R v Le
[2008] VSCA 155
•25 August 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 260 of 2007
| THE QUEEN |
| v |
| VAN DAT LE |
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JUDGES: | WARREN CJ, NEAVE and WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 August 2008 | |
DATE OF JUDGMENT: | 25 August 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 155 | |
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CRIMINAL LAW – Sentence – Appeal – Parity – One count of trafficking in heroin - Total effective sentence of 2 years’ imprisonment with a non-parole period of 15 months – Whether parity with sentences of ten co-offenders – Whether trial judge treated the lowest sentence of the co-offenders as a floor that could not be ventured beyond.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr S Ward, Acting Solicitor for Public Prosecutions |
For the Appellant | Mr C B Boyce | Victorian Legal Aid |
WARREN CJ
NEAVE JA
WEINBERG JA:
The appellant, Van Dat Le, appeals his sentence imposed in the County Court on one count of trafficking in heroin.
The appellant and 10 others formed a drug supply and trafficking structure in and around Fitzroy. The structure and its activities were monitored by police surveillance and telephone intercepts over approximately three and a half months during the period August to December 2005 (‘the period’).
The major supplier was one Tri That Ton who supplied Minh Duc Nguyen who in turn supplied, directly or indirectly, nine others: Kha Mieu, Phu Thi Dinh, Van Quan Nguyen, Van Tam Le, Julie Ngoc Le, Trinh Nguyen, Van Le, Khen Luc Van and the appellant.
Minh Duc Nguyen operated from his house in Fitzroy during the period. He sourced heroin from his main supplier, Tri That Ton and then supplied heroin to dealers, customers and directly to street level users. The latter sometimes exchanged stolen goods with Minh Duc Nguyen for heroin. The prosecution in the charges against him alleged trafficking of 2.765 kgs of heroin to regular customers during 37 transactions. Minh Duc Nguyen engaged two women, Julie Ngoc Le, and Trinh Nguyen, to collect and deliver heroin and cash. The trafficking was conducted mostly in amounts of one ounce or multiples of that amount. The prosecution alleged that Minh Duc Nguyen and his associates used telephones under false names to conceal their identities and also used codes in telephone conversations to conceal their drug transactions.
The police arrested Minh Duc Nguyen and Trinh Nguyen on
1 December 2005 and seized large amounts of cash and gaming chips, white powder cutting agent for heroin and drug preparation equipment. Subsequently they arrested the other associates including the appellant.
Most of the co-offenders of the appellant pleaded guilty to their charges before the same County Court judge. They were: Minh Duc Nguyen, Van Quan Nguyen, Van Le, Khen Luc Van and the appellant. The other co-offenders were variously awaiting hearings.
The sentencing judge observed in relation to the appellant and his co-offenders that: the activities occurred over a three and a half month period; two years had elapsed since the offending to the time of the plea; the quantities of heroin involved had the potential to penetrate the community deeply and widely and cause grave and widespread harm;[1] trafficking in heroin is widespread in the community; it is financially rewarding; because of the harm caused by heroin the courts have required condign punishment; the co-offenders only stopped their activities upon arrest; the pleas of guilty had saved a long and expensive trial.
[1]This comment did not apply to the offender Khen Luc Van.
The circumstances of Minh Duc Nguyen were that he pleaded guilty at a committal hearing, following initial denials and non-admissions, to one count of trafficking a large commercial quantity and one charge of handling stolen goods. He was aged 50, had no relevant prior convictions, suffered from a gambling habit and was not without prospects for rehabilitation. He was sentenced to a total effective sentence of nine years’ imprisonment with a minimum term of six and a half years.
Van Quan Nguyen pleaded guilty to one count of trafficking heroin during the period. He had sold 10 ounces of heroin in amounts of one ounce or multiples of that amount. He was aged 42 and had prior convictions, including one conviction for trafficking in heroin in the year 2000 for which he was sentenced to a term of imprisonment of four years with a minimum term of two and a half years. He also suffered from alcohol and gambling problems. He offered his plea at the committal hearing. Van Quan Nguyen was sentenced to four years’ imprisonment with a non-parole period of two years being fixed.
