R v Le

[2010] NSWDC 101

CITATION:	R v LE [2010] NSWDC 101
HEARING DATE(S):	22 February 2010 24 March 2010
JUDGMENT DATE:	7 May 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment. I set a head sentence of eighteen years with a non-parole period of twelve years to date from 23 August 2007. The offender’s non-parole period will expire on 22 August 2019.
CATCHWORDS:	CRIMINAL LAW - Sentence - Attempt possess methamphetamine - Failed claim of duress - Controlled delivery
PARTIES:	The Crown Tan Phuong Le
FILE NUMBER(S):	DC 2008/18555
COUNSEL:	Mr M Johnston - Crown Mr F Santisi - Defendant
SOLICITORS:	The Director for Public Prosecutions Tsambas & Co Solicitors

JUDGMENT

1 HIS HONOUR: On 24 March 2010 after a four and a half week trial a jury found the offender guilty of attempting to possess a quantity of methamphetamine which had been imported into Australia. The quantity was significant, it was fifteen kilograms of a powder which contained ten kilograms of pure methamphetamine. The maximum penalty for that offence is life imprisonment. It is, as the maximum penalty demonstrates, a very serious offence indeed, and the quantity involved was thirteen times that which exposed the offender to that maximum penalty of life imprisonment.

2 The offender played a very important role in the process of importing what he believed were drugs from Canada and making them available to drug users in Australia. He was responsible for taking delivery of the drugs and passing them on to the distributor, a man by the name of Chan. The offender was intimately involved in the operation, using his own initiative in making decisions. He was far from a mere foot soldier.

3 The drugs were secreted in three hard shell suitcases sent from Canada to Sydney. Once they arrived in Australia police deconstructed the suitcases, removed the powder secreted within and replaced that powder with an inert substance. That explains why the offence with which the offender was charged was an attempt. The suitcases were put back together and ultimately a controlled delivery was carried out. Undercover police posing as delivery men took the suitcases to the offender where he was living. He then took custody of the suitcases and passed them over to others involved in the operation, after they first checked by means of an angle grinder that the bags contained what they thought was the quantity of drugs. Although the time during which the offender possessed the suitcases, believing them to have drugs secreted inside, was very short, his involvement in the matter extended over a significant period. He was responsible for organising the delivery of the suitcases to himself after they had arrived in Australia. This process was not straightforward, because of two particular complications. The first was that the offender’s telephone number was incorrectly recorded on the shipping documents, particularly the bill of lading. The second was that another man, whom the offender had intended to actually take possession of the suitcases once they had cleared Customs, got cold feet and pulled out.

4 The offender’s telephone calls were intercepted and the jury were able to hear for themselves what the offender did to overcome those problems. The offender, as I said, used his own initiative to overcome these difficulties.

5 The drugs had been sent to Australia by the offender’s oldest son who lived in Canada. Most of the intercepted calls involved the offender and his son passing information between themselves to facilitate the clearance of the suitcases through Customs and the delivery of the suitcases to the offender. Some of the recorded conversations were highly incriminating indeed. It was here that the offender’s attempts to explain the inexplicable failed lamentably.

6 Part of the offender’s case was that he had been threatened by cruel Chinese gangs. Those threats were said to be that if he did not do what was required of him, not only would he be killed but so would his four sons, then living in Canada. Part way through the trial I delivered a judgment in which the defence of duress was removed from the jury’s consideration. It was no part of what I had to decide at that stage to make a finding as to whether or not the offender was really threatened, as he said he was. However for the purposes of these remarks on sentence, I am able to say without a moment’s hesitation that I completely reject the offender’s evidence that he was threatened. There are many reasons for me making this finding. Let me briefly explain.

7 The intercepted telephone calls contained not the slightest hint of the offender ever talking to his son about the threats he said he had received or asking after his children, despite his evidence that his son knew about the threats and indeed had been subjected to threats by Chinese gangs himself.

8 The offender explained this circumstance by saying that he communicated with his son about these threats over the internet, using what I understood to be a method of communication called voice over internet protocol or VOIP. It is a remarkable state of affairs that the offender’s evidence was that these conversations took place only over a medium which the offender well knows was not intercepted by police.

9 The offender gave evidence that one evening on 19 August 2007 he was visited by Chinese people in Sydney who threatened him even more seriously than he had been previously threatened, yet when the offender spoke to his son the following morning he made no reference to such threats. In cross-examination the offender attempted to say that he had already spoken to his son about the threats using VOIP, but as the content of the intercepted call made clear, there had been no such communication between them. The offender’s cross-examination on this issue revealed the dishonesty of what he was saying. The Crown cleverly laid a trap for him and the offender fell into it.

