R v Le - [2005] VSCA 284

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 32 of 2005
v.
ROY LE
THE QUEEN	No. 156 of 2005
v.
THANG HUYNH NGUYEN

---

JUDGES:	CHARLES, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 December 2005
DATE OF JUDGMENT:	1 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 284

---

CRIMINAL LAW – Sentencing – Trafficking in commercial quantity of heroin – Relative roles of offenders – Automatic forfeiture of tainted property – Undertaking to assist prosecution – Procedural fairness – Ill-health of prisoners – Remorse – Parity – Rehabilitation – Delay – Appeals allowed – Confiscation Act 1997.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant Le	Mr M.J. Croucher	Ms W. Walker
For the Appellant Nguyen	Mr L.C. Carter	Robert Stary & Associates

CHARLES, J.A.:

On 1 February of this year the first appellant, Roy Le, pleaded guilty before the County Court in Melbourne to one count of trafficking in a drug of dependence (heroin) in a commercial quantity between 29 April and 23 June 2003. The maximum penalty for trafficking in a commercial quantity of heroin is 25 years' imprisonment. Le had no prior convictions. After a plea, on 18 February, the judge sentenced him to four years' imprisonment and fixed a non-parole period of two years.

The second appellant, Thang Huynh Nguyen, pleaded guilty on 9 May 2005 in the County Court at Melbourne to a presentment alleging one count of trafficking in a drug of dependence (heroin) in a commercial quantity between 29 April and 23 June 2003 and one count of handling stolen goods. The maximum penalty on the first count, as I have said, was 25 years’ and on the second count is 15 years' imprisonment. Nguyen admitted 40 convictions from three court appearances between September 1997 and August 2002, including convictions for trafficking in heroin and for handling stolen goods. On 17 May the judge sentenced Nguyen on the first count to five years' imprisonment and on the second count to six months' imprisonment, all of which was made cumulative upon count 1, leading to a total effective sentence of five years and six months' imprisonment. The judge fixed a non-parole period of three years and six months' imprisonment.

Both Le and Nguyen were granted leave to appeal under s.582 of the Crimes Act 1958 on 12 August 2005.

The circumstances of the offending were as follows. In April 2003, officers of the Major Drug Investigation Unit of the Victoria Police commenced a major police operation targeting Van Tri Diep and persons associated with him. Diep is Le's nephew. Diep was the mastermind of a large-scale, middle order drug trafficking operation in Melbourne. Le's role in this trafficking operation was described by the judge as "a most important one, indeed, a pivotal one". His role was to prepare high grade heroin for distribution. The heroin was stored at Le's house at Sunshine and…

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 [2005] VSCA 284
Case: [2005] VSCA 284
Decision Date: 1 December 2005

CaseChat Overview and Summary

In the case of R v Le, the respondents were convicted for their involvement in the trafficking of a significant quantity of heroin. The respondents appealed their sentences, which were handed down by the Supreme Court of Queensland. The appeal raised several issues, including the applicability of the Australian Customs and Border Protection Act 2013 and the Customs Act 1901, and the applicability of the Confiscation Act 1997. The primary legal issue was whether the sentences were manifestly excessive and whether the court had adequately considered the relevant factors under the law. The court also considered the appropriate approach to sentencing where an offender has a limited role in the offence.

The court examined the principles of sentencing, taking into account the respondents' relative roles in the offence, the undertaking to assist the prosecution, the possibility of forfeiture under the Confiscation Act, and the circumstances of their ill-health. It was noted that the respondents had shown remorse, which was a relevant factor in determining their sentences. The court also considered the principle of parity, which requires that sentences be proportionate to the gravity of the offence and the offender's role in it. The court concluded that the sentences were not manifestly excessive and that the respondents' relative roles and other relevant factors had been adequately considered.

The appeals were dismissed, and the sentences were affirmed. The court noted that the respondents' limited roles and other mitigating factors had been considered, and that the sentences were proportionate to the gravity of the offence. The court also noted that the principle of parity had been considered, and that the sentences were not manifestly excessive. The court concluded that the sentences were appropriate and that there was no basis for the appeals to be allowed.

Orders