R v Bui, Pham & Wise
[2003] VSCA 125
•1 September 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
Nos. 190 of 2002
192 of 2002
202 of 2002
| THE QUEEN |
| v. |
| VAN HIEN BUI |
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JUDGES: | ORMISTON and CHARLES, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 March 2003 | |
DATE OF JUDGMENT: | 1 September 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 125 | |
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CRIMINAL LAW – Sentencing – Appeal – Trafficking in drug of dependence (heroin) – Three accused – Different roles – Parity – Grounds of manifest excess – Appeals dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant Bui | Mr S.A. Shirrefs, S.C. | Andrianakis & Assoc. |
| For the Appellant Pham | Mr O.P. Holdenson, Q.C. | Andrianakis & Assoc. |
| For the Appellant Wise | Mr G.J. Thomas | Victoria Legal Aid |
ORMISTON, J.A.:
Having read the judgment about to be given by Cummins, A.J.A., I agree with the conclusions he has reached and with the reasons he has given for those conclusions.
CHARLES, J.A.:
Having read the reasons for judgment prepared by Cummins, A.J.A., I agree that each of these appeals should be dismissed, for the reasons given by his Honour.
CUMMINS, A.J.A.:
These are three appeals from sentences imposed upon the appellants by His Honour Judge Nixon in the County Court sitting at Geelong on 6 August 2002. The offences were substantially of trafficking in a drug of dependence (heroin). The appellant Pham was also charged with possessing a drug of dependence (heroin) and the appellant Wise was also charged with handling stolen goods. The appellants pleaded guilty to all counts preferred against them in the County Court. The appellants Pham and Bui were suppliers of heroin to the appellant Wise. He was a major trafficker of heroin to users in the Geelong area. The total effective sentences of imprisonment imposed by His Honour were upon Bui, 3 years nine months' imprisonment, with a non-parole period of 2 years six months; upon Pham, 4 years nine months' imprisonment, with a non-parole period of 3 years six months; and upon Wise, 5 years' imprisonment, with a non-parole period of 4 years. The maximum sentence for trafficking in a drug of dependence, being an offence contrary to s 71 Drugs, Poisons and Controlled Substances Act 1981 is 15 years' imprisonment. The maximum penalty for handling stolen goods, being an offence contrary to s 88 Crimes Act 1958 is also 15 years' imprisonment. The maximum penalty for possessing a drug of dependence, being an offence contrary to s 73 Drugs, Poisons and Controlled Substances Act 1981 is 5 years' imprisonment.
The grounds of appeal are as follows.
For the appellant Bui, the initial ground was of manifest excess. Four months later, by leave four further grounds were added: insufficient disparity between his sentence and that of Pham; insufficient weight being accorded to the plea of guilty; insufficient weight being accorded to cooperation, remorse, antecedents and prospects of rehabilitation; and failure to fix a non-parole period that made sufficient allowance for the appellant's antecedents, personal circumstances and prospects of rehabilitation.
For the appellant Pham, the initial ground was that the sentence was excessive. Six months later, by leave four further grounds were added: failure to give any or any adequate consideration to the appellant's remorse and cooperation with the authorities; failure to reflect the moral dilemma (sic) faced by the appellant and the absence of greed as a motivating factor; failure to give any or any adequate consideration to the family, emotional and linguistic difficulties which would render the serving of the sentence more onerous than normal; and the fixing of a non-parole period which made no proper allowance for the appellant's antecedents, circumstances and prospects of rehabilitation.
For the appellant Wise, the initial grounds of appeal were that the sentence was manifestly excessive and that the non-parole period was too long. Six months later, by leave one further ground was added, namely that the sentence did not reflect appropriate parity with the co-offenders.
On 8 November 2002 each of the applicants was given leave to appeal pursuant to s 582 Crimes Act 1958 by this Court.
