R v LE

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LE
[2015] SASCFC 152
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Lovell)
20 October 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
Appeal against sentence. The appellant pleaded guilty to one count of participating in a criminal organisation, three counts of trafficking in a controlled drug, one count of trafficking in a large commercial quantity of a controlled drug, six counts of knowingly engaging in money laundering and one count of dishonestly dealing with documents. A final sentence after discount for a guilty plea of 10 years and six months with a non-parole period of seven years was imposed - whether the sentence for the count of participating in a criminal organisation was manifestly excessive - whether the Judge failed to consider the principle of totality.
Held: per Lovell J dismissing the appeal (Sulan and Peek JJ agreeing).
Sentence for count of participating in a criminal organisation not manifestly excessive. Overall sentence was merciful and the principle of totality had no application.
Criminal Law Consolidation Act 1935 (SA) s 83E(1), s 83D; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Postiglione v The Queen (1997) 189 CLR 295; R v Major (1998) 70 SASR 488; R v Randall-Smith (2008) 100 SASR 326, discussed.
Pearce v The Queen (1998) 194 CLR 610, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"totality", "manifestly excessive"

R v LE
[2015] SASCFC 152
Court of Criminal Appeal: Sulan, Peek and Lovell JJ

SULAN J: I agree with Lovell J. I would dismiss the appeal.
PEEK J: I would dismiss the appeal. I agree with the reasons of Lovell J.
LOVELL J.
After an extensive police operation the appellant was charged with, and pleaded guilty in the Magistrates Court to, a number of serious charges including trafficking in controlled drugs and money laundering. Further, she pleaded guilty to one count of participating in a criminal organisation contrary to s 83E(1) of the Criminal Law Consolidation Act 1935 (“the Act”). The appellant had to be sentenced separately for a breach of s 83E(1) of the Act and that sentence imposed cumulatively on the sentence for the other offences.
After allowing for discounts for her pleas of guilty the Judge arrived at a final sentence of imprisonment of 10 years and six months and fixed a non-parole period of seven years. Both the head sentence and the non-parole period were to operate from 9 May 2013 when she was first taken into custody.
It should be noted that on the same day the Judge sentenced a number of other persons for related offending.
The appellant has appealed the sentence and in particular the sentence imposed for the count of participating in a criminal organisation.
Background
The appellant came to the attention of the police during an investigation targeting trafficking of heroin and methamphetamine in the northern and western suburbs of Adelaide. The police obtained evidence by use of telephone intercepts, listening devices and surveillance. An undercover operation was conducted and included the control purchase of drugs by an undercover police officer. Evidence was obtained from other law enforcement agencies, financial institutions, casinos, airlines and hire car companies.
The appellant pleaded guilty to participating in a criminal organisation knowing it was such an organisation and knowing that her participation in that organisation contributed to the occurrence of criminal activity. Her participation was alleged to have occurred between 25 November 2012 and 10 May 2013. The prosecution alleged that the appellant was the main figure of the criminal organisation and involved in the planning and purchase of large quantities of both heroin and methamphetamine both locally and interstate. She negotiated with local suppliers to purchase heroin and methamphetamine and obtained large quantities from interstate when available. The appellant’s role was one of the management and coordination of these activities and she used other people to act as couriers to collect drugs as well as sell drugs to customers. She was directly involved in the financial arrangements of the group in terms of financing the purchase of large quantities of drugs and laundering the profits of the drug trafficking. In particular, she recruited Ms Andy Hua Tran (“Ms Tran”) to launder the proceeds of the groups’ drug trafficking activities and to provide her with money when required.
Apart from this offence, as detailed below, the appellant pleaded guilty in the Adelaide Magistrates Court to a number of substantive offences.
The appellant pleaded guilty to one count of trafficking in heroin. This related to the purchase of an ounce of heroin for $9000. The appellant also pleaded guilty to trafficking in methamphetamine on 4 December 2012 when she sold to a person three quantities of methamphetamine knowing it was to be on-sold.
The appellant pleaded guilty to one count of trafficking in heroin between 20 February 2013 and 23 February 2013. A person contacted her and informed the appellant that he had heroin available. The appellant agreed to take one ounce of the drug and by her plea she admitted purchasing the heroin with the intent to on-sell it.
The appellant pleaded guilty to trafficking in a large commercial quantity of methamphetamine between 15 February 2013 and 25 March 2013. She had been jointly charged on that count with Thanh Tong Ta and Vinh Nam Ta. Contact was made interstate to purchase methamphetamine. Negotiations occurred over the purchase price for one kilogram of that drug for $250,000. The appellant arranged with Ms Tran to access $280,000 which Ms Tran was holding for her. In the end a purchase was made of two kilograms of methamphetamine from the contact in New South Wales for $460,000. Thanh Tong Ta and Vinh Nam Ta travelled to New South Wales and were stopped by police on their return where two kilograms of methamphetamine was located hidden in the vehicle.
In addition, the appellant pleaded guilty to six counts of knowingly engaging in money laundering and one count of dishonest dealing with documents.
Count 6 involved the appellant engaging in the purchase of real estate at Croydon Park using money from the proceeds of the drug trafficking. The property was put in the name of her daughter to conceal that the appellant was the true owner of the property.
