Le v R
[2011] VSCA 42
•24 February 2011
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:
I agree with Hansen JA.
HARPER JA:
I also agree with Hansen JA.
HANSEN JA:
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 was aged 50 at the time of sentence and she is now 53. Nguyen was aged 81 at the time of sentence and he is now 83.
Overview of the trial
The applicants were tried jointly with three co-accused, My Cao, Thi Truong and Dieu Nguyen. These three, who were alleged to have purchased heroin from the applicants, were each presented on one count of trafficking heroin. Cao and Truong were convicted, while the jury was discharged without verdict in relation to
Dieu Nguyen. Finally, Nhung Ta, who also purchased heroin from the applicants, pleaded guilty to one count of trafficking heroin and was sentenced at the same time as the other offenders.
For present purposes, it is sufficient to set out the following description of the facts provided by the judge in his sentencing remarks:
5… During the period of January to June 2005 the Victorian Police were investigating the operation of a large scale heroin trafficking syndicate controlled by you, Cuong Le, in the western, northern and inner suburbs of Melbourne. A number of telephones were the subject of interception warrants. Numerous telephone calls, usually in Vietnamese, were intercepted, recorded and interpreted.
6These calls involved covert, guarded and coded language designed to conceal the fact that large quantities of heroin were being ordered and delivered as required. You, Cuong Le, as I said, were the principal of this operation and resided at the relevant time at 147 Donald Street, Brunswick East. You received and made many phone calls to trade in heroin. You utilised Van Nguyen to assist you in the preparation and distribution of heroin. A safe house was established in O'Shannassy Street, North Melbourne, where heroin was stored and prepared for sale.
7Typically someone would order heroin from you, Cuong Le, and you would request Van Nguyen to deliver the heroin. Van Nguyen would attend at the address in O'Shannassy Street, North Melbourne, obtain the rock heroin and deliver it. You, My Cao and Thi Truong, were customers who purchased heroin from Cuong Le and Van Nguyen. The Crown case was and the jury accepted that you, Cuong Le, were in the business of selling heroin in one ounce lots.
8It is clear from the analysis of the phone calls intercepted by the police that the heroin was being sold in a unit quantity. The prices discussed together with the heroin ultimately located when you, Cuong Le, and you, Van Nguyen, were arrested confirmed that your operation involved the sale of heroin in ounce lots. Further on 9 June 2005 you, Thi Truong, were arrested by police in possession of two one ounce blocks of heroin. You had ordered that heroin from Cuong Le who in turn instructed Van Nguyen to deliver it to you shortly before the police arrested you.
9On 30 June 2005 when the police executed a search warrant for the safe house in O'Shannassy Street, North Melbourne, a quantity of heroin was located. One plastic bag contained four separate plastic bags of heroin, each weighing one ounce. Another plastic bag contained nine separate plastic bags each containing heroin of approximately one ounce. It is clear that the 13 bags, each of one ounce, had been packaged ready for sale in ounce or multiple ounce quantities in accordance with the business plan that you, Cuong Le, adopted.
10Dealing with you first, Cuong Le, in relation to your role the evidence reveals that you trafficked heroin to a number of customers including My Cao and Thi Truong. Between early April and the end of June 2005 you trafficked in excess of two kilograms or 75 ounces of heroin. The heroin you sold was predominantly distributed by Van Nguyen. In excess of 40 ounces were trafficked on your behalf by Van Nguyen, ten of which were sold to My Cao and 14 approximately to Thi Truong.
11The telephone intercepts reveal you discussing in coded terms your heroin trading activities, particularly with another Vietnamese drug dealer, Huong Tran. Your son, Dung Le, was also involved. One, Ng Ta, was another customer who purchased heroin from you and subsequent to your trial Ng Ta pleaded guilty before me to one count of trafficking heroin. Apart from known customer [sic] one customer said to be Du Nguyen trafficked in a total of 20 ounces with you.
12During the period that the police conducted their operation into your activities your vehicle was seen by surveillance operatives attending at the safe house in O'Shannassy Street, North Melbourne when Van Nguyen was ultimately arrested by the police, you were observed to be searching for him, speaking on the telephone expressing concern as to where he might be.
13A covert surveillance camera was installed by police outside the O'Shannassy Street safe house and you were observed together with Van Nguyen coming and going from those premises. You were arrested on 30 June 2005 after Van Nguyen had been arrested the previous afternoon. The safe house at O'Shannassy Street was searched and the heroin I previously referred to discovered.
14In addition to the heroin there were presses, jacks and plates used to press heroin located at those premises. When police searched your home at 147 Donald Street, Brunswick East over $12,000 in cash, two $5000 Crown casino chips, multiple mobile phones, scales, pieces of paper with handwritten names and numbers were located. You were interviewed by the police in a record of interview and although you admitted residing at 147 Donald Street and owning the motor vehicles attributed to you you purported not to know the various telephone numbers associated with your phones and gave false explanations for your involvement with Van Nguyen's home address. You denied visiting the O'Shannassy Street safe house. Effectively you made no comment responses to the questions put to you.
…
28You [Nguyen] regularly visited the safe-house in O'Shannassy Street, North Melbourne, and the telephone intercept material reveals you delivering heroin in multiple ounces to Cuong Le's customers. You are observed on the covert surveillance camera at O'Shannassy Street to visit those premises and you were found by the police with a key to those premises when you were arrested on 29 June 2005. On that day police located in excess of $6000 in your apartment in Lygon Street, Carlton, and you were intercepted in your motor vehicle having just left the safe house in O'Shannassy Street. You had in your possession of [sic] one ounce block of heroin that you had taken from the safe house, together with a smaller quantity of heroin that you were going to sell in your own right.
29The evidence reveals that you conducted your own heroin trading business, albeit a small one when compared to that of Cuong Le, of providing heroin to a number of customers who telephoned you and ordered small quantities of heroin from you.
30It is clear on the evidence that you were closely connected to the O'Shannassy Street safe house where apart from the accoutrements of cutting and pressing heroin, over 13 ounces of heroin were located by the police when the premises were searched.
31When you were interviewed by the police you admitted owning two mobile phones but claimed that you had not been near the premises at O'Shannassy Street on 29 June 2005. In this respect you were telling lies. You claimed not to know what the items located in your pocket were when you were arrested, and falsely denied being involved with the delivery of heroin to Tui Thi Truong on 9 June 2005.