10 Perhaps the strongest piece of evidence pointing to the falsity of the offender’s claim to have been threatened, is his behaviour when being interviewed by police once police had intervened and the contents of the suitcases seized by them. According to the accused, his children, the youngest of whom was at that stage only twelve, were going to be killed, yet there is not the slightest hint of any concern that the offender had for the welfare of his children when he was speaking to police. What he said and how he appeared was entirely inconsistent with him being a person who was afraid for the safety of his children. Indeed he was more concerned at not having eaten for a while.

11 So I am able to reject completely any suggestion that the offender was acting under duress. Other parts of the offender’s evidence were equally ridiculous. He claimed that whilst he had initially suspected that the suitcases might contain drugs, he later formed the view that they contained something like antiques. This claim did not sit very well with the offender’s evidence that his life and that of his children were at risk if he did not take possession of the suitcases. In any case, by their verdict the jury clearly rejected the offender’s evidence. In coming to that conclusion the jury no doubt took account of the contents of conversations between the offender and his son such as these I will now mention.

• The offender was told that what was in the suitcases had been well hidden and if police had found what had been hidden, then there would have been obvious damage to the suitcases.

• The offender acknowledged that if when he went to pick the suitcases up they had been damaged, then he would simply deny that the suitcases were his and say that there had been some mistake.

• In one conversation the offender is told by his son that there are “three suitcases each containing five”. This is clearly a reference to each suitcase containing five kilograms, which precisely matches the quantity of powder seized by police.

• In another telephone call the offender was told that if the police had found “it” they would have made an arrest already. So the fact that no one had been arrested meant that the drugs had not been found.

12 Of course when the offender’s evidence that he had been threatened with death was combined with his evidence that he thought that the suitcases merely contained antiques, this gave rise to the somewhat Monty Python-esque spectre of cruel and even homicidal antique dealers threatening to kill innocent children in order to persuade others to assist them to send legal antiques across the Pacific.

13 I find that the offender knew at all relevant times, that the suitcases contained drugs. This was not something that the offender learned about only shortly before he came into possession of the drugs. The telephone intercepts make clear that the offender was intimately involved in this operation from the beginning.

14 I am able to say also that the offender came to Australia for the purpose of carrying out this offence. It was his evidence at trial and argued by Mr Santisi on sentence that the offender came to Australia for a legitimate purpose and only once he was here did he become involved in the operation to have the drugs imported. I reject that as not being reasonably possible.

15 The structure of the operation and in particular the fact that the offender is from Canada and he was dealing with his son who was back in Canada, strongly suggests that he came to Australia for the purposes of being involved in the importation. It would make no sense for an operation to be planned involving the sending of drugs from Canada to Australia without there first being a plan as to who would receive the drugs once they came into Australia.

16 Early in the piece the offender is talking about extending his visa in order to see through the completion of the importation operation. The bill of lading, as I mentioned, has his phone number except for a transcription error. Even if I am wrong and even if the offender did come to Australia for a legitimate purpose, that would not make a significant difference to the length of the sentence which I will shortly impose, because for the length of the offender’s involvement once he was in Australia and the efforts that he went to in order to see through the importation to completion.

17 I am also able to say and find beyond reasonable doubt that in contrast to many offences that come before this Court, the offender well knew almost precisely the quantity of drugs involved. I refer again to the conversation where the offender was told that there were three suitcases, each containing “five”. I say again that that almost precisely matches the fifteen kilograms of powder found in the suitcases.

18 The offender was born in Vietnam and travelled to Canada and became a Canadian citizen at the end of the Vietnam war. It may have been that whilst in Vietnam he and his family were subject to persecution and hardship. I say “it may have been” because the only evidence to suggest this has come from the offender himself and I have rejected his evidence in court as being largely a pack of lies. With that qualification, however, it does seem that some of what the offender said is true; namely, that he was born in Vietnam and travelled to Canada where he became a Canadian citizen.

19 I accept also that he has four sons, one of whom was involved in this offence. He was arrested in Canada, but his whereabouts are presently unknown. His remaining three sons would seem to still live in Canada. The youngest is now fourteen. Who is caring for him, I do not know. During the trial the offender said that his younger son was being cared for by his older son. I do not know what the present position is, given that his oldest son can now no longer be found. He also has a child, it appears, living in Vietnam. After having divorced the mother of his four sons, he remarried. His present wife and three-year-old daughter are said to be living in Vietnam.

20 The offender gave evidence that is repeated to a large extent in the Probation and Parole pre-sentence report; that once he arrived in Canada he worked as a cleaner or a kitchen hand. He then opened a Vietnamese restaurant for some time.

21 He has no criminal history. If what I hear from him is true, he was an industrious person in Canada, working hard to benefit his family. Given the offender’s plea of not guilty, however, and my rejection of his evidence, to a large extent I am unable to ascertain why it is that he became involved in this offence.

22 The offender did not plead guilty and of course he is not to be punished for that, nor does he receive any longer sentence because his evidence was full of holes and unbelievable to an extent rarely seen in these courts. What it does mean, however, is that he does not receive the discount that he would otherwise have received if he had admitted his guilt.

