R v Le - [2001] SASC 28

R v LE
[2001] SASC 28

Court of Criminal Appeal: Doyle CJ, Duggan and Williams JJ

1................ DOYLE CJ (ex tempore). The appellant pleaded guilty to a charge of selling heroin, contrary to s 32(1)(c) of the Controlled Substances Act.

The appellant sold a small quantity of heroin to an undercover police officer. The substance was found to contain heroin, but the sample was not suitable for accurate quantification of the amount of heroin.
The maximum penalty for this offence is a fine of $200,000 or imprisonment for 25 years or both.
The offence is a very serious one. The Judge imposed a head sentence of five years and six months imprisonment. But for a late plea of guilty, he would have imposed a sentence of six years imprisonment. He fixed a non-parole period of three years.
The appellant claims that the sentence is excessive.
The appellant originally pleaded not guilty. After a decision by the Judge not to exclude important prosecution evidence, the appellant pleaded guilty. The Judge deducted six months for the late plea. No criticism can be made of that.
The appellant was addicted to heroin. He sold heroin to support his addiction. He was sentenced on the basis that he was a street trader. This was not disputed. Accordingly, he could not be sentenced on the basis that the sale was an isolated transaction.
The appellant was almost 19 years of age at the time of the offence. He was born in Vietnam and came to Australia in 1992, aged 13, with his father. His background is unexceptional. He left school during year 12 and started a course in electronic engineering. My impression is that this was some kind of practical or trade course. He did not complete the course. He worked for a while in a restaurant and then was unemployed for sometime. He says that he would like to resume his studies and become a motor mechanic or electrical engineer.
The Judge accepted that he had not consumed heroin for about eight months and so was prepared to accept that the appellant was trying to rehabilitate himself.
A psychologist’s report was tendered. There are only two things that call for comment. His intellectual level was assessed as being probably in the low average range. The psychologist concluded that if the appellant was given adequate support and received adequate drug rehabilitation counselling, his prospects of reform were fair. There is no reason to doubt that assessment.
The appellant has no prior convictions. The significant features of the case are the appellant’s youth, the fact that he has no prior convictions and the fact that he has never been in prison before. The small quantity of heroin sold is not a significant factor. Most street trading seems to be in very small quantities and there is every reason to think that retailers make sure that that is so.
I consider that the appellant’s intellectual capacity is not a basis in itself for lenience. There…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Le [2001] SASC 28
Case: [2001] SASC 28
Decision Date: 14 February 2001

CaseChat Overview and Summary

In the case of R v Le, the appellant was convicted of selling heroin and appealed against the sentence imposed. The appellant, who had no prior convictions, sold a small quantity of heroin to an undercover police officer and pleaded guilty after initially pleading not guilty. The maximum penalty for this offence under the Controlled Substances Act is a fine of $200,000, imprisonment for 25 years, or both. The trial judge imposed a head sentence of five years and six months imprisonment, with a non-parole period of three years. The appellant argued that the sentence was excessive.

The primary legal issue in this case was whether the sentence imposed by the trial judge was appropriate in light of the mitigating factors presented by the appellant, particularly his youth and lack of prior convictions. The Court of Criminal Appeal had to consider whether the trial judge erred in not taking into account these mitigating factors when determining the head sentence. The Court also had to determine whether the non-parole period fixed by the trial judge was appropriate.

The Court of Criminal Appeal found that the trial judge had erred in not considering the appellant's youth and lack of prior convictions when determining the head sentence. The Court considered that these factors should have been taken into account as mitigating factors, and that the appellant's youth was an important mitigating factor. The Court found that the head sentence of five years and six months was excessive and reduced it to four years and seven months, deducting five months for the late plea of guilty. The Court decided to maintain the non-parole period of three years as it believed it adequately served the punitive and deterrent requirements of the case.

The Court of Criminal Appeal allowed the appeal, set aside the sentence imposed by the District Court, and substituted a sentence of imprisonment for four years and seven months, with a non-parole period of three years. The Court ordered that the sentence and non-parole period commence on 22 August 2000, the day when the appellant was taken into custody.

Orders