R v Hong Phong LE

[2008] NSWDC 320

CITATION:	R v Hong Phong LE [2008] NSWDC 320
HEARING DATE(S):	25 September 2008
JUDGMENT DATE:	25 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment with an effective overall sentence consisting of a non-parole period of 9 years and a total term of 13 years 6 months.
CATCHWORDS:	Criminal law - Sentence - Conspiracy to import prohibited imports - Trafficable quantity of heroin - Methylamphetamine - Commercial quantity - Assistance to authorities
LEGISLATION CITED:	Commonwealth Crimes Act
CASES CITED:	Pearce v The Queen [1998] HCA 57; 194 CLR 610; 156 ALR 684
PARTIES:	The Crown (Cth) Hong Phong Le
FILE NUMBER(S):	DC 2008/11/0399
COUNSEL:	M A Wigney SC (Crown) M C Ramage QC (Defendant)
SOLICITORS:	Commonwealth DPP Gregory J Goold Solicitor

SENTENCE

1 HIS HONOUR: Hong Phong Le appears for sentence today in relation to three most serious offences. He pleaded guilty to an offence that between 28 November 2005 and 23 May 2006 he conspired with a number of others to import prohibited imports into Australia, they being narcotic goods consisting of a quantity of heroin not less than the trafficable quantity. He also pleaded guilty to an offence of conspiring, with a number of others, to traffic in both heroin and methylamphetamine, the quantity involved being a commercial quantity. The third offence is an offence of conspiring with others to deal with money to the value of $1,000,000 or more, which he and his co-conspirators intended would become an instrument of crime. In fact, the amount involved was estimated to be more than 4.7 million dollars.

2 The offender was born in a refugee camp after his parents left Vietnam. His father had been a soldier in the South Vietnamese army and so after the war it became necessary for the offender’s father and his wife to leave Vietnam. That is why the offender was born in a refugee camp. He also has a younger brother. The family was sponsored by a Canadian family and so they moved to Vancouver Island. There the offender experienced racism. His family was involved in collecting shellfish and the Canadians, so the offender said, had a general attitude of distrust and resentment to Vietnamese who would carry on that past time or occupation.

3 The offender moved to Vancouver on the mainland where he began associating with other Vietnamese people. It was in these circumstances that he began to use drugs, namely cocaine. On occasions it was not only a case of using drugs but also supplying when he and his friends would pool their money in order to obtain drugs which they would then share.

4 The offender's parents became aware of their son’s drug taking activities and so in order to take him away from his drug taking associates they came to Australia. This was a fateful decision. The offender’s aunt, his mother’s sister, had a boyfriend, Khan Hong Tran, also known by the name Ken or Kenny. The offender’s family were poor but Kenny was very rich, or at least he appeared to be. He drove a flash car and would always pay for the family when they went out. The offender was attracted to the Kenny’s displays of wealth. He had discussed with Kenny the fact that he was a drug user back in Canada and commenced using drugs here as well. Kenny, as it turned out, was a “Mr Big." One of the activities in which he was involved was the transport and sale of drugs to Melbourne. This required that the drugs were transported down to Melbourne and the offender became aware that one of those who was doing that was a man called Paul Vo. The offender, attracted by the money that was being displayed, and attracted by Kenny’s lifestyle, approached Kenny and asked to become involved in Kenny’s drug business. That was another fateful decision.

5 Matters progressed to the stage where the offender became Kenny’s right hand man, or lieutenant, or secretary. I have described Kenny as a “Mr Big”. The offender became a “Mr Big Enough”.

6 The offender worked closely with Kenny, carrying out his instructions and directions concerning money laundering, drug trafficking and drug importing. The core business of Kenny’s syndicate was, as I mentioned, the sale of drugs by members of the syndicate in Sydney to buyers in Melbourne. The drugs would be couriered down to Melbourne by various syndicate members and the money would be remitted back to Sydney as payment for the drugs. This process continued over a lengthy time between 2005 and 2006. Kenny would get the drugs through various means, including importing drugs from overseas and also through purchases from domestic suppliers who had already had drugs available in Sydney. The drugs would be kept in Sydney - the appropriate term is probably warehoused - until couriers were available to transport the drugs to Melbourne. Various drugs were acquired and sold in this manner, including heroin and methylamphetamine. Kenny would arrange, using the offender as the go-between or mule man, for various members within the syndicate to act as couriers to take the drugs to Melbourne. They would either take them on commercial airline flights or in a car. The payment was effected by a number of different methods. On some occasions the purchaser would simply provide the money to a “middle woman” by the name of Ngoc Nguyen. Money would be sent by her, using various money remittance businesses, to similar businesses in Sydney for collection by either Kenny or the offender. On other occasions the money would be given to the couriers who would either use the money remitting businesses or simply bring it back with them in cash.

