Davis Le and v The Queen and

[2014] VSCA 283

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0142

DAVIS LE

Appellant

v

THE QUEEN

Respondent

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JUDGES:	WEINBERG and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2014
DATE OF JUDGMENT:	11 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 283
JUDGMENT APPEALED FROM:	DPP v Le & Anor (Unreported, County Court of Victoria, Judge Parsons, 27 November 2013)

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CRIMINAL LAW – Sentence – Attempting to possess a drug of dependence – Whether sentence manifestly excessive – Sentence imposed not ‘wholly’ outside the range – Sentence does not offend principle of parity – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Ms K Breckweg	Director of Public Prosecutions (Cth)

WEINBERG JA
WHELAN JA:

1. The appellant stood trial in the County Court at Melbourne charged with one count of attempting to possess a drug of dependence (pseudoephedrine).  After a trial lasting some 13 days, he was convicted of that offence.  He also pleaded guilty to one count of possessing a drug of dependence (cocaine), and a summary offence of failing to appear whilst on bail.  He was sentenced on 27 November 2013 as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Attempting to possess a drug of dependence (pseudoephedrine) [Drugs, Poisons and Controlled Substances Act1981 (Vic) s 73(1)(c)]	5 years	4 years 6 months	—
2	Possess a drug of dependence (cocaine) [Drugs, Poisons and Controlled Substances Act1981 (Vic) s 73(1)(b)]	1 year	1 month	7 days
Summary Offence	Fail to appear on bail [Bail Act1977 (Vic) s 30]	1 year	1 month	7 days
Total Effective Sentence:		4 years, 6 months and 14 days
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		615 days
6AAA Statement:		On Charge 2 and Summary Offence, 3 months’ imprisonment

1. The appellant’s co-offender, Hoang Thi Kim Tran, was tried jointly with the appellant.  She too was found guilty of attempting to possess a drug of dependence.  She was sentenced, on the same date as the appellant, to two years and six months’ imprisonment.  A non-parole period of 18 months was fixed.

1. Some months earlier, in February 2013, another co-offender, Thao Van Nguyen, pleaded guilty before a different judge to a Commonwealth offence of having imported a commercial quantity of a border controlled precursor, namely, pseudoephedrine.  Nguyen was sentenced to five years and six months’ imprisonment.  The sentencing judge indicated that, had Nguyen not pleaded guilty, he would have been sentenced to a term of seven years and six months’ imprisonment with a non-parole period of six years.

Grounds of appeal.

1. On 24 September 2014, the appellant was granted leave to appeal on the following grounds:

1. The sentence imposed on charge 1 is manifestly excessive in the light of the nature of the applicant’s involvement in the offence, the substantial mitigating personal factors and the maximum penalty.

2.The sentence imposed upon the applicant offends the principle of parity in the light of the sentences imposed on the co-offenders Nguyen and Tran.

Circumstances of the offending.

1. The appellant, together with Tran, was involved in an attempt to gain possession of a quantity of pseudoephedrine imported from Vietnam.  The Crown alleged that Nguyen had instigated the entire enterprise, and coordinated all aspects of the scheme.  The appellant and Nguyen shared premises together in Swanston Street, Carlton.  Tran lived in Deer Park.

1. Between 17 July 2011 and 4 August 2011, the Australian Federal Police intercepted a number of telephone conversations between Nguyen and various unknown persons identified as ‘Simon’ and ‘Tony’.  These conversations included references to the impregnation of towels and shirts with narcotics that were to be imported into Australia.  There were also references to terms including ‘pseu’ and ‘eph’.  Nguyen told Simon that the intended delivery address for the shirts was the Swanston Street address at which he resided with the appellant.  He provided details of the recipient of the delivery.  He named the consignee as ‘Le Phuong’, in part, an alias adopted by the appellant.  He also provided the appellant’s mobile telephone number.

1. Simon asked for an alternative delivery address, and Nguyen provided Tran’s home address in Deer Park.  There were references in the various telephone conversations to the impending arrival of pseudoephedrine.  Simon told Nguyen, in code, that ‘Uncle called, and he has sent the sample to the post office, and it may arrive tomorrow, Saturday or Monday’.

1. On 5 August 2011, customs searched a wooden crate, sent from Vietnam, containing two fibre glass lamp bases.  These contained 3.93 kilograms of pure pseudoephedrine.  The crate was consigned to a ‘David Yang’ at Tran’s home address.  Federal Police removed the pseudoephedrine and replaced it with an inert substance in order that a controlled delivery could take place.

1. There were further telephone intercepts between 7 August and 15 August 2011.  These indicated that Tran was collecting the appellant from his Swanston Street address, and bringing him to her Deer Park home on an almost daily basis.  Text messages exchanged between the appellant, Tran, and Nguyen indicated concern on their part that the ‘gift’ had not arrived.  Nguyen instructed the appellant to be present at the Deer Park address each day because the consignment was addressed to a male person, and the appellant would need to sign for it.