The curial history of the matters below was as follows. On 11 June 2002 in the County Court sitting at Geelong the appellants Bui and Wise and another accused, Kay Louise Staaleson, pleaded guilty to certain counts on the one presentment. Wise pleaded guilty to trafficking in a drug of dependence (heroin) between 24 January 2001 and 2 October 2001 (Count 1) and to two counts of handling stolen goods (Counts 4 and 5). Bui pleaded guilty to trafficking in a drug of dependence (heroin) between 3 March 2001 and 23 May 2001 (Count 2) and to so trafficking on 1 October 2001 (Count 6) and on 2 October 2001 (Count 7). Staaleson pleaded guilty to one count of trafficking in a drug of dependence (heroin) between 28 April 2001 and 6 May 2001 (Count 3). Pleas were heard on their behalves and the matters adjourned to 27 June 2002. On that day the appellant Pham pleaded guilty on a separate presentment, filed that day, to trafficking in a drug of dependence (heroin) between 3 March 2001 and 23 May 2001 (Count 1), to so trafficking on 30 September 2001 (Count 2), 1 October 2001 (Count 3) and 2 October 2001 (Count 4), and to possessing a drug of dependence (heroin) on 2 October 2001 (Count 5). A plea was heard on the appellant Pham's behalf. On 6 August 2002 the three appellants, and Ms Staaleson, were sentenced by His Honour.
The sentences imposed were as follows. The appellant Wise was sentenced on Count 1 to 5 years' imprisonment and on each of Counts 4 and 5 to six months' imprisonment, making a total effective sentence of 5 years' imprisonment. His Honour directed that Wise serve a minimum term of 4 years' imprisonment before becoming eligible for parole. The appellant Bui was sentenced on Count 2 (on the joint presentment) to 3 years' imprisonment, on Count 6 to 15 months' imprisonment and on Count 7 to 18 months' imprisonment. His Honour ordered that 9 months of the sentence on Count 7 be served cumulatively upon the sentence imposed on Count 2, making a total effective sentence of 3 years and 9 months' imprisonment. His Honour directed that the appellant Bui serve a minimum term of 2 years and 6 months' imprisonment before becoming eligible for parole. The appellant Pham was sentenced on Count 1 (on the separate presentment, filed on 27 June 2002) to 3 years and 9 months' imprisonment, on Count 2 to 18 months' imprisonment, on Count 3 to 18 months' imprisonment, on Count 4 to 2 years' imprisonment, and on Count 5 to 9 months' imprisonment. His Honour ordered that 12 months of the sentence imposed on Count 4 be served cumulatively upon the sentence imposed on Count 1, making a total effective sentence of 4 years and 9 months' imprisonment. His Honour directed that the appellant Pham serve a minimum term of three years and six months' imprisonment before becoming eligible for parole. Appropriate orders as to provision of forensic samples and declarations as to pre-sentence detention were made in respect of each appellant. The co-accused Staaleson was sentenced on Count 3 (on the joint presentment) to 2½ years' imprisonment. His Honour directed that she serve a minimum term of 18 months' imprisonment before becoming eligible for parole. No application for leave to appeal has been made by her. Ms Staaleson was the domestic partner of Wise and the trafficking by her was for one week while Wise was in hospital. They both were heroin addicts. Neither of their suppliers, Bui and Pham, was an addict or even a user of heroin.
The relevant evidence of the offences was as follows.
In December 2000, the Geelong Tactical Response Unit of Victoria Police commenced an investigation into substantial heroin trafficking in the Geelong area. The investigation was codenamed Operation Manacle. The appellant Wise was the principal target of the Operation. He was 40 years of age and himself a heroin addict. Over a period of some eight months, evidence was obtained by means of lawful covert electronic listening devices and by surveillance. Wise operated continually by trafficking heroin to end users in the Geelong area. The appellants Pham and Bui were Wise's principal, but not sole, suppliers of heroin. Between 3 March and 23 May 2001 Wise regularly attended Laverton, Altona and Footscray, where he would meet Bui or Pham or both of them. Bui and Pham regularly supplied Wise with five or six grams of heroin. Between 3 March and 6 May 2001 the National Crime Authority operated under warrant a telephone intercept on two mobile telephones of Bui. In that period Wise telephoned Bui and Pham on 56 occasions. The depositions included 384 pages of telephone intercept transcripts, including conversations between Wise, Bui and Pham as to trafficking. Physical surveillance also revealed meetings between the three. Bui was in Vietnam between 17 March and 7 April 2001. From 28 April to 6 May 2001 Wise was an in-patient at the Geelong Hospital. The trafficking continued during these periods; in the former, Pham operated the Melbourne end; in the latter, Ms Staaleson operated the Geelong end.