7 The Crown tendered an agreed statement of facts setting out a number of what are called drug incidents involving members of the Kenny syndicate. These were specific examples of incidents observed by the authorities in furtherance of an ongoing agreement to obtain and supply drugs to buyers in Melbourne when and if required.

8 I commence my recitation of these incidents by noting that the syndicate seems to have been well organised and very productive, carrying on the business of importing and then trafficking in drugs as efficiently as if they were dealing in a legitimate product such as apples. It is apparent that the offender and his co-conspirators had no regard whatsoever to the nature of the commodity they were involved in, apart from the fact, of course, that it was highly valuable. The offender, it is clear, paid no regard whatsoever to the awful consequences that drug trafficking brings about, consequences felt by human beings at every level of society. Drug addicts have their lives ruined by heroin and methylamphetamine. Others who do not use drugs face the consequences of drug addicts committing crimes, at times violent, in order to satisfy their addictions. The offender apparently thought nothing of these consequences, thinking only of the benefit to himself that his activities would bring.

9 On 28 November 2005 the offender left Sydney intending to go to Germany. Another member of the syndicate by the name of Li, went there from Melbourne. Once there they assisted yet another person to recruit a courier in order to bring drugs from Vietnam to Australia. They found a man by the name of Springer. On 16 December 2005 he arrived at Sydney on a flight from Vietnam in possession of seven balloons of heroin, approximately eighty grams which he had secreted internally. He had left fourteen similar balloons behind. His importation was detected and he was arrested and charged. The offender’s role in this importation included travelling to Germany where he assisted others to recruit Springer, notifying Kenny that he was making arrangements for Springer’s importation, and then attempting to locate Springer in order to confirm that he had been arrested.

10 The second incident that the Crown refers to occurred between 13 February 2006 and 10 March 2006. It involved the trafficking of a significant quantity of heroin. Money was subsequently remitted from Melbourne to Sydney as payment for those drugs. They were transported to Melbourne by Tia and Vu on behalf of the syndicate. They supplied the person, who I mentioned before, Ngoc Nguyen, with a kilogram of crystal methylamphetamine and an ounce of heroin, telling other syndicate members that the remainder of the heroin was stolen whilst they were in Melbourne. The offender’s role including arranging for the supply of an ounce of heroin, arranging for the supply of crystal methylamphetamine, arranging for Tia to transport a quantity of drugs from Sydney to Melbourne, providing Tia and Vu with the drugs, contacting the man by the name of Li to confirm that they had lost the drugs, discussing the loss of the drugs with Kenny, Tia and Vu, finding out whether it was still okay to go ahead with an importation because of what happened with the drugs given to Tia and Vu, telling Mr Le that Vu had received a beating from Kenny over the fact that heroin had been stolen, and making other arrangements as well.

11 The third incident involved the transport of 800 grams of crystal methylamphetamine from Sydney to Melbourne. Again Tia was the courier, but this time he was arrested and charged after the drugs were intercepted. The offender had no direct role in this incident because he was in Vietnam at the time, but he spoke to Kenny about it before Tia’s arrest at Melbourne airport.

12 The fourth incident occurred in March and April 2006, but this time the offender was in Vietnam. He had a number of conversations with Kenny and Li. One of the topics of the conversation was a planned importation to be undertaken by a man by the name of Michael Fisher. It was believed by Kenny and Le that Fisher had arrived in Australia by the 3rd and 4th of April. They therefore attempted to locate him in Melbourne. The offender told Li that Fisher had been stopped by Immigration and had been sent back to Vietnam where the offender was. The offender has since claimed that he simply made up the name of Fisher and that he was attempting at the time to comply with his mission for the Kenny syndicate which was, at that time, to arrange for couriers in Vietnam to take the heroin into Australia.

13 The offender assisted with arrangements for the importation of heroin into Australia on 14 April 2006 by the man by the name of Huy. During this period the offender made many calls with Mr Li concerning the attitude of drug couriers and the size of the packages involved. He made attempts to get smaller items of drugs. He travelled to Vietnam in furtherance of the conspiracy to import drugs; told Kenny when the importation would take place; discussed with him how many couriers there were in Vietnam and how many were coming from Australia. He informed Kenny that they should have a courtesy car from the hotel to pick the couriers up from the airport. He had many conversations and text messages with Li about the couriers being refused entry into Australia and then subsequent return to Vietnam. He then arranged for Huy to import heroin from Vietnam into Australia, arranging with Kenny to pay him between $5,000 and $10,000 for that activity.

