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

v.

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 which the judge made as to "a large number of facts relating to the conduct of the appellant and his co-conspirators, pursuant to the alleged conspiracies"; see per Gleeson CJ in the decision of the New South Wales Court of Criminal Appeal (1991) 58 A Crim.R. 174 at 175. The sentencing judge made detailed findings as to the amounts of the drug involved (178) and explicitly sentenced on the basis that pursuant to the conspiracy Savvas had been involved in the importation of particular quantities of heroin. Kirby P (dissenting) concluded that the judge was in error, in that the sentence went beyond punishment for the offences of which Savvas was convicted (185). Here the question is whether the sentence can take into account, not dealings which are not charged, but dealings not specifically proved.

In the High Court it was held that it is “artificial to ignore what the judgment in Kane describes as ‘considerations which advert to the content and duration and reality of the conspiracy’ " and the sentencing judge’s approach in Savvas was upheld. It is true that the present is not a conspiracy case, but the circumstances appear to me to require an approach analogous to that taken in Savvas. The High Court pointed out in Savvas that if, after the agreement constituting the conspiracy was made, "the appellant had a change of heart and decided not to play any part in the importation of the heroin, it is inconceivable that this would not be a matter urged in mitigation of sentence". So in the present case, if it had been proved that the sales made to the undercover officer were the whole of the business done in the relevant period, that would be a mitigating factor; the fact that the proper inference is that there was a more substantial business being conducted must be an aggravating factor.

Tho Le was convicted of carrying on the business of unlawfully trafficking in heroin between 17 January 1994 and 8 April 1994 under s. 5 of the Drugs Misuse Act 1986. That he was in that business was clear from the evidence gathered by the police, but the precise extent of it was not able to be proved. I understand Thomas J to be of the view that in a case of this sort the Court is not confined to sentencing on the basis that the quantities involved in the business are only those as to which the Crown has specific evidence and I agree with that. Not only may the quantity able to be proved depend, as Thomas J points out, on the point at which the police decide to close the operation down, but in my opinion the dealings with the undercover officer in a case of this sort will ordinarily and reasonably be inferred to be only a sample of the business done.

Where the proper inference is, as in this case, that a regular business of dealing in heroin is being carried on, and this is shown by the dealers’ contacts with an undercover officer, the particular quantities sold to that officer are not necessarily of great significance in determining the proper level of sentence for carrying on the business of trafficking. It is true that ordinarily it is difficult to draw any solid inference as to the amount of dealing done, although that was achieved in Savvas, but the Court is not to sentence on the basis that - to use the figures in the present case - the amount involved in the trafficking was only $8,395.

There is in my view some subtlety in the distinction made in Savvas between, on the one hand, punishing an offender for offence A of which he has been convicted, having regard to a judicial finding that a circumstance involved in offence A was the commission of offence B, and simply punishing the offender for offences A and B, on the other. But in a case of this kind, where the conduct of a business is charged, that problem does not arise.

It should also be noted that in cases of this sort the question of co-operation with the authorities looms large. Here, there was none; indeed, Tho Le, while in custody, attempted to put a stop to a conversation a police officer was having with a person who was presumably a drug customer: see s. 9(2)(i) of the Penalties and Sentences Act 1992. Tho Le provided no information which could be of any assistance to the police in suppressing trafficking in heroin; had he done so to an adequate extent no doubt he would have received, in accordance with the authorities, a drastic reduction in sentence, particularly having regard to the personal risk which such co-operation would involve.

My view is that the sentence imposed should not be considered on the basis that the quantities of heroin sold to the undercover officer constituted the whole of the business charged. Considered in that light the sentence remains, in my respectful opinion, a substantial one, because of the three factors I have identified above. But, not without doubt, I have concluded that it cannot be said to be manifestly excessive.

The other applicant, Diem Mac Le gave birth to a child in 1986 and worked as a shop assistant to support herself and her child. Her counsel told the judge that she received payment from Tho Le of between $20 and $70 on each occasion when she assisted in a sale. At the time when she came up for sentence she was again pregnant and had another baby two weeks after she was sentenced. She was not a user of drugs, it was said. Her sentence was 4 years, with a recommendation that she be considered for parole after 18 months.

Counsel for Diem Mac Le conceded below, in effect, that the circumstance that she was very pregnant when she came before the judge, having become pregnant since being charged, did not justify any reduction. There is authority, discussed in Adami (1989) 42 A.Crim.R. 88, in favour of the view that ordinarily the effect of a sentence of imprisonment on dependants is not taken into account in fixing the length of the sentence; see also the discussion in Tan Hai Huat (1990) 96 A.L.R. 649 at 661, 662. Since those cases were decided it has become clear that generally speaking a Court making a decision with respect to parents which has an effect on their children’s welfare must take that effect into account, or give proper notice of an intention not to do so: Minister for Immigration and Ethnic Affairs v. Teoh (1995) 69 A.L.J.R. 423. It was there held that, for the purposes of considering the discretion to deport a person convicted of a drug offence, the decision-makers should take into account provisions of the United Nations Convention on the Rights of the Child, of which the most pertinent provision for present purposes is article 3.1:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies the best interests of the child shall be of primary consideration".

