R v Le and Le
[2008] VCC 1743
•22 August 2008
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for PublicationAT MELBOURNE
CRIMINAL DIVISION
Case No. CR-05-02658
CR-05-02659
THE QUEEN v THANH VAN (Bill) LE and UT VAN LE ---
JUDGE:
HER HONOUR JUDGE MORRISH
WHERE HELD:
Melbourne
DATE OF HEARING:
11 August 2008
DATE OF SENTENCE:
22 August 2008
CASE MAY BE CITED AS:
R v Le and Le
MEDIUM NEUTRAL CITATION:
[2008] VCC 1743
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REASONS FOR SENTENCE
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APPEARANCES:
Counsel Solicitors For the Crown Mr Y Hardjadibrata For the Accused Mr C Nikakis HER HONOUR:
1 You, Thanh Van (“Bill”) Le, and you, Ut Van Le, are before me to be sentenced in respect of two Presentments.
2 The first Presentment, C0404241.2b (“the Kaids Presentment”), alleges one count of Trafficking in a Drug of Dependence, namely Diacetylmorphine (Heroin), between 16 June 2004 and 20 July 2004 contrary to Section 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
3 You both pleaded guilty to that Count when the current Presentment was filed over Presentment C0404241.2 on 20 June 2008. That matter had been listed for trial to commence on 28 July 2008.
4 The second Presentment, C0605282.1 (“the Bribery Presentment”), was filed over Presentment C0605282, also on 20 June 2008.
5 You both pleaded guilty to four counts contained in that Presentment, namely:
·One count of Attempting to Pervert the Course of Justice – Count 1;
·One count of Trafficking in a Drug of Dependence, Diacetylmorphine – Count 2;
·One count of Possession of a Drug of Dependence – Diacetylmorphine – Count 3; and
·One count of Handling Stolen Goods – Count 4.
contrary to Sections 81(1) of the Crimes Act and Sections 71AC and 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 and common law.
6 The Counts the subject of this Presentment were fixed for trial on 8 September 2008.
Agreed Facts
Presentment C0404241.2b (“the Kaids Presentment”)
7 The learned Prosecutor, Mr Hardjadibrata, comprehensively opened the facts in accordance with Exhibit A, the Prosecution Opening for Plea Hearing (Operation “Kaids”). In view of the detailed Summary, I propose to very briefly summarise the facts and attach a copy of Exhibit A as Appendix 1 to these Reasons for Sentence.
8 In January 2004, the Major Drug Investigation Division of the Victoria Police commenced an investigation named Operation “Kaids”. The principal targets of that operation were Thi Thanh Houng Hoang and her defacto partner, Hung Van Truong.
9 A covert police operative using the name “Rom Diamor” facilitated controlled purchases of various illicit drugs from Hoang and Truong.
10 Police obtained telephone intercept warrants for various phone services held by Hoang and Truong and other members of two Vietnamese syndicates that were supplying them with those drugs. The intercepted calls between Hoang and Truong and members of the syndicates were largely conducted in the Vietnamese language and often used coded language. One of those syndicates was headed by Nghia Le, who was based in Sydney. Ngoc Ha Do, and later Ahn Thi Pham, were Nghia Le’s agents in Melbourne. They were responsible for the supply and delivery of drugs to Hoang, and also for collecting and accounting for money for drugs supplied to her. Some of the drugs supplied through Nghia Le’s syndicate were on-sold to covert operative, Rom, however, by May 2004, due to the large amount outstanding to Nghia Le by Hoang and Truong for drugs previously supplied, Nhgia Le stopped supplying them.
11 Thereafter the telephone intercept material revealed increasing contacts between Huong and the person alleged to be the head of the second syndicate, Tam Pham.
12 Both of you were members of this second syndicate and had the responsibility of delivering heroin on behalf of this syndicate to Hoang and Truong.
13 On 15 June 2004, Rom ordered a sample of heroin from Hoang and agreed to meet her later that day at her home at 3 Yan Yean Place, St Albans. In that meeting, Rom ordered five ounces of heroin at an agreed price of $9,500.00.
14 Later that day, the telephone intercept material discloses a call between you, Bill Le, and Hoang, during which Hoang asked for a sample to provide an old customer (Rom). There were further telephone intercept calls on this topic.
