Director of Public Prosecutions v Manh Le
[2012] VCC 1193
•17 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-09-01721
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MANH LE |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2012, 17 August 2012 | |
DATE OF SENTENCE: | 17 August 2012 | |
CASE MAY BE CITED AS: | DPP v Manh Le | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1193 | |
REASONS FOR SENTENCE
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Catchwords: Attempting to import a commercial quantity of a border controlled drug – attempting to possess a border controlled drug – 55 kilograms pure drugs – maximum street value $98.5 million – exceptional circumstances re family hardship – assistance to authorities discount – poor health of accused – Delay –DPP (Cth) v De La Rosa [2010] NSWCCA 194 - R v Nguyen; R v Pham [2010] NSWCCA 238 – Rizzo v The Queen [2011] VSCA 146 – Crimes Act 1958 (Cth) – Sentence of 14 years with 9 years 3 months non-parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Gurvich | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr N. Hutton (at plea) Mr C. Pearson (at further plea and sentence) | James Dowsley & Associates |
HER HONOUR:
The Offences
1 Manh Le, on 25 October 2011 you pleaded guilty to one charge of attempting to import a commercial quantity of a border controlled drug and one of charge of attempting to possess a border controlled drug.
Circumstances surrounding the offences
2 The circumstances of surrounding the offending were set out in detail in the prosecution opening. In summary, on 20 May 2008 United States customs officers identified a container suspected to contain drugs in New Jersey.
3 The shipment had originated in Canada. Officers unpacked the boxes within the container, which contained foot spas and found packages containing drugs concealed in the bottom of the foot spas.
4 On 3 July 2008 you arrived in Australia via Vietnam. The prosecution case is that you came to Australia to help supervise and assist in the delivery and unpacking of the container and the distribution of the drugs to drug couriers.
5 Telephone intercepts demonstrated that Sau, in Vietnam, assisted by Aunty Phung in Australia, orchestrated the delivery of the container and distribution of the drugs with the assistance of you and others, including Hung, who was Sau's brother, Phuong, Aunty Phung's niece, Phom, Trinh and his girlfriend, Angela Wong, and Minh, Aunty Phung's ex-husband.
6 When you arrived, Hung introduced you to Phuong and took you to the Guiding Start Motel in Brooklyn where you stayed, pending the arrival of the drugs. Aunty Phung and Sau were in Vietnam when the container was delivered and kept in constant contact with you and your co-offenders, Phuong and Hung via mobile phone. Your role included going with Hung and Phuong to Hunters to pay the consignment fees on 10 July 2008. You were observed by surveillance officers entering Hunters where you paid $12,403.40 in cash for expenses relating to the container.
7 On the same day you were observed by the surveillance officers leaving the Guiding Star Motel and going to a restaurant in Victoria Street, Fitzroy . You attended the restaurant with Hung and Phuong and also Tan, who is a drug dealer from Sydney.
8 In addition, telephone intercepts revealed that prior to the delivery of the container, you called Phuong and discussed what you would do at the factory when the container was to be delivered and people came to collect what you referred to as “the gear” or “clothes”. You were concerned that Tan and other couriers did not know exactly what drugs they would collect and who was to sort this out.
9 Once the container was delivered, phone calls were intercepted where you had conversations with either Sau or Aunty Phung and you discussed needing equipment and other people to help at the factory. You also discussed calling the drug dealers and told Sau and Aunty Phung that you had got through to the drug dealers, Tuahn and Baso Hai. You told Sau that you needed help in unloading the container because it was dark at the factory and there was a problem with turning off the lights. You discussed with him that two men who were going to help had turned up at the factory but that they'd changed their minds. Further assistance given by you included:
· going with Uncle Hung to Bunnings to buy tools to open the container
· helping to open the container
· moving the boxes containing the foot spas out of the container
· together with Minh, using power tools to cut open the foot spas.
10 You were also recorded on a listening device, discussing numbers for the drugs. Once the substitute drugs were removed from the foot spa you and Phuong sorted them out. You instructed Phuong to lay the bags out according to colour and you made phone calls about the number of bags to Sau. In this phone call you made reference in code to the drugs not being in the plastic bags. You had a conversation regarding the quantities of bags and the type and colour of what you referred to as pieces, presumably being the drugs.
Knowledge of drugs
11 While you have pleaded guilty to the charges on the indictment, when giving evidence in the trial of your co-offenders, Minh and Hung, you maintained that you did not know about the drugs being in the container when you were back in Canada. You claimed that you had been invited to Vietnam by friends for a vacation and that when you arrived there you were offered a trip to Melbourne to help interpret documents for Uncle Hung. While the prosecution case was that you had participated in the packing and marking of the boxes containing the foot spas with drugs in Canada and that you were aware that the marked boxes contained drugs, I am not satisfied beyond reasonable doubt that you participated in Canada. However, in cross-examination you admitted to having some suspicions about drugs coming over to Melbourne when you were in Vietnam as you had heard conversations between the others (p.442 of the transcript).
