Le v The Queen; Le v The Queen
[2011] VSCA 391
•25 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0105
| UT VAN LE | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
| S APCR 2011 0106 | |
| BILL VAN LE v THE QUEEN | Appellant |
| Respondent |
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JUDGES: | ASHLEY and HARPER JJA and JUDD AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 October 2011 | |
DATE OF JUDGMENT: | 25 November 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 391 | |
JUDGMENT APPEALED FROM: | R v Ut Van Le and R v Bill Van Le (Unreported, County Court of Victoria, Judge Dean, 8 April 2011) | |
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CRIMINAL LAW – Sentence – One count of trafficking heroin – Appellants sentenced to six years’ imprisonment with non-parole period of four years – Whether principles of totality, proportionality and parity offended – Whether sentences outside range of sentences available in circumstance – Parole – Cancellation of parole – Pre-sentence detention – Appeal allowed – Appellants re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant Ut Van Le | Mr M J Croucher SC | Melasecca Kelly & Zayler |
| For the Appellant Bill Van Le | Mr T Kassimatis | Melasecca Kelly& Zayler |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
On 8 April 2011 a judge sentenced two brothers, Ut Van Le (‘UL’) and Bill Van Le (‘BL’) to six years’ imprisonment on a count of trafficking heroin in the period 10 May to 23 July 2010. He fixed, in each case, a non-parole period of four years. The offenders had pleaded guilty. The judge made a statement, pursuant to s 6AAA of the Sentencing Act 1991, that if they had been found guilty after trial he would have imposed in each case a sentence of seven years and six months’ imprisonment, with a non-parole period of five years and six months. The maximum penalty for the offence is 15 years’ imprisonment.
Grounds of appeal
Now, by leave, UL and BL appeal against sentence. Orally, their counsel argued these grounds:
UL
Ground 1:The learned sentencing judge erred by finding in the absence of any evidence, without the prosecution having alleged it, that the applicant accumulated a Ferrari during the charge period.
Ground 2:The learned sentencing judge erred in sentencing the appellant by offending the principles of totality, proportionality and parity by not at all moderating the sentence imposed having regard to the fact that the applicant had to be sentenced for re-offending whilst on parole.
Ground 5: The learned sentencing judge erred by sentencing the applicant to a term of imprisonment (both head sentence and non-parole period) that was wholly outside the range of sentencing available in the circumstances [accompanied by four particulars]
BL
Ground 1:The learned sentencing judge erred by finding in the absence of any evidence, without the prosecution having alleged it, that the applicant accumulated a Ferrari during the charge period.
Ground 4: The learned sentencing judge erred by sentencing the applicant to a term of imprisonment (both head sentence and non-parole period) that was wholly outside the range of sentencing available in the circumstances [accompanied by four particulars].
In my opinion, for the reasons which follow, the appeals should be allowed and the appellants re-sentenced.
Circumstances of offending
The sentencing judge summarised the offending as follows:
… It is the prosecution case, accepted by both of you, that during the period of the charge you both engaged in regular sales of heroin to both users of that substance and persons engaged in the further sale of it. You were acting in concert with one another in this enterprise, and whilst the evidence identified different roles played by you, it is accepted that you are both equally responsible for the commission of the offence.
The investigation into your offending involved the use of covert police operative, telephone intercepts and the physical surveillance of you. In relation to the evidence gathered by covert police operatives, on seven occasions between 10 May 2010 and 17 June 2010, you [UL] sold a total of 9.4 grams of heroin to a covert police operative for a total of $4580. All of these transactions took place in the vicinity of an apartment located at 604 Swanston Street, Carlton. Between the period of the charges, you both resided at an apartment located in a building in Whiteman Street, Southbank, and so it is probable that the apartment in Carlton was used by both of you to carry out your business of heroin trafficking.
Between 9 June 2010 and 23 July 2010, two mobile telephone services utilised by both of you were the subject of telephone intercept warrants. During that period, 4957 telephone calls were intercepted. The intercepted conversations revealed a busy trade in heroin being conducted by both of you.
Customers would contact one or other of you to purchase heroin and arrangements would be made for delivery and payment. This aspect of the business was also carried out at another apartment located in Heywood Lane, Melbourne. It is probable that this apartment was also used by both of you to carry out your business of heroin trafficking. In other words, your business was sufficiently organised and profitable to enable you to occupy inner city apartments to carry out your illegal activities.