15 On 16 June 2004, Hoang gave Rom a sample of heroin which was later analysed as 0.1 grams of heroin with a 50 per cent purity.
16 Rom then ordered 5 ounces of heroin from Hoang and she in turn placed an order for that through you, Bill Le. Later that day there were further phone calls between you, Bill Le, and Thi Hoang concerning the delivery of the 5 ounces. The heroin was supplied in two lots by you, Ut Le, making the delivery. The Crown alleges that you, Bill Le, actually arranged to collect the money to complete the sale of the heroin to Rom.
17 There is other material that demonstrates the ongoing nature of your involvement Bill Le in the supply of heroin, including a further order placed by Hoang for Rom on 20 July 2004 for 4 ounces which was to be delivered that evening.
18 Following the transaction in which Hoang supplied Rom 5 ounces of heroin for $50,000.00, Hoang called you and told you to come over, and it is to be inferred that this was in order for you to collect the money.
19 In a previous Crown Opening dated 6 September 2006 prepared by Mr Peter Jones of Counsel, the Crown identified some seventy-one telephone calls or short message service texts (SMS’s) relevant to you, Bill Le. Exhibit A also makes references to many of the calls in which you were involved.
20 In the previous Crown Opening made in respect of the case against you, Ut Le, prepared by Mr Jones and dated 6 September 2006, the Crown identified only three calls, all made on 20 July 2004, as relevant to you.
21 The material before me demonstrates that you, Bill Le, played the far greater role in relation to the supply and delivery of heroin and collection of money than you, Ut Le. It appears that your role, Ut Le, was far more limited and that you simply delivered the heroin as directed by your brother, Bill Le.
22 The total heroin supplied by one or both of you to Thi Hoang and on-sold to Rom is as follows:
Date
Details
Amount
16 June 2004
Heroin sample provided (Bill Le)
0.1 grams at 60 per cent purity
19 June 2004
Heroin sold for $50,000
(both Bill Le and Ut Le)
138.8 grams at 60 per cent
20 July 2004
Heroin sold for $50,000 (Bill Le)
138.8 grams at 50 per cent purity
23 I will stop there, I think that date, the 19th, is wrong, isn't it? Shouldn't it be 20 July, Ut Le and Bill Lee?
24 MR HARDJADIBRATA: Yes, I think - - -
25 HER HONOUR: Not 19 June.
26 MR HARDJADIBRATA: I think that's correct, Your Honour. Excuse me for a moment. No 19 June is - - -
27 HER HONOUR: Is both, is it?
28 MR HARDJADIBRATA: It's both, I'm incorrect there. I haven't recorded a call on - I've attributed the calls on 20 July 2004 all to Bill Le but I think Mr Jones is correct, there are calls to Ut Le in amongst the calls to Bill Le, one in particular I've got noted from the police summary is 21022180002 on 20 July 2004 where Ut Le discusses with Hoang the fact the heroin to be delivered is short a few grams.
29 HER HONOUR: That’s 20 July.
30 MR HARDJADIBRATA: Yes.
31 HER HONOUR: 19 June there is no evidence of the involvement of Ut Le.
32
MR HARDJADIBRATA: No, because 19 June is the surveillance of Ut Le
by - - -
33 HER HONOUR: No, that's 20 July.
34 MR HARDJADIBRATA: I've got it in my paragraph 13, 19 June 2004, Detective Ibbott observes Ut Le walk down Denton Avenue - excuse me for a moment.
35 HER HONOUR: I've just read paragraph 16 of my draft judgment that does say the heroin was supplied in two lots with Ut Le making the delivery, that's in relation to the order placed on 16 June.
36 MR NIKAKIS: 19 June.
37 MR HARDJADIBRATA: 19 June is when the surveillance is of Ut Le delivering, physically delivering or the inference can be drawn that he physically delivered on that particular day. Excuse me for a moment.
38 HER HONOUR: I think you're right actually, I think it is both on that date, on 19 June.
39 MR HARDJADIBRATA: Yes, and just telephone conversations that links him, Ut Le to the 20 July but it's only a few phone calls but the mistake I've made is that I've attributed them all to Bill Le so I apologise to Your Honour and my learned friend as well.
40 HER HONOUR: I was just having difficulty with the facts myself which is why I raised it this morning, 19 June does appears to relate to Bill Le and Ut Le which probably explains why Mr Nikakis was making the concession.