12 At the trial of Minh and Hung, when you were asked whether you were told there was cocaine in the foot spas when you were in Vietnam, you said that they did not say “exactly cocaine in there”. They said, "stuff in it". When counsel put to you, "And did you take stuff to mean drugs", you replied, "Yes, I guess so". I am satisfied that when you were in Vietnam you knew that drugs were being shipped to Melbourne in the container.
Personal circumstances
13 Your personal circumstances were outlined to the court by your counsel and further details were contained in a report from Carla Lechner, a clinical and forensic psychologist, dated 30 September 2011.
14 You are 43 years of age and you are the fourth of six children. You live in Canada, as does your extended family. You are married to Tuala, who is of German origin. You have three children, Jonathan, Jamie and Joseph. Your wife and two younger children are currently living in Australia.
15 You were born in Vietnam on 1 January 1968 and migrated to Canada at the age of 11 due to the war. You lived in Europe also for some two or three years then Yemen, before settling in Canada. You attended school in Winnipeg where you lived for about ten years and left school partway through Year 10. You then worked in a fast food chain for about two years and following this as a carpenter for about six months. You have also worked in a pawn shop for two to three years.
16 In 1996-1997 you moved to Vancouver where you lived for the next 20 years. You were unemployed for a period then worked in a restaurant for two years before commencing your own landscaping business. You also worked as a fisherman, catching crabs.
17 About five years ago you were involved in a motorbike accident in which you lost conscious for about half an hour and since that time you have apparently suffered from headaches.
18 After you were released on bail your wife came to Australia to support you. You are not eligible to work here or collect Social Security payments, nor is your wife. Apparently your mother and mother-in-law are supporting you from Canada, as is your older son.
19 Before going into custody, you were working in a voluntary capacity at a church in exchange for food vouchers. However, in late 2010 you slipped and broke your collarbone and you were not able to work after suffering that injury.
Wife’s condition
20 Your wife has been diagnosed with Parkinson's Disease and she is slowly deteriorating in her capacity to function effectively. Your counsel tendered a report dated 12 January 2012 from Dr David Frielich, a neurologist with respect to your wife's condition. This report reveals that your wife was diagnosed in Canada at the age of 20 with Parkinson's Disease and that she has had investigations, both in Canada and in Australia, for this condition. She is receiving treatment for the condition with a combination of drugs. However, her condition is not well controlled. It affects her ability to walk. It causes tremors and it affects her ability to use her hands normally. She requires help with the activities of daily living, cannot manage her own needs and the family household without help. In Dr Frielich's opinion, insofar that the response to treatment has not been optional, he anticipates that she will have ongoing neurological disability into the foreseeable future. In an update in her condition on 28 May 2012 Dr Frielich reported that her condition had deteriorated since she was last seen in January. She was having more difficulty in walking and needed increasing help with the activities of daily living. He had increased her medication but he was not sure whether there would be an adequate response.
Psychological reports
21 With respect to your mental health there were two reports from Carla Lechner, a clinical and forensic psychologist. In her first report of 30 September 2011 Ms Lechner said that you impressed as cognitively an emotionally immature and easily manipulated man. She noted that your offending appeared to have arisen at a time when you were unemployed and under financial stress. She reported that you regretted your actions and that you were keen to return to Canada as soon as possible. Ms Lechner diagnosed you as suffering from an adjustment disorder with disturbance of mood. In her opinion you would benefit from a medical review to determine if anti-depression medicine was indicated.
22 In her supplementary report of 29 February, she reported that her recommendation for treatment had not been followed up until recently. By this stage your mood state had declined and you were evidencing symptoms of major depression, including suicidal ideation. Consequently she recommended a more assertive health plan to ensure that your mental health did not deteriorate.
Defence sentencing submissions
23 In sentencing submissions on your behalf, your counsel relied on the following matters in mitigation of your offending. You had pleaded guilty. You had given evidence in the trial against your co-offenders, Minh, and Hung. You had no prior convictions. Due to your wife's medical condition exceptional hardship would be caused to your family by your imprisonment. Your health, both physical and mental, was poor. Your chances of rehabilitation were said to be good and there was said to be a significant delay in sentencing you.
24 Your counsel tendered references concerning your previous good character and it was apparent from the references from members of your extended family in Canada, that they think highly of you.
References
25 In her letter, your mother, Tapa Hasen said “I am getting old and need to have my son with me. These days without Manh have been the hardest days I have to live. Manh was my rock. He supported me, he provided for me and took care of me". Your father, who has a severe heart and diabetes issues, said that he was proud of you and respected you as a man of integrity. You had worked hard to provide for your family and you had also provided support for your elderly parents.