Surveillance was also conducted of the Geelong operation. In August and September 2001 numerous persons were observed to come to and from Wise's home at Wallington near Geelong. These visits were by car. A lawful listening device, installed at Wise's home between 19 September and 2 October 2001, recorded 65 conversations between Wise and persons attending the premises to obtain heroin. On 20 September Wise received from his regular visitor Kerry Abrahams a quantity of fresh meat he knew to be stolen and provided Abrahams with a cap of heroin for the meat (Count 4). On 21 September 2001 he received from Ms Abrahams a wallet he knew to be stolen (Count 5). Between 28 September and 2 October 2001 a lawful listening device was installed in a Torana, reg. no. LMP 068, registered in the name of Michael Pratt. (Pratt was a sometime driver for Wise. Pratt pleaded guilty in the Magistrates' Court to one count of trafficking in heroin over a 3 week period, and was sentenced to 18 months' imprisonment with a non-parole period of 12 months' imprisonment). In the period 28 September to 2 October 2001 a number of conversations in the Torana between Wise and end users were thus recorded.
On 1 October 2001 a number of heroin-related conversations were recorded between Wise and Bui. A meeting at Footscray was arranged. Pratt drove Wise in the Torana to the meeting place where they met Bui and Pham. Wise entered Bui's car in which Pham was also present and purchased heroin for cash. When Wise returned to the Torana he commented that Bui was upset that Wise had not paid all that was owed and that he obtained heroin that night (Bui, Count 6; Pham Count 3). In later police interviews Pham acknowledged that $1600 worth of heroin was provided to Wise on that occasion. An identical transaction had occurred the night before, 30 September 2001 (Pham, Count 2; no plea by Bui). On 2 October 2001 Pratt again drove Wise to Footscray where Wise met Bui and Pham. Again Wise entered Bui's car in which Pham was also present and Wise paid $2400 for 6 grams of heroin. This transaction occurred under police surveillance. Police then intercepted Wise, Pratt, Bui and Pham. The $2400 was found in Pham's handbag and the 6 grams of heroin in Wise's trousers (Bui, Count 7; Pham, Count 4).
In police interview, Wise exercised his right not to answer questions. He was charged with the offences.
In police interview, Bui admitted his presence in the car but said he was not delivering heroin. He said he saw Pham delivering a rock and that he believed it was heroin. He said he knew they were meeting Wise and that he had met Wise more than 10 times before. He said that his girlfriend Pham had a son who used drugs and that she also had gambling debts, which was how she became involved in drug trafficking. He said that he had received no proceeds from any heroin trafficking and that he had tried to discourage her from such trafficking. He denied numerous matters put to him from police surveillance and from listening devices. He was charged with the offences. At the plea it was agreed by the prosecution and counsel for Bui that as to Count 2 (trafficking between 3 March and 23 May 2001) Bui admitted trafficking in heroin on approximately 30 individual occasions (additionally to 1 and 2 October 2001), that Bui asserted that that trafficking was on behalf of Pham, and that the prosecution did not accept that assertion but was not in a position to lead evidence to the contrary.
Following her arrest Pham was taken by police to her residence in South Kingsville, where a search warrant was executed. Two rocks of heroin were found in a plastic container which had been secreted in the vent of a portable air conditioner. On analysis the rock heroin weighed 3.5 grams and 4.96 grams respectively and was approximately ten percent pure (Count 5, Pham). A set of electric scales was found secreted in a telephone book which had the pages removed. The scales were in Pham's bedroom. In later police interview Pham admitted that she used the scales to weigh heroin which she sold. She admitted engaging in heroin trafficking. She stated that the discovered heroin did not belong to her and that she was working for others on commission. She said that Bui was only a driver and translator for her. She said that she had only trafficked recently, three or four times. She said she trafficked because of her gambling debts and in order to purchase a plane ticket for her son to return to Vietnam in an endeavour to escape his own addiction – heroin. Pham was charged with the offences.
