R v Le

[2000] QCA 129

[2000] QCA 129

COURT OF APPEAL

McMURDO P
DAVIES JA
HELMAN J

CA No 395 of 1999

THE QUEEN

v.

LIEU LE  Applicant

BRISBANE

..DATE 11/04/2000

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty in the Supreme Court at Brisbane on 1 November 1999 to one count of attempted possession of narcotic goods which had been imported into Australia under section 233B(1)(c) of the Customs Act 1901 (Commonwealth).  The offence occurred on or about 24 June 1998. 

The applicant was sentenced to 12 years' imprisonment with a fixed non-parole period of four years.  Part 9A of the Penalties and Sentences Act 1992 (Queensland) has no application to Commonwealth offences.

In June of 1998 Tee was found by police to have imported 2,479.3 grams of 45 per cent pure heroin into Australia through Perth concealed in a consignment of frozen fish. 
Tee agreed to cooperate with police and the heroin was replaced with a harmless white powder.  Tee continued his plans to distribute the white powder under police surveillance. 

Tee phoned the applicant in Brisbane and made arrangements for them to meet on 24 June 1998 at an Annerley hotel.  It seems that about 800 grams of pure heroin was to be given to the applicant by Tee.  Tee and the applicant discussed the transaction for about one hour in a motel room during which time the applicant sniffed some of the white substance.  The applicant took possession of the substituted powder and as he left the motel was apprehended by police.  He made no admissions of guilt and protested his innocence. 

Tee was sentenced to 10 years' imprisonment with a
non-parole period of five years in respect of the more serious offence of importation and Tee's case involved a larger quantity of heroin.  Le claims the sentence imposed upon him was, by comparison, manifestly excessive.  Le's and Tee's offence each carried a maximum penalty of 25 years' imprisonment.

Le is now 44 years of age and has no prior convictions.  He pleaded guilty at an early stage and was cooperative to the extent of not requiring committal proceedings involving up to 70 witnesses.  He was sentenced on the basis that he was not knowingly concerned in the importation of the drug.

Le had a good work history and was the owner/operator of a Vietnamese restaurant. 

In Tee's case, the Western Australian sentencing Judge noted that ordinarily a sentence of 17 to 18 years would be imposed but because of Tee's cooperation with the authorities not only in respect of this matter, but also as to other matters, reduced the sentence to 10 years with a fixed non-parole period of five years.  Tee, interestingly, claimed at his sentence to believe that the illegal import hidden in his frozen fish was not heroin but gemstones.  This was rejected by the sentencing Judge.

Mr Johnson, who appeared for the applicant both at this appeal and also at the sentence, submitted at sentence that the applicant knew Tee through purchasing fish for Le's seafood restaurant and had not pre-ordered the heroin.  The learned sentencing Judge was satisfied Le believed he was obtaining heroin from Tee and that he knew Tee was bringing heroin with him, rejecting as fanciful Mr Johnson's suggestion that Le was offered it for the first time in the motel.

No issue was taken by Mr Johnson with those factual findings which were plainly correct on the evidence.  The learned sentencing Judge, whilst recognising that Le's offence was one of attempting to obtain heroin, correctly noted that Le had done everything possible on his part to get possession of the drug, only being frustrated by the police substitution of an innocuous white powder for the heroin. 
The level of criminality involved was therefore only marginally diminished especially where, as here, the maximum term of imprisonment for the attempt is the same as for the substantive offence.  The sentence imposed in my view adequately reflects this slight mitigating factor. 

Tee's sentencing remarks were tendered at Le's sentence and demonstrate that Tee was given a very significant reduction in sentence from 17 or 18 years to 10 years because of his extensive cooperation. 

Although Le's cooperation and early plea of guilty were significant factors in mitigation, they did not warrant the very large reduction in sentence given to Tee who helped police apprehend Le.  In effect Tee's sentence for comparable purposes is one of 17 to 18 years.  The learned sentencing Judge in this case fixed a generous non-parole period which adequately took into account the appropriate mitigating factors.

In all the circumstances it cannot be said there is a justifiable sense of grievance when the sentence imposed upon Tee is compared to that imposed upon Le. 

The sentences imposed in R v. Tan Hue Le, R v. Cu Nguyen and R v. Ngoc Thuong Nguyen demonstrate that the sentence imposed in this case was within an appropriate range, although they are not directly comparable. 

I would refuse the application for leave to appeal against sentence.

DAVIES JA:  I agree.

HELMAN J:  I agree. 

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.

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