Count 8 involved another charge of money laundering and the purchase of a BMW motor vehicle, again in the name of her daughter, to conceal the fact that the appellant was the true owner and user of the vehicle.
Count 11, the third count of money laundering, involved the appellant purchasing real estate in North Adelaide using $145,000 of illegally obtained money. Again, the property was purchased in the name of one of her daughters.
Count 12, another count of money laundering, related to a transaction of over $30,000 in cash in order to purchase a property at North Adelaide. The appellant provided $30,000 which was falsely recorded as wage payments to her daughter’s account to support the obtaining of a loan to purchase the property.
Count 23, the fifth count of money laundering, related to the purchase by the appellant of property at Woodville North and $175,000 of illegally obtained money was used to purchase the property.
Count 24, the sixth count of money laundering, related to a sum of $150,000 in cash kept in a safe deposit box. The money was removed on the day following her arrest.
Count 7, the charge of dishonestly dealing with a document, involved the appellant falsifying a document with the intention of deceiving the ANZ Bank to obtain a bank loan to the value of just over $400,000.
Sentencing
In relation to count 1, the Judge was required by s 83E(5) of the Act to impose a separate sentence for this offence and this sentence had to be made cumulative upon any sentence for the other counts. The Judge utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) for all other matters. Before applying the discount for the pleas, the Judge imposed a sentence of 10 years imprisonment for all of the substantive drug and money laundering offences and five years for the appellant’s participation in a criminal organisation, that sentence to be served cumulatively upon the expiration of the sentence of 10 years. After allowing for a reduction of up to 30 per cent for her early pleas, he imposed a final sentence of 10 years and six months imprisonment with a non-parole period fixed at seven years. Both the head sentence and the non-parole period were to run from the 9 May 2013 when she was first taken into custody.
Submissions
Ground 1
The appellant complained that the sentence imposed for the offence of participating in a criminal organisation, contrary to s 83E(1) of the Act, was manifestly excessive. That is she argued that one aspect of the sentence was manifestly excessive. Due to the conclusion I have reached, I do not have to consider whether this is a valid ground of appeal as opposed to a ground complaining that the entire sentence was manifestly excessive.
The main thrust of the appellant’s submission was that the Judge failed to identify the conduct of the appellant that related strictly to this offence as opposed to the substantive offending. It was submitted that given the length of the sentence for the s 83E(1) offence under the Act the Judge must have taken into account conduct for which she was punished for the substantive offending.
Section 83E of the Act states:
83E—Participation in criminal organisation
(1)A person who participates in a criminal organisation—
(a)knowing that, or being reckless as to whether, it is a criminal organisation; and
(b)knowing that, or being reckless as to whether, his or her participation in that organisation contributes to the occurrence of any criminal activity,
is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
...
(5)A term of imprisonment to which a person is sentenced for an offence against this section is cumulative on any other term of imprisonment or detention in a training centre that the person is liable to serve in respect of another offence (not being another offence against this section).
...
Section 83D of the Act states:
83D—Interpretation
(1)In this Part –
criminal group—a group consisting of 2 or more persons is a criminal group if—
(a)an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence (or conduct that would, if engaged in within this State, constitute such an offence); or
(b)an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence (or conduct that would, if engaged in within this State, constitute such an offence) that is intended to benefit the group, persons who participate in the group or their associates;
criminal organisation means—
(a)a criminal group; or
(b)a declared organisation;
...
participating in a criminal organisation includes (without limitation)—
(a)recruiting others to participate in the organisation; and
(b)supporting the organisation; and
(c)committing an offence for the benefit of, or at the direction of, the organisation; and
(d)occupying a leadership or management position in the organisation or otherwise directing any acts of the organisation;
...
(2)A group of people is capable of being a criminal group for the purposes of this Part whether or not—
(a)any of them are subordinates or employees of others; or
(b)only some of the people involved in the group are involved in planning, organising or carrying out any particular activity; or
(c)membership of the group changes from time to time.
During the second Reading Speech for the Statutes Amendment (Serious and Organised Crime) Bill the Attorney-General in the House of Assembly stated:
The conventional criminal law framework is ill-suited to preventing and combating organised crime in that secondary and inchoate liability do not adequately extend liability to the root activities and organisation of a criminal group. For example, secondary liability does not cover the non-criminal activities of a person who only indirectly contributes to the criminal activities of a criminal group. Equally, inchoate liability, in particular the offence of conspiracy, does not criminalise persons within a criminal group who are not a party to the agreement to commit the crime. This often omits the leadership of a criminal group, which operates above the street level preparation and commission of offences.