Your business was well organised. On 21 June 2010, your customers were informed that heroin would be available for purchase at specific times, namely 10 am to 11 am, 2 pm to 3 pm and 6 pm to 7 pm, Monday to Saturday. Based on the evidence obtained from the telephone intercepts, you were both responsible for the trafficking of approximately 242 grams of heroin between 9 June 2010 and 16 July 2010.
Physical surveillance conducted by police investigators disclosed further acts of trafficking by both of you on 10 June 2010 and 18 June 2010.
The total quantity of heroin trafficked by both of you between the charge dates is approximately 251.4 grams.
On 23 July 2010, police executed a search warrant at your residential premises in Southbank. Located there was equipment used in heroin trafficking including a heroin press, coffee grinders and snap lock bags. Police also located $60,340 in cash. In the car park was a 2010 Toyota Corolla and a 2003 Ferrari Coupe valued at $200,000.
Prior offending
Each of the appellants had prior convictions.
In June 2008, they pleaded guilty to trafficking heroin between 16 June and 20 July 2004. Their role had been, essentially, to deliver heroin on behalf of a drug supply syndicate to two drug traffickers operating in Melbourne, and to receive payment for the syndicate. The total quantity of heroin trafficked, as alleged by the Crown and conceded by the offenders, was 277.7 grams at between 50 and 60 per cent purity.
In respect of this offending, the two men were arrested on 29 July 2004, and bailed on 10 August 2004.
In June 2008, also, the men pleaded guilty to counts of – (1) attempting to pervert the course of justice; (2) trafficking heroin; (3) possession of heroin; (4) handling stolen goods. The circumstances of that offending were as follows.
On 3 August 2006 police observed a single sale of heroin from a car driven by BL and in which UL was the passenger. The men were arrested, taken to a police station and placed in holding cells. UL offered a policeman money to let them go. He volunteered that he had a small quantity of heroin in his possession. The men were released. Later, BL handed over money to the policeman, who had alerted his superiors to what had transpired, and who was playing the part of a corrupt officer. BL was arrested. The next day, police executed a search warrant at the apartment where the men were living. Various stolen items were found.
The 2006 offences were committed whilst the appellants were on bail in respect of the 2004 offences.
The 2004 offences were committed by UL during the operational period of a suspended sentence imposed upon him in February 2004 in the Magistrates’ Court in respect of one charge of trafficking heroin and one charge of driving whilst his licence suspended.
UL also had been sentenced in the Magistrates’ Court in 2001 and 2002 for firearms offences and assault. Relatively small fines had been imposed.
In respect of the offences committed in 2004 and 2006, the appellants were sentenced in August 2008 to sentences which, with a measure of cumulation, yielded in each instance a total effective sentence of 28 months’ imprisonment, with a non-parole period of 12 months.
Parole; pre-sentence detention
UL and BL were released on parole on 7 August 2009.
The instant offences were committed whilst they were on parole. Section 16(3B) of the Sentencing Act 1991 thus applied.
In respect of the instant offences, the men were arrested and remanded in custody on 23 July 2010.
UL’s parole was cancelled on 11 August 2010. From then until sentence on 8 April 2011, he was serving the parole sentence. As at 8 April 2011, he had served about eight months of the 16 month parole sentence. There was very little pre-sentence detention (about 19 days) to set against sentence passed on 8 April.
BL’s parole was not cancelled before he was sentenced on 8 April 2011. In his case, there was pre-sentence detention between 23 July 2010 and 7 October 2010 when he was bailed, and again when he was remanded between 10 March and 8 April 2011 – in all, a total of 106 days.
BL’s parole was, however, cancelled on 4 May 2011. This meant that 16 months’ imprisonment was added to the head term imposed on 8 April 2011.
The fact that BL’s parole was cancelled after he had been sentenced was, in accordance with R v Alashkar; R v Tayar,[1] fresh evidence which the Court should receive. It established the true significance of the appellant’s breach of parole. It does not necessarily follow that his appeal should be allowed and a new sentence imposed. Later, I conclude that it should happen in the circumstances of this case.
[1](2007) 17 VR 65.
Relative consequences of cancellation of parole
As I have said, UL and BL were arrested on 23 July 2010. UL’s parole was cancelled on 11 August 2010; but BL’s parole was not cancelled until 4 May 2011.
