Director of Public Prosecutions v Le

[2018] VCC 1241

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00996

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN LE

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June
DATE OF SENTENCE:	10 August 2018
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2018] VCC 1241

REASONS FOR SENTENCE
---

Subject:	CRIMINAL LAW
Catchwords:	Sentence – Pleas of guilty – Import commercial quantity of a border controlled drug (1 charge) – youthful offender
Legislation Cited:	Criminal Code Act 1995 (Cth)
Cases Cited:	DPP v Dalgliesh (2017) ALJR 91 1063, 1077; R v Tsclocos (1995) 81 A Crim R 434; Nguyen v The Queen [2011] VSCA 32; R v Nguyenand Pham [2010] 205 A Crim R 106; DPP v Findlay and Shakhanov [2018] VCC 276; Pidoto and O'Dea [2006] VSCA 185
Sentence:	Convicted and sentenced to 9 years’ imprisonment with a minimum term to be served before being eligible for parole of 6 years’ imprisonment

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Holding (For Plea) Mr M. Thompson (For Sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr P. Hannebery (For Plea) Ms H. Whalley (For Sentence)	Michael J Gleeson & Associates

HIS HONOUR:

1Mr Van Le is aged 23, is a student and was born in Australia on 31 May 1995.  This plea was conducted on 22 June 2018. Mr Holding appeared on behalf of the Director, for whom Mr Thompson appears today and Mr Hannebery appeared on behalf of Mr Le and on behalf of whom Ms Whalley appears today.

2The charge is one of import a commercial quantity of a border controlled drug, an offence under 307.1(1) and 11.2(a) of the Criminal Code (Cth). The drug was cocaine. The seriousness of the charge is best demonstrated by the fact that our Federal Parliament has set as a maximum penalty one of life imprisonment or 7,500 penalty units and/or both.

3The prosecution tendered the opening dated 30/05/18 which was accepted by counsel on behalf of Mr Le as setting out the facts upon which I am to sentence Mr Le.  The point to be made of course is that this is an offence which carries the highest penalty prescribed under the Commonwealth Crimes Act. It was detected by way of a lengthy undercover operation conducted by the Australian Federal Police which began in March 2016.  While it is clear that there is no evidence of Mr Le being involved at that stage, it is necessary for me to recite a number of the matters to give background to Mr Le's involvement.

4As I say, this operation began in March 2016.  There were undercover operatives used and significant surveillance.  There was deciphering of encrypted communications and there are four volumes of such material in the depositions.  There were numerous phone calls and indeed trips to various countries, in particular, to Thailand and Vietnam where the persons involved were much higher up the tree than Mr Le.

5One of the major movers detected in this operation was a person called Van Hu Le.  The organisation had a failed importation in 2016, which it had hoped to bring from South America.  Subsequently, it arranged this importation whereby the ship called "The Spirit of Shanghai" was loaded on 4 June with 100 kilograms of cocaine.  It was Mr Hu Le's intent to use a number of “kids” as he described them to do the mundane work involved in effecting the completion of this particular importation.  Mr Le certainly comes under that description.

6A meeting of the Hu Le team was conducted, in advance of the arrival of the drugs on the ship, on 26 June 2017.  This meeting was held at the Quest Apartments in South Yarra.  Mr Van Hu Le was there, undercover operatives were there and importantly, the prisoner arrived at such meeting at 11.25AM.  The arrangements were discussed.  The various steps to be taken to protect the operation and the people involved in the operation, and the identification of such people were also discussed.

7The prisoner’s role insofar as the operation was concerned was to move the cocaine.  Firstly he was to arrive at the cocaine's location, check it, photo it and photocopy it, and send the photo on.  He was to search people who were in the room, check the room for any bugs and make sure of the weight and the value.

8Subsequently on that day, that is at 1.36PM, the ship docked.  Thereafter, Federal authorities made arrangements for the substitution of an amount weighing 91.7 kilograms.

9On 29 June 2017, there were three marked locations which had been put in place to effect this exchange, and do it in a manner which protected the miscreants.  The prisoner was to attend at the Vibe Hotel in Parkville.  As I said, he was to be there to weigh and count up the packets of cocaine, to communicate and send a photograph and to search anyone present. 

10Thereafter at another venue, the money was counted and at 11.34AM, the substituted material thought to be cocaine, was bought into the Vibe hotel where the prisoner was present.  The prisoner began to count and weigh it.

