R v Le
[2004] VSCA 111
•8 June 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 201 of 2003
| THE QUEEN |
| v. |
| DAVIS LE (formerly known as |
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JUDGES: | BATT, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 June 2004 | |
DATE OF JUDGMENT: | 8 June 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 111 | |
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CRIMINAL LAW - Sentencing - Heroin importation and trafficking - Whether plea of guilty and offer of assistance undervalued - Partial cumulation in order.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr A. McLean | Victoria Legal Aid |
BATT, J.A.:
On 8 July 2003, the appellant, Davis Le (formerly known as Phuong Tien Ngo), who was born on 18 July 1959, pleaded guilty on arraignment in the County Court at Melbourne to one count of importing not less than a trafficable quantity of heroin between 1 July 2002 and 8 October 2002 (count 1) and one count of trafficking in heroin between those dates (count 2). A trafficable quantity of heroin for the offence of importation was 2 grams. The maximum custodial penalties applicable were imprisonment for 25 years for importation and 15 years for trafficking. The appellant admitted one prior conviction, for trafficking in heroin, for which he was sentenced by the Magistrates' Court in February 1996 to imprisonment for 18 months, of which six months was suspended for two years. (The Court was informed that the appellant sustained further convictions after he was sentenced for the present offences, but they need not be considered further.)
The County Court judge proceeded to hear a plea for leniency, during which a report by Mr Bernard Healey, a clinical psychologist, and certain certificates and references were tendered.
On 18 July 2003, his Honour sentenced the appellant to five years' imprisonment on count 1 with a non-parole period of three years and to three-and-a-half years' imprisonment on count 2 with a non-parole period of two-and-a-half years. He directed that the sentence on count 1 commence after the appellant had served two years of the sentence on count 2, which meant that the total effective sentence was seven years' imprisonment and that the appellant was eligible for parole after serving five years. His Honour made a disposal order, a forensic procedure order and a declaration as to pre-sentence detention.
By leave granted by a single Judge of Appeal, the appellant appeals on two grounds, the second added by leave during the hearing. They are in substance that his Honour erred:
1. in failing to give sufficient weight to the plea of guilty;
2. in the order for cumulation.
Although there should have been a separate ground, the Court permitted the appellant to treat ground 1 as if it also covered his offer of assistance to prosecuting authorities.
Before considering the grounds, it is necessary to state the facts briefly. The appellant was born in Saigon, Vietnam, in 1959. He left that country at the age of 19 and spent two years in a refugee holding camp in Malaysia before coming to Australia in 1980 under a humanitarian aid program.
At all material times he resided in Sunshine. Omitting a minor participant, there were two co-offenders, Hoang and Tran, who lived as husband and wife at another address in Sunshine. On 8 June 2002 the appellant travelled to Vietnam, returning on 9 July. Hoang also travelled to Vietnam on 18 June, returning on 17 August. While they were away they were in contact with each other and with Hoang's wife, Tran. The importation of heroin was apparently arranged with an associate during the appellant's visit to Vietnam.
On four separate occasions the appellant imported from Vietnam approximately three ounces of a mixture containing heroin of high purity.[1] The total quantity of the mixture was about 12 ounces or 336 grams. Each of the four consignments of heroin was concealed in two capacitors connected to the electronic circuitry of an electronic amplifier, but having, unlike two other capacitors, no electronic function. In each case a parcel, described as containing an amplifier, was addressed to the appellant by his present name at his Sunshine address. He collected three of them from the offices of commercial air couriers at Tullamarine against presentation of airway bills addressed to him and the other (the second parcel) was received on his behalf by his landlady and given to him. The fourth consignment was intercepted and examined by Customs officials and a controlled delivery then made. The total weight of the compressed white powder in the two false capacitors in that consignment was 84.6 grams of which 52 grams (or 61.47%) were pure heroin.
[1]According to material in the appeal book, the first occasion was earlier than the commencing date in count 1 and before the visit to Vietnam, but the dates pleaded are not material.