Serious and organised crime legislation must therefore aim to create offences that comprehensively target the criminal activities of a criminal group, providing scope to charge all persons who knowingly contribute to the criminal activities of the group. Moreover, serious and organised crime legislation must create offences that target a criminal group at the level of the organisation. The objectives of any such legislation must therefore be to prevent and reduce criminal activity with a group aspect by—
• extending liability to all unjustified involvement in criminal group activities, and
• making impotent the organisational capacity of a criminal group.
Section 83E(1) of the Act punishes an offender for participation in a criminal organisation and in particular for support and maintenance of that organisation through such participation. Section 83E(5) of the Act requires a sentence imposed on conviction to be cumulative on any other term of imprisonment. Thus, where substantive offending is also charged, the use of s 18A of the Sentencing Act for all of the offending is precluded. The purpose of the direction that a sentence imposed be served cumulatively is to ensure that the offending against s 83E(1) of the Act is not overlooked and to allow for ready identification of the punishment.
Clearly, an offence constituted by s 83E(1) of the Act will include conduct that in itself may constitute other criminal offences. It should be noted that the section is also wider and includes conduct which may be of itself neither the commission of a substantive offence nor accessorial offending. The fact that this section catches conduct wider than specific substantive offending can be seen in the interpretation section, namely, s 83D of the Act.
However, the provisions do not preclude the fixing of an overall sentence which properly reflects the criminality of the total offending.
Where offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the common elements. The punishment imposed should reflect what the offender has done.[1]
[1] Pearce v The Queen (1998) 194 CLR 610, 623 [40].
Thus, a sentencing judge should ensure that the sentence for an offence against s 83E(1) of the Act punishes only that conduct constituting the charged offence and not for the offending which has been separately charged and punished. The sentencing judge should also ensure that any sentence imposed on another count is not more severe than it would be by reason of the aggravating circumstance that the offence was committed as part of a criminal organisation.
The appellant submitted in this matter that the sentencing Judge did not clearly delineate the offending which he punished for the breach of s 83E(1) of the Act from the offending related to substantive offences of trafficking and money laundering. It was submitted that the sentencing Judge allowed the substantive offending for which she was charged to “spill over” into the sentencing for the offending pursuant to s 83E(1) of the Act. Counsel submitted that the appellant’s head role in the organised structure was largely reflected within the substantive charges and therefore any penalty for the s 83E(1) offending under the Act should have been relatively modest.
It is pertinent to note that the Judge heard submissions and sentenced a number of people who had participated in the criminal organisation. The prosecution had tendered on the hearing of submissions lengthy summaries of the evidence and the roles various people played including the appellant. The Judge clearly had an extensive understanding of the background facts of the case.
In his sentencing remarks the Judge did set out clearly, and in some detail, the facts involved in substantive offending. In relation to count 1, the s 83E(1) of the Act offending, the Judge noted that the offending arose out of the appellant’s participation in a criminal organisation the aim of which was to financially benefit members of that organisation by trafficking in methamphetamine and heroin, and laundering money. Later in his remarks he made reference to the submissions of the Director of Public Prosecutions (“DPP”) in relation to the sentencing basis for the appellant’s management role in the drug syndicate. He specifically noted that he would sentence the appellant on that basis.
Counsel for the DPP, during the course of submissions before the Judge, drew the Judge’s attention to the fact that the appellant’s participation in a criminal organisation arose from acts separate to those relating to the charged offences. Specifically, counsel referred the Judge to the withdrawal, with the consent of the appellant, of two counts on the original information so that this offending could specifically be taken into account as representing some evidence of her role in the criminal organisation.
The appellant had originally been charged with Vinh Nam Ta (“Ta”) with knowingly trafficking in a controlled drug, namely heroin on 2 December 2012. The original allegation was that the appellant gave instructions to Ta to provide another person with heroin for him to sell at street level.
Further, the appellant was originally charged with Ta with knowingly trafficking in a controlled drug, namely heroin. An undercover police officer went to purchase heroin from Ta. He contacted the appellant to determine if she knew the purchaser. The appellant told him that she did not know the purchaser but that he should still sell the drugs to him.
In addition to those matters being part of the sentencing background to the s 83E(1) offending under the Act, listening device evidence and other evidence demonstrated the appellant’s leadership role in the group. For example, other evidence demonstrated that the appellant was arranging for a heroin supplier in Victoria to deal with her; that she discussed with other members of the criminal organisation who should take blame for particular offending and that she also made arrangements to pay the legal fees for Thanh Tong Ta who had been charged with offending.
In my view, the facts underpinning the counts which were withdrawn and the other examples mentioned amply justified the sentence of five years imprisonment in relation to the s 83E(1) offence under the Act. The appellant has not demonstrated any error in the approach of the Judge.
The sentence imposed by the Judge was well within his discretion. I would dismiss this ground of appeal.
Ground 2
The appellant complained that the Judge failed to properly consider and apply the principles of totality.