11Not long thereafter, arrests at each of the three locations took place and the prisoner was arrested.  He made no admissions.

12The cocaine confiscated weighed 78.49 kilograms, of which 59.206 kilograms was pure.  The threshold for commercial quantity, for which Mr Le stands charged, is 2 kilograms, hence the seriousness of the offence is demonstrated by the fact that this pure amount was 29 times the  threshold amount.

13In the opening, it was accepted that such volume of cocaine had a wholesale value of $14 to $18 million. Had it ever got onto the streets to cause distress to the numbers who would have been afflicted with it, the street value that could have been obtained was between $39 and $59 million. 

14At this stage, I think it is appropriate given the work that has been put into this operation by the Australian Federal Police, for this Court to congratulate the Federal police on behalf of the community for such diligent work, over such a long period.  This was a particularly organised criminal group which took steps to avoid such detection.  One can only hazard at the risks taken by the undercover operatives in matters such as this.

15This Court always bemoans the fact that we never seem to sentence the “Mr Bigs” in these organisations.  I will not further describe Mr Hu Le as he is standing trial, as others are in this matter.  However, clearly we have not got, at least at this stage, the persons running the organisation from Vietnam or Thailand, and certainly Mr Le who I am to sentence is at the bottom level.  However, as I will repeat in due course, at whatever level, when you commit crimes of this type, the consequences unfortunately must be dramatic.

16To date, Mr Le has served pre-sentence detention of four hundred and seven days.

17As is often the position in matters such as this, Mr Le comes before the Court with no priors whatsoever.  Insofar as Mr Hu Le and the others involved, as best as can be ascertained, they will stand trial in approximately May of next year. 

18The learned prosecutor made particular submissions in regard to sentence.  A written sentencing submission was tendered together with a chronology, the factors relied upon by the Commonwealth which the Court was asked to take into account are set out in particular at paragraph 4 and 5 thereof.  The Court was also handed a summary of cases and a folder of cases which are of similar type.

19Such cases have been considered by me, and as explained most recently by the High Court in DPP vDalgliesh (2017) ALJR 91 1063, 1077, [83]: 

"Examination of sentences passed in comparable cases may inform the task of sentencing.  However, such examination goes beyond its rationale when it's used to fix boundaries that, as a matter of practical reality, bind the court."

20At [85], it said this.

"A plea of guilty does not diminish or alter the duty of the sentencing judge or a Court of Criminal Appeal to sentence according to the law.  The duty is to impose a sentence that is appropriate in all the circumstances of the case.  It is not consistent with that duty to permit a manifestly inadequate sentence to stand.  Earlier decisions of the Court of Appeal to the contrary are wrong and are not to be followed or applied."

21Such of course is not in any way to deny the sentencing importance of all of the factors set out under s.16A of the Commonwealth Crimes Act to which I have been referred.

22Mr Le, the scheme under which you come to be sentenced as set by the Commonwealth Parliament prescribes a hierarchy of seriousness defined by the quantity of the particular border controlled drug that was imported.  Albeit, the case I am going to refer to was a trafficking case, the Court of Appeal in Tsclocos (1995) 81 A Crim R 434 said:-

"For the purpose of identifying the gravity of an offence and thus of ascertaining the appropriate sentence, the legislation places emphasis on the quantities of drugs cultivated and not on values.”

23As has been recited a number of times in this Court, the quantity based scheme referred to is a system detailed by the Court of Appeal in this State, of Pidoto and O'Dea [2006] VSCA 185. That is, we are and do have as a result of our Commonwealth Parliament's prescription, a quantity based sentencing scheme. Of course, quantity as such has no arithmetical relationship to a sentence, but along with a maximum sentence prescribed by Parliament, which I stress in this case again is life imprisonment, is a very significant aspect in sentencing for these crimes.

24I take into account by way of general principles the determination of the Court of Appeal in this State in Nguyen v The Queen [2011] VSCA 32, [34] and [35], where the Court of Appeal reviewed the appropriate factors that come into play in sentences for this type of crime. Further, general principles, again while not exactly the same offence, were detailed by the Court of Appeal in New South Wales in R v Nguyenand Pham [2010] 205 A Crim R 106.

"Of course, it has been stated by numerous Courts of Appeal, the commission of this crime, given the maximum sentence involved, whatever ones role must be met with a condign sentence, otherwise the interests of general deterrence cannot be served."  See The Queen v Panna [1999] NSWCCA at p.4.

