilty; secondly, there is a complaint about parity between Hai’s sentence and the sentence previously imposed upon Mong; and thirdly, there is a complaint that the sentence imposed upon Hai is manifestly excessive.
For the same reasons we have given in relation to Chi Ba’s application for leave to appeal against her sentence, Hai’s complaints about the way the judge dealt with his plea of guilty, parity with Mong and manifest excess are without merit. Further, as in the case of Chi Ba, even if we had been satisfied of error, there is, in our view, no basis for imposing any sentence on Hai different from that imposed by the judge.
Finally, for the sake of completeness, we should note that there is no suggestion of any parity problem between the sentence imposed on Hai and Chi Ba. In our view, and for the reasons given by him, the judge was entirely correct in imposing the different sentences he imposed on Hai and Chi Ba.
Conclusion
These applications must be refused.
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