The law on the principle of totality is well settled. When a number of offences are being dealt with and specific punishments are aggregated it is necessary for a court to take a “last look” to see whether the sentence is appropriate for all of the offending. Where necessary a court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between totality of the criminality and the totality of the sentences.[2] The question of totality is the final step in the sentencing process.[3]
[2] Postiglione v The Queen (1997) 189 CLR 295, 308.
[3] R v Major (1998) 70 SASR 488, 497.
Considerations of totality cannot, however, overwhelm the need to impose a punishment that reflects the serious nature of the offending, the need for general deterrence, the prolonged period of the offending and the impact the offending has had on the victims. If the criminal conduct is particularly serious a heavy sentence may be appropriate. There is a limit to the extent to which considerations of totality can operate to reduce the punishment that would otherwise be imposed.[4]
[4] R v Randall-Smith (2008) 100 SASR 326, 336 [50].
In effect the principle of totality is a final check to be applied after reaching a conclusion as to the appropriate sentence to be applied having regard to the objective criminality and mitigatory factors in favour of the prisoner.
In his sentencing remarks the Judge did not mention or apply the principle of totality. It was submitted, therefore, that we should infer that he did not consider the application of the totality principle. I do not agree with that submission. As has been noted on other occasions by this Court sentencing remarks are not the same as a court judgment. It should not be assumed that a Judge has overlooked a matter simply because it has not been mentioned in the sentencing remarks. It may well be the case that the Judge here thought that the principle of totality simply had no role to play. This may be particularly so given the use by the Judge of s 18A of the Sentencing Act in relation to the substantive offending.
The offending here was extremely serious. The appellant was the admitted head of a criminal organisation trafficking in drugs and laundering money. In one transaction for example, the appellant organised the purchase of two kilograms of methamphetamine for a price of $485,000. She was involved in the laundering of over $600,000. She was involved in trafficking heroin as well.
The appellant had a prior conviction in 2001 for trafficking in a controlled substance namely heroin for which she received a three years and six months suspended sentence. The Judge gave weight to the appellant’s background.
The Judge started at an aggregated sentence of 15 years imprisonment for all the offending. Given the serious nature of the offending such a starting point should be considered as merciful. After allowing for the appellant’s pleas and contrition the Judge imposed a final sentence of 10 years and six months imprisonment and he fixed a non-parole period of seven years.
Given the offending of the appellant the sentence could not be described as crushing. There was no need in the circumstances for the Judge to consider the question of totality: it simply had no application in this case.
I would dismiss this ground of appeal.

[2015] SASCFC 152

20 October 2015

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Sentencing

Appeal