Van Le initially denied the allegations against him but ultimately pleaded to one count of trafficking in heroin. The judge observed that the heroin was purchased for sale to others. He was aged 62, had no relevant prior convictions, was a bankrupt and suffering taxation and financial difficulties and also gambling problems. He was sentenced to a term of two years’ imprisonment and a non-parole period of 15 months was fixed.
Khen Luc Van pleaded guilty to one count of trafficking heroin. His trafficking involved a total of three and a quarter ounces of heroin spread across three transactions. The heroin was purchased on behalf of a female heroin user who paid Khen Luc Van for it, including giving him some of the heroin for his own use. He had a heroin habit at the time of the offending; the purchases occurred over 20 days; his role was a minor one compared with his co-accused; the quantity involved was the second smallest of all the co-offenders; and he was at or close to the lowest rung of the ladder. Khen Luc Van was 37, he had no prior convictions save for possessing heroin in 2007 leading to a fine without conviction; he suffered depression which led to his heroin use and in turn to his meeting the female user for whom he purchased the heroin; he was undergoing medical treatment for his addiction during the two year period preceding the sentencing hearing. The judge accepted that the plea of guilty was an indicator of remorse. Khen Luc Van was sentenced to 18 months’ imprisonment and a non-parole period of six months was fixed.
Kha Mieu pleaded guilty to one count of trafficking heroin. She had no prior convictions. She collected heroin from Minh Duc Nguyen to deliver to a man. At the time of her arrest she had three ounces of heroin with her. She was sentenced by a County Court judge other than the judge who sentenced the other co-offenders. Kha Mieu was sentenced to 15 months’ imprisonment and a minimum term of seven months was ordered.
The appellant pleaded guilty to one count of trafficking heroin. The sentencing judge observed that the appellant purchased the heroin from Minh Duc Nguyen, on-sold it and delivered money to Nguyen. He was actively involved and in contact with Minh Duc Nguyen almost daily and the transactions involved thousands of dollars spread across multiple occasions. The appellant was aged 50 at the time of sentence and the sentencing judge considered his prior convictions of little relevance. He had suffered various difficulties during his early life and escaped from Vietnam to settle in Australia when aged 25. At the time of the offending he suffered from alcohol, gambling and debt-related problems. These problems were considered in the report of a psychologist, Mr Michael Crewdson. At the time of his plea, the appellant did not indicate preparedness to seek help for his problems.[2] The appellant was sentenced to a term of two years’ imprisonment and a non-parole period of 15 months was fixed.
[2]Mr Crewdson noted that the appellant did not ‘have a sense of any great enthusiasm to actively seek help.’
In so sentencing the five co-offenders,[3] the learned trial judge said with respect to the topic of parity:
The question of parity is something I have considered throughout all this and if I can perhaps start at the top and work down? In my view, parity is not required between Mr Minh Nguyen and the others for obvious reasons. For example, he has pleaded guilty to a large commercial quantity. He was running the business, and so on. Nor is it required, in my view, between Minh Nguyen and Van Khen [Quan] Nguyen for much the same reasons, plus that Mr Van Khen [Quan] Nguyen was assisting Mr Minh Nguyen in the running of Mr Minh Nguyen’s business, not the other way around. Nor is it required between Mr Van Khen [Quan] Nguyen and the other three because their offending was on a lower level than that of Mr Van Khen [Quan] Nguyen, and Mr Van Khen [Quan] Nguyen has prior conviction [sic] for this very same offence. There is an argument for parity of sentencing between Mr Van Dap [Dat] Le, Khen Luc Van, Van Le, and Kha Mieu, and their sentences should reflect that principle so far as it is applicable in each case given the relevant circumstances in each instance. So I do feel somewhat constrained by the sentence imposed upon Kha Mieu. In every case I bear in mind the sentence that I propose for each of the others when I come to sentence each one of you.