With the exception of the contents of one capacitor, which were supplied to an Adelaide person, the contents of all the capacitors in the first three consignments were supplied for reward (being at least $6,000 per ounce of mixture) by the appellant to Hoang and Tran and sold by them to their customers, including a police undercover operative. Intercept material revealed Tran contacting the appellant to purchase heroin for sale to the undercover operative. The appellant was unable to supply the contents of the last two capacitors, that is, those in the fourth consignment, to Hoang and Tran because, after he had collected the fourth consignment at Tullamarine on 8 October 2002 and taken it home, a search warrant was executed there and he was arrested.
The appellant was interviewed by Federal and State police on 8 October 2002. He also subsequently made a statement. He initially denied involvement in the importation of heroin but later admitted to receiving the amplifiers from Vietnam and to supplying heroin contained in them. He claimed that he had received only $2,000 for his role, that the person sending the heroin was a family friend, whom he named, and that the people he, the appellant, supplied (who were apparently nominated by the sender) would come to his house to collect the heroin. He said that he had been given various bank account details by the family friend resident in Vietnam in which to deposit the money paid to him for the heroin (less his commission) and that on one occasion the sender's girlfriend had come to his house and collected the money.
Although the appellant cooperated with police by answering questions, making the statement and being prepared to give evidence, the prosecuting authorities did not seek to rely on him in any further prosecution.
The appellant pleaded guilty at the earliest opportunity, namely, at the committal mention, a hand-up brief being prepared in lieu of a committal hearing.
The appellant was not an addict at the time of offending, having overcome an addiction to drugs during his earlier imprisonment. His Honour traced the appellant's personal details and history on page 62 of the transcript, including his inability to find work in the early 1990's, his marriage break-up in 1995 and the absence of family or other support in Australia, and it is unnecessary to repeat that. The judge expressed the view that the appellant's history, including his gambling and conviction, did not promise well for his rehabilitation.
The judge described the appellant as a facilitator. He said that the sentence he would impose was influenced by the seriousness of the offending, the appellant's poor prospects of rehabilitation and the need to deter him and others from drug dealing. His Honour considered the two offences discrete, the importation of heroin being inherently more serious than trafficking in it. He then proceeded to pronounce, with explanation, the sentence stated earlier. It should be mentioned that it had been pointed out during the plea that the former s.16G of the Crimes Act 1914 (Cth), relating to remissions, did not apply in this case.
In support of the first ground of appeal reliance was placed on the appellant's early plea and his admission of the essential elements of the offence in his extensive record of interview, including the amount of heroin imported and trafficked. Those matters were said to show remorse. Reliance was also placed on the practical benefits of saving of inconvenience, time and money flowing from his early plea. He was therefore, it was submitted, entitled to a substantial discount, but his Honour had erred in reducing the allowance to be made for remorse by reason of the strength of the prosecution case, with the result that an insufficient discount for the plea was made. A similar argument was presented in relation to the appellant's offer of assistance in future, which, it was said, entitled him to a substantial discount. It was said, correctly, that he was entitled to a discount even though the offer was not taken up.[2]
[2]The latter fact accounts for the absence of any undertaking to assist.
The ground acknowledges that the judge took the plea of guilty or offer of assistance into account, but contends that it was given insufficient weight. A ground challenging the sufficiency or excessiveness of weight given to a relevant factor, when (as here) it is not a particular of a ground of manifest excessiveness or inadequacy, is, as the authorities show, not easy to make out. In this case what his Honour in fact said, after referring to the plea of guilty, was:
"In an eight hour record of interview conducted through an interpreter you made substantial admissions and named co-offenders in Australia and Vietnam. You are prepared to give evidence against other offenders and, although that offer has not been accepted by the Crown, it is evidence of your remorse for your criminal actions. Your early plea of guilty earns you a reduction in sentence on the same basis. The presentment lists 76 potential prosecution witnesses and your pleas have saved the community the expense and inconvenience of a long and complex trial.