32You claimed that the key to the O'Shannassy Street, North Melbourne premises, belonged to premises you had at Carlton and essentially you denied any involvement in the trafficking of heroin.
The Crown case was that the applicants were involved in a joint venture to traffic heroin in an amount not less than a large commercial quantity, being at least one kilogram. Customers generally spoke to and placed an order with Le, who would then have Nguyen make the delivery. The applicants’ customers included the other co-accused, who in turn trafficked in smaller quantities. In order to establish that the applicants trafficked at least one kilogram of heroin during the period charged (28 March to 30 June 2005), the Crown relied on two main strands of evidence. First, there was physical evidence of heroin found at the safe-house, and on Nguyen and Truong respectively when they were arrested. As the heroin found was, with some minor exceptions, divided into one ounce blocks, the Crown invited the jury to infer that the applicants were ‘ounce dealers’, that is that they were selling heroin by the ounce. Further support for this inference was to be found in the telephone intercepts where reference was made generally to unit amounts. Secondly, the telephone intercepts were relied on to establish that, on particular occasions, deals occurred in the amounts of one, two, three or four ounces. Accumulating all such deals, the Crown invited the jury to infer that the applicants had, in furtherance of their joint venture, trafficked some 80 ounces of heroin. Further, the Crown relied on lies (mainly the applicants’ denial of having anything to do with the safe-house) as evidence of consciousness of guilt. Only Nguyen complains on appeal about this aspect of the case.
After the close of the Crown case,[3] Le’s counsel[4] made a no-case submission. Nguyen’s counsel[5] adopted the submission. In essence, while counsel conceded that there was evidence on which the jury could convict Le of trafficking heroin (and perhaps even in a commercial quantity), he submitted that it was not open to the jury to convict Le of trafficking a large commercial quantity. That was because the evidence of telephone conversations relied on was too uncertain for the jury to infer that heroin had been sold in ounce deals on specific occasions. Counsel referred to some 36 phone conversations set out in the Crown’s opening and submitted that, while it was open for the jury to infer that some expressions used therein (such as ‘do the shopping for me’ and a request for ‘two serves of beef noodles’) related to heroin transactions, the quantities allegedly deriving from the conversations were too uncertain. Why, he asked rhetorically, did ‘two serves of noodles’ have to mean two ounces? Counsel conceded that numerous ounce blocks of heroin had been found at the safe-house, and on customers who had purchased from the applicants, nevertheless smaller quantities (for example one of 5.7 grams) were also found at the safe-house, which left open the possibility that the applicants were not ounce dealers. It followed, he submitted, that there was no evidence on which the jury, properly instructed, could conclude beyond reasonable doubt that Le had trafficked at least one kilogram of heroin in the relevant period.
[3]None of the accused gave evidence or called evidence.
[4]Different from counsel on the appeal.
[5]Different from counsel on the appeal.
Counsel further submitted that the Crown cannot, as a matter of principle, prove a large commercial quantity by accumulating the weights of individual transactions where the amounts involved in those transactions were less than a commercial quantity. He referred to R v Giretti,[6] Meng Kok Te[7] and R v Lao and Nguyen.[8]
[6](1986) 24 A Crim R 112, 133.
[7](1997) 97 A Crim R 338.
[8](2002) 137 A Crim R 20.
The judge rejected the no case submission, stating:
Ultimately in my view it is a matter for the jury. There is clear evidence that transactions were taking place. There was a code that was used to disguise the nature of the calls and as a code it changed and it shifted. Whether the term that was used was “meal” or “video” or “disc” a jury could conclude that that was an order of heroin. The jury would be entitled to conclude that given the quantities of heroin actually located in the safe house and upon Mr Hao Nguyen, who operated on behalf of Cuong Le, were ounce lots, the transactions involving Tuoi Thi Truong when she was arrested on 9 June involved two ounces in ounce lots, it is open, as I said, to the jury to conclude that she was an ounce dealer; that is, that Cuong Le was an ounce dealer.
Whether they are so satisfied is a matter for them and they will need to be properly instructed that they could not convict the accused of the offence as charged of a large commercial quantity unless they were satisfied beyond reasonable doubt that in excess of a kilogram was intentionally trafficked in the period by Cuong Le. That will involve them being satisfied beyond reasonable doubt that the individual transactions relied upon by the Crown to come up with that total were in fact “deals” as alleged by the Crown. If they are not so satisfied they could not be satisfied beyond reasonable doubt of the quantity. It is all in my view a matter for them. Accordingly I reject the submission.
Counsel then gave closing addresses to the jury. Counsel for Le and counsel for Nguyen each reiterated to the jury the alleged uncertainty as to the quantities in question, and whether particular words referred to ounce heroin deals. Finally, it is to be noted that the Crown case left to the jury differed somewhat from the case presented in the opening, in the sense that in closing the Crown omitted reliance on some of the transactions identified in the opening.
I now deal with the applications for leave to appeal against conviction.
Le’s conviction appeal
Counsel relied only on grounds 1, 4 and 5, namely:
1.The learned trial judge erred in not upholding the no case submission of the applicant in relation to the charge of trafficking in a large commercial quantity.
4.The trial of the applicant miscarried in that the Crown were permitted to go to the jury on the basis that the applicant could be found guilty of trafficking in a large commercial quantity by the jury adding up several transactions and where the quantity in those transactions was uncertain.
5.The verdict is unsafe and unsatisfactory.
Counsel noted from the outset that he no longer relied on the first part of ground 4 which, in substance, complained that on the basis of R v Giretti,[9] it was impermissible to add up a series of quantities (each less than a commercial quantity) to conclude that a large commercial quantity was trafficked. Counsel correctly conceded that the recent decision in R v McCulloch[10] makes it clear that such a course is permissible. Relevantly, the Court in McCulloch stated:
… It makes no sense as a matter of statutory interpretation or in principle to conclude that an individual who has intentionally engaged in drug dealing to this extent is not to be regarded as trafficking in a commercial quantity simply by reason of the fact that the separate transactions undertaken were, either by design or by accident, below the designated amount for the particular drug. There is force in the Crown’s submission that, in the context of a single criminal enterprise, the ability to aggregate a number of separate transactions so as to support the offence of trafficking in a commercial quantity is consistent with the legislative policy underlying the relevant statutory provision to punish more severely those who engage in commercial drug trafficking. What is important is the nature of the business being conducted. It must involve the intentional trafficking, whether in single transactions or cumulatively, in amounts or an amount exceeding the designated quantity of the prohibited substances within the defined period. Accordingly, before a person can be convicted of trafficking in a commercial quantity on this basis, the individual must be found to have possessed the intention to traffic in at least the designated amount contemporaneously with his or her engagement in the conduct said to constitute the actus reus.
