Director of Public Prosecutions v Le
[2015] VCC 1809
•9 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-15-00502
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THI NGOC LE |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 September and 25 September 2015 |
| DATE OF SENTENCE: | 9 December 2015 |
| CASE MAY BE CITED AS: | DPP v Le |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1809 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty to traffick in a drug of dependence commercial quantity (heroin), traffick drug of dependence (methylamphetamine) and deal property suspected proceeds of crime – exceptional circumstances – applicability of Verdins principles
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Criminal Procedure Act 2009 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: DPP v Duong [2006] VSCA 78; R v Pidoto & O'Dea [2006] VSCA 185
R v D'Aloia [2006] VSCA 237; Boulton v R [2014] VSCA 342; Nguyen v The Queen [2010] VSCA 127; Hasan v R [2010] VSCA 352; R v Verdins [2007] VSCA 102; DPP v O’Neill [2015] VSCA 325; R v Panuccio [1998] VSC 300 (Unreported, Victorian Court of Appeal, 4 May 1998)
Sentence:Convicted and sentenced to 5 years imprisonment with a non-parole period of 3 years and 4 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr M. Gumbleton (Plea) | Melinda Walker |
HIS HONOUR:
1Thi Ngoc Le is 42 years of age and was born on 11 August 1972 and is a dressmaker. In a plea conducted before this Court on 17 and 25 September of this year, Ms Le was represented by Mr Gumbleton, and today, Ms Walker appears, and on each of the occasions the prosecutor has been Ms Malobabic.
2The plea concerned Indictment number E12742184. Ms Le pleaded guilty to two offences occurring on 18 August 2014, when a warrant was executed at her premises consequent upon a lengthy investigation involving the supply of heroin throughout Melbourne, in particular, within the Vietnamese community. That investigation had led specifically to Ms Le, and as a result thereof such warrant was executed.
3Ms Le pleaded guilty to, firstly, an offence under s.71AA of the Drugs, Poisons and Controlled Substances Act - the charge being trafficking a commercial quantity of heroin - and the second charge under s.71AC of the same Act of trafficking methylamphetamine. The seriousness of this offending is demonstrated by the fact that the maximum penalty prescribed for the first charge is one of 25 years gaol, and the maximum penalty prescribed for the second charge is one of 15 years gaol.
4In addition, Ms Le asked the Court to take into account, pursuant to s.145 of the Criminal Procedure Act, a summary offence; being a proceeds of crime offence in regard to the $15,290 cash that she was found to be in possession of on 18 August 2014. Again, such is a serious offence - nowhere near as serious as the others - but the penalty prescribed for such offence is one of 240 penalty units, or two years gaol.
5Mr Gumbleton accepted that the prosecution opening, described the appropriate facts upon which the Court was to sentence Ms Le, and that was tendered Exhibit A, and read by the learned prosecutor. That summary was dated 11 September 2015. Essentially the amount of heroin found at the premises, and/or on Ms Le on this day, was 1.063 kilos. Exhibit B is the certificate of analysis which sets out the various amounts which make up that totality. Also, there was 28.6 grams of methylamphetamine, and as I said, $15,290 cash. Given the fact that the Legislation is quantity based the particular schedule for a commercial quantity is a figure between 500 grams and 1000. Given the evidence of the mixed quantity of heroin it is indeed a generous acceptance, it seems to me, that Ms Le was charged only, and has pleaded only, to traffick in a commercial quantity.
6In so far as the methylamphetamine crime the relevant trafficking quantity is a figure of three grams, and as I said, there were 28.6 grams. The particular detailing of each of those amounts and what was found, as I said, is comprised in the certificate of analysis; Exhibit B, and that was tendered.
7Subsequent to the execution of the warrant Ms Le was remanded in custody from 18 August 2014, and has remained since that time, and has now served by way of pre-sentence detention 478 days. There was a contested committal conducted on 25 March of this year, and four months thereafter, on 10 July 2015, Ms Le pleaded to the Indictment, however the point needs to made that an offer to plea to such Indictment was made in February of 2015. It seems, therefore, in so far as the discount for plea there is no reason why Ms Le is not entitled to a full discount in that matter.
