R v Le - [2002] QCA 17

[2002] QCA 17

COURT OF APPEAL

McPHERSON JA
THOMAS JA
AMBROSE J

CA No 238 of 2001

THE QUEEN

THANH VU LE

BRISBANE

..DATE 06/02/2002

JUDGMENT

AMBROSE J: This is an application for leave to appeal against a sentence of 14 years imposed on the applicant upon his plea of guilty to a number of drug offences.

The important offence, the most serious offence was that he had trafficked in heroin between 26 July and 26 November 1999. Associated with that offence were two charges of possession of heroin on 25 November 1999, the time when he was apprehended as a trafficker, and that heroin amounted to about half a kilogram.

The applicant had no previous convictions. It emerged in the material placed before the sentencing Judge that the applicant had a brother who conducted a heroin trafficking business at Cabramatta in Sydney. The applicant acted on behalf of his brother to conduct his brother's heroin distribution business in Brisbane. He was at the level of distributing heroin to other wholesalers of that drug in the heroin trafficking business in Queensland.

During the four months of trafficking to which he pleaded guilty bank records demonstrated that he deposited into two accounts in his brother's name the sum of $326,000. These were obviously the receipt of funds he obtained from distributing heroin as a wholesaler to other wholesalers in the heroin trafficking business in Queensland.

It is unnecessary to analyse in detail these deposits, but on some days sums in excess of $30,000 were deposited. It seems that the distribution business and the accounting system which one may infer from these documents was carefully planned and it indicated to his Honour that this was a large wholesale heroin business that was being conducted essentially out of Sydney by the applicant in Brisbane as its local manager.

When apprehended, the applicant did not cooperate with the police officers. A careful examination provided overwhelming evidence against him which was based upon heroin found in his possession, telephone surveillance where discussions were recorded between him and his brother and his fingerprints found on banking records which disclosed the extent of his business operations in distributing heroin in Queensland and sending the proceeds to his brother.

The offences on the material were based on a commercial enterprise in selling heroin and there was no suggestion that the applicant was in any way addicted to or dependent upon heroin.

The sentencing Judge upon this plea of guilty indicated that he would start with a figure of 19 years' imprisonment, but to reflect the plea of guilty he reduced this to 15 years. However the Crown had contended that the appropriate sentence on the facts of the case was one of 14 years, and so his Honour imposed a sentence of 14 years.

It is contended for the applicant that in exercising his sentencing discretion, his Honour was affected by a mistake that he made concerning the nature of the plea.

His Honour indicated that the…

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.

Continue reading R v Le

Details

AGLC: R v Le [2002] QCA 17
Case: [2002] QCA 17
Decision Date: 06/02/2002

CaseChat Overview and Summary

The Court of Appeal heard an application for leave to appeal against a sentence of 14 years imposed on the applicant, Thanh Vu Le, following his guilty plea to multiple drug trafficking charges. The most serious charge was trafficking in heroin between 26 July and 26 November 1999. The applicant had no prior convictions and acted on behalf of his brother, who conducted a heroin trafficking business in Sydney. The applicant was responsible for distributing heroin to other wholesalers in Queensland, depositing around $326,000 into his brother's accounts during the four months of trafficking. The sentencing judge considered a starting point of 19 years' imprisonment, reduced to 15 years to reflect the guilty plea, but imposed a sentence of 14 years following the Crown's contention for a lower sentence.

The applicant argued that the sentencing judge's error in describing his plea as "rather late" affected the sentencing discretion, leading to an excessive sentence. The Court of Appeal examined whether the error influenced the sentence to such an extent that it warranted setting aside the sentence and conducting a resentencing exercise. The court found that the sentence of 14 years was not manifestly excessive, and the error did not significantly impact the sentencing discretion. The judges concluded that the sentence was appropriate given the circumstances, and the application for leave to appeal was refused.

The Court of Appeal, consisting of McPherson J, Thomas JA, and Ambrose J, unanimously agreed that the applicant's plea of guilty was not as late as the sentencing judge had described, and this misunderstanding did not lead to an incorrect result. The starting point for the sentence and the level of discount for the plea were considered imprecise factors, but the final sentence of 14 years was deemed appropriate based on the actual circumstances of the case. Consequently, the application for leave to appeal was refused.

Orders