Luong v The State of Western Australia

[2012] WASCA 82

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   LUONG -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 82

CORAM:   McLURE P

MAZZA JA

HEARD:   9 MARCH 2012

DELIVERED          :   12 APRIL 2012

FILE NO/S:   CACR 178 of 2011

BETWEEN:   VAN MY LUONG

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SWEENEY DCJ

File No  :IND 1603 of 2010

Catchwords:

Criminal law - Leave to appeal against sentence - Whether sentencing judge gave adequate weight to plea of guilty - Whether any mitigation in late offer to cooperate - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 33(2)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr M T Trowell QC & Mr D C Vivian

Respondent:     No appearance

Solicitors:

Appellant:     Patti Chong Lawyer

Respondent:     Director of Public Prosecutions (WA)

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

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

MOD v The State of Western Australia [2011] WASCA 23

Moody v French [2008] WASCA 67

MXP v The State of Western Australia [2010] WASCA 215

1. McLure P:  This is an application for leave to appeal against sentence.

2. The appellant was charged on an indictment dated 8 April 2011 with 58 counts alleging various offences contrary to s 6(1)(a), s 6(1)(c) and s 33(2) of the Misuse of Drugs Act 1981 (WA). On 13 July 2011 the appellant pleaded guilty to eight of the counts, being counts 26, 27, 33, 51, 54, 55, 56 and 57. The appellant was sentenced by Sweeney DCJ on 21 October 2011 to an aggregate term of 8 years' imprisonment. He was made eligible for parole.

3. The detail of the sentencing is as follows:

Count	Offence	Sentence
26	Sold methylamphetamine	2 years 6 months' imprisonment, concurrent
27	Sold cocaine	2 years' imprisonment, concurrent
33	Sold cocaine	2 years 6 months' imprisonment, concurrent
51	Sold methylamphetamine	3 years' imprisonment, concurrent
54	Sold methylamphetamine	4 years' imprisonment, concurrent
55	Sold methylamphetamine	5 years' imprisonment,
56	Sold cocaine	2 years 6 months' imprisonment, concurrent
57	Possession of methylamphetamine with intent to sell or supply	3 years' imprisonment (cumulative on count 55)

1. The unchallenged findings made by the sentencing judge are as follows.  The offences the subject of counts 26 and 27 occurred on 14 May 2010.  The appellant sold to an undercover police officer 27.5 g of methylamphetamine, which was 63% pure, and 3.4 g of cocaine, which was 77% pure, for $18,000.

2. Count 33 occurred on 19 May 2010.  The appellant sold to the undercover police officer 27.6 g of cocaine, which was 76% pure, for $16,000.

3. Count 51 occurred on 15 June 2010.  The appellant sold to the undercover police officer 55.9 g of methylamphetamine, which was approximately 53% pure, for $32,000.

4. Counts 54, 55 and 56 took place on 18 June 2010.  The appellant sold to the undercover police officer 194 g of methylamphetamine, which was 12% pure, for $105,000; a further 167 g of methylamphetamine, which was 57% pure, for $90,000; and 37.6 g of cocaine, which was 79% pure, for $19,000.

5. On that same day police executed a search warrant at the appellant's house.  They located methylamphetamine weighing a total of 75.77 g (count 57), digital scales, other drug dealing paraphernalia and significant quantities of cash.

6. The sentencing judge dealt with claims of cooperation and the appellant's pleas of guilty as follows:

   I don't see any real mitigation in your offer to cooperate with police some six months after your arrest, just days before you were due to go to trial.  You were then trying to negotiate yourself a much better deal, and police were not interested.  Any such offers needed to be made earlier when you were in fact approached by the police and refused to cooperate.

   There are matters to be said in your favour.  You pleaded guilty.  Although that plea came late, it still saved a trial.  It indicates a willingness to facilitate the course of justice.  I do consider there is some acceptance of responsibility and some remorse.  I also accept that you feel ashamed.