The above reasoning is equally applicable to a large commercial quantity. It follows that in the present case, the jury was entitled to accumulate weights relating to ‘ounce deals’ to conclude that the applicants had, in the relevant period of their joint criminal venture, trafficked not less than one kilogram of heroin.
[9](1986) 24 A Crim R 112, 133.
[10][2009] VSCA 34, [14].
Having made that concession, counsel then dealt with the three grounds of appeal together, essentially treating them as particulars of a single complaint, namely that it was not open to the jury to conclude (or the jury should have entertained a reasonable doubt) that Le had trafficked at least one kilogram of heroin, in circumstances where the details of the individual transactions relied on were too uncertain. Counsel developed the submission by reference to two particular aspects of the evidence, to which I refer below. To understand the submission, however, it is first necessary to state how counsel for the respondent sought to uphold the jury’s verdict.
Counsel began by noting that the police recovered a total of 456.7 grams of heroin, as follows:
(a)On 9 June 2005 police arrested Truong and found her in possession of a plastic bag enclosing two plastic bags, each containing a compressed white powder. The drug analysis showed a combined weight of 56.0 grams (2 ounces) of heroin with a purity of 25 percent.
(b)On 30 June 2005 police arrested Nguyen and found him in possession of a plastic bag and a foil, each containing a compressed white powder. The drug analysis showed a weight of 27.9 grams (1 ounce) of heroin in the bag, and 3.5 grams of heroin in the foil, both with a purity of 25 percent.
(c)On 30 June 2005 police raided the unit at O'Shannassy Street, North Melbourne and found the following items:
(i)a plastic bag enclosing two plastic bags each containing a further two plastic bags (thus a total of four bags), each containing a compressed white powder. The drug analysis showed a combined weight of 112.0 grams (4 ounces) of heroin with a purity of 35 percent.
(ii)a plastic bag containing a compressed white powder. The drug analysis showed a weight of 5.7 grams of heroin with a purity of 30 percent.
(iii)two plastic bags enclosing a total of nine plastic bags each containing a compressed white powder. The drug analysis showed a combined weight of 251.6 grams (9 ounces) of heroin with a purity of 25 percent.
Counsel noted that the heroin recovered was, with the exception of the 3.5 gram foil on Nguyen and the 5.7 gram bag at the safe-house, divided into one ounce bags. That evidence, he submitted, founded a strong inference that the applicants were dealing heroin by the ounce.
Further, Truong’s arrest followed a series of telephone calls on 9 June 2005 which, counsel submitted, provided the key to understanding the language used in the telephone intercepts and the nature of the applicants’ business.
The starting point was that at 10.29 am Le telephoned Truong. Truong asked ‘Do you want to let the old man go out?’ Le replied ‘Yes … if want to go, will go’. Truong said ‘Yes. Come down so that I can hand over money for the other to the old man to take home … go to the post office then. I pay money there.’
At 11.16 am Le telephoned Nguyen. Relevantly, Le said that ‘Ba Tu wants you to come to the post office to see her there, dad.’ Nguyen said ‘I’ll drive straight to the post office now.’
At 11.32 am Nguyen telephoned Le and asked ‘Lend her 100 or 200? Why didn’t you say it clearly?’ Le replied ‘200’. Nguyen said ‘Yes. For there are that 100 of the odd ones so I don’t know’. Le replied Yes. 200’. Nguyen said ‘200 right? Well you tell her to come and I’ll drive down there right away.’
At 12.28 pm Le telephoned Nguyen and asked ‘Have you met yet, dad?’ Nguyen replied ‘It’s been done’.
As the judge noted in his sentencing remarks, police surveillance showed that Truong met Nguyen outside the post office in Richmond and got into Nguyen’s car. When Truong got out of the car and was walking towards her flat, she was arrested and found to be in possession of two ounces of heroin.
Counsel submitted that the above calls demonstrated that Truong had placed an order for heroin with Le, then Le had telephoned Nguyen to arrange the delivery, then Nguyen had telephoned Le to confirm the order. The statement about lending 200 meant selling two ounces, which was supported by the fact that Truong was carrying precisely that amount of heroin when arrested.
Counsel also referred to other conversations in the telephone intercepts where references were made to the following:
- ‘borrowing 200’[11] (alleged to be two ounces)
[11]Jury Book 4-6.
- ‘300’[12] (alleged to be three ounces)
- ‘last time still owed 200’[13] (alleged to be two ounces)
- ‘the 10 one’[14] (alleged to be one ounce)
- ‘Heard My [Cao] said that you fined [sic] three hundred’[15] (alleged to be three ounces)
- ‘I’ll share 200, 300 to you … I have to get 200 for that guy tomorrow’[16] (alleged to be two ounces)
- ‘I borrowed the 400 from lass Nga. I gave other people 200 and the 200 left is yours’[17] (alleged to be four ounces)
- ‘Will you go shopping? … I want to borrow 200’[18] (alleged to be two ounces)
- Le said that she still had 200 left after giving 200 to a female child who asked to borrow 200 – she charged her ‘ten’ not ‘ten and a half’[19] (alleged to be two ounces)
[12]Jury Book 28.
[13]Jury Book 53.
[14]Jury Book 90.
[15]Jury Book 218.
[16]Jury Book 384.
[17]Jury Book 444.
[18]Jury Book 461.
[19]Jury Book 466.
Counsel submitted that the conversations in the telephone intercepts generally referred to ‘unitary type transactions’. That is, transactions were generally done by reference to figures such as 100, 200 or sometimes 300 or 400. If the jury accepted the Crown’s case that the applicants were dealing by the ounce, they could readily infer that these figures were references to one, two, three or four ounce deals respectively. If the jury so concluded, the ounce amounts alleged in the conversations above totalled 21 ounces, which is 595 grams. When added to the 456.7 grams of heroin recovered, a total of more than one kilogram was reached, which was sufficient to support the convictions for trafficking a large commercial quantity.
Counsel submitted that the evidence went further still. There were additional telephone conversations where, although the expressions 100, 200, 300 etc were not used, there were requests for discs, tapes, videos, abalone, meals, books and a series of other words which, when taken in the context of the applicants’ ounce dealing operation, the jury was entitled to infer referred to ounce deals of heroin. Adding up such references relied on by the Crown in closing address to the jury, it was open to the jury to find that a further 31 ounces[20] had been trafficked.
