Ly v The Queen

[2012] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0767

QUANG HA LY	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and CAVANOUGH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 January 2012
DATE OF JUDGMENT	29 February 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 24
JUDGMENT APPEALED FROM	R v Ly (Unreported, County Court of Victoria, Judge Wood, 13 August 2009)

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CRIMINAL LAW – Sentence – Appellant pleaded guilty to trafficking heroin (count 2) – Convicted at trial of trafficking large commercial quantity heroin (count 1) and dealing with proceeds of crime (count 3) – Total effective sentence 12 years with non-parole period of nine years – Crown concession that judge erred in sentencing appellant as ‘serious drug offender’ on count 1 – Accordingly no obligation to treat protection of community as principal purpose for sentence – Appeal allowed – Resentenced on counts 1 and 2 – Total effective sentence 10 years with non-parole period of seven years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Grace QC	Theo Magazis
For the Respondent	Mr B Sonnett	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1. The appellant, Quang Ha Ly, pleaded guilty in the County Court at Melbourne to one count of trafficking heroin (count 2), but not guilty to trafficking a large commercial quantity of that drug (count 1).  He also pleaded not guilty to one count of knowingly dealing with the proceeds of crime (count 3). 

1. Following a trial that lasted some six weeks, the appellant was convicted on both counts.  He was sentenced, in August 2009, as follows:

Count on Presentment	Offence	Maximum	Sentence	Cumulation
1 (Convicted by jury)	Trafficking in a large commercial quantity of a drug of dependence (diacetylmorphine)	Life imprisonment	12 years	Base
2  (Guilty Plea Entered)	Trafficking in a drug of dependence (diacetylmorphine)	15 years	4 years	None
3 (Convicted by jury)	Dealing with the proceeds of crime	15 years	4 years	None

1. That made a total effective sentence of 12 years’ imprisonment.  A non-parole period of nine years was fixed. 

1. Late last year, Nettle JA granted leave to appeal against sentence on two grounds, as follows:

1.The exercise of the sentencing discretion in relation to count 1 was vitiated by the Learned Sentencing Judge erring in classifying the [appellant] as a serious drug offender and thereby being bound by s 6D of the Sentencing Act 1991 that requires that in determining the length of the sentence the Court must regard the protection of the community as the principal purpose for which the sentence is imposed.

2.Each of the sentences imposed on the [appellant] was manifestly excessive in all of the circumstances of the offence and of the [appellant].

1. The Crown conceded before Nettle JA, and before this Court, that ground 1 was made out.  It also conceded that, accordingly, ground 2 was also made out.  Indeed, in its written submissions, the Crown went further and identified two additional errors in the sentencing judge’s remarks, that the appellant had not relied upon in his written case.  Those additional errors were, in summary:

1) A finding of no demonstrable remorse with respect to the counts which proceeded to trial (counts 1 and 3) influenced the sentencing judge’s assessment on count 2, to which the applicant pleaded guilty. No s 6AAA declaration was made in respect of count 2.

2)          The sentencing judge indicated that he was not confident as to the appellant’s prospects of rehabilitation.  That finding was made in the face of a body of material  that suggested that the appellant had some prospects of rehabilitation. 

1. In the light of the Crown’s concessions, the task for this Court now is to resentence the appellant.

The circumstances of the offending

1. The facts may be summarised briefly. 

1. The sentencing judge found that the appellant’s ‘crime involved the establishment and operation of a [trafficking] business … that was well organised and well planned’, pursuant to which others were employed as traffickers.[1]

   [1]R v Ly (Unreported, County Court of Victoria, Judge Wood, 13 August 2009) [26].

1. The trafficking the subject of count 1 took place over 53 days.  It consisted of more than 3,600 separate deals, and involved approximately 1,393.9 grams of heroin. 

1. Counts 2 and 3 stemmed from various items recovered in police raids at two properties, one being the appellant’s home and the other being a flat at Wellington Street, Collingwood. 

1. The bulk of the evidence against the appellant consisted of 3,735 intercepted telephone calls.  These calls were recorded pursuant to warrants issued in respect of two mobile telephone numbers during the period 23 January to 22 March 2006. 

1. Basically, various persons wishing to purchase heroin would telephone these numbers and place an order for that drug.  The caller would then be told where to go, within certain housing commission flats in Wellington Street, Collingwood, to collect the drugs.  The majority of the calls were in English though some were in Vietnamese.  The trafficking business operated seven days a week, essentially between 8 am and 11 pm. 

1. In the course of the police investigation, an undercover police officer purchased heroin on a number of occasions at the Collingwood flats.  Police also conducted surveillance upon the appellant throughout a good part of the relevant period. 

1. On 22 March 2006, police searched one of the Collingwood flats.  They located five mobile telephones.  One of the telephones had been the subject of various calls from a number that was being intercepted by police.  A notebook was found which recorded various transactions.  In addition, cash totalling just under $1,500 was located, as were 164 aluminium foil packages containing heroin.

