Director of Public Prosecutions v Le

[2018] VCC 1129

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00834

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANH LE

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2018
DATE OF SENTENCE:	24 July 2018
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2018] VCC 1129

REASONS FOR SENTENCE
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Subject:
Catchwords:              Importation of a commercial quantity of heroin
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr T. Crouch	Commonwealth Director of Public Prosecutions
For the Accused	Ms B. Coath	Pica Lawyers

HER HONOUR: 

1Thanh Le, you have pleaded guilty to one count of importing a commercial quantity of a border-controlled drug, contrary to s.307.1.1 of the Criminal Code (Cth) between 1 April 2016 and 1 June 2016. The charge relates to three consignments that were imported into Australia between those dates particularised in the charge. The full details relating to each consignment are contained in the prosecution opening filed in these proceedings, Exhibit A.

2A commercial quantity of the border-controlled drug heroin is 1.5 kg or 1500 g.  The maximum penalty for this offence is life imprisonment and/or a fine of
7500 penalty units or approximately $1.35 million.  I turn first to the nature and circumstances of the offence and if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character of that course of conduct.

3In summary, on 1 April 2016, a consignment arrived in Melbourne from Thailand and was selected by Australian Border Force ABF members for examination.  The consignment was in a cardboard box which contained a number of vases.  ABF officials examined the box and discovered within the cavities in the walls of the cardboard box were eight heal-sealed plastic bags.  Each contained a quantity of white powder which was presumptively tested as heroin.  Later forensic analysis showed the weight of the white powder was 2807.7 g and was 72.8 per cent heroin.  So the total weight of pure heroin was 2044 g.  The details on this consignment include your wife's name and the home address of you both. 

4A similar package again containing vases arrived in Melbourne from Thailand on 3 April two days later.  Again concealed within the cavities in the walls of the box were eight heat-sealed plastic bags all containing a quantity of white powder which was presumptively tested as heroin.  Later, forensic analysis showed that the weight of the white powder was 2087.4 g and 74.2 per cent heroin.  So the total weight of pure heroin in the imported Consignment 2 was 2083 g.  The details of that consignment included a phone number ending in 701.

5Both Consignments 1 and 2 were retained in AFP custody. 

6A similar package, though this time containing kitchenware, arrived in Melbourne from Thailand on 1 June 2016.  Similarly, concealed within the cavities of the walls of the box were eight heat-sealed plastic bags, all containing a white powder which was presumptively tested as heroin.  Later forensic analysis showed that the weight of the white powder was 2808.1 g and was 73.3 per cent heroin.  So the total weight of pure heroin in imported Consignment 3 was 2058.3 g.  The details on this consignment included your name and the address of your sister. 

7The wholesale value of the imported heroin in each one of the three consignments was between A$800,000 and A$1.04 million. 

8On 6 June 2016, after obtaining relevant authorisation, the white powder from the third consignment was fully substituted with an inert substance and a listening device was inserted into the box.  About 3.03 pm that afternoon, an AFP officer posing as a courier driver rang a phone number ending in 685 which was included on the consignment details.  This call was diverted to a message bank and a message was left for you indicating the package would be delivered the next day.  The next morning, police commenced surveillance of 20 Errington Road, St Albans, the delivery address.

9Between this time and 1.06 pm, you were observed on about eight occasions walking from that premises, your sister's home, and onto the footpath and looking up and down the street.

10At about 1.06 pm, an AFP officer posing as a TNT courier driver delivered the fully substituted Consignment 3 where it was accepted by you.  You provided a driver's licence as proof of identity, signed for and took possession of this consignment.  Shortly after the delivery of the consignment, you walked approximately 200 m down the road to a blue wagon and drove it into the driveway of the house.  The consignment was loaded into that wagon and you then drove to your home address.

11The vehicle was observed by authorities to arrive at your home and you then went inside.  About ten minutes later, you drove your wagon to a residence in St Albans but were there for only a few minutes before driving back to your home, arriving about 1.38 pm.  Subsequent investigations revealed a link between that other address and the person to whom Consignment 2 was addressed.

12About 1.39 pm, police entered your home and the unopened consignment was located in a bedroom which was locked.  You were present at the premises with your wife and housemates. 

13When you and your home were searched by police, the following relevant items were located - a silver-coloured key for the locked bedroom containing the controlled delivery consignment; on a toy box in the lounge, a black Samsung Galaxy Note 3 mobile phone - you identified this phone as belonging to you and this phone had the number ending 685 which was the phone number on the details for Consignment 3; phones in the possession of your wife and son and two other phones located in the drawer in the bedroom; a large red-coloured hydraulic press in the garage for which a drug detection dog displayed a positive reaction.  This press is of a type used to compress heroin into blocks for sale. 

14You were arrested and conveyed to AFP Melbourne office where you participated in a tape-recorded interview with the assistance of a Vietnamese interpreter. 