At the time of the offences, the appellant Wise was 40 years of age, having been born on 20 March 1960 and was 42 years of age at the time of sentence. He admitted 124 previous convictions from 18 court appearances from 1986 to 1998 and a further 11 charges in 1980 and 1986 where offences were found proved but no conviction recorded. The convictions were all in the Magistrates' Court and were for dishonesty, drug offences and related matters. Sentences imposed included adjourned bonds, community based orders (including treatment orders), fines, suspended sentences and terms of imprisonment. He had not previously had the opportunity of parole.
At the time of the offences, the appellant Bui was 53 yeas of age, having been born on 21 June 1948, and 54 years of age at the date of sentence. He had no prior convictions.
At the time of the offences, the appellant Pham was 44 years of age, having been born on 6 June 1957, and was 45 years of age at the date of sentence. She admitted seven previous convictions from four court appearances from 1995 to 1998. All convictions were for dishonesty offences and were in the Magistrates' Court. None involved custodial disposition.
Pleas on behalf of each appellant, and the co-accused Ms Staaleson, were made before the learned sentencing judge. For the appellant Wise, one witness, his mother Mrs L. M. Wise was called in evidence and one exhibit, a certificate of attendance at custodial drug education classes was tendered. For the appellant Bui, a psychologist, Mr Jeffrey Cummins, was called and a report of Mr Cummins of 24 May 2002 and a medical report of Correctional Health Services of 7 June 2002 were tendered. For the appellant Pham, a report of a psychologist, Mr I. Joblin of 23 June 2002 and certificates of custodial courses were tendered.
In considered and comprehensive reasons for sentence, His Honour discriminated between the roles, personalities, antecedents and prospects of each of the appellants. Of the appellant Wise, His Honour said that he was a long-term heroin addict with a history of disobedience of the law. His Honour treated the addiction as "a mitigatory factor of some weight". He noted the "extensive, repetitive and business nature" of the trafficking and its temporal duration. Whilst acknowledging that the trafficking was to adults, His Honour correctly characterised the "attendant misery, degradation and human devastation" caused by heroin. He acknowledged the seriousness of drug trafficking and the difficulty of its detection. He stated that "whilst the prosecution case was very strong indeed", nonetheless the appellant Wise was entitled to a discount on sentence for his early plea as it has facilitated the administration of justice. His Honour reviewed the appellant's personal history and concluded that rehabilitation was not "a lost cause". His Honour correctly reviewed relevant sentencing principle.
Of the appellant Bui, His Honour noted that Bui was not a heroin user and that he apparently became involved in trafficking because he was infatuated with the appellant Pham. His Honour accepted that Bui gained neither enrichment nor financial advantage from the trafficking and found that while Bui was "exhorting Miss Pham to give up or get out of the business of dealing in drugs you were quite prepared to assist her in this evil trade until she was able to make a decision to stop trafficking". His Honour stated that Bui's involvement in heroin trafficking was "totally inexcusable and I do accept that your role Mr Bui on the evidence was that of an assistant to Miss Pham, who played the dominant role". His Honour stated that the prosecution case against the appellant Bui was "formidable" but that he was entitled to a discount on the sentence to be imposed as the early plea has facilitated the administration of justice. His Honour reviewed Bui's personal history, including that he held an economics degree in Vietnam and a senior economics post there before fleeing with his family, ultimately coming with his wife and three children to Australia as humanitarian refugees. In Australia he separated from his wife and commenced a relationship with the appellant Pham. His Honour reviewed the evidence of Mr Cummins including that Bui was dislocated psychologically, significantly depressed, and genuinely remorseful. His Honour noted Bui's lack of prior convictions and his age and found that Bui's prospects of rehabilitation were "reasonable". His Honour correctly reviewed relevant sentencing principle, including that of totality.
