Le v The Queen - [2019] VSCA 80

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0114

THI BICH LE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, McLEISH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 April 2019
DATE OF JUDGMENT:	10 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 80
JUDGMENT APPEALED FROM:	R v Le (Unreported, County Court of Victoria, Judge Hampel, 17 May 2018)

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CRIMINAL LAW – Appeal – Sentence – Importation of commercial quantity of border controlled drug – 3.689 kilograms of pure heroin – Plea of guilty – Sentenced to 10 years’ imprisonment with non-parole period of 6 years and 6 months – Whether findings of fact adverse to applicant as to her level of involvement in importation open on evidence – Nguyen v R (2011) 31 VR 673 considered – Pham v The Queen [2012] VSCA 101 considered – Findings of fact open – Sentence moderate in any event – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr G Boas with Mr A Imrie	Giorgianni & Liang Lawyers
For the Crown	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

BEACH JA:
MCLEISH JA:
WEINBERG JA:

On 4 December 2017, the applicant pleaded guilty to having imported a commercial quantity of heroin. She was sentenced to a term of 10 years’ imprisonment, with a non-parole period of 6 years and 6 months. Her plea came late, having been entered after 12 days of pre-trial hearings.

The applicant now seeks to rely upon a single ground of appeal, albeit one which is expressed in elaborate terms:

The learned sentencing judge overstated the role, culpability and degree of involvement of the applicant in the offence by misapplying, or failing, to apply principle and/or making findings that were not open on the evidence.
Particulars
a.The finding that the applicant was ‘intimately involved in the importation of the heroin’ (Reasons for Sentence, paragraph 52) was not open on the evidence.
b.The finding that the applicant’s role was ‘not confined to facilitating a delivery address in Melbourne’ (Reasons for Sentence, paragraph 52) was not supported by the evidence and was the result of the sentencing judge failing to apply the principle that matters adverse to the applicant had to be established beyond reasonable doubt.
c.The finding that the applicant was ‘directly involved in the arranging of the importation’ (Reasons for Sentence, paragraph 54) in the sense of bringing the heroin into Australia (Reasons for Sentence, paragraph 53) was not open on the evidence.
d.The finding that the applicant was ‘in a continuing business relationship, and desirous of arranging further importations’ (Reasons for Sentence, paragraph 53) was not open on the evidence.
e.The finding that the applicant had a ‘significant role, and clearly at a high level in the importation’ (Reasons for Sentence, paragraph 55) was not open on the evidence and resulted from a misapplication of the principle that the sentencing judge should not have purported to place the applicant in a hierarchy where the evidence…

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: Thi Bich Le v The Queen [2019] VSCA 80
Case: [2019] VSCA 80
Decision Date: 10 April 2019

CaseChat Overview and Summary

Le was convicted of importing a commercial quantity of heroin into Australia and subsequently pleaded guilty. The case was heard by the Court of Appeal, where Le sought to challenge the sentence imposed by the trial judge. The primary legal issue before the court was whether the findings of fact made by the trial judge, which were adverse to Le, could be considered open based on the evidence presented. The court also considered whether the sentence imposed was moderate in light of the circumstances.

The court examined the principles set out in Nguyen v R (2011) 31 VR 673 and Pham v The Queen [2012] VSCA 101 to determine whether the trial judge's findings of fact were open. The court found that the findings were indeed open on the evidence, as there was sufficient evidence to support the trial judge's conclusions. Furthermore, the court considered the sentence imposed by the trial judge and determined that it was moderate in the context of the case. The appeal against sentence was subsequently dismissed, and leave to appeal was refused.

The court's reasoning was that the findings of fact made by the trial judge were open on the evidence, and the sentence imposed was appropriate in the circumstances. The court noted that the sentence was moderate, taking into account the gravity of the offence and the role played by Le in the importation of the drugs. Consequently, the appeal against sentence was dismissed, and leave to appeal was refused.

Orders