15During your interview, you denied any involvement with the first two consignments and maintained that the press in the garage had been left by a previous tenant.  You admitted the Samsung Note 3 phone with the number ending 685 was yours and that no one else had used it in the last few years.  You maintained you had ordered those vases online from Thailand about two weeks ago and had the package delivered to 20 Errington Road, your aunt's house, because you were concerned your wife would be upset with you ordering the vases to sell when you had little money.

16You admitted to accepting deliver of Consignment 3 and that you had placed the box in a locked room at your house but indicated that was so that your children would not access it.  You admitted you had the key to that room.  You maintained you had not opened that package because it was not important to you and it was very cheap. 

17An examination of the Samsung Galaxy Note 3 phone revealed:  

18(a), that the SIM card contained within it was for mobile telephone number ending 685, the same mobile phone number included in the details for Consignment 3;

19(b), multiple images or photos of Consignment 3;

20(c), a number of photos or images depicting cash and packages similar to the Consignments 1, 2 and 3;

21(d), the tracking number for Consignment 3 was also recorded in this mobile phone as having been used to search the DHL website on 2, 3, 4 and 6 June 2016;

22(e), an examination of the phone in your wife's possession revealed an image of Consignment 3 taken at 1.17 pm, 7 June 2016;

23(f), a series of Viber chat messages between the Viber name "ongxa" and other persons discussing the importation of other consignments and sending photos of cardboard boxes of similar appearance to those imported in the three consignments. 

24The prosecution does not assert that you should be sentenced in relation to any consignments other than the three that were imported between the dates in the charge.  However, those other details were included to indicate that there was evidence of some pre-planning and/or to meet any assertion that the three consignments the subject of the charge could be said to be isolated. 

25An examination of one of the phones in the bedroom drawer revealed it had a phone number ending in 701 that was being used between 9 January 2016 and 15 April 2016.  This is the same number as the phone number details for Consignment 2.  Telstra records showed the mobile phone service ending in 701, Consignment 2, is subscribed in the name of Hai Le, of an address in Braybrook.

26An examination of the phone in your son's possession revealed an image of a phone message in Vietnamese language which translated to the details of the tracking number and an instruction to write it down, then delete all messages and that "once you get it, reply".  This photograph of a phone message is consistent with one seen on the cracked screen of your Samsung Galaxy Note 3 phone and a recovered SMS from that phone.  The tracking number was for Consignment 1. 

27The hydraulic press was also forensically examined by AFP.  During that time, swabs were taken from it and swabs from the press identified the presence of heroin.  Your counsel submitted that you had limited role in the importation, that you were at the very bottom of the scheme and that clearly others were involved in both Australia and Thailand.  You maintained that your brother who lived close by in Opal Court enlisted you.  You had sponsored him to come to Australia and you now have no concoct with him at all.  That your involvement was for financial reward, with you having an expectation of receiving a lump sum of $15,000. 

28It was submitted that you were very low down the chain and that you were the fall guy for others, that, consistent with the text messages, you took instructions from others as to what to do with the box that you took position of and also in anticipation of receiving the other boxes that you did not ultimately receive; that each of the boxes had a link to you though it was conceded that there was a level of sophistication in respect of this aspect with the use of different details for the recipient.

29There was no evidence of you contacting those overseas, that you were in receipt of large sums of money or significant financial betterment.

30The prosecution did not concede that characterisation of your role as at the very bottom.  It was submitted that you were more than a mere courier, that you had provided the details, anticipated receiving the boxes and doing what was instructed with them.  Those features, it was submitted, put you up the scale in terms of your level of involvement.  However, it was accepted that you were engaged in these activities on behalf of others.  You were, however, essential as someone has to be prepared to accept being the delivery point and storing this valuable, illicit commodity in Australia.

31In my view, your involvement or steps taken by you included the use of names, addresses and phone numbers connected to you to facilitate the delivery of the boxes.   You followed up with the company regarding box 3 as to its whereabouts and you were prepared to store or keep the box until further directed by others.  You played an important, essential and trusted role.

32I now consider the degree to which you have shown contrition for the offence and the fact of you pleading guilty.  You pleaded guilty at the committal hearing in the Magistrates' Court on 24 August 2017 to offences that alleged the importation in respect of Consignments 1 and 3.  It is accepted that this was a plea to that part of the prosecution case at the earliest opportunity. 

33You originally stood trial in relation to Consignment 2 with pre-trial hearings conducted by Judge Dean in February 2018.  The trial was adjourned to commence before me on 21 May 2018.  Pre-trial rulings were delivered and shortly thereafter, you indicated that you would plead to the circumstances regarding Consignment 2.  You thus offered to plead guilty to a new indictment containing a single between dates charge that encompassed all three consignments.  The plea offer was accepted by the Crown and you were rearranged and pleaded guilty to this charge on 29 May 2018.

34Although it could not be said that you pleaded at the first opportunity in respect of Consignment 2, you have saved the community the cost of a lengthy trial.  I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit and I take that into account.