23 The absence of a plea of guilty is also a matter which I will take into account in deciding whether the offender is remorseful. I say quite clearly there is no evidence at all that the offender is sorry for what he has done. He continued to tell the Probation and Parole Service the version of events which I have rejected. In those circumstances I am unable to find that the offender is remorseful. That in turn affects the question as to whether the offender will commit further offences upon his release from custody. I cannot say that there are good prospects for rehabilitation. I cannot say that there are not good prospects for rehabilitation. I cannot make a finding one way or the other given the absence of evidence on this matter.

24 Others involved in the offence have also been sentenced. The Crown has provided me with the remarks on sentence of Judge Hock when she sentenced three of the other people involved. One in particular, Mr Chan, is of significance. The Crown asks that I accept that the criminality of the offender was higher than that of Mr Chan. It was Mr Chan who received the drugs and who appears to have been the distributor of drugs within Australia. I find that the offender’s objective criminality was similar to that of Mr Chan; no higher and no lower.

25 The offender was involved in having the drugs brought into Australia, where he passed over control of the drugs and the role of distributing them to Mr Chan. Precisely what Mr Chan was going to do with them is a bit difficult to ascertain because he was arrested very soon after he came into the possession of them.

26 Mr Chan was sentenced by Judge Hock to a lengthy sentence of imprisonment consistent of a head sentence of twelve years and six months with a non-parole period of seven years and six months. It is important to note that Mr Chan pleaded guilty at the Local Court and provided some assistance to the authorities. The combined discount that her Honour allowed for the plea and assistance was thirty per cent. The notional starting point for Mr Chan’s sentence would therefore have been approximately seventeen years and nine months. He also had no criminal history, but in contrast to this offender, he displayed genuine remorse and had reasonable prospects for rehabilitation.

27 The Crown of course cannot rely on parity, as parity only works one way. The Crown cannot use a parity argument to suggest that the sentence imposed upon the offender should be of a certain length by reference to what her Honour did in imposing Mr Chan’s sentence. However the Crown has provided me with cases and other resources to establish, satisfactorily to my mind, the appropriate sentence that I should impose upon the offender. As it turns out, it will not be significantly different from the notional starting point of the sentence that her Honour imposed on Mr Chan.

28 The offender relies on what is said to be hardship to members of his family. Once again the absence of reliable evidence on this matter makes such a finding difficult to make, but in any case even accepting everything that he said, the hardship that he refers to is not exceptional by any means. It must therefore be ignored.

29 I will of course take into account that the offender is serving his sentence in a foreign country. He was assisted by an interpreter throughout the proceedings, which is consistent with his low level of ability to speak and understand English. That will make his time in custody harder than it would otherwise be the case. His family live either in Canada or Vietnam and that too will make his time in custody harder. Of course not too much can be made of this, the offender went into this operation very much with his eyes open, knowing that he was committing a serious offence in a foreign country and he must have known that were he detected, he would be spending a long time in prison, away from his family, with a number of other prisoners who did not speak his language.

30 It is a remarkable thing for a man to reach the age of forty-eight years of age and then commit such a serious offence as this as his first breach of the law. The offender does have a bank of good character on which he is entitled to rely. Of course the authorities speak about the reduced significance of that circumstance where drug offences are involved, because people with prior good character are often used in order that people can travel from country to country. Those with drug convictions would not be able to do the sort of thing that the offender has done in the present case.

31 Ultimately a lengthy sentence is necessarily called for. I return to where I started: The offender was intimately involved in an operation involving what he thought was a quantity of drugs thirteen times greater than that which would expose him to the maximum penalty of life imprisonment. It is a fundamental rule of sentencing that an offender’s sentence reflect the objective gravity of his conduct.

32 In assessing that, not only do I look at the quantity of drugs involved, of course, I also look at what the offender did. He was enthusiastic, committed and industrious in doing what he could to see a large quantity of methamphetamine brought into Australia and handed over to someone else so it could be distributed to Australian citizens.

33 It is well known that the profits to be made from such activities are significant and so the principles of general deterrence require that lengthy, even harsh sentences are imposed when offenders such as the present are detected and convicted.

34 The offender is sentenced to imprisonment. I set a head sentence of eighteen years with a non-parole period of twelve years to date from 23 August 2007. The offender’s non-parole period will expire on 22 August 2019.

35 Mr Le I am going to explain to you the sentence that I have just imposed. You must serve a minimum of twelve years in prison. That started on 23 August 2007, because that is the date that you were arrested. The earliest day that you can be released is 22 August 2019. It may be that you are released then or you may be kept in custody longer than that. That is a decision which will be made by the parole authorities. However the longest that you can be kept in custody is for a period of eighteen years, so you cannot be kept in custody after 22 August 2025.

**********