8A disposal and forfeiture order was sought, which I have signed. As to the circumstances of this offending the learned prosecutor described Ms Le - and confirmed this morning, as demonstrated by the certificate of analysis and the various items, and Exhibit C; the photographs - as a supplier of heroin to street traffickers. Ms Le may well, looking at the photos, have been part of some form of preparation and/or grading of such materials, however it is unclear from the photographs precisely what her role was. Irrespective, of course, objectively such behaviour is serious, especially when done for a profit motive; here being to pay off gambling debts, apparently. The prosecutor submitted that such offending is not only serious, but is of such a degree that it calls for an immediate and substantial sentence.
9It is clear that, Ms Le, by this criminality you have placed yourself in the big league. As has consistently been pronounced in our Courts, condign punishment awaits those who partake in such trafficking, and by that I mean, in particular, Charge 1. Such punishment is appropriate for parties - whatever role they play - who are part and parcel of such a trafficking regime.
10As was detailed by Buchanan JA in DPP v Duong [2006] VSCA 78, where Parliament prescribes a maximum penalty of 25 years such shows, unambiguously, how seriously the community, through its Parliament, views this particular crime. Indeed it is irrelevant what particular drug is involved. The system essentially is quantity based. We have, in regard to our criminal provisions in this State, a quantity based sentencing regime. I should point out that the quantity, as such, has no arithmetical relationship to a sentence, but of course is a very significant matter in sentencing.
11This particular regime has been fully detailed by the Court of Appeal in R v Pidoto & O'Dea [2006] VSCA 185 [34], where four of the Appeal Justices noted that by such structure Parliament has adopted a hierarchy of seriousness defined by, and only by, the quantity of the drug of dependence that has been trafficked.
12In Pidoto & O'Dea, [62], the Court indicated that the ultimate question for the sentencing Court to be considered, given such structure, "is not whether trafficking in one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed for dealing with the material involved." As I say, in regard to this particular category Ms Le is at the maximum before one goes to the next highest category. As I have already remarked, the maximum penalty, Ms Le, in regard to your offence, is one of significance.
13Nettle JA in R v D'Aloia [2006] VSCA 237 at paragraph 56, set out the general approach for sentencing Judges in these matters. In that particular case he was dealing with MDMA. He said:
"As far as the effects of MDMA are concerned, the matter may still be approached on the basis that all of the drugs which are described have deleterious consequences of anti-social proportions, and that trafficking in any of them is therefore appropriate to be regarded as serious criminal offences."
14Clearly this is an offence which warrants a sentence of imprisonment. In the plea on your behalf by Mr Gumbleton that fact was realistically accepted, and there was no argument with that proposition. His submission essentially involved the matters that I should take into account in fixing the appropriate period - and indeed, fixing a minimum parole period, and a period, which he submitted, should accord with the amount of time that you have already spent in gaol for the particular reasons that he submitted, which I will come to. He also submitted that perhaps I could backend such period with a Community Correction Order, given the principles set out in Boulton v R [2014] VSCA 342.
15As to the range, I take into account the comments of the Court of Appeal in Nguyen v The Queen [2010] VSCA 127; in particular as to current sentencing practices; albeit that such particular case related, and was directed, to a cultivation charge. I also note the Court's comments as to the inadequacy of current sentencing practice, but the fact is that this Court, as was pointed out, is bound by current sentencing practice.
16To assist the Court’s task in understanding, Mr Gumbleton submitted Sentencing Snapshot 162, which indicates that in regard to this particular crime the majority of persons sentenced were male. Clearly that does not relate to the Vietnamese community. Anyone who sits in this Court notices a distinct social difference in regard to the Vietnamese community. I do not know how it comes about, but unfortunately the persons who seem to be left holding the can in these matters is always the woman. Never do we see the man - or very rarely do we see the man in here in this case.
17The importance of that comment; it is so dramatically different to what is shown in the statistics, where the majority of persons in those statistics were male. Those statistics further show that 89 per cent of persons were given an immediate gaol sentence, indicative of the seriousness of this crime.
18In the period analysed in Sentencing Snapshot 162 - that is, from 2008/09 through to 2012/13 - the median sentence was three years and six months with a median of two years, minimum to be served prior to parole, of two years and three months. However, of course, the range is far broader than that.