There is strong evidence against you on both counts. You received the four consignments in the name of Davis Le of your Sunshine address and there are police surveillance recordings of your telephone contact with the drug purchasers, [Hoang] and Tran. They in turn sold some of the imported heroin to a police agent. The strength of the prosecution case reduces the allowance to be made for remorse on your part."
His Honour thus accepted that the plea, record of interview and offer of assistance showed remorse and clearly was impressed by, and took account of, the very substantial practical benefits of the plea of guilty, but reduced the allowance for remorse in view of the undoubted strength of the Crown case. That, in my opinion, he was in law entitled to do. When regard is had to the inherent seriousness of the two offences, and especially that of importation, as shown by the maximum penalties prescribed by the respective Parliaments; to the period of the appellant's offending; to the drug involved; to the essential and trusted role he played in the importation and onward commercial movement of the drug; and to his prior conviction and imprisonment for heroin trafficking, I am not persuaded that his Honour gave insufficient weight to the plea of guilty or to the offer of assistance.
The second ground challenged the effective cumulation of two years of the trafficking sentence on that for importation. It was submitted for the appellant that the two counts related to continuous behaviour by the appellant. Further, the trafficking was an integral part of the importation and involved the passing on of the same drug to purchasers. The purchasers were organised by the original exporters of the drug and payments from the purchasers were directed to the original exporters. The count of trafficking was, it was submitted, wholly dependent on the count of importation. Further, this was a substantially different situation from one in which the offender arranges and pays for the importation of heroin and then subsequently sells the drug for direct profit. For those reasons, it was submitted, the sentences should be wholly concurrent. Reference was made to the following observation of his Honour:
"A significant fact is that you forwarded, by devious means, the payments that you received to your supplier in Vietnam. Your role was that of a facilitator over several months and in a significant manner. You contacted the dealers and you were entrusted to handle the cash payments. Your role was more significant than that of a courier employed to do no more than deliver consignments."
Although the description of "facilitator" was, in essence, accepted, it was said that his Honour in that passage was finding aggravating factors in relation to the importation by reference to conduct of the appellant relating to the trafficking and that the sentence of five years' imprisonment for the former reflected that aggravation. It was then submitted that when his Honour made two years of the sentence for trafficking cumulative he was relying on the same conduct in trafficking as he had in finding the importation aggravated. In other words, he double counted. That the cumulation was unwarranted can, it was said in conclusion, be seen from the amount of the total effective sentence.
There are, in my opinion, a number of answers to this argument, quite apart from the fact that counsel appearing for the appellant before the sentencing judge stated that he was certainly not submitting that there should be total concurrency, "not at all", and later said that a measure of concurrency would be appropriate. First, I do not accept the premise of the argument that his Honour "loaded" the importation sentence by reference to aspects of the trafficking. Rather, his Honour considered importation the more serious offence, properly in my view. His Honour's observation quoted above was, as I read it, general, applying to the totality of the appellant's criminal activity. Secondly, his Honour was not required, and probably not entitled, to make the two sentences totally concurrent. The importation of each consignment was complete once the appellant had taken delivery of it, if not in strict law earlier. Even though the same heroin was involved, the trafficking of each of the first three consignments of heroin was a separate and discrete episode from its importation, evidencing additional criminality. This can be demonstrated by considering the theoretical possibility, adverted to by Mr McArdle, that the appellant could have imported for his own use. What his Honour said on this topic was:
" The offending encompassed by these counts is discrete in the sense that importation ended on receipt by you of the drugs. It is accepted by the Crown that count 2 relates to the distribution of heroin and receipt and provision to the supplier in Vietnam of payments for the heroin. There is the common element that the same drugs are referred to in the two counts, although distribution of the last consignment was prevented by your arrest. Your criminality is not substantially affected by that fact. There is some overlapping and dependence between the two counts and for those reasons I shall order some concurrence of the two sentences that I now impose."
That statement is unexceptionable, in my view. Partial cumulation was in order. The suggested error is not made out.
I would dismiss the appeal.
BUCHANAN, J.A.:
I agree.
EAMES, J.A.:
I also agree.
BATT, J.A.:
The order of the Court accordingly is: The appeal is dismissed.
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