14 The fifth incident involved a man by the name of Michael. He was another courier used by the Kenny syndicate and he transported some heroin to Melbourne by vehicle with a man by the name of Ching. The offender’s role included arranging the supply over the telephone, confirming the price, receiving an SMS with the address at which the drugs were to be supplied, arranging for Michael to supply to Ngoc Nguyen, asking Michael to let him know when he arrived at Ngoc Nguyen’s premises, receiving updates as to the progress of the supplies, and making arrangements regarding the remittance of purchase price.

15 The sixth incident occurred between 25 April and 22 May 2006 and concerned the importation of twenty-four packages of heroin organised by the Kenny syndicate. The offender’s role in this importation included the remittance of money, discussions regarding that matter, arranging for the importation of the drugs, speaking about the quantity of drugs to be imported, keeping Kenny up to date with the arrangements, arranging for members of the syndicate to be at Sydney International Airport to keep observation on the man by the name of Trung, who was a Sydney drug dealer and a courier, collecting the packages of heroin from Mr Trung in Sydney, liaise with others as to how much they would pay, and then having conversations about the fact that they appear to have been short changed, receiving only twenty-four packages rather than twenty-five.

16 Incident seven involved drug trafficking between 20 May 2006 and 24 May 2006. The heroin that I have just referred to was taken to Melbourne. The offender was involved in that trafficking as well, making arrangements to supply Ngoc Nguyen with the drugs. He also arranged for the remittance of money in a similar way as I have identified earlier. On this occasion the heroin appears to have been of poor quality, probably because it was cut to the extent that the purity was so low that it was unacceptable to the purchaser. The offender therefore went to Melbourne on 24 May, meeting with Ngoc Nguyen for the return of the heroin.

17 Incident eight is another incident of trafficking between 25 May 2006 and 30 May 2006 and concerns the transport, again, of drugs from Sydney to Melbourne, this time by plane, and their supply to others in Melbourne. Once more the offender’s role was similar to that which I have outlined earlier, making many arrangements in order to see that this trafficking took place. Again the drugs were of poor quality.

18 Incident nine concerned an incident of trafficking between 18 June 2006 and 29 June 2006. Police discovered, on 21 June 2006, 500 grams of crystal methylamphetamine and 90 grams of a common cutting agency in a taxi, in the possession of a man by the name of Koa. He was arrested and charged with supplying a prohibited drug. That drug supply had been organised by Kenny and the offender. It was intended that they would receive the drugs for onward supply. The arrangements that this involved are set out in a statement of facts and they reveal the considerable involvement of the offender in what occurred.

19 The tenth incident concerns some heroin that had been imported from Vietnam to Sydney on or before 21 June 2006. This involved a quarter of a kilogram of heroin.

20 The syndicate became a bit concerned after Koa was arrested and so they repackaged the heroin which had been brought into Australia and kept it for safekeeping. However, it subsequently went missing and there was a falling out amongst the syndicate members over this missing heroin. Again, the offender’s involvement in this was substantial.

21 The offender played the role I have identified, of Kenny’s right hand man, enthusiastically and, it appears, efficiently. The syndicate was very successful, at least partly due to the offender’s ongoing illegal conduct. Many people appear for sentence in this court after having committed a single criminal act, but the offender’s illegal conduct in this case appears to have involved perhaps thousands of individual illegal acts. He was an essential part of the syndicate’s operations. At times Kenny was affected by drugs and so his ability to carry on the operation was compromised. On these occasions it seems that the offender had to step in and take control.

22 The maximum penalty for the second count is life imprisonment. Objectively the offender’s conduct is such that it is approaching the worst category of conduct for which life imprisonment would be appropriate.

23 The offender, as I mentioned, was using drugs when he first approached Kenny to become involved. That may explain what he did but it does not mitigate it. If the offender had not been a drug addict at the time it would have been a matter of serious aggravation that he took on these activities as a person who was solely in this to make money. It has long been regarded as the law that those who become involved in drug trafficking, who are not themselves addicted to drugs, are in the worst category.

24 Since his arrest the offender says that he has realised what he should have realised before. It is difficult to understand, sitting in this courtroom, how a person who, as the offender did, approaches a significant drug dealer and asks to be involved can do so without thinking of the consequences not only to himself but also to those to whom drugs are ultimately supplied. The offender knew full well the problems that drugs caused. He, himself, experienced those and yet he was prepared to drag others down to his level through his ongoing involvement in Kenny’s syndicate. It is worth repeating that the offender did this simply because he was attracted by Kenny’s lifestyle. He did try and stop, it must be acknowledged, shortly before he was arrested, but Kenny, obviously happy with the services that the offender was providing, would not let him, referring to substantial debts for drugs and gambling that the offender had accumulated. It is a matter in his favour that the offender at least tried to extricate himself, even if he was unsuccessful.

