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Le v The Queen

Le v The Queen

Case [2004] WASCA 214 24 September 2004

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LE -v- THE QUEEN [2004] WASCA 214

CORAM: MALCOLM CJ
MURRAY J
ROBERTS-SMITH J

HEARD: 1 JULY 2004

DELIVERED : 24 SEPTEMBER 2004

FILE NO/S: CCA 117 of 2003

BETWEEN: THANH TRUC LE
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :JENKINS DCJ
File Number            :  IND 1052/2003

Catchwords:

Criminal law - Sentencing - Four counts of selling methylamphetamine and heroin - One count of offering to sell heroin - Aggregate sentence of 9 years 3 months imprisonment - Whether manifestly excessive - Applicant a drug addict dealing to support own habit - Dealing with undercover police officer - Whether sentences should have been concurrent - Mitigatory effect of fact applicant dealing with undercover police officer

Legislation:

Misuse of Drugs Act, 1981 (WA), s 6(1)(c), s 34

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr B Fiannaca

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Cameron v R (2002) 209 CLR 339
Herbert v R [2003] WASCA 61; (2003) 27 WAR 330
Jackson v R, unreported; CCA SCt of WA; Library No 8752; 8 March 1991
Jarvis v R (1998) 20 WAR 201
Johnson v R (2002) 26 WAR 336
Kezkiropoulos v R [2002] WASCA 352
Korculanic v R, unreported; CCA SCt of WA; Library No 980437; 16 July 1998
Koushappis v R [2001] WASCA 18
Leonard v R, unreported; CCA SCt of WA; Library No 990152; 29 March 1999
Little v R [2001] WASCA 87
Lowndes v R (1999) 195 CLR 665
McLachlan v R [1999] WASCA 255
Miles v R (1997) 17 WAR 518
Mill v R (1988) 166 CLR 59
Pearce v R (1998) 194 CLR 610
Pieri v R [2001] WASCA 357
Postiglione v R (1997) 189 CLR 295
Quach v R [1999] WASCA 210
R v Bellissimo (1996) 84 A Crim R 465
R v Chick (2000) 114 A Crim R 417
R v Gurka (2001) 120 A Crim R 407
R v Heferen (1999) 106 A Crim R 89
R v Mickelberg (1984) 13 A Crim R 365
R v Reppucci (1994) 74 A Crim R 353
R v Rossi (1988) 142 LSJS 451
R v Vuckov (1986) 40 SASR 498
R v Wale (2001) 126 A Crim R 370
R v White [2002] WASCA 112
Sinagra‑Brisca v R [2004] WASCA 68
Tsagaris v R, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Vogel v R [2002] WASCA 261

Case(s) also cited:

Ridgeway v R (1995) 184 CLR 19
R v Sloane (1990) 49 A Crim R 270
R v Taouk (1992) 65 A Crim R 387

MALCOLM CJ: This is an application for leave to appeal against sentence. The applicant was unrepresented and conducted his own case in which he relied upon written submissions. In this context, counsel for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Le v The Queen

Details

AGLC: Le v The Queen [2004] WASCA 214
Case: [2004] WASCA 214
Decision Date: 24 SEPTEMBER 2004

CaseChat Overview and Summary

The applicant in this case, Le, was convicted on four counts of selling methylamphetamine and heroin and one count of offering to sell heroin. The court was tasked with determining the appropriate sentence for these offences. The sentencing judge imposed an aggregate sentence of 9 years and 3 months imprisonment. The applicant appealed, arguing that the sentence was manifestly excessive. He contended that his actions were driven by his addiction to drugs and that he was dealing to support his own habit. Additionally, it was argued that the sentences should have been concurrent rather than cumulative and that the fact the applicant was dealing with an undercover police officer should have had a mitigatory effect on the sentence.

The court examined whether the sentence imposed was manifestly excessive and whether the sentences should have been concurrent. The court noted that while the applicant's addiction was a mitigating factor, it was not sufficient to warrant a significantly reduced sentence. The court also considered the need to deter drug trafficking and the seriousness of the offences committed. In assessing whether the sentences should have been concurrent, the court found that the offences were separate and distinct and that concurrent sentences would not adequately reflect the seriousness of the crimes. The court also considered the effect of dealing with an undercover police officer but found that it did not warrant a significant reduction in sentence.

In conclusion, the court found that the sentence imposed was not manifestly excessive and that the sentences should remain cumulative. The court held that the applicant's addiction was a mitigating factor but did not outweigh the need for deterrence and punishment. The appeal was dismissed, and the original sentence was upheld. The court did not order any specific changes to the sentence, leaving the original sentence in place.

Orders