The cancellation of parole meant that each man was liable to serve seven years and four months’ imprisonment; whilst the non-parole period of four years’ imprisonment was in each case the same.
But that is not the whole story. First, UL was undergoing the parole sentence between 11 August 2010 and 8 April 2011. The judge made a declaration of 49 days pre-sentence detention. It seems that this represented the periods between 23 July and 11 August 2010, and between 10 March and 8 April 2011. But, with respect, it appears to me that pre-sentence detention should only have been declared in respect of the period between 23 July and 11 August 2010. That is so despite his Honour having remanded both men in custody on 10 March 2011, the first day of the plea, and despite his Honour doing the same thing on 24 and 28 March. It was one thing to remand BL. But UL was serving the parole sentence until such time as the judge sentenced him for the instant offences.
Second, contrary to what he stated, the sentence which his Honour imposed did not commence on 10 December 2011 – that is, when the parole sentence was exhausted. By operation of s 15(1) and (2) of the Sentencing Act1991, the sentence which his Honour imposed began to be served immediately. It was not postponed for eight months. The eight months then ‘owing’ on the parole sentence was added to the head term fixed by his Honour.
In the event, UL’s last possible day for release is approximately six years and eight months after sentence – that is, in about 8 December 2017. The non-parole period of his sentence, four years, is subject to an allowance of about 19 days pre-sentence detention. Thus, UL’s earliest possible date of release is about 21 March 2015.
The effect of the cancellation of BL’s parole subsequent to sentence is that, allowing for 106 days pre-sentence detention, his last possible date for release is approximately 23 April 2018. Allowing for pre-sentence detention, his earliest possible release date is approximately 22 December 2014.
The vagaries of cancellation of parole thus mean, inter alia, that – (1) UL will serve a substantially longer period of continuous custody than BL before being eligible for parole; (2) UL has the certainty of having served at least part of the recalled parole sentence, whilst BL’s liability to serve any of the recalled parole period will depend upon the decision of the Parole Board; (3) there is a much larger gap between the non-parole period and the last possible date for release in the case of BL than UL.
In circumstances where it was common ground that the appellants had been equally culpable in respect of the present offence, and where the personal circumstances which might allow differentiation in sentence did not persuade either the judge in 2008, or the sentencing judge on this occasion, to pass any different sentence on the appellants, it is anomalous that there should be these differences in outcome.
But, even as the parole situation stood at time of sentence, there was a distinct difference in the practical effect of the sentences imposed. Allowing for pre-sentence detention, UL’s last possible date for release was about 8 December 2017, and his earliest date for release was about 21 March 2015; whilst BL’s last possible date for release was approximately 22 December 2016, and his earliest date for release was about 22 December 2014. Moreover, by the time of their earliest possible dates for release, UL would have served a considerably longer period of continuous custody than BL. I would say that such differentiations were impermissibly anomalous.
Personal circumstances
UL was born on 2 November 1983, and so was aged 27 at time of sentence. His formative years were characterised by deprivation and trauma. Having immigrated with his family from Vietnam, he completed schooling satisfactorily, and then found work. At time of sentence he was in a stable relationship. At age 20, UL became addicted to heroin. But he overcame his addiction. The judge found that his offending on this occasion was motivated by prospect of financial gain, and characterised the appellant’s moral culpability as ‘extremely high’.
In light of his past offending, his Honour further described UL’s prospects of rehabilitation as poor.
BL was born in Vietnam on 6 February 1980. So he was aged 31 at time of sentence.
Like UL, his formative years were marked by deprivation and trauma.
Again like UL, he completed schooling satisfactorily in Australia, and then found work.
BL began using heroin when aged about 24. His use of the drug was short-lived. He did not develop a dependency.
Evidence of a psychologist and a drug and alcohol rehabilitation specialist was adduced on BL’s behalf on the plea. The judge apparently accepted that BL suffered from an anxiety disorder resulting from his difficult childhood. But his Honour concluded that BL did not suffer from ‘any psychiatric disorder or any significant psychological disorder’.
The judge assessed BL’s prospects of rehabilitation as poor.
The judge did not accept that the appellant’s offending was motivated by a desire to pay his mother’s gambling debts, as had been submitted. Neither did he accept that the mother’s ill health was such that there should be amelioration of sentence to allow BL to care for her.