19As to the use of such statistics by Judges in sentencing, such was commented upon by the Court of Appeal in Hasan v R [2010] VSCA 352 [45]. They are, of course, just that; snapshots. One takes them for what assistance is appropriate, but essentially this Court must sentence for the particular circumstances and the objective criminality, serious as it is in this case, which applies. However, the comments made by the Court of Appeal in Hasan, in particular from the paragraph that I have quoted – [45] through to [52] - are of much assistance to the Court. As they said at [54], the sentencing principles in Victoria essentially are reposed in the Sentencing Act from s.5(2) through to sub-section (6).
20The first among such matters is of course the maximum penalty, which I have already indicated is 25 years, as reflecting Parliament and the community's concern as to such crimes. The more general principles I have already referred to.
21Coming then to the plea of Mr Gumbleton, his defence submissions were tendered as Exhibit 1, and the report of Ms Gina Cidoni was tendered as Exhibit 6. Ms Cidoni is a consultant psychologist and her report dated 8 September 2015 was tendered as Exhibit 6. Such was the background to the ultimate submission made by Mr Gumbleton that I should find a Verdins proposition, on the basis that essentially the low IQ of Ms Le in this matter was indicative of a incapacity sufficient to meet the first three principles of R v Verdins [2007] VSCA 102.
22I do not need to refer to the recent decision of DPP v O’Neill [2015] VSCA 325, to conclude that I do not accept that submission. As I said during the hearing, ‘quod erat demonstrandum.’ However it is important that I do recount the opinion of Ms Cidoni in so far as Ms Le is concerned. She has some difficulties with comprehension in Vietnamese, and that means she needed an interpreter in this consultation. She reported that the background to her dealings - as I say, which appears to be common in many Vietnamese women who end up before the Court on such serious charges; Crown Casino, meeting a man, getting into debt, suddenly they are dealing in drugs, or assisting in dealing in drugs.
23As I said, she comes from, and was born in, Vietnam. Her mother came to Australia on a tourist visa in 2014 to care for the children - and we will come to that matter in due course. Mr Le originally met her ex-husband when he was holidaying in Vietnam from Australia and they were married in 93. Subsequently he sponsored her to Australia. They had her first daughter, who was born on 1 October 99. They resided in Sydney and subsequently moved to Melbourne. Thereafter, problems of gambling and infidelity and, indeed, allegedly physical abuse, led to their separation in 2001.
24It was then that Ms Le - after living with some friends - moved to public housing in Richmond. She has been essentially in that same house since that time, and that is exactly where the warrant was executed. She met a further partner in 2005; this time when he was holidaying in Australia from Vietnam. They were together for a short period, however in that period she fell pregnant, and the consequence of that is the birth of her second daughter on 14 November 06. Unfortunately by that time the male with whom she had the short relationship had returned to Vietnam. Her children continue to reside and attend school in that area, and as I say, the grandmother is now caring for them, and they have - as I understand it - weekly contact with Ms Le through the Corrections department.
25When she was on her own for the period 2001 to 2008 she reported that she felt highly dependent. She suffered a lack of family support in raising her two children. Unfortunately she was involved with heroin. She came before the Courts in 2008. She was given an opportunity, and I am told that she has not partaken herself in heroin since that time, and certainly she is not a person who was an addict, or that this trafficking related in an addiction in any way.
26In regard to her education and employment history, essentially she only reached primary level at school, and as I understand the positions she has only been in receipt of parenting payment, given that she is a sole parent looking after two daughters, and in that time has not worked at all, as I understand it, in Australia, although she does have - and it may well be that she works for certain unregistered persons, because she indicates that she is a dressmaker.
27In so far as the psychological testing was concerned, despite the language difficulty the tests set out on p.3 of the report were carried out, leading to a conclusion that the testing showed her of extremely low capacity, with a full scale IQ of 56. That leaves her in a position, if you simply rely on that level, where 99.8 per cent of age related peers, according to Ms Cidoni, would perform better. That was essentially the matter relied upon in submission from Mr Gumbleton that the Verdins principles were enlivened. That is, that her intellectual capacity was of such a degree that she would not have the capacity for appropriate thought, and the ability to discern the wrongfulness of her actions.