[20]878 grams.
Returning to Le’s submissions on appeal, counsel pointed to two particular aspects of the evidence as follows.
First, there was Detective Senior Constable Campbell, a drug investigator with experience in the Asian drug trade, who was called to give expert opinion evidence as to various aspects of the heroin market.[21] Relevantly, he said that in 2005 the market rate for heroin was between $7,000 and $11,500 per ounce, depending on the purity. Further, the market rate for a quarter ounce was $1,700 to $2,000 and the purity would range between 20 and 30 percent. In cross-examination Campbell confirmed that he had been asked to identify words commonly used as code words in the heroin trade. He had made a list of such words. He agreed that he also made a list of words that he was not prepared to say were commonly used to refer to drugs. Words in this latter category included ‘meal’, ‘shopping’, ‘bun bao xao’,[22] ‘hui’, ‘kids’, ‘tops’, ‘abalone’, ‘disc’ or ‘music disc’, ‘two sisters’, ‘tape of music’, ‘video’, and ‘books’.
[21]Campbell was not an investigating officer in the case.
[22]Fried beef noodles.
Secondly, there were the conversations from the telephone intercepts led as evidence of the quantity of heroin trafficked. For example, there was one conversation[23] in which Le reminded Nguyen that Truong ‘still owes me 300 from the last time’. This conversation was listed in the Crown’s written opening as a two ounce transaction. Ultimately, in closing address, the Crown did not rely on the transaction. Nevertheless, the Crown alleged generally that the number ‘300’ meant three ounces. If that was so, why had this call only ever been relied on to support a two ounce deal as opposed to three ounces? Counsel relied particularly on a conversation[24] in which Dieu Nguyen said to Le ‘You give me the abalone that I need, aunty, um … plus bring along another disc for me as well’. A little later, Le said ‘So will lend you another CD disc the movie um … Probably another thingy disc (sic). So two, okay’. Dieu Nguyen replied ‘Yes another disc. Yes okay’. Counsel submitted that there was no cogent reason why this request should be taken to mean two ounces of heroin. Such a conclusion was too remote and speculative, having regard to Campbell’s evidence that he could not say the terms used were code words for drugs. Further, having regard to the wide range of heroin prices stated in Campbell’s evidence, which depended in part on differences in purity, there was uncertainty as to whether references to particular numbers in the phone conversations were references to prices or ounces of heroin, or something altogether different. Thus, submitted counsel, the jury should not have been satisfied beyond reasonable doubt that statements such as ‘give me 200’ or ‘give me 300’ referred to requests for two or three ounces respectively. Thus, the Crown could not prove beyond reasonable doubt that Le trafficked in one ounce deals and that the total of such deals was not less than one kilogram.
[23]Jury Book 93.
[24]Jury Book 238.
Conclusion on Le’s conviction appeal
The approach of an appellate court when considering the unsafe and unsatisfactory ground is described in M v R.[25] See also R v Libke[26] and R v Klamo.[27] The appellate court’s task is to ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, bearing in mind that the jury had the primary responsibility of determining guilt or innocence.
[25](1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ).
[26](2007) 230 CLR 559, 596-7 [113].
[27](2008) 18 VR 644, 653-4 [38]-[40].
In the present case there was ample evidence that heroin trafficking was occurring over the telephone. That was conceded by Le’s counsel in closing address, and again by Le’s counsel on the appeal. The real issue at trial was the quantity trafficked. Having reviewed the evidence, in my view the Crown case against the applicants was a strong one. Given that nearly all the heroin recovered was in ounce lots, and was being prepared in the safe-house in such quantities, and given that Truong was arrested with two ounces shortly after Le had told Nguyen to ‘lend her 200’, there was a cogent basis on which the jury could be satisfied beyond reasonable doubt that the applicants were dealing heroin by the ounce. In this regard, the judge instructed the jury in clear terms that the Crown’s case depended on the relevant transactions being ounce deals, and the jury must have understood that they had to be satisfied of that matter beyond reasonable doubt. Further, notwithstanding the changing words and figures used in the telephone conversations, based on the evidence recounted above viewed as a whole, the jury was entitled to conclude that requests for 100, 200, 300, 400 etc were references to one, two, three and four ounces of heroin respectively. As to the requests for discs, abalone, meals etc, Campbell’s evidence does not assist the applicants. He merely said that in his experience, those words were not specifically used to refer to drugs. However, as counsel for the respondent pointed out, the issue was not whether those words were commonly used to refer to drugs but rather what those words meant in the context of the particular conversations in which they were used, viewed in the light of the evidence as a whole. In my view, the jury was entitled to infer that in the particular conversations relied on by the Crown in the document provided to the jury in closing address, requests for a disc, or a video, or a tape etc were orders for one ounce of heroin, and that requests for items when stated in the plural, for example ‘books’, ‘two kids’, and ‘two sisters’, were each requests for two ounces of heroin.
Finally, I reject counsel’s submission that the verdict might not have been unanimous on the basis that jurors may not have been unanimous as to specific transactions. As counsel for the respondent pointed out, there was no requirement of unanimity as to each alleged transaction. All that was required was that each juror be satisfied beyond reasonable doubt that the applicants had trafficked not less than one kilogram of heroin in the relevant period. Each juror may have had a different path of reasoning to that conclusion, accepting some transactions while rejecting others. But as the judge directed the jury, they could only accumulate the weight of heroin from any given transaction if satisfied beyond reasonable doubt that the transaction occurred and the quantity was as alleged by the Crown.
In my view the judge was plainly correct to reject the no case submission. In essence, he did so on the basis that there was evidence on which the jury was entitled to convict, and that the arguments put by Le’s counsel on the no-case submission (in effect seeking to raise doubt and uncertainty about the weight of heroin in numerous transactions) were matters for the jury to evaluate. Evidently the jury considered that the arguments of Le’s counsel did not raise a reasonable doubt in their minds. In substance, the submissions of counsel on the appeal were a rehashing of those same arguments. Having heard the arguments, I am satisfied that the jury was entitled to convict Le.
For these reasons I would refuse Le’s application for leave to appeal against conviction.