In the Teoh case it was held that there was a legitimate expectation that a decision- maker should apply the Convention and that procedural fairness required that, if the decision-maker proposed to act contrary to that expectation, notice should be given to persons affected and an adequate opportunity given of presenting a case against doing so: 433, 439.

It will be noted that the Article refers explicitly to courts; the doctrine of Teoh prima facie applies to Queensland courts sentencing offenders. But it is my opinion that those familiar with the provisions of the Penalties & Sentences Act 1992 could have no such expectation as was referred to in Teoh. The Convention requires that the best interests of the child be a "primary consideration". The Penalties & Sentences Act 1992 sets out, principally in s. 9, what are described as governing principles relating to sentencing. There is nothing in the Act to suggest that the interests of an offender’s children are to be a primary consideration and it appears to me, that the statute read as a whole, is inconsistent with that proposition. In short, Teoh is inapplicable here; nevertheless, the practice of Queensland courts is to give consideration, when appropriate, to the effect of a sentence on an offender’s young children.

Diem Mac Le was plainly deserving of lesser punishment than Tho Le because of her youth, the absence of previous convictions and the fact that she played a subsidiary role. But as the primary judge pointed out, the telephone which was used in the business was registered in Diem Mac Le’s name; the judge went on: "you answered the phone, you made arrangements, you drove the car taking you and the other prisoner to where the transactions were to take place, and on different occasions you handed over possession of the drugs and you took the money".

Neither sentence was lenient but, in my view, the applications must be refused.

REASONS FOR JUDGMENT - THOMAS J.

Judgment delivered 27 October 1995

Tho Le has applied for leave to appeal against a sentence of eight years' imprisonment imposed with respect to sixteen drug offences including one offence of trafficking in heroin.

Diem Mac Le has applied for leave to appeal against a sentence of four years' imprisonment with a recommendation for parole after eighteen months with respect to eleven offences under the Drugs Misuse Act including one of trafficking in heroin.

The applications were heard together. It will be convenient to deal firstly with the case of the male applicant. An undercover police officer made contact with a third party who contacted Tho Le. The initial transaction by which heroin was acquired for $220 was conducted through the third party, but the agent obtained from Tho Le a piece of cardboard with a telephone number on it which enabled him to deal thereafter directly with Tho Le. Over a three-month period up to 7 April 1994 Tho Le made thirteen supplies of heroin to the agent for which he received a total of $8395. The total quantity of powder supplied was 11.629 grams containing 7.6 grams of pure heroin. The average purity of the heroin was sixty-five percent. In eight of those transactions the other applicant, Diem Mac Le, was also involved. In addition to the heroin, in February 1994 Tho Le supplied 9.5 grams of cannabis sativa for $80.

The applicants were arrested after completing the last transaction. They denied contact with the police agent and gave a false explanation for the $500 found in Diem Mac Le's purse. Both applicants declined to be interviewed by the police.

Tho Le, who was twenty-nine years old at the time, had a criminal history consisting mainly of drink driving and other driving offences, some street offences, and two offences (in 1985 and 1989) of possession of a prohibited plant. On the latter of these he was fined $600.

Tho Le was the principal offender and was prepared to act as a professional dealer in heroin. Some conversations with the agent indicated that he was generally involved in a market and that this included marijuana as well as heroin. During one conversation he complained that people were not paying him for drugs he had supplied. When in the police car after his arrest his mobile phone rang. The call (answered by a policeman) was from a person enquiring about drugs. Tho Le shouted a warning to the caller who then hung up.

His plea of guilty was taken into account, although it was noted that the evidence against him was very strong.

The total quantity of drugs supplied and the total of the money paid for them is not always a reliable indicator of the degree of an offender's criminality. The quantity often depends upon the date which is chosen by the police to close down a particular operation. Sometimes the regularity and frequency of the supply gives a clearer indication of the level and nature of an offender's business. Here there were fourteen supplies over a period a little less than twelve weeks. His operation appears to have been well organised and discreetly conducted. The purity of the drug was high. That factor is reflected in the amount of pure heroin that is calculated to have been supplied. It also tends to suggest that the drug had not been cut down by the original supplier and that the offender is therefore closer to the top than the bottom of the ladder of supply. However that is not a particularly telling factor in the present case where it seems that Tho Le was not gaining any very extensive profit from the activity, and that the main purpose of it was to feed his own habit. It was accepted that he was addicted to heroin, and that he would "tax" the heroin he was supplying and usually make a small profit in addition.

A difficulty confronting the present appeal is that counsel for Tho Le (who was not counsel upon the appeal) submitted that the appropriate sentencing range was seven to nine years and that the case marking the bottom of the applicable range was Swann (C.A. 354 of 1993, 11 November 1993) where the sentence was seven years' imprisonment with a recommendation for parole after three years.