26 In her reference your younger sister referred to you as being a kind, honest and caring man. She said that her vision was not good due to retina pigmentosa condition and that you had assisted her doing day to day things. She had depended on you for help with driving her to the grocery store and the doctor's. Now she had to do a lot of things on her own, which was very difficult for her.
27 Jonathan Jurec, your son, described you as being a most loving father and role model. He said that you were “the glue that kept the family together” and that they “looked up to you”. Your niece referred to you as being “a man of great integrity, extremely loving and dedicated to your family”.
28 There were also references from non-family members, including Reverend Tang, the administrator of the Catholic parish at Ivanhoe. He said he had known your family for about 18 months. He described them as trustworthy, honest and dutiful, happily and faithfully completing voluntary duty at the parish. Reverend Tang also said that as a husband and father you had been required to provide extra support and care for your wife and children as a consequence of her health problems. There was also a reference from Father Gregory Burke, director of Ministry to Priests in the Melbourne archdiocese, which confirmed that you and your family had been faithful to commitments in the parish and that your family had great difficulties concerning health, finance and legal issues.
29 Mr Gruer, who had known you for three years, confirmed that you had done work around St Peter's parish and he described you as “an upstanding family man with good moral beliefs.” Your best friend, Tan Le, described you as “a kind and trustworthy person.” Your son's girlfriend, Marion Tanner, also wrote a positive reference, referring to you as “chivalrous and as a genuinely caring individual.”
30 Paul Ittar, who has known you for two years in his capacity as a Prison Fellowship volunteer, referred to your community work, he confirmed that your family had suffered greatly over the past two yeas, having great financial, emotional and physical needs.
31 Last but not least, was a reference from your partner of some 26 years, your wife, who also gave evidence on your behalf. It was apparent from her reference and her evidence that she loves and depends on you and she cannot accept that you have committed the crimes that you pleaded guilty to. With respect to her condition she says that at night she shakes and jerks so much that you had to hold her down until she stopped. You were the only person who knew how to calm her down. She says that your family all need you to be with them and without you she does not know what they are going to do.
32 A reference today from your wife's neighbour confirms the suffering of your family due to your imprisonment and therefore their inability to cope with what life has cruelly handed out to them. It is obvious to me that you will have to serve your period of imprisonment bearing all these factors into account and that it is not only the users of the drugs who suffer at the end of the day but it is the families of those who were involved in the offences who also suffer.
Prosecution sentencing submissions
33 In his previous sentencing submissions the prosecutor referred it the importance of general deterrence in cases such as this, and the sentencing principles which should be applied. Today at your plea hearing was confirmed that the prosecution regarded your role as being lower than Aunty Phung and around the same level as Phuong. In DPP (Cth) v De La Rosa [2010] NSWCCA 194 the court identified the following as key reference points for sentences in case such as this. They are the quantity of drugs involved, the role played by the offender, the reward, the assistance to the authorities, criminal history and prospects of rehabilitation. These reference points have been utilised by the Court of Appeal in both Victoria and New South Wales and in a number of cases involving the importation of drugs since then.
Sentencing remarks
34 In sentencing you I have adopted the following reference points.
i) Quantity of drugs
35 The size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs it imported. The street value of the drugs in this case was considerable. In sentencing one of your co-offenders, Phom, His Honour Judge Howard noted that in round figures 158.5 kilograms of a substance containing 55 kilograms of pure drugs with a maximum street value of $98.5 million was imported. The street value of the drugs, according to the Crown summary, was meth-amphetamine, 50 million, MDMA, 6.9 to 16 million, cocaine, 16 million to 32 million.
36 While I accept that you did not know the full extent of the amount of drugs to be imported, it must have been obvious to you, given the organisation involved and the leasing of the factory, that it was not going to be an insignificant amount.
ii) Your role
37 With respect to the role that you played in the importation I have outlined the role earlier in my sentence when dealing with the circumstances of your offending. I accept that you played an important role in the importation and that your involvement in the scheme was substantial. I accept the prosecution case that your role was lower than Aunty Phung and around the same level as Phuong.
iii) The reward
38 With respect to your motive for assisting in this scheme I accept that it was for financial reward and that your financial situation was bad at the time you became involved. There was evidence at the trial that you were given money by Hung for your expenses and from Phuong that there was a conversation you had with her where you discussed getting paid for your role.
iv) Assistance to authorities
39 You gave evidence to this court a short while ago where you identified your assistance on an undertaking to give evidence and to fully cooperate with the authorities in the future. I accept that you have given past cooperation by giving evidence in the trial against your co-offenders, Minh, and Uncle Hung. In accordance with s.16A(2)(h) I have taken into account your past assistance in giving evidence in that trial and any past assistance to the authorities. I have also given you a discount for your promise to be of assistance in the future, and in this respect I note that the prosecutor accepted there was a possibility that you might be required to provide further assistance in the future.
v) Previous good character
40 With respect to your criminal history, you are of previous good character. One of the propositions set out by the New South Wales Court of Appeal in R v Nguyen; R v Pham [2010] NSWCCA 238, however, was that the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given. Accordingly, although I have taken your prior good character into account, I have given it less weight as a mitigating factor than it might otherwise have been given.
vi) Prospects of rehabilitation
41 With respect to your prospects of rehabilitation, given your prior good character and the good character of your family, I accept that they are good.