Of the appellant Pham, His Honour noted that she was not a heroin user. He accepted that there was no evidence to suggest her enrichment from trafficking. His Honour stated that it was submitted that Pham engaged in drug trafficking because of her gambling debts and financially to assist her son who was addicted to heroin. His Honour found that Pham's involvement in heroin trafficking was "totally inexcusable" and stated: "You were prepared to traffick and did traffick in this evil and destabilising drug, with knowledge of the problems which heroin causes". His Honour stated that the prosecution case against Pham was "formidable" but that she was entitled to a discount on the sentence to be imposed as the early plea had facilitated the administration of justice. His Honour reviewed Pham's personal history, including her difficult early life and particularly a period of seven years in refugee camps after leaving Vietnam and before arriving in Australia. The appellant Pham is the mother of 5 children two of whom are in Vietnam and a third resides with her estranged husband. Her son Ha, who resided intermittently with her, was aged 17 and was a heroin addict. His Honour reviewed Pham's involvement in gambling at the Casino and the financial losses incurred thereby. However His Honour in reviewing the report of Mr Joblin observed that there was no evidence of pathological gambling disorder. His Honour acknowledged that time in custody would be an especial burden on the appellant Pham because of emotional isolation and accepted that her court experience in this case had been a significant deterrent for her. He reviewed her efforts in custody, stated that she appeared "motivated to change direction", and that her prospects for rehabilitation were "positive". His Honour correctly reviewed relevant sentencing principle, including that of totality.
Before us, submissions on behalf of the appellants were made as follows.
On behalf of the appellant Bui, no argument was advanced in support of the ground of manifest excess. In view of the modest sentence imposed, such reluctane is understandable.
The three matters argued on behalf of the appellant Bui were insufficient disparity of sentence with that of the appellant Pham, inadequate discount for remorse, and excessively high non-parole period. As to disparity, senior counsel submitted that the limited degree of difference between the sentences imposed upon Bui and upon Pham reflected inadequate allowance for the different roles each played in the offences. Bui was but the assistant to Pham and himself gained no financial advantage. He also had no convictions, unlike Pham. However His Honour did differentiate in sentence between the two. Given Bui's age and education His Honour was entitled to regard his participation as serious and reprehensible. Bui's infatuation with Pham was no excuse for his conduct. Pham's limited prior convictions were of little consequence and were not for drug offences. I consider the difference in sentence between Pham and Bui was justified and certainly not inadequate given Bui's age, education and life experience. As to remorse, it was submitted on Bui's behalf that His Honour had made inadequate allowance in sentence for Bui's remorse, essentially in that the discount given was merely utilitarian and did not include a quantum for actual remorse, evidence of which was contained in the evidence of the psychologist Mr Cummins. As to that, His Honour in sentencing gave careful consideration to the evidence of Mr Cummins. It cannot be thought that His Honour overlooked the evidence of remorse given by that witness. The circumstance that Bui pleaded guilty at the Magistrates' Court whereas Pham pleaded guilty before the County Court, after evident negotiations, was known to His Honour. The overall sentence imposed upon Bui by His Honour, given its moderation, appears to reflect an allowance for personal remorse. Such allowance would properly be limited given the age and education of Bui and of the deliberation of his criminal conduct over time. I consider this ground is not made out. As to the non-parole period, the differential between the total effective sentence and the minimum term is on its face sensible and responsible. His Honour gave careful consideration to the matter of rehabilitation and matters personal to Bui. This ground is not made out. Accordingly I consider that the grounds relied upon by the appellant Bui fail.