It seems fairly clear from previous decisions in this court that trafficking activity when the motive is sheer profit is more seriously regarded than trafficking activity by an addict who is to some extent in the grip of the drug and who succumbs to becoming involved in the trade in order to feed his habit. Strong deterrence is necessary in both types of case, but greater culpability may be discerned in the cold criminal activity for profit of offenders of the former kind. The present applicant was described as having "a significant drug addiction" but was making some profit out of it. He operated in a number of areas in Brisbane, mainly in the Valley. He has some conversational English but his social functioning is mainly confined to the local Vietnamese community. At material times Tho Le worked for a compatriot on a fishing trawler in Moreton Bay and was using all his earnings on heroin. A report from a psychologist was tendered, but apart from indicating a difficult upbringing in Vietnam because of the aftermath of the war, recounting his drug problems and noting that after his arrest he obtained appropriate professional help and had tested clean for the past six months, it advances no psychologically based point of mitigation.

I have examined cases which are said to be comparable. These include R v. Swann (C.A. 354 of 1993, 11 November 1993), Runcan (C.A. 303 of 1993, 13 October 1993), Legradi (C.A. 469 of 1993, 4 March 1994), Macgregor and Cassin (C.A. Nos. 50 and 51 of 1994, 9 May 1994), Woods (C.A. 381 of 1994, 2 December 1994), Sebez (C.A. 100 of 1994, 17 May 1994).

Of these Sebez seems to be the most comparable. He was a thirty-one year old man with no relevant criminal history who was convicted of trafficking in heroin and ten counts of supply. He sold heroin to an undercover agent over a six-month period totalling five grams in weight of pure heroin of an average purity somewhat less than that in the present case. The total amount paid was $10,300. He was a user of the drug, and he pleaded guilty. The sentence was nine years' imprisonment with a recommendation for parole after three years. It would seem difficult to disagree with defence counsel's concession below that "we would not contest that the range is seven to nine" with respect to offences of trafficking at this level, although there may be some special cases where lower sentences are justifiable. Counsel for the applicant submitted to the Court that the present sentence of eight years' imprisonment with no particular recommendation for parole should be regarded as more severe than that in Sebez, but this is not necessarily so. There is reason to think that a surprisingly high percentage of offenders who obtain recommendations for early consideration of parole from the Court are not in fact granted parole by the Correctional Services Board until a substantial time after the recommended time. No doubt there are good reasons why this happens, but it underlines the fallacy of evaluating a sentence on the assumption that an offender will be released upon the earliest date recommended for consideration of parole.

The only decision apparently out of line with the fairly clear trend conceded by defence counsel is Woods (above). The Court placed unusually dominant weight upon the rehabilitation factor in that case in which impressive psychiatric evidence was produced. Prison was seen as militating against the applicant's "struggle to rehabilitate himself". He was seen as a person who had made and was still making exceptional efforts to overcome his serious drug problem. He had apparently overcome his old drug habit and had re-established his life with some success for a four year period, when an air conditioner fell on his head at work producing a significant head injury. Consequential problems, a marital break up and the loss of his son in a swimming accident produced a loss of control and a reversion to his drug habits and in turn his offending behaviour, which the Court remarked had to be "placed in context". Apart from those unusual features, the other factors in Woods are roughly comparable with those in Sebez and the present matter. Woods must be seen as a special case in the light of the circumstances just mentioned.

While eight years might seen to be at the high end of the appropriate range for circumstances such as those applicable to Tho Le, I am unable to say that it was manifestly excessive.

Diem Mac Le lived in a defacto relationship with Tho Le since June 1994. She had however been driving for him on occasions when drugs were supplied for some time including the period over which she was charged, starting in February 1994. She participated in eight of the relevant supplies. Tho Le was regarded as the principal, but Diem Mac Le was regarded as a minor but willing player. Her role was exemplified by reference to counts four and five in which she was in the vehicle when two packages of heroin in aluminium foil were handed over. The money was in fact handed to her. It was said that she was paid a small amount "for driving the male offender" and that she obtained very small financial gain. Nonetheless she knew what she was assisting to do. The male offender had lost his licence, and she was of more than passive assistance to him. After the period when the offences were committed, she fell pregnant to Tho Le and at the time of sentence was eight months pregnant. She too had had difficult early years and a difficult teenage period when she was in effect disowned by her family when she fell pregnant at the age of sixteen. Until her sentence she cared for her eight-year-old daughter.

While these matters evoke sympathy the hardship or stressed shared by the family of an offender cannot be allowed to overwhelm factors such as retribution and deterrence (Tilley (1991) 53 A.Crim.R. 1, 3-4, 6). It seems to me that the special factors applicable to Diem Mac Le, including her lesser role and the personal circumstances just mentioned, have been adequately taken into account in the sentence of four years' imprisonment with a recommendation for parole after eighteen months. With those factors in mind there is a reasonable parity between the two sentences.

Both applications should be refused.

JUDGMENT - GN WILLIAMS J

Judgment delivered 27/10/1995

I have had the advantage of reading the reasons for judgment prepared by Thomas J and I agree with them and with the orders proposed. I also agree with the additional comments made by Pincus JA with respect to the application for leave to appeal against sentence brought by the applicant Tho Le.