Le’s sentence appeal
It is convenient to refer to Le’s personal circumstances as described in the judge’s sentencing remarks:
15Turning to matters personal to you, you are now 50 years of age, being born on 2 February 1958. You have been in custody since your arrest on 30 June 2005. Your personal history and background are set out in Exhibit CL1, the report of psychologist, Dr Christopher Wong. You are now the mother of three adult children. You were born in Vietnam, your father and older brother were killed during the war and you were left to care for your elderly mother and retarded brother.
16You did not have access to education because of your impoverished lifestyle and you made money by collecting and selling recyclable material from the streets. Your mother died in 1973. You commenced work in selling fruit and vegetables in a local market. In 1981 you were able to board a small fishing boat and you left Vietnam arriving in an Indonesian refugee camp. Shortly after your departure from Vietnam your retarded brother that you had been caring for was killed in a motor car accident.
17You formed a relationship with a Vietnamese man whilst in the refugee camp and your first child was born. You came to Australia on refugee visa and worked as a factory hand in various clothing factories in the Richmond and Collingwood area. You became a competent industrial sewing machinist and elected to work from home so that you could care for your growing family. Your husband was apparently drug dependent and physically abusive.
18Over 20 years ago you separated from him and have raised your children alone since then. You claimed to be profoundly distressed after the separation and you commenced gambling at the casino to ease the depression. Materials tendered by Mr Saunders on your behalf, Exhibit CL3, demonstrate that you regularly attended the casino and gambled extensively. It is through the casino that you came in contact with the other accused and extended your drug trafficking empire.
19You claimed to Dr Wong that you lost your savings and borrowed further sums in an attempt to redeem your losses. However you continued the spiral of loss and debt. Your criminal conduct in dealing with heroin arose from your need to support your gambling habit and repay your gambling debts. I take your gambling habit into account in sentencing you by way of background and context. This is not one of those rare cases referred to by the Court of Appeal in this State where a gambling habit is mitigatory of your crime. Rather it gives the court some understanding as to how your heroin trafficking business developed.
20Insofar as your prior convictions are concerned your dishonesty offences in 1992 and 1997 are of little concern in relation to this sentence. However, your conviction for trafficking heroin on 30 July 1998 is of high significance. I was informed that that conviction involved you selling heroin to an undercover police operative in the Footscray area, and you claimed that this conduct was apparently motivated by your desire to obtain funds to gamble.
Ground 1 alleged that the judge erred in failing to give sufficient weight to the principle of parity. Counsel conceded that there were relevant differences between Le and Nguyen, particularly that the latter had no prior convictions and, at the time of sentence, was aged 81 years and in poor health. Nevertheless, he submitted that Le had a justifiable sense of grievance because her sentence was so great compared to the co-accused, particularly Nguyen.
I reject this submission. Le was sentenced on the basis that she was the principal in the operation. She had relevant prior convictions, including possession and trafficking of heroin, which resulted in wholly suspended sentences of imprisonment. Nguyen, on the other hand, while still a serious offender, was found by the judge to have lesser involvement than Le. Further, he had no prior convictions, and being aged 81 at the time of sentence, his sentence took account of health problems that would make prison more burdensome for him. Also, given Nguyen’s advanced age, there was a need to impose a sentence which was not crushing, in the sense that it gave him at least some prospect of future release. As to the other co-offenders, none were charged with or convicted of trafficking in a large commercial quantity, hence it is unhelpful to use their sentences as comparators. In all the circumstances the sentences imposed on Le and Nguyen reflected their differing levels of criminality and relevant personal circumstances.
Ground 2 alleged that the judge erred in failing to place sufficient weight upon the personal circumstances and background of Le. Counsel submitted that while the judge referred to Le’s personal circumstances and background, including Dr Wong’s report which mentioned her virtually non-existent education and inability to speak English, nevertheless the sentence was so great that it failed to properly reflect these matters. Further, the offending resulted from anxiety, depression and Le’s gambling addiction, as to which counsel referred to a table from Crown Southbank in exhibit CL3 which stated a ‘turnover’ figure of $25,760.
I reject this submission. It is apparent from the sentencing remarks that the judge had regard to Le’s personal circumstances and background when passing sentence. The judge noted and took into account Le’s gambling habit, and Dr Wong’s view that Le was anxious and depressed, but concluded that Le was suffering from no neurological impairment or psychiatric illness, hence the principles in Verdins did not apply. That finding was plainly open, as was the judge’s finding that the gambling provided some explanation for, but did not mitigate, the offending.
Ground 3 alleged that the judge erred in failing to place sufficient weight upon the fact that Le had not contested committal proceedings and had offered to plead guilty to trafficking in a commercial quantity at an early stage. Counsel referred to Le’s offer to plead to a commercial quantity at a committal mention in August 2006 before any drug analysis results had been received, and Le’s written offer to plead to a commercial quantity in March 2007. He submitted that these plea offers were relevant in that they (a) facilitated the course of justice by confining the issues between the parties, and (b) bore on rehabilitation prospects as demonstrating that Le recognised her moral responsibility for the offending and a showed a degree of remorse.
I reject this submission. Section 5(2C) of the Sentencing Act 1991 provides that a sentencing court may have regard to the conduct of the offender in connection with the trial as an indication of remorse or lack thereof. However, in the present case I do not accept that Le’s conduct in connection with the trial indicated any remorse. The offers to plead were really no more than seeking a chance to avoid the real possibility of conviction for the more serious charge. Even then, the effect of her counsel’s opening address to the jury was to put the Crown to its proof on each element of the offence. And while counsel conceded in closing address that it was open to the jury to convict Le of trafficking (even in a commercial quantity), the concession was made at the end of the trial, and did not confine the issues in any real sense.[28] As counsel for the respondent said, the Crown still had to call all relevant witnesses and the only utilitarian benefit of Le’s offer to plead was that the Crown did not need to call DNA evidence linking her to the safe-house. I note also that given that the applicant Nguyen ran a fully contested committal, Le’s decision not to contest the committal did not shorten that process to any real extent. As to the question of remorse, I agree with the judge that there was some recognition by Le of the situation she found herself in, in particular the strength of the Crown case against her, but it does not follow that she thereby accepted moral responsibility or demonstrated remorse. In my view, the judge was entitled to regard Le’s statement of ‘regret’ to Dr Wong with suspicion, and to conclude that there was no evidence of genuine remorse.
[28]Bugeja v R; Johnson v R [2010] VSCA 321, [37]-[39].