25Insofar as the plea of Mr Hannebery, his written submission was tendered at Exhibit 1 and the psychiatrist report of Tim Watson-Munro was exhibited at Exhibit 2.  At Exhibit 3 were eight significant character references that talk of
Mr Le's background that confirmed his role as a student and of course the fact that he comes before the Court without any prior offences.

26In addition, Anne Louise Hooker was called.  She is a youth development officer who has looked after Mr Le at Port Phillip Prison.  It is noted that this is a particular section of the prison that is utilised for first time offenders.  Mr Le was described as polite and well mannered, as a person who in the unit has been a hard worker and has sought out programs.

27Mr Hannebery has stressed in particular your relative youth.  As I said, you come before the Court now aged only 23.  He stressed the fact of you having no priors and the excellent references that I have referred to, your achievements in Australia and in particular your educational achievements and indeed at the time of this offending, you were in your early semester of a degree in business and information at RMIT.  He submitted that the Court should take the view that you are a good candidate for rehabilitation.

28Insofar as matters in mitigation, he submitted firstly that your involvement in this crime involves only three days.  You have pleaded guilty.  Your plea should be seen in the circumstances as valuable in the sense that you have decided to plea, unlike others who have decided to go to trial.  While not in any way denigrating that plea, it is obvious that, as I have already said, the large amount of undercover observation and surveillance and recording has led to a substantial amount of evidence being present against you.

29Insofar as the report of Watson-Munro, Exhibit 2, I note at p.4 that the circumstances of your offending are set out, the fact of your remorse expressed to him and Ms Hooker is also set out, and such remorse is also detailed in the testimonials that I have read.  Insofar as your depression, I accept that because of a sentence imposed, and the fact that that will take you away from your community and your family, that such will impact upon you insofar as depression is concerned.

30Mr Hannebery stressed as to your role, that you could be described clearly as a “gofer,” that however, it was a high risk task and there was no resiling from the fact as demonstrated by the evidence that you were well aware of what was involved.  While I do not know precisely the amount that you would have been paid, clearly you were not at the level of an accused who was going to make substantial benefits out of this crime.  However, I accept and it was not in any way disputed, that you were participating in this crime for a financial reward.

31Mr Hannebery described this as a terrible mistake in your life, a terrible mistake by a young man which has caused not only tragedy for yourself in the sense of the prospect of an imminent period of imprisonment, but tragedy for your family, given their hopes for your future.

32Insofar as cases, I was also handed by Mr Hannebery a decision of Judge Mullaly, DPP v Findlay and Shakhanov [2018] VCC 276, handed down 9 March of this year, I have taken account of the sentences prescribed in this matter. It was suggested to me that there was much about the Findlay sentence of seven years with a four that would make it similar to this.  I simply repeat what I have earlier said about comparative sentences, and the manner in which they are dealt with, and I do take all of such matters put to me into account.

33The fundamental matter made clearly by the High Court in Dalgliesh is that this Court must deliver individualised justice to you, in particular, justice based upon the circumstances of your case.

34Mr Le, it gives the Court no joy to sentence a person of your age and potential to a period of gaol.  However, as I repeat, you have committed a very serious crime of which brings with it a very high maximum sentence.  Given the very important factors as detailed by the Courts of Appeal, you come before the Court involved in such an offence, with knowledge of the high volume and value,  in particular, the volume given such an appropriate sentence must be handed down.

35Yes, if you would stand up please.

36For this crime of importing a commercial quantity of a border controlled drug into this country, you will be sentenced to a period of imprisonment of nine years.  The period that you must serve prior to being eligible for parole is six years.

37I order that the 407 days you have served to date be deemed as service of this sentence, and that such declaration be recorded in the records of this Court.

38Assuming that as a matter of law I am required to make a declaration under the Victorian legislation S6AAA, insofar as it relates to a Commonwealth sentence, the Parliament in this State has asked the Court to indicate to you the impact of your plea of guilty.  Can I indicate to you that had you not pleaded guilty, the sentence I would have imposed is 11 years with a minimum of seven and a half years.  Hence the sentence given to you today of nine years with a period to serve of six years before being eligible for parole indicates, as best as can be done as Parliament prescribes, the effect of pleading guilty.

39Yes, any matters?

40MR THOMPSON:  No, thank you.

41MS WHALLEY:  No.

42HIS HONOUR:  Yes, Mr Le.  Prisoner can be taken away.

‑ ‑ ‑