1. Nguyen and Simon, in discussions between them, noted that the consignment was a lamp table, and the narcotics were in the wooden base.  They also mentioned the fact that the appellant had been waiting at the Deer Park address.

1. At about 12.15pm on 15 August 2011, police conducted a controlled delivery of the consignment at Deer Park, having, as we have already said, substituted the inert substance for the pseudoephedrine.  The appellant, who was present at the time of the delivery, signed for the consignment as ‘David Yang’.

1. Moments later, the appellant and Tran drove to the Swanston Street address.  The appellant removed the crate from Tran’s vehicle, and took it up to his and Nguyen’s apartment.  Nguyen, who had been waiting at that address, then left with Tran and was driven to St Albans.

1. In the interim, the appellant opened the crate.  He could be heard doing so through a listening device that had been installed in the crate.  The appellant and Tran spoke on the telephone several times.  The appellant told Tran that there was nothing in the package.  Tran advised Nguyen of this, and suggested to him that he not return to the Swanston Street address.

1. Tran then returned to the Swanston Street address to collect the appellant.  As he was walking towards her car, they were each arrested.  Police searched the apartment and noted that the contents of the crate had been removed.  The lamps were still intact, and the inert substance had not been removed.

1. An analysis conducted subsequently determined that 3.93 kilograms of pseudoephedrine could yield approximately 2.48 kilograms of methamphetamine base or 3.1 kilograms of methamphetamine chloride.  This could produce drugs valued at between $868,000 and $1.3 million, if sold wholesale, or $3.1 million, if sold at street level.  The figure of 3.93 kilograms of pseudoephedrine was more than five times the amount prescribed as a large commercial quantity for the purposes of the Drugs, Poisons and Controlled Substances Act 1981.

1. Upon his arrest, the appellant was found to be in possession of a quantity of cocaine weighing 0.2 grams, with an 80% purity.  That gave rise to charge 2, to which the appellant, of course, pleaded guilty.

1. When interviewed by the police, the appellant told them that:

·           he had lived with Nguyen for a period of two months;

·the consignment had been sent as a gift for him from Vietnam by an associate of Nguyen;

·he had not been aware that the consignment was light fittings — he had found out the day before that one light fitting was intended for him, and the other was intended for Nguyen;

·he had been waiting for the consignment to arrive at Deer Park for the last week;

·he did not know the female residing at the particular addressin Deer Park — he only knew her as ‘Hien’, an associate of Nguyen’s; and

·he had travelled from Deer Park to Swanston Street in a vehicle driven by Hien.

1. The appellant was granted bail on 14 December 2012 with certain conditions including that he was to appear at the County Court of Victoria at 9am on 29 July 2013.  On that day, the appellant failed to appear and a bench warrant was issued.  The appellant was arrested later that same day.  It was his failure to appear that gave rise to the summary matter to which he pleaded guilty below.

Personal circumstances.

1. The appellant, on his plea, relied upon a report prepared by a clinical psychologist, Mr Bernard Healey, which recounted his background and personal circumstances.  He was born in Vietnam, one of nine children.  His father was deceased, and his mother in frail health, but still living in Vietnam.  He came to this country as a refugee, eventually securing citizenship.

1. The appellant had only one major health problem.  This arose out of a motor vehicle accident in 2010 as a result of which he experienced continual headaches.  Following the accident, he smoked cocaine in an effort to alleviate the pain.  He also suffered from high blood pressure.

1. The appellant had been married.  He had two children, a son aged 19 and a daughter aged 17.  He had little contact with them.

1. It appeared that the appellant was of normal intelligence.  However, personality testing was indicative of depression linked to his life experiences, which included terms of imprisonment, loss of relationship, and now his current predicament.  There was a suggestion of some form of adjustment disorder, coupled with signs of paranoia.  Mr Healey was of the view that the appellant suffered from impaired intellectual functioning, most likely arising from injuries sustained in the motor vehicle accident, but also as a result of the general decline in his situation.  He opined that the appellant would, by virtue of his condition, have had a reduced capacity to think clearly and to make calm, reasoned decisions, and appropriate judgments.  He added that incarceration would be more burdensome for the appellant than for someone who did not experience the same problems.

Findings of sentencing judge.

1. Counsel who appeared on behalf of the appellant on the plea submitted that the principles laid down in Verdins[1] were applicable to his case.  The sentencing judge accepted that submission and said that he would ‘sensibly moderate’ the principles of general and specific deterrence as they applied to the appellant.[2]

   [1]R v Verdins (2007) 16 VR 269 .

   [2]DPP v Le & Anor (Unreported, County Court of Victoria, Judge Parsons, 27 November 2013) [21].