Ground 4 alleged that the judge erred in failing to allow for a greater period of parole, that is, in failing to order a greater disparity between the head term and the non parole period. In this case, the non parole period was 80% of the head sentence. Counsel submitted that such a high proportion called for scrutiny, as trial counsel had sought a longer period on parole, and the judge did not give reasons for such a high non-parole period. Referring to the March 2008 Sentencing Snapshot, counsel submitted that in the circumstances an appropriate non-parole period was no more than eight years.
In R v Demarco[29], the Court stated:
… the fixing of a non-parole period depends upon all of the circumstances of the case. It is very much a matter of discretion. There is no rule, or no ‘usual’ rule, that two-thirds/one-third should be the proportion between the non-parole period and the parole period.
[29][1999] VSCA 69, [36].
Nevertheless, there are many decisions of this Court[30] indicating that, in the absence of reasons, ‘unusually’ long non-parole periods may invite appellate scrutiny. In this context, non-parole periods in excess of 75% of the head sentence have often been regarded as unusual. However, as pointed out on many occasions, there is no fixed ratio and the appropriate non-parole period will depend on all the circumstances of the case, in particular the offender’s prospects of rehabilitation.
[30]See for example R v Bertrand (2008) 20 VR 222, 248 [158]; R v Detenamo [2007] VSCA 160; DPP v Taylor [2005] VSCA 222, [22].
In the present case, the judge did not specifically explain how he arrived at a non-parole period of ten years. However, it is clear that he regarded Le as having shown no genuine remorse, and from there it may be inferred that he regarded her prospects of rehabilitation as poor. Further, she had relevant prior convictions, had recruited others into her trafficking network, and there was to be no moderation of the sentence on account of Verdins or a pathological gambling addiction. There was also a strong need for specific and general deterrence, to be reflected in both the head sentence and the non-parole period. In light of all the circumstances, the judge was entitled to impose a non-parole period representing 80% of the head sentence.
Ground 5 alleged that the head sentence and non parole period were manifestly excessive. Counsel referred to numerous cases as comparators in an attempt to persuade the Court that the sentence was outside the range. It is neither necessary or useful to cite all the cases relied on, as each case turned on its own facts, but I note that counsel relied particularly on Nguyen v R[31] which he submitted was a similar case to the present. In Nguyen the offender, who trafficked 2.765 kilograms of heroin (in ounce deals) over a three month period, was sentenced to nine years with a non-parole period of six and a half years. On appeal, he was re-sentenced to seven years and six months with a non-parole period of four years and eight months. As counsel for the respondent forcefully pointed out, however, Nguyen was not a valid comparator.First, the Crown conceded that the sentencing judge erred by failing to consider Tsiaris, thus necessitating re-sentencing. Indeed, the Court stated that had it not been for that error, it would not have interfered with the head sentence of nine years.[32] Secondly, the offender pleaded guilty. Thirdly, the offender had reasonable rehabilitation prospects which, when combined with factors relating to his mental health, led to the imposition of a lower then usual non-parole period. In short, Nguyen and the other comparators relied on by counsel were of no real assistance, and the present case must be evaluated on its own facts.
[31][2010] VSCA 180.
[32]Ibid, [17].
In my view, the judge plainly had regard to Le’s personal circumstances and all relevant mitigating factors. As against this, the offending was sophisticated and well organised, and in the light of Le’s relevant prior convictions and lack of genuine remorse, the judge was well entitled to regard general deterrence as the principal sentencing consideration. The present offending was very serious, reflected by the applicable maximum penalty of life imprisonment. The head sentence and non-parole period were both open in all the circumstances.
For these reasons I would refuse Le’s application for leave to appeal against sentence.
Nguyen’s conviction appeal
Nguyen advanced five grounds of appeal. Grounds 3, 4 and 5 were identical to the three grounds pressed by Le, and as to which Nguyen’s counsel adopted Le’s counsel’s submissions. He added only that most of the parties to the heroin trafficking were women, and that they often had lengthy telephone conversations about ‘shopping’ and other ‘everyday matters’. That was an additional reason why the jury’s verdict was unsafe and unsatisfactory. There is no substance in this submission. For the reasons given above in relation to Le, Nguyen’s grounds 3, 4 and 5 are not made out.
Nguyen’s two remaining grounds were:
1.The learned trial judge erred in his directions to the jury on ‘lies and/or consciousness of guilt’. In particular
(i)His Honour’s illustration failed to adequately identify the ‘type’ of lie that the jury might use in the circumstances of this case.
(ii)His Honour failed to direct that ‘lies’ told by the applicant may amount to no more than consciousness of guilt to trafficking simpliciter, as distinct from some form of commercial trafficking.
2.The applicant did not receive a fair trial and as a consequence there has been a miscarriage of justice, due to the failure of the trial judge to adequately or appropriately direct the jury on how they (the jury) should not be influenced or use the concession that the co-accused, Cuong Thi Le’s counsel made, namely, that she (Cuong Le) was ‘dealing in heroin’.
As to ground 1(i), the ‘illustration’ referred to was an example given by the judge of a lie told in consciousness of guilt. Shortly after commencing his directions to the jury on that aspect of the case, the judge posed an example of a boy called John who steals a comic book from a newsstand on his way home from school, and when his mother sees him reading the new comic in the lounge-room and says ‘John, you’ve got a new comic’, John responds by saying ‘I didn’t steal it’. The judge said that from John’s conduct:
… you could draw an inference that he is conscious of the fact that he did steal it. He has not made an admission, he has made a complete denial. He has told a lie but it is the circumstances of the lie that enabled the jury to conclude he was conscious of his own guilt in stealing the comic.
Counsel for Nguyen submitted that the example was inapt as the reasoning was circular and likely to mislead the jury. He submitted that the statement ‘I didn’t steal the comic’ could only be used in the way suggested by the judge if the jury first found that the statement was a lie. But the jury could only find that the statement was a lie if they first concluded that John did steal the comic. Thus, use of the lie depended on presupposing guilt. Counsel submitted that in the present case, the judge’s example gave rise to a risk that the jury would reason that if Nguyen told relevant lies, it automatically followed that he was guilty. By reasoning directly to guilt, the risk was that the jury disregarded the intermediate steps required when using lies as consciousness of guilt.