Why the appeals should be allowed
I consider that the appeals should be allowed because:
(1) The judge found that each of the appellants had accumulated, during the period of the offending ‘a 2003 Ferrari Coupe valued at $200,000’. The finding was apparently made in order to emphasise the gravity of the offending. But – (a) the judge found that during the charge period the appellants ‘heroin trafficking resulted in a benefit to you of $80,650’; and (b) the vehicle was registered in BL’s name, and it was he who was making repayments on it.
In the event, as a matter of arithmetic there was no basis for finding, as his Honour in substance did, that the appellants’ drug trafficking in the charge period permitted the accumulation of the Ferrari Coupe; and there was no basis for finding that the vehicle was acquired by UL. Moreover, not that it is decisive, $80,650 was the total amount estimated to have been received by the appellants from their trafficking. That is, it was the gross amount received from purchasers, not the net amount after deducting the cost of purchase.
(2) Although the appellants were repeat offenders, although they trafficked for profit, and although the judge was entitled to conclude, as he did, that their prospects for rehabilitation were poor, and that general and specific deterrence and protection of the community were particularly important sentencing considerations, the fact remains that on the evidence the scale of their trafficking was mid-range. They were not to be punished for what, it might have been conjectured, was the scale of their criminal conduct.
The judge referred, in his sentencing remarks, to – (a) evidence of a large number of telephone calls pertaining to trafficking having been intercepted in part of the charge period; (b) the ‘advertised’ availability of heroin for purchase between particular hours on particular days; (c) the ‘accumulation’ of the Ferrari; (d) a ‘2010 Toyota Corolla’ being found in the car park of the appellants’ apartment; and (e) $60,340 in cash being found in the apartment. It appears to me that, implicitly, he treated the ‘benefit’ of $80,650 as being the tip of the iceberg. Hence his reference to the accumulation of the Ferrari ‘and other assets’.
I consider, in the event, that his Honour overweighted the gravity of the instant offending; and that this found expression in the sentences which he imposed – sentences which were, by reference to the broad spread of sentences for trafficking simpliciter, very high. Even putting the consequences of the pre-sentence cancellation of parole (in UL’s case) and the post-sentence cancellation of parole (in BL’s case) to one side, I am inclined to think that the sentences passed were impermissibly too high. But any uncertainty is removed when the cancellation of parole is, in each instance, brought to account.
(3) BL’s parole having been cancelled, there are anomalies in the practical effect of the sentences passed on the two men. There were, indeed, anomalies in the sentences when passed, having regard to the then state of affairs respecting parole. But they can be put to one side. It is enough to say that, in circumstances where the overall culpability of the appellants was treated as being equal, the anomalies now revealed should, so far as possible, be eliminated.
(4) The judge was, as I have said, incorrect in stating that the sentence which he imposed on UL would not commence until 10 December 2011. It is not clear when his Honour understood the non-parole period would commence. Was it to be on date of sentence? If so, how was service of the non-parole period to precede commencement of the head term? This aspect of his Honour’s remarks, when considered with the sentences in fact imposed on the two men, suggests that something went wrong; as does the apparent error with respect to pre-sentence detention to which I have earlier referred.
Re-sentencing the appellants
By reason of the different dates of cancellation of parole, there is the certainty that UL has already served part of the parole sentence. Whether he will have to serve any more of it, and whether BL will have to serve any and what part of his parole sentence, is in each case a matter for executive action. The Court is prohibited from having regard to the possibility or likelihood of such action.
In consequence, it is not possible to achieve complete symmetry in re-sentencing the appellants. On the face of things, there will have to be disparate last possible dates for release.
It is, on the other hand, desirable that non-parole periods be fixed which take some account of the fact that UL served about eight months of the parole sentence before he was sentenced on 8 April 2011, and in consequence had only about 19 days pre-sentence detention, whereas BL had 106 days of pre-sentence detention (that is, the two periods on remand) at time of sentence. Another way of looking at it is that, in the period between 23 July 2010 and 8 April 2011, UL served about 240 days of the parole sentence, whilst BL was at liberty for 153 days. Thus it is that BL was not entitled to pre-sentence detention for those 153 days. But he was not in custody, and
his brother was.
In all the circumstances which I have described, I would re-sentence each appellant to four years and six months’ imprisonment. I would fix a non-parole period of three years and three months for BL, and – having regard to the circumstances described in [41] above - a slightly shorter non-parole period of three years for UL.
HARPER JA:
I agree with Ashley JA.
JUDD AJA:
I agree with Ashley JA.
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