R v Le - [1995] QCA 479

IN THE COURT OF APPEAL	[1995] QCA 479
SUPREME COURT OF QUEENSLAND

C.A. No. 291 of 1995. C.A. No. 292 of 1995.

Brisbane

Before

Pincus J.A. Thomas J. Williams J.

[R v. Le & Anor.]

T H E Q U E E N

THO LE and DIEM MAC LE

(Applicants)
Pincus JA Thomas J Williams J

Judgment delivered 27 October 1995

Separate reasons for judgment by each member of the Court concurring as to the form of order.

BOTH APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE ARE
REFUSED

CATCHWORDS:CRIMINAL LAW - sentences - drug trafficking - level of activity not confined to proved supplies to undercover agent - main purpose to feed own addiction - eight years upheld - whether pregnancy and effect of prison sentence upon children of female offender relevant - loss involved in trafficking - four years with recommendation for parole after eighteen months upheld

Counsel:	Mr A. Rafter for the Applicants Mr R. Martin for the Respondent
Solicitors:	Gilshenan & Luton for the Applicants Director of Public Prosecutions for the Respondent

Hearing Date:6 September 1995

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 27/10/1995

I have read the reasons for judgment of Thomas J. The circumstances suggesting that the sentence imposed on Tho Le is high are that he has no previous conviction relating to dealing in heroin or any similar drug that he pleaded guilty, and that, as Thomas J says, Tho Le’s main purpose was to feed his own drug habit. That he has an 8 year sentence with no parole recommendation suggests that a person not having these three characteristics - for example, one who has been dealing in similar quantities of heroin mainly or wholly for profit and who pleaded not guilty - would, for a first offence of dealing in heroin, receive a sentence substantially higher than 8 years. It is doubtful whether the authorities give substantial support to that proposition.

A question which arises is the extent to which the Court is entitled to sentence one such as Tho Le, convicted of carrying on the business of trafficking in heroin, other than on the basis of the sales proved against him; they produced less than $3,000 per month gross and it seems likely that only a small amount of that was profit. On these figures Tho Le would appear to have been a minor dealer, but one may reasonably infer that the sales to the undercover officer were only a part of his business. May such an inference properly be taken into account? In a recent heroin importation case, Savvas (1995) 69 A.L.J.R. 564, the High Court had to consider the scope of the principle of De Simoni (1981) 147 C.L.R. 383 at 389, that no-one can be punished, in the sentencing process, for an offence of which he has not been convicted. Savvas was convicted of two conspiracy offences, conspiring to import heroin and conspiring to supply it; but the sentencing judge took into account against him findings…

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 [1995] QCA 479
Case: [1995] QCA 479
Decision Date: 27/10/1995

CaseChat Overview and Summary

The applicants, Tho Le and Diem Mac Le, sought leave to appeal against their sentences for drug trafficking offences. Tho Le was sentenced to eight years' imprisonment, while Diem Mac Le received a four-year sentence with a recommendation for parole after eighteen months. The Court of Appeal was asked to determine whether these sentences were manifestly excessive. The primary judge had considered various factors, including the applicants' roles in the drug trafficking operation, their personal circumstances, and the impact of imprisonment on their families. The Court found that while the sentences were not lenient, they were not manifestly excessive and thus denied the applications for leave to appeal. The Court acknowledged the personal hardships of the applicants but emphasised the need for retribution and deterrence in drug trafficking cases.

Pincus JA, Thomas J, and Williams J all concurred in the decision to refuse the applications for leave to appeal. The Court considered the extent of the applicants' involvement in the drug trafficking operation, the principle that sentences should not be based solely on proven transactions but on the overall business conducted, and the mitigating factors presented. The Court found that the sentences, though substantial, were within the appropriate range considering the applicants' roles and the need for deterrence. The personal circumstances of the applicants, including Diem Mac Le's pregnancy and her care for her young child, were taken into account but did not warrant a reduction in sentence. The Court held that the sentences imposed were not manifestly excessive and affirmed the primary judge's approach.

Orders