I agree that the example was inapt. It was effectively a boot-straps argument. However, when viewed in the context of the charge as a whole, there was no risk that the example would have led the jury to reason improperly. Immediately after giving the example, the judge gave the jury extensive directions as to how the Crown sought to rely on alleged lies by Le, Nguyen (and the other co-accused) as evidencing consciousness of guilt. In essence, the alleged lies of Nguyen were (a) his claim to police that he did not know Le, had not been in contact with her, and had not attended at the safe-house the previous day, and (b) his claim to police that a key found on him was for an old lock he had replaced, where the evidence showed that the key actually opened the door of the safe-house. That is to say, the lies were not direct denials of committing the crime (as in the stolen comic example) but rather lies told to distance himself from a person and location central to the crime. In those circumstances, the impermissible reasoning process inherent in the judge’s example could not be readily transferred to the actual case before the jury. In that sense, the example was unhelpful as the jury would have appreciated. Counsel for the respondent submitted that if the jury did adopt the example, in the sense that they thought they could only use Nguyen’s lies if they were a direct denial of the crime (as opposed to lies distancing himself from Le and the safe-house), there was no relevant denial which the jury could have used against Nguyen, thus any erroneous reasoning engendered by the example could not have harmed Nguyen’s defence. That may be so, but in my view the point does not arise because the judge’s clear directions as to how the alleged lies could be used eliminated any confusion that might otherwise have been caused by the stolen comic example.
In short, the judge instructed the jury that they could only use the alleged lies if satisfied that the accused told deliberate lies relating to some significant circumstance or event connected with the crime and the only reasonable explanation for telling such lies was because he or she believed he or she had committed the crime and would be implicated in the crime if he or she told the truth. Further, the judge warned the jury that finding that an accused lied because he believed that the truth would implicate him in a crime ‘is not the same as finding that an accused is guilty of committing the crime’, and ‘does not mean that you must necessarily find them to be guilty of that crime’ (emphasis added). The judge explained that:
It may be, for example, that he or she is mistaken about having committed the crime or the extent of the crime, and in this case I will come to Cuong Le in a moment, but the Crown say Cuong Le told some lies in the records of interview and I will identify them, and the Crown say they go to consciousness of guilt. Consciousness of guilt of what? Consciousness of guilt of heroin trafficking simpliciter? Consciousness of guilt of heroin trafficking on a commercial level or consciousness of guilt of trafficking in a large commercial level? It may well be that it would be simply impossible for you to be satisfied that it went to a particular level of trafficking as distinct from being involved in trafficking. (emphasis added)
The directions, read as a whole, made it clear to the jury that they were not entitled to reason that Nguyen’s lies, if established, led automatically to the conclusion that he was guilty of trafficking a large commercial quantity of heroin. Importantly, no exception was taken to the charge and counsel on the appeal made no complaint about any misdirection, save for the stolen comic example. Ground 1(i) is not made out.
As to ground 1(ii), counsel for Nguyen did not rely on this ground in his submissions. In effect the ground was abandoned. That was the proper course to adopt because, notwithstanding the reference to Le in the above passage, it is clear that the judge’s direction about the use of lies in relation to particular levels of trafficking was applicable to both Le and Nguyen, and the jury would have understood it as such.
As to ground 2, counsel submitted that the judge erred by not specifically instructing the jury that Le’s counsel’s admission (that Le was trafficking heroin) was not admissible against Nguyen in circumstances where Le and Nguyen were jointly charged on the same count. There is no substance in this ground. The judge instructed the jury that although Le and Nguyen were jointly charged, they must consider the case against each accused separately. The judge told the jury, in substance, that if they were satisfied that there was an agreement between Le and Nguyen to deal heroin, then words and actions of both parties (but only words and actions in furtherance of and within the scope of such agreement) were cross-admissible. He explained that their records of interview were not cross-admissible. A little later, the judge instructed the jury that Le’s counsel’s concession that Le was dealing in heroin was:
… only relevant in the case against her. It is not a relevant admission – he [Le’s counsel] is not making any admissions on behalf of the other accused and you need to be satisfied beyond reasonable doubt from the evidence as I have outlined it of that fact separately and independently of any admission that might have been made. That does not count in the case of the others.
Further, when directing on the law as to conducting a business of trafficking, the judge said:
So far as Cuong Le is concerned, that is not disputed; it is the extent of that business and trade that is disputed. As far as everyone else is concerned it is disputed that they were involved in the business or trade on a continuous basis, as I have defined it, of dealing heroin.
No exception was taken to these directions, nor could it have been as they were plainly correct. The jury would have understood that Le’s admission of trafficking heroin was not to be used against Nguyen. Ground 2 is not made out.
For these reasons I would refuse Nguyen’s application for leave to appeal against conviction.
Nguyen’s sentence appeal
Nguyen was aged 78 at the time of offending, 81 at the time of sentence, and is now aged 83. The judge described his personal circumstances as follows:
33Your personal history and psychiatric evaluation are set out in the report of Dr Lester Walton, Exhibit HVN1 tendered upon your plea. I have great difficulty with Dr Walton's report. It commences: "It would seem to be clear from the materials that Mr Nguyen was regarded as one of the lesser players in relation to the trafficking operations." If that be Dr Walton's opinion from the material he has clearly not read them properly. You were an integral and important part of Cuong Le's trafficking operations. You have been convicted of trafficking in a large commercial quantity of heroin, and the evidence reveals you to be persistently and continually assisting with the distribution of heroin to persons throughout Melbourne. In addition to assisting Cuong Le you trafficked heroin in you own right. It is simply wrong to describe you as a lesser player.
34You were born in Vietnam in 1927 and you left Vietnam in 1978. Prior to leaving Vietnam you were a fisherman and had little formal education. You appear to have lived a subsistence existence in Vietnam. You were married with children before you left there, and you did so by stealing a boat, arriving in Darwin in 1978 at the age of 51 years. You had been in Melbourne for some 10 years, working as a process worker for three years with the Ford motor company.
35It is clear on the materials that you on occasions visit the Crown Casino, and you informed Dr Walton that you gamble to offset feelings of personal depression and that you met Cuong Le at the casino.
36You suffer from a number of medical conditions including elevated blood pressure and a peptic ulcer. You have been hospitalised in the past with severe pneumonia. You suffer from asthma and use a Ventolin inhaler. Since being in custody you have experienced attacks of asthma. Dr Walton describes you as being depressed and you are currently taking antidepressants.
37Clearly your failure to speak English will make your time in prison more onerous for you. It is probably significant that the prison food presents you with difficulties and this fact is unlikely to be helped by your advancing years. Dr Walton is of the view that your depression and gambling explained why you became involved in dealing with heroin.