   I also consider, however, your plea of guilty indicates an acceptance of sound legal advice to plead.  You will have been told ‑ and there is nothing wrong with your being told this ‑ that you would improve your position by getting the benefit of a discount for a plea of guilty.  Because of the involvement of the undercover officer, it must be said the case against you was overwhelming.

   You apparently had not received that advice to plead and negotiate before, which is a great shame because you could never have hoped to be acquitted on these charges.  So the plea of guilty, I find, was entered for a number of reasons, and it was late, but it still deserves meaningful credit (ts 107).

7. The grounds of appeal are in the following terms:

   (1)The learned sentencing judge erred in the exercise of her sentencing discretion by not correctly applying the principles relevant to the mitigatory affect of a plea of guilty made after negotiations with the DPP had resulted in charges being withdrawn.

   Particulars

   The learned sentencing judge failed to make a proper evaluation of the worth of the appellant's plea and the circumstances in which it was made and that reasonably speaking he had pleaded guilty at the earliest opportunity.

   (2)The learned sentencing judge erred in the exercise of her sentencing discretion not taking any account of the mitigatory effect of the appellant's offer of cooperation with the authorities.

Guilty plea

1. There is no arguable factual foundation for an assertion that the appellant pleaded guilty at the earliest reasonable opportunity.  As to which, see Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [20] ‑ [25]. The appellant had been in custody for the offences from 18 June 2010. He pleaded guilty to the eight counts shortly before his trial, which was scheduled for July 2011. As correctly conceded by his counsel, the appellant had no reasonable prospect of successfully defending the counts to which he pleaded guilty, having regard to the involvement of the undercover police officer who had recorded her dealings with the appellant. The appellant's counsel also conceded, correctly on any view, that the appellant's guilty pleas were made at a very late stage. The only explanation counsel offered for the delay was that the appellant had not been advised about the inevitability of the outcome on those counts to which he pleaded guilty until she was instructed (ts 68). There is nothing to suggest that the delay was attributable to negotiations with the DPP concerning the remaining counts.

2. Moreover, the mitigatory effect of a plea of guilty is not increased because the offender, who has first‑hand knowledge of matters going to his guilt, would or may have pleaded guilty earlier if he had understood that there was no reasonable prospect of successfully defending the charges.

3. The weight to be given to a plea of guilty is a matter within the discretion of the sentencing judge:  Moody v French [2008] WASCA 67. No arguable error has been demonstrated.

Cooperation

1. The relevant sentencing principles relating to cooperation with authorities are well understood.  See MXP v The State of Western Australia [2010] WASCA 2155; MOD v The State of Western Australia [2011] WASCA 23.

2. Over 12 months after committing counts 54 ‑ 57, the appellant offered to assist police 'with respect to his supplier'.  The prosecutor informed the appellant's solicitor that the police were not interested in any information he may have.  Notwithstanding the police disinterest, the appellant's solicitor advised the police of the name of a person said to be the appellant's supplier.

3. The prosecutor informed the sentencing judge that prior to the pleas being entered, the appellant's counsel was advised of the position of the investigating police officer which was as follows:

   As for assisting police, we have spoken to [the appellant] about this in the days after his arrest with him not willing to cooperate.  At this stage, with a likely term of imprisonment and after more than six months in remand, there really isn't much we can gain from him that we don't already know (ts 91).

4. There is no factual foundation for a conclusion that the appellant had (knowingly) provided material assistance to investigating authorities.  Further, having regard to the long delay, the obvious purpose of the late disclosure was to secure a sentencing advantage.  It was open to the sentencing judge to conclude that there was no real mitigation in the appellant's late offer to cooperate. 

Conclusion

1. Neither ground of appeal has reasonable prospects of succeeding.  Leave to appeal should be refused and the appeal dismissed.

2. MAZZA JA:  I agree with Mc Lure P.