42 In relation to Federal offences set out in the Commonwealth Crimes Act the primary obligation of a sentencing judge is to impose a sentence that is of severity appropriate in all the circumstances of the offence. It is obvious in cases of this nature that the only sentence that is appropriate is a sentence of imprisonment. In addition, that given the evils of the drug trade, which are well known, there is a requirement or a need for general deterrence in such cases.
vii) Mitigating factors taken into account
43 In determining your sentence I have taken into account the matters listed in s.16A(2) of the Act and all the mitigating factors mentioned by your counsel. You have pleaded guilty and I have given you a discount for your guilty plea. Other matters which have resulted in a discount include the effect of your sentence on your family and both your mental and physical state of health, the fact of your assistance to the authorities and their promise to give assistance to the authorities in the future, and I have also included the fact that you are serving your sentence in protection.
viii) Effect of sentence on family
44 Dealing firstly with the effect of the sentence on your family, s.16A(2)(p) of the Commonwealth Crimes Act provides that the sentencing court must take into account the probably effect that any sentence or order would have upon the offender's family or dependents. The courts have interpreted this sub-section as if it was preceded by the words, exceptional circumstances. This would appear to be in accordance with the well established principle that a sentencing court should have no regard to the impact which a sentence of imprisonment would have upon the prisoners' family unless there are exceptional circumstances.
45 In your case, due to the debilitating effects of your wife's illness on her and her consequent dependence on you, I am satisfied that exceptional circumstances exist and I have taken the hardship into account in sentencing you.
ix) Your health
46 With regard to your state of health I accept Carla Lechner's opinion that you are suffering from symptoms of major depression. In addition, that for some time now you have been suffering from considerable pain due to your left shoulder injury. A report dated 14 July 2012 from Professor Ian Brown, the medical administrator of the Western Hospital, reveals that you have spondylitis of the cervical spine and an old healed clerical fracture which could be impinging on the left scapula nerve. In his opinion, these conditions are likely to limit your ability to undertake daily activities and you are likely to require continuing medical and possibly surgical treatment. I accept his opinion.
47 In accordance with Rizzo v The Queen [2011] VSCA 146 I accept that both these conditions will make your time in custody more difficult than for those who have normal health. I have already indicated that I have taken into account the fact that you will be serving your time in protection.
x) Delay
48 You were arraigned on these charges on 25 October 2011 and remanded in custody. I heard the plea on your behalf on 23 January 2012. There have been a number of hearings since this date where the matter has been adjourned due to your state of health.
49 I take into account therefore that there has been a delay of over three and a half years since the commission of the offences. There are two aspects to these delays. Firstly, that you have had the strain of the matter hanging over your head; secondly, the period of delay has been useful insofar as any rehabilitation is concerned, even albeit that part of that was in remand. I accept that prior to going to remand you carried out good deeds in the parish.
xi) Parity
50 In sentencing you I have also take into account the principle of parity in the sentences handed out to your co-offenders.
51 Please stand up.
Sentence
52 For attempting to import a commercial quantity of a border controlled drug you are convicted and sentenced to a period of imprisonment of eleven years. On Charge 2 of attempting to possess a commercial quantity of a controlled drug you are convicted and sentenced to a period of imprisonment of seven years. I cumulate three years of the sentence on Count 2 on Count 1. Your head sentence therefore is a sentence of fourteen years. I fix a non-parole period of nine years and three months.
53 The sentence that I have just announced commenced today, being 17 August 2012, when you are released on parole for a Federal offence that parole will automatically be revoked in the event that you are subsequently sentenced to imprisonment for a term of more than three months during the concurrency of your parole. In that event you will be required to serve the part of the sentence which remains outstanding.
54 I declare that you have served 458 days' pre-detention, which period is to be taken from your sentence or taken into it to be declared on the record, I think I should say. But for your plea of guilty I would have sentenced you to 18 years to serve 14. In accordance with s.21E of the Act I declare that but for the undertaking of future cooperation you would have been sentenced to 16 years with a minimum of 12 years and six months.
55 Is there anything else I have to attend to?
56 COUNSEL: No, Your Honour.
57 HER HONOUR: Yes. The family - obviously if security would allow the family to say goodbye to Mr Manh and to give him a hug, whatever, before he leaves. All right, thank you.
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