[3]But excluding Tri That Tom who was to be dealt with later.
The appellant appealed his sentence initially on two grounds: failure to recognise parity with the co-offenders, particularly Khen Luc Van; and also the ground of manifest excess. The latter ground was abandoned, the argument being essentially absorbed into the parity ground.
The thrust of the appellant’s argument was that when the sentencing judge said he felt ‘somewhat constrained by the sentence imposed on Kha Mieu,’ his Honour treated that sentence as a floor which he could not venture beyond. The sentencing judge, therefore, took account of an irrelevant matter and misconstrued the parity principle by anticipating grievance by Kha Mieu that she received a custodial sentence whereas a suspended sentence was urged for the appellant.
We reject the submission. At the outset, the circumstances and offending of each co-offender was different. As the sentencing judge observed, parity did not operate as between the co-offenders and Minh Duc Nguyen because of the gravity and centrality of the latter’s offending, or between the other co-offenders and Van Quan Nguyen because of his assistance to Minh Duc Nguyen in the trafficking, with the offending of the others being at a lower level. The sentencing judge identified the appellant, Khen Luc Van, Van Le and Kha Mieu as warranting parity but subject to the ‘relevant circumstances of each individual’.
Turning then to a comparative assessment of the appellant and his circumstances and the relevant co-offenders, Van Le received the same sentence as the appellant. He was older, had personal circumstances of financial and gambling problems and no relevant prior convictions. He trafficked the amount of two ounces. Khen Luc Van received a lesser sentence than the appellant. He was younger, suffered depression and its consequences but was undergoing medical treatment for his addictions and he had no relevant prior convictions. He trafficked three and a quarter ounces of heroin in a total of three transactions over a period of 20 days. His role was, as observed by the judge, minor compared with the others. Further, the heroin Khen Luc Van purchased was on behalf of a single heroin user he had befriended and for himself, and distinct from broader drug dealing. Kha Mieu received a lighter sentence than the appellant. She was involved in a single transaction of acting as a courier by collecting three ounces of heroin from the home of Minh Duc Nguyen for another on one occasion. She had no prior convictions. By contrast to his relevant co-offenders, the appellant was actively and regularly involved with Minh Duc Nguyen over the period. He sold heroin and delivered money to Minh Duc Nguyen to the extent of thousands of dollars over the three and a half month period. Thus, whilst the appellant presented personal circumstances relative to the co-offenders, the nature and extent of his offending was different and in important respects more serious. Plainly, his Honour took account of the differing levels of culpability between the relevant co-offenders which he was entitled to do. All these matters were open to the sentencing judge to weigh up in determining the sentence of each co-offender. It is apparent that his Honour paid appropriate heed to the parity principle so far as applicable in light of the relevant circumstances of each offender.
So far as the expression used by his Honour as to feeling ‘somewhat constrained’ by the sentence imposed on Kha Mieu, the appellant essentially submitted that, when read in context, the term ‘constrained’ indicated that the learned trial judge felt compelled to increase the sentence beyond what would otherwise be appropriate. The passages to which the Court’s attention was drawn do not support such an interpretation, particularly when his Honour’s reasons are read as a whole. His Honour described at some length the ‘relevant circumstances of each individual.’ In the case of the appellant, this included mention of his active involvement with Minh Duc Nguyen on a daily basis and the ‘modest discounts’ on sentence for improvement in his drinking and gambling behaviour since the offences.
The appellant’s submissions misconstrue the plain meaning intended by the sentencing judge. Quite clearly his Honour was adverting to the fact that, but for the sentence imposed on Kha Mieu, he would have considered imposing a higher sentence on the appellant and Khen Luc Van and Van Le. The more lenient sentence having been imposed, by a different judge, and being mindful of the principle of parity his Honour felt ‘constrained’. The interpretation urged by the appellant is misconstrued and untenable.
It follows that we consider the sole ground of appeal is not made out and the appeal should be dismissed.
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