Le v R

[2011] VSCA 42

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0951
CUONG THI LE	Applicant
v
THE QUEEN	Respondent
S APCR 2008 0956
HAO VAN NGUYEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO, HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 and 4 February 2011
DATE OF JUDGMENT:	24 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 42
JUDGMENT APPEALED FROM:	R v Le; R v Nguyen (Unreported, County Court of Victoria, Judge Chettle, 16 December 2008)

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CRIMINAL LAW – Conviction – Trafficking large commercial quantity of heroin over three month period – Combination of physical and circumstantial evidence capable of supporting inference that applicants sold heroin by the ounce and that particular telephone conversations were heroin transactions  – Judge correctly rejected no-case submission – Jury entitled to conclude that applicants’ joint venture trafficked at least one kilogram of heroin in relevant period – Verdicts not unsafe and unsatisfactory – Whether example used by judge when explaining consciousness of guilt led to risk that jury applied improper reasoning – Example inapt but directions on consciousness of guilt otherwise clear – Applications refused.  

CRIMINAL LAW – Sentencing – Applicants found guilty of trafficking large commercial quantity of heroin – Applicants sentenced to 12 years and six months’ imprisonment with non-parole period of 10 years (Le) and eight years’ imprisonment with non-parole period of four years and six months (Nguyen) – Differences in offenders’ roles, prior convictions and personal circumstances justified differing sentences – Findings of no genuine remorse open – No failure to give proper weight to mitigating factors – Sentences not manifestly excessive – Applications refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Le	Mr P F Tehan QC	Michael Gleeson & Associates
For the Applicant Nguyen	Mr T Danos	Sue Macgregor
For the Crown	Mr D Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

1. I agree with Hansen JA.

HARPER JA:

1. I also agree with Hansen JA.

HANSEN JA:

1. Following a trial in the County Court, Cuong Thi Le (‘Le’) and Hao Van Nguyen (‘Nguyen’) (collectively ‘the applicants’) were convicted on one joint count of trafficking a large commercial quantity of heroin,[1] which offence carries a maximum penalty of life imprisonment.  The offending occurred over a three month period in 2005 when Le was aged 47 and Nguyen was aged 78.[2]  The trial judge described Le as the principal of the operation, while Nguyen assisted Le in the preparation and distribution of the heroin.  Following pleas in mitigation, on 16 December 2008 Le was sentenced to 12 years and six months’ imprisonment with a non-parole period of 10 years, while Nguyen was sentenced to eight years imprisonment with a non-parole period of four years and six months.  The applicants seek leave to appeal against their convictions and sentences.

   [1]A large commercial quantity of heroin (when mixed with another substance) is defined as being not less than one kilogram.  A commercial quantity (mixed) is defined as being not less than 500 grams.

   [2]Le…