25 I turn now to a matter about which I will have to exercise some circumspection. It concerns s 21E of the Commonwealth Crimes Act. The offender has offered to provide assistance which has been assessed as valuable, accurate and genuine. The offender has provided a great deal of information to the authorities, including information about matters the authorities were unaware of, such as the offender’s own drug use back in Canada. As a result of his assistance, or at least after his assistance, two members of the syndicate have pleaded guilty. Four are yet to face trial, and the offender undertakes to provide assistance in the prosecution of those four people, including the giving of evidence. I trust it will be obvious that the syndicate about which I am talking is a large one and there is a great deal of community interest and benefit through the members of the syndicate being prosecuted successfully.

26 Directly as a result of the offender’s assistance he is in conditions of custody more appropriate to eighteenth century Van Dieman’s land than present day New South Wales. The offender is not allowed to talk to any other prisoner. He is denied access to the library. He is held in conditions of custody that I would describe as cruel. The one bright spot is that he receives regular visits from approved visitors, who include his family. Of course, part of the reason that those who assist the authorities get a reduction in their sentences is because they often do serve their sentences in such conditions. Another reason for discount in sentences is, because of the assistance, threats are made to the offender and his loved ones. In this case, it seems that there are genuine fears for the offender, and his family as well. His de facto wife has been approached by those who would seek to persuade her to seek to persuade the offender not to do what he has undertaken to do.

27 The Court of Criminal Appeal has recently given some attention to the size of discounts for assistance to the authorities, combined as they almost invariably are with a discount for a plea of guilty. Part of the Court of Criminal Appeal’s recent attention to this topic has been in an effort to encourage some consistency. It is now the law that a discount in the order of fifty percent is appropriate for an offender giving substantial assistance, such as given by this offender, and where the conditions of custody that he will experience are likely to be harsher than usual. The Court of Criminal Appeal recognises that on rare occasions an even bigger discount is allowable, but this is not such a case. I will discount the sentence I would otherwise have imposed by fifty percent to reflect the plea of guilty which was acknowledged to be early and the assistance which was acknowledged to be substantial.

28 The offender’s assistance is perhaps the best evidence of all of his prospects for rehabilitation and his contrition. As Mr Ramage said, the offender is now doing his best to make amends for what he has done. The offender, and his wife also, expressed remorse for the offender’s conduct. I should note that some others involved in the syndicate have been sentenced, but they were for individual actions rather than the ongoing conspiracy committed by this offender. Parity, therefore, is of little application.

29 In this case there is a substantial overlap between the three offences. Offences one and three are really subsets of the conspiracy in offence two. Without breaching any rule in Pearce v The Queen [1998] HCA 57; 194 CLR 610; 156 ALR 684, I am able to take into account the conduct alleged in counts one and three, being part and parcel of what was implicitly and explicitly done in count two.

30 For those reasons, as I gather was conceded by the Crown, I will not accumulate sentences. I will impose a lengthy sentence on count two to reflect the criminality of that offence and fixed terms of imprisonment on counts one and three. Of course all of the sentences have been reduced by reason of the discount for assistance to the authorities. If this case had not involved the offender’s plea of guilty in assistance to the authorities it might well have been a case where the offender was sentenced to life imprisonment. As I said, the offender may not have been “Mr Big”, but he was “Mr Big Enough”. There is no rule that life imprisonment is reserved only for the “Mr Bigs” of the drug trafficking and importation world. The offender’s substantial involved objectively, as I mentioned earlier, may well have been enough to put him in the category of a case where life imprisonment is appropriate. However, not only is there the plea of guilty and assistance but the very genuine rehabilitation, contrition and remorse.

31 The sentences I will therefore impose are these. On counts one and three I set a fixed term of seven years. Those terms are fixed because of the sentence to be imposed on count two. On count two, after discounting the sentence I would otherwise have imposed by fifty percent to reflect the plea of guilty and assistance, the offender is sentenced to imprisonment for thirteen and a half years to date from 14 December 2006. I set a non-parole period of nine years which will expire on 13 December 2015 on which date the offender is eligible to be released to parole. In accordance with s 21E of the Crimes Act I indicate that were it not for the offender’s undertaking to give assistance in the future I would have sentenced him to imprisonment for twenty years with a non-parole period of thirteen years on count two with an appropriate reduction in the fixed terms on counts one and three.

**********