1. On the same day, police searched the appellant’s home.  They found cash totalling $40,910 secreted in three separate locations within the house.  They also located approximately 82 grams of heroin (the subject of count 2).  A notepad that recorded various transactions was found, as was a mobile telephone that had been used to contact one of the intercepted telephone numbers. 

1. During the course of the plea, the Crown submitted that an appropriate range for the appellant’s offending was something of the order of 10 to 14 years, with a non-parole period of between eight and 12 years.  Counsel for the appellant responded that, in his submission, a total effective sentence of between seven and

nine years, and a non-parole period of between five and seven years, would be appropriate. 

1. As I have noted, the sentencing judge imposed a sentence of 12 years’ imprisonment on count 1, four years on count 2, and four years on count 3.  With orders for concurrency, the total effective sentence was 12 years‘ imprisonment, and a non-parole period of nine years was fixed. 

1. The heroin that was trafficked, pursuant to count 1, was sold in lots of between 0.2 grams and 1 gram.  The defence put forward at trial was that the voice recorded on the various telephone intercepts was not that of the appellant.  Nettle JA, in refusing leave to appeal against conviction, described the evidence in support of guilt as ‘clear and compelling’. 

1. Notwithstanding the Crown’s additional concessions regarding the judge’s finding that the appellant’s prospects for rehabilitation were problematic, Nettle JA was not persuaded of the substance of that point.  Nonetheless, his Honour left it to this Court to consider.  In the light of the concessions made regarding grounds 1 and 2, however, I need not say anything further about the Crown’s additional submissions. 

1. It is sufficient, for present purposes, to observe simply that the appellant was sentenced, in relation to count 1, as a serious drug offender when, in truth, he did not meet the requirements for that designation.[2]  Indeed, his status in that regard was not mentioned at any stage during the plea.

   [2]See Sentencing Act 1991 s 6B.

1. It seems that what occurred was that the judge relied upon the conviction which he himself was about to record, on count 2, as the basis for the finding that the appellant was a serious drug offender.  His Honour erred in that regard.[3] 

   [3]R v Arnantovic (2001) 121 A Crim R 412, 413-4 [4] (Brooking JA).

1. As a consequence of his Honour’s error, and his stated belief that he was bound by s 6D of the Sentencing Act 1991 to regard the protection of the community as the principal purpose for which the sentence on count 1 was to be imposed,[4] the sentencing discretion miscarried.[5] That is so although it is unclear just how much weight his Honour gave to s 6D in arriving at the sentence that he did.

   [4]R v Ly (Unreported, County Court of Victoria, Judge Wood, 13 August 2009) [34].

   [5]See Cardona v The Queen [2011] VSCA 58, [9] (Redlich JA with whom Nettle JA and Kyrou AJA agreed).

1. The quantity of heroin trafficked exceeded the one kilogram threshold for large commercial quantity but not, it must be said, by a great deal.  In support of ground 2, it was submitted that the offence in question should be viewed as being at the ‘lower end’ of the hierarchy of seriousness.  That submission had been put to the sentencing judge on the plea, and had been expressly accepted as correct by the Crown.  Thus, although the appellant’s offending fell within the highest category of drug trafficking, involving as it did a large commercial quantity, it was accepted to be at the lower end of that highest category. 

1. The next matter upon which the appellant relied below, and continued to rely before this Court, was the presence of what were described as powerful mitigating factors, personal to the appellant.  These included his strong family connections (he being one of 10 children, none of whom had ever been in trouble with the law); his disadvantaged background (he having lived as a child in various refugee camps); his good employment record (suggesting, so it was said, good prospects of rehabilitation); his family situation (he being married with two young children, both of whom were in poor health and for whom he could now no longer provide); and the fact that the family home was the subject of forfeiture proceedings. 

1. It was further submitted that, when one had regard to sentences imposed in what were said to be comparable cases, the sentence of 12 years on count 1 was manifestly excessive. 

1. In my view, the sentence on count 1 should be set aside and the appellant resentenced, on that count, to a term of 10 years’ imprisonment.  I would also reduce

the sentence on count 2 from four years’ imprisonment to one of three years’ imprisonment, having regard to the fact that the appellant pleaded guilty to that count.  I note that the sentencing judge made no mention of that fact in his sentencing remarks.  I would not disturb the sentence on count 3. 

1. The sentences on counts 2 and 3 should be made concurrent with each other and with the base sentence on count 1.  That makes a total effective sentence of 10 years’ imprisonment.  I would fix a non-parole period of seven years. 

1. Pursuant to s 6AAA of the Sentencing Act 1991, I should indicate that, but for the appellant’s plea of guilty, I would have imposed a sentence of four years’ imprisonment on count 2.

CAVANOUGH AJA:

1. I agree with Weinberg JA.

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