28In support of such he also relied on the reported low verbal comprehension. She had had some elevated depression, which is clinical in nature, and that relates, no doubt, to her current position. She also was found to have a heightened level of anxiety, and that, of course, is a lot to do with the separation, and the fact that she is in gaol.
29The opinion concluded that her test results indicated extremely low to borderline functioning, however in so far as the offending, the matter that I totally agree with is at the bottom of p.4. Ms Cidoni said:
"Gambling appears to be the major contributing factor linking to the offending; where she accrued significant debt and was pressured to pay back the money she owed."
30Her cerebral impairment alleged is linked to poor judgment and problem solving, and it is suspected that this vulnerability made her an easy target. I find, in the circumstances, she has, and did have, the capacity not only to gamble, not only to raise a family - as she has done for some considerable time, but to participate in these trafficking crimes. I am not satisfied, to the required degree, that there is any indication that she has poor judgment, despite her intellectual quotient, which would lead me to conclude that there should be a moderation of general deterrence and specific deterrence brought about by the principles set out in Verdins. I make that determination without even taking into account the recent comments of the Court of Appeal in so far as Verdins, and the reiteration of such should be very rarely applied.
31
The substantial issue that arose in regard to the plea and submission
Mr Gumbleton concerned the caring for the two children; Sarah, who is now 15, and Trish, who is eight. It is submitted that there is a substantial issue in regard to both their continued occupation of the commission home, and also their care.
32I accept totally that currently the grandmother, who is looking after them, has a visa which apparently runs out in March. However, in those circumstances, I am not prepared to conclude to the degree that is necessary that this is a matter which amounts to exceptional hardship. I believe that once this sentence is pronounced, appropriate steps will be taken whereby within the community these children will be cared for. If I am proved incorrect in that degree, no doubt that may well form the basis of an appeal.
33That is not, in any way, to say that I do not have what is required by way of a human concern for these children. Clearly the actions of their mother have placed them in a terribly, terribly difficult position. No one else's actions have placed them in that position. It does not mean they should necessarily suffer, however the reality is that through the Department of Housing, or whatever is the appropriate authority, they continue to live at the current address. They are being cared for by their grandmother, and that is the position as it is at the moment.
34I cannot accept that in the circumstances - if the mother is placed in gaol, as she is to be - that that position of the grandmother by way of extension of visa will not be made by the appropriate Commonwealth department, and further, that the family will not be able to continue to live, as they do now, in their current home.
35It is important to remember that we are dealing with very, very serious offences. As was pointed out by the Court of Appeal in R v Panuccio [1998] VSC 300 (Unreported, Victorian Court of Appeal, 4 May 1998). As they said, the Court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family when a person is in prison. Such factors need to be exceptional or extreme before the Court will target its sentence in order to relieve the plight of those other family members.
36Such principle is clear, and an obvious one, because the Court's primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon spouse, children, or other close family members who are dependent, in one form or another, upon the person imprisoned.
37It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought, and generally necessary to alleviate the plight of the relevant family member effected, will require absolution from incarceration.
38
Essentially, that is the proposition put to me by Mr Gumbleton.
Mr Gumbleton's proposition was that the period of - which was now agreed as of this day - 478 days - should be the period of immediate imprisonment that should be imposed, and that I should release Ms Le in order that she would be able to care for her children. I do not intend to do that. I do not accept that exceptional circumstances have been proved in this case. As I say, I am confident that the children will be appropriately cared for.
39Coming then to the other matters which have been brought before me. It was put that the earlier offence, in so far as heroin possession, is quite significantly different, and I accept that. She had, and took the opportunity to rehabilitate herself. There is no suggestion that she, in any way, is addicted to heroin. That is a double edged sword because she, knowing the vices of heroin herself, has willingly participated in this very serious trafficking.
40Ms Le has no further offences and no subsequent matters, and I accept that. I also accept, as I said earlier, that the plea was entered at the earliest stage, and indeed, from February of this year an offer had been put, which was ultimately accepted, to plead to these crimes. I accept that the plea represents an acceptance of wrongdoing and expression of her remorse, that both the facilitation of justice and that she - and is of utilitarian benefit - and I also accept that such a plea entitles her to a significant discount of sentence.