35I now consider the character, antecedence, age, means and physical or mental condition of you.  You are currently aged 48.  You left school when you were 15 and in 1988, went to Malaysia as a refugee from Vietnam.  You have 12 siblings and your parents are both relevantly recently deceased.

36You came to Australia in 1992 and were married to your first wife in 1995.  You have permanent residency in this country.  You had a daughter Cindy in 1996.  I was informed that she works as a purchasing officer and she had been unaware until recently that you had been in custody since your arrest for these matters. 

37Between 2006 and 2007, you visited Vietnam on a number of occasions and you met your current wife during this time.  You were married to her in 2007 and have two boys, currently aged ten and five. 

38When in Malaysia, you worked for three years as a cleaner and were an illegal immigrant.  Since being in Australia, you have had various labouring jobs in manufacturing and other unskilled labour jobs including as a driver. 

39You have no prior convictions in either Australia or Vietnam. 

40You do not suffer any physical or mental health issues and have not encountered problems with alcohol or illicit substances.

41I was informed that you were motivated to be involved in this offending due to the lack of finances and your family's impoverished state.  It was not suggested that you had by your involvement in this offending obtained any significant financial benefit.  There was no evidence of betterment or change in lifestyle to the contrary. 

42I accept that you are somewhat isolated in prison with limited English though there are prisoners who speak your mother tongue, Vietnamese.

43You have, whilst in custody, had concerns over the fate of your wife and her alleged involvement in your illegal activities.  She was on bail and then acquitted of one charge of trafficking in a commercial quantity of heroin relating to Consignment 2.  The jury were hung in respect of charges in relation to the other consignments and the prosecution has filed notices of discontinuance.  Her matters have thus resolved and issues regarding the care of your children have stabilised and are no longer a burden on your mind.

44As to your prospects of rehabilitation, your counsel submitted you had good prospects.  You retain  the support of your wife and children and have been able to gain employment through most of your life here in Australia.  You have no prior convictions.

45The prosecution did not dispute this submission and I accept that your rehabilitation prospects are good. 

46I now turn to consider general deterrence, specific deterrence and adequate punishment. 

47Importation of drugs in a commercial quantity is a very serious offence.  General deterrence has an important role to play to discourage others who, like you, find themselves in financial difficulties and are tempted to become involved in this criminal activity on this scale.  Whatever role is to be played will be punished. 

48Ordinarily, importation of drugs in this amount would warrant a substantial term of imprisonment.  Any potential financial benefit should be neutralised by the risk of severe punishment for involvement and that message should be clear.  The difficulties in detecting this kind of offending and the social consequences that follow point to both specific and general deterrence as important sentencing considerations. 

49The prosecution referred to a number of authorities of comparable cases for sentences imposed for offending of this nature.  Although they provide some guidance, the individual circumstances and level of involvement and other circumstances surrounding the offending vary from case to case.  I have considered the recent Court of Appeal decision in DPP (Cth) v Masange & Anor [2017] VSCA 204 and the analysis by Beale J, particularly at paragraph 139, and relevant matters to consider in sentencing for this kind of offending.

50The seriousness of this offending is reflected in the maximum penalty for the importation of a commercial quantity of heroin.  Each box contained over a commercial quantity of heroin and the total amount imported, adding the amounts in each consignment was 4.1 times the commercial quantity.

51You expected a financial reward of $15,000.  You continued involvement over a little over two months despite failing to receive boxes 1 and 2.  You were persistent.  You played an important role facilitating the delivery of the heroin and keeping it until further instructed.  I do accept that you were not, however, in contact with those overseas and appeared to be acting on instructions. 

52In determining the sentence to be passed or the order to be made in respect of any person for a Federal offence, a court must impose a sentence that is of the severity appropriate in all of the circumstances of the offence.  It was submitted by counsel for the prosecution and conceded by your counsel that the only appropriate sentence was a term of imprisonment with a non-parole period. 

53If you could please stand up, Mr Le?

54Taking all relevant sentencing considerations into account as dictated by the Code, I sentence you to a term of imprisonment of eight years with a non-parole period of five. 

55Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have sentenced you to a term of imprisonment of 11 years with a non-parole period of eight.  What is the PSD please?

56MR CROUCH:  Seven seven seven days, Your Honour.

57HER HONOUR:  Seven seven seven?

58MR CROUCH:  Seven seven seven, yes.

59HER HONOUR:  I declare 777 days' pre-sentence detention.  Are there any other orders that I need to make?

60MR CROUCH:  No, Your Honour.  

61HER HONOUR:  No?  Thank you.  All right?

62MS COATH:  Sorry, Your Honour.

63HER HONOUR:  That is all right.

64MR CROUCH:  There was a forfeiture issue which is being resolved by consent.

65HER HONOUR:  All right.  Thank you.  I will just stand down.  Thanks.

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