On behalf of the appellant Pham, it was first submitted by senior counsel that her remorse and cooperation with the authorities was given no or no adequate weight or reflection in sentence. As to cooperation, it was submitted that the provision by Pham of the telephone numbers of her sometime Casino supplier and of Wise was significant and yet was not referred to in His Honour's sentencing reasons. However, His Honour would have been entitled to regard Pham's cooperation as particularly circumscribed. Her answers in the police interview of 3 October 2001 were vague and often inconsistent with objective data, answers 197 and 214 being eloquent of her circumspection. As to remorse, in view of the limited evidence before His Honour of Pham's remorse for her conduct as distinct from her custodial situation, and given the age of the appellant and her deliberate criminal conduct over time, it is unsurprising that His Honour confined his sentencing remarks to the utilitarian benefit of her plea. Indeed His Honour benignly gave Pham the benefit of a plea "made at the earliest opportunity". His Honour referred to the report of the psychologist Mr Joblin and the exhibit tendered on behalf of Pham and concluded that both were positive in relation to rehabilitation. I consider no error has been made out as to cooperation or remorse. It was next submitted on behalf of the appellant Pham that her absence of greed as a motivating factor was not reflected in the sentence. However the absence of greed is not necessarily (or here) a mitigating factor; it is merely the absence of an aggravating factor. It was further submitted that the sentence failed to reflect the "moral dilemma" faced by Pham. That "moral dilemma" was said to be that "in order to finance either the drug rehabilitation program for her son, Ha, or his return to Vietnam, the appellant committed the offences". This submission, the genesis of ground 2, was made before His Honour and maintained before this Court. In his reasons for sentence, in response to the "moral dilemma" submission His Honour characterised Pham's criminal involvement as "totally inexcusable". His Honour noted that Pham was not a heroin addict or even user, had a son who was a heroin addict and yet "was prepared to traffick and did traffick in this evil and destabilising drug with knowledge of the problems which heroin causes". In that analysis His Honour was entirely correct. There was no "moral dilemma". Factually, the submission is flawed in that part of Pham's motives were to meet gambling debts. Analytically, the submission is fatally flawed. The submission – that trafficking in heroin to others by a non-addict in order to facilitate the rehabilitation of an addict constitutes a "moral dilemma" – is oxymoronic. This ground fails. It was next submitted that His Honour failed to give sufficient consideration to matters of oppression personal to Pham and that the sentence failed to reflect such matters. Plainly, custody would be most oppressive for Pham, for a cluster of reasons not least of which is cultural and linguistic isolation. This is a significant consideration. His Honour's sentencing remarks show that he was sensitive to this matter and to its significance. Looking objectively at the sentence imposed, it is clear that that matter mitigated the sentence which otherwise would have been imposed. This ground fails. Finally it was submitted that the sentence imposed was manifestly excessive, including the non-parole period. The non-parole period on its face is sensible and responsible. In my view the overall sentence, far from being excessive, is modest given the culpability of the conduct of the appellant Pham. This ground is not made out. Accordingly I consider that the grounds relied upon by the appellant Pham fail.
On behalf of the appellant Wise, it was first submitted by counsel that the sentence imposed upon Wise did not reflect appropriate parity with his co-offenders Bui, Pham and Staaleson. To that end it was submitted that Pham was the dominant supplier to Wise, that Wise was an addict, a quantum of the drug was for his own use, he was not evidently enriched and that the sentence imposed upon the supplier Pham should be the touchstone against which parity of the Wise sentence fell to be considered. However, Pham was not Wise's only supplier, and the continuing offence for which Wise was to be sentence was committed over a significantly longer period (24 January 2001 to 2 October 2001) than that of Pham (2 March 2001 to 23 May 2001). Further, although an addict, Wise himself was a substantial supplier to end users. Further, Wise's criminal history was lengthy and persistent and included 16 convictions for drug offences. His prospects for rehabilitation were uncertain. In my view these factors amply explain the longer sentence imposed upon Wise than upon Pham. Wise's involvement was significantly greater than that of the other offenders. This ground is not made out. Next, it was submitted that the non-parole period set by His Honour was excessive, both of itself and as Wise had not previously had the opportunity of parole. In my view the non-parole period set was objectively justified. Wise had a lengthy and persistent history of offending, was both an addict and a supplier, and had previously been imprisoned. He had breached recognisances, community-based orders or suspended sentences on seven previous occasions. In the circumstances the differential between the head sentence and the minimum term, itself not exceptional, in my view is warranted. Finally, it was submitted that the sentence imposed was manifestly excessive. In my view it was not. His Honour gave careful consideration to the relevant factors, was duly sensitive to the unfortunate circumstance that the appellant Wise was an addict, made a finding favourable in the circumstances as to potential rehabilitation, and encouraged the appellant to work towards a better life. I consider the sentence imposed was entirely appropriate.
For those reasons I would dismiss each of the appeals.
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