1. His Honour also accepted counsel’s submission that there was no evidence to suggest that the appellant knew either the quantity, or value, of the drug.  He further accepted the submission that the appellant’s role was subservient to that of Nguyen.  He added that there was no evidence of any enrichment on the appellant’s part, by which his Honour must have meant that there was no evidence as to how much the appellant stood to gain if the importation had succeeded.

1. Finally, his Honour referred to parity, noting that Nguyen had been charged with an offence that carried a maximum penalty of 25 years’ imprisonment, whereas the appellant faced a charge that carried only a maximum of 5 years.

1. Having dealt with these matters, the sentencing judge drew attention to the appellant’s prior convictions.  His Honour said:

In your case, you have admitted prior convictions and they are very significant in the circumstances of this case.  You were previously before the Magistrates’ Court at Melbourne on 15 February 1996 and with respect to a charge of trafficking in a drug of dependence, being heroin, you were sentenced to a term of imprisonment of one year and six months, and six months of such sentence being suspended for a period of two years.  Then again on 18 July 2003 you were before the County Court on charges of importing a prohibited drug, being heroin, and also trafficking in a drug of dependence, being heroin, as a result of which you were sentenced to a total effective sentence of seven years, with a non-parole of five years to be served.  Such sentence was affirmed on appeal to the Supreme Court of Victoria on 8 June 2004.

I have those sentences available to me and have had regard to them, that is the sentence of Judge Duckett dated 18 July 2003 and also the judgment of the Court of Appeal of 8 June 2004.

Finally, of course, you were before the County Court of Melbourne on 12 September 2003 on seven charges of defrauding the Commonwealth and you were sentenced to a term of imprisonment for a period of three months and all charges which were ordered to be served concurrently and you were ordered to pay reparation in the sum of slightly less than $25,000.

Clearly your two convictions on drug-related matters and most particularly your sentence on 18 July 2003 are of the greatest significance with respect to your sentencing in this matter today.  Of course, I am not overborne by that matter but I have had regard to the sentencing remarks of Judge Duckett and think it appropriate to quote from them.  Judge Duckett, in his sentencing remarks, noted your general background and set out your personal circumstances at p.4 of the sentencing remarks.  His Honour noted your relevant prior conviction, His Honour  said at the time, and I quote.

‘You appear to have no family or other support in Australia.  Your previous conviction, your record of gambling and heroin addiction do not promise well for your rehabilitation.  Your long period of unemployment since the early 1990s will have disadvantaged you on your release from prison.’[3]

[3]Ibid [25]–[28].

1. Returning to the issue of parity, the sentencing judge noted that Nguyen had been sentenced to a total effective sentence of five years and six months, with a non-parole period of three years, for the offence of importation of the pseudoephedrine, though of course, in his case, that was on the basis of a plea of guilty.  Nguyen’s prospects of rehabilitation had been assessed as reasonable, whereas those of the appellant were characterised as ‘b leak’.

1. As previously indicated, Tran was sentenced to a term of two years and six months’ imprisonment, with a non-parole period of 18 months.  It was accepted that her role in this enterprise had been roughly equivalent to that of the appellant.  However, her prospects of rehabilitation were described as ‘reasonably good’, in stark contrast to his Honour’s assessment of the appellant’s situation.

Conclusion

1. Any sentence of 90 per cent of the maximum invites close scrutiny.  In this case, however, it is difficult to imagine prior convictions of a more damaging kind, so far as the appellant is concerned, than those that he had previously sustained.

1. Of course, the prior convictions cannot be treated as increasing the objective gravity of the offence.  So much is clear from the authorities that counsel for the appellant cited to us, including R v McNaughton[4] and R v O’Brien & Gloster.[5]  However, by reason of these convictions, the sentencing judge was entitled to form the view that specific deterrence was of particular importance in this case.  In addition, his assessment of the appellant’s moral culpability was entirely justified.  It cannot be said that the sentence imposed was wholly outside the range.

   [4](2006) 66 NSWLR 566, 574 [24] (Spigelman CJ).

   [5][1997] 2 VR 714, 718 (Charles JA).

1. The parity ground must also fail.  Nguyen may have been fortunate in receiving a somewhat benevolent sentence.  However, it must be remembered that he pleaded guilty, expressed remorse, and had better prospects of rehabilitation than the appellant.  The sentencing judge in his case indicated that, but for his plea of not guilty, he would have received a sentence of seven years and six months’ imprisonment, with a non-parole period of six years.  The difference between that sentence, and the four years and six months that the appellant received in this matter for his attempted possession, adequately reflects the different roles that each of them played.

1. As regards Tran, her situation differs significantly from that of the appellant.  For one thing, she has no prior convictions.  For another, her prospects of rehabilitation are assessed as significantly better than those of the appellant.  The sentencing judge was entitled to distinguish between the appellant and Tran in the way that he did.

1. It follows that the appeal should be dismissed.

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