41I note that it is her first time in custody. I accept that it is very difficult for her because of her own children, however as the Courts have remarked in so far as her own difficulty, it comes about from her very own actions; that she has involved herself in such serious criminality despite her obligations to her own children, and as a result thereof, here she is, suffering the distress of not being able to see her children.
42I have spoken about the report of Ms Cidoni, and I will not go over that again. I have also spoken about her background and the difficulties raising her children. As to her prospects of rehabilitation, one never knows in these matters. Unfortunately, if I accept what has been put to me, despite having the opportunity - and apparently taking it - from an earlier conviction for possession of heroin, she has allowed herself, through a gambling addiction, to not only place her children's safety and security at risk, not only to place her own liberty at risk, but because of such addiction, and because she allowed herself - on the materials put to me - to be in debt to the extent of $30,000 by gambling - then whether she is able to effectively rehabilitate depends totally on whether she can control such addiction.
43If you have such an addiction, you do not work and are on Centrelink benefits, then the only way you can feed such addiction is by criminality of some sort, I would have thought. So I would have thought, unfortunately, that the question of her rehabilitation is questionable, but let us hope, in the interest of her children, that she does - having now, and as she will get the consequences of this serious offending by way of a period of imprisonment - realise that she can no longer be involved in such crime.
44I take into account all the matters that were set out by Mr Gumbleton in regard to the sentence to be imposed on Ms Le.
45Balancing all of those factors as best as I can, in regard to this case I have determined that in so far as the first charge of trafficking of a commercial quantity of heroin you will be sentenced to a period of imprisonment of four and a half years.
46In regard to the second charge concerning the methylamphetamine; a period of imprisonment of 18 months. Taking Charge 1 as the head sentence I order that six months of the sentence on Charge 2 be served cumulatively upon the sentence imposed in Charge 1, making an aggregate term of imprisonment of five years.
47I order that the period that you are to serve prior to be being eligible for parole is three years and four months.
48In so far as the summary charge is concerned - of proceeds of crime - I order that you be imprisoned for a period of six months, and that will - pursuant to the provisions of the Sentencing Act - be served concurrently with the head sentence of five years passed in the indictable matters.
49Pursuant to s.18 of the Sentencing Act I declare that the 478 days that you have served to date be deemed service of this sentence, and that will therefore be deducted from the minimum period of three years and four months which you are required to serve before being eligible for parole.
50Just so that there is no misunderstanding between Mr Gumbleton and I, the imposition of the head sentence is done on the basis that it is understood by this Court that the offender may indeed, depending on her behaviour and administrative matters, spend every day of such head sentence in gaol.
51In regard to the declaration required by Parliament of the s.6AAA of the Sentencing Act, I indicate that had you not pleaded guilty in this matter I would have imposed an aggregate head sentence of six years and eight months, and a minimum with that of four years and six months.
52Madam Interpreter, it is important for you to explain to Ms Le that the reason I am required to indicate that is so that there is a visible benefit explained to her; that is, that I have given her a sentence of five years with a minimum period to serve of three years and four months. Had she not pleaded guilty the sentence that would have been given to her would be six years and eight months, with a minimum period to serve of four years and six months.
53Essentially, in layman's language, Ms Le - Madam Interpreter, if you explain to her - before she is eligible for parole she must serve three years and four months of that time she has now served, and a declaration to that effect will be made in this Court; 478 days.
54I have signed a disposal order and a forfeiture order. I think the forensic order is now a matter of automatic operation from statute, Madam Prosecutor?
55MS MALOBABIC: Yes, Your Honour, it is.
56HIS HONOUR: Do I need to clarify any matters for either counsel?
57MS MALOBABIC: No.
58MS WALKER: No, Your Honour.
59
HIS HONOUR: All right, there's nothing further I need to say. Good luck,
Ms Le. When you come out, no more gambling, because it's a disaster for you and your family. Yes, the prisoner can be taken away.
60MS WALKER: As the Court pleases.
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