38Given that you have no prior convictions of any sort, and have reached the advanced age of 81 years, in my view Dr Walton's conclusions have merit. Your counsel, Ms Garner, submitted that you suffered from a psychiatric or psychological illness of the type referred to in R v. Verdins [2007] 16 V.R. 269 and R v Tsiaras [1996] 1 V.R. 398, and that as such your condition moderates the need for general deterrence. I am unable to accept this submission.
39Whilst I do accept that you are now depressed and anxious, and further, that the material does indicate that from time to time you would frequent the casino, the evidence does not reveal the existence of any psychological or psychiatric condition connected with your offending in any way.
40Having heard the telephone intercepts and observed you throughout the trial it is clear to me that you saw absolutely nothing wrong at all with dealing in heroin and you were motivated to traffic heroin for financial gain.
41I take into account in your favour your age. To have reached the age of 78 years without prior conviction, and now 81 years, is a matter to your credit. The absence of relevant prior convictions and apparent prior good character are factors I take into account in reducing the sentence I am about to impose on you.
42I also take into account your medical condition, the medications you take, in arriving at an appropriate sentence for you. As I said, general deterrence must be the paramount sentencing consideration for offences of this kind. Those minded to traffic in large commercial quantities of heroin must understand that significant terms of imprisonment await them. The fact that you are now 81 years of age, of course, cannot be overlooked as a relevant sentencing consideration. The authorities, however, make it clear that your age cannot be allowed to be justification for the imposition of an unacceptably inappropriate sentence. However, I do not overlook the fact that the sentence I am about to impose represents a substantial portion of your current life expectancy. I accept that the gaol sentence I will impose on you will be onerous or more onerous for you because of your age.
43I have had regard to the decision of DDP v Che Kien [2000] V.S.C. 376. There, at paragraph 16, His Honour Cummins J deals with the principles applicable in sentencing an 82 year old accused. I propose to give recognition to those principles by imposing a significantly shorter sentence than I would otherwise impose to give effect to your advanced years and poor health. In your case, I propose not only to reduce the head sentence that I would otherwise impose, but significantly reduce the minimum term to reflect these factors.
Nguyen advanced four grounds of appeal:
1.The learned sentencing judge erred in failing to take into account or sufficiently take into account the report of Dr Walton.
2.The learned sentencing judge erred in dismissing Dr Walton’s report on the basis that Dr Walton described the applicant as a ‘lesser player’ in this enterprise.
3.In indicating the learned sentencing judge had ‘great difficulty with Dr Walton’s report’ his Honour fell into ‘procedural unfairness’ in that he did not indicate any such difficulty at the time the report was tendered on the plea.
4.The sentence is manifestly excessive.
It is convenient to begin with ground 3. The assertion contained therein is patently wrong. The judge’s ‘great difficulty’ with Dr Walton’s report related to the statement that Nguyen was regarded as ‘one of the lesser players’. As the judge correctly stated in his sentencing remarks, the statement was incorrect as Nguyen was an integral and important part of Le's business and had been convicted of trafficking in a large commercial quantity of heroin. Far from denying Nguyen procedural fairness, the judge raised the difficulty with counsel immediately following the tender of Dr Walton’s report, saying that he regarded it as ‘incredible that Dr Walton suddenly was able to say that your client was a minor player’. Counsel replied ‘that’s perhaps not something your Honour would agree with and so I would ask you to disregard his comments’. That was an entirely appropriate course adopted by trial counsel, recognising as she did the reality that Dr Walton’s opinion as to the level of Nguyen’s involvement was erroneous and, in any event, irrelevant as it was a matter for the judge.
Notwithstanding these events, in his oral submissions counsel on the appeal pressed ground 3 to the fullest extent imaginable. In doing so, he made no reference to the concession that the judge should disregard Dr Walton’s comments. It was only after counsel for the respondent pointed out the concession that Nguyen’s counsel sought to deal with the matter. He submitted that trial counsel should not have made the concession, and for that reason he had sought to agitate the point. He ultimately conceded that he should have drawn this Court’s attention to the concession from the outset. Then, several days after the hearing counsel provided a written note to the Court stating that while he believed that the concession should not have been made on the plea, he now sought leave to ‘withdraw his submissions’ and abandon ground 3. He stated that there was no intention to mislead the Court and ‘if that was the impression created by my submissions I would apologize to the Court’.
Whether intentional or not, counsel’s submission was misleading. Frankness and commonsense required that counsel draw to this Court’s attention at the outset the fact that the judge identified the ‘difficulty’ in Dr Walton’s report and mentioned it to trial counsel, and that trial counsel asked the judge to disregard the offending comments, which he duly did. If these circumstances had been highlighted, it would have been clear that the judge did not deny Nguyen procedural fairness. In my view, ground 3 was hopeless and counsel, acting reasonably, should not have argued it in the way that he did, if at all.
I now turn to grounds 1 and 2, which are variations on the same theme. In my view, the judge did not dismiss Dr Walton’s report because it contained an erroneous statement as to Nguyen being a ‘lesser player’. Rather, the judge criticised Dr Walton for seriously underestimating the extent of Nguyen’s involvement in the heroin business, while still accepting that Dr Walton’s conclusions had merit.
Counsel submitted, in essence, that the judge gave the report insufficient weight, evidenced by his rejection of the Verdins submission. Counsel submitted that there was no proper basis to reject Dr Walton’s conclusions about Nguyen’s gambling and depression, and that the judge’s listening to the telephone intercepts and observation of Nguyen during the trial was no proper basis for concluding that he offended for financial gain rather than as a result of his gambling and depression. He submitted that, on the evidence, the judge was bound to find that the offending was caused by Nguyen’s need for money to gamble in order to alleviate his
depression.
I reject this submission. It was one thing for the judge to accept, as he evidently did, Dr Walton’s view that Nguyen’s depression and gambling explained why he became involved in dealing heroin. But it did not follow that the judge was bound to conclude that Nguyen’s depression and gambling amounted to impaired mental functioning which caused the offending and thus attracted the principles in R v Verdins.[33] On the contrary, the judge was entitled to conclude that no relevant causal connection had been established.
[33](2007) 16 VR 269.
As to ground 4, the judge’s sentencing remarks reveal that he was well aware of the difficulty of the sentencing task before him. It is apparent that he took into account the many mitigating factors, and specifically reduced both the head sentence and the non-parole period on account of Nguyen’s advanced age and poor health. In my view, far from being manifestly excessive, the sentence imposed was merciful, and advisedly so.
For these reasons I would refuse Nguyen’s application for leave to appeal against sentence.
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