41 MR NIKAKIS: Just the point to be made there and to follow on from what Your Honour has previously indicated even the surveillance that is seen on 19 June falls into line with how Your Honour placed it before whereas Ut Le came into it at a later stage and his role was much less than say Bill Le for instance as a comparable - as a person to be compared with. There is no doubt there's a lot more telephone conversation between Bill Le and others in this issue and Ut Le's conversations on telephones come at a later stage as is indicated by Mr Jones' summary of September of 2006 but his involvement is at a later stage there's no doubt than Bill.
42 HER HONOUR: Thank you very much. I'll just repeat that paragraph. The total heroin supplied by one or both of you to Thi Hoang and on-sold to Rom is as follows:
Date
Details
Amount
16 June 2004
Heroin sample provided (Bill Le)
0.2 grams at 60 per cent purity
19 June 2004
Heroin sold for $50,000
(both Bill Le and Ut Le)
138.8 grams at 60 per cent
20 July 2004
Heroin sold for $50,000
(both Bill Le and Ut Le)
138.8 grams at 50 per cent purity
Total $100,000
277.7 grams at between 50 to 60 per cent purity
43 Police executed a search warrant at your home at 189 Denton Street, St Albans on 29 June 2004. You were both separately interviewed on 30 July 2004. You, Bill Le, answered “no comment” to most of the questions put to you. You, Ut Le, also answered “no comment” in relation to most of the questions but you did make some admissions, including that you had been living at 189 Denton Avenue for the past four months and that you knew Tam Pham. You denied knowing Hoang or visiting 3 Yan Yean Place, St Albans.
44 The maximum applicable penalty for this charge is fifteen years’ imprisonment.
45 You were both arrested on 29 July 2004 and released on bail on 10 August 2004 and have therefore spent thirteen days by way of pre-sentence detention in relation to this presentment.
Presentment C0605282.1 (“the Bribery Presentment”)
46 Mr Hardjadibrata also made a comprehensive Opening concerning the counts on this presentment. Again, I shall make a brief summary and attach as Appendix 2 a copy of Exhibit B, Prosecution Opening for Plea Hearing (Attempting to Pervert the Course of Justice and Other Charges).
47 As a result of information received by police concerning suspicious activity over a two to three month period by two Asian males in the vicinity of William and Little Collins Streets, Melbourne, members of the Melbourne Regional Response Unit commenced surveillance duties at about 1.00 pm on Thursday, 3 August 2006. Three or four men made a call from a pubic phone box and then walked down to Little Collins Street where they waited. At about 1.50 pm, a car arrived and stopped at the intersection and police observed a transaction take place. One the males who had been waiting approached the passenger window of the car and money was handed over for small items. (That is the subject of Count 2, Traffic Heroin).
48 It is accepted that you, Bill Le, were the driver of the car, and you, Ut Le, were the passenger. Police followed the car and you were both arrested. The car was searched. No drugs were found in it and an external search was conducted of both of you and no drugs were found at that time. The search of you, Ut Le, resulted in the location of $390.00 cash in the pocket of your pants. As police were trying to search you more closely, you refused to let them finish the search. You were both taken to Melbourne West Police Station in separate cars so that a full strip search could be conducted. At Melbourne West Police Station you were placed in separate cells.
49 Sergeant Caddaye went to check on you, Ut Le. When he entered the holding cell you asked him to close the door and come close to you. As he did so, you told Caddaye that you would give him and the member who had previously tried to search you (Weber) $15,000.00 if they let you go without searching you. You told Caddaye that you were on bail and that you had a half a gram in your possession. Caddaye told you that he would first have to speak to Weber. Caddaye reported the conversation to his supervisor, who instructed both he and Weber to participate in a controlled operation, each playing the part of corrupt policemen so that your offer to bribe them could be confirmed and recorded on a tape recorder. In the meantime you, Bill Le, participated in the strip search and no drugs were found on you.
50 Caddaye and Weber then returned to your holding cell, Ut Le, and you all then went to a conference room. In that conversation you told police that your brother, Bill Le, would bring the money later. In a later conversation, also in the conference room, there was discussion about the money to be paid and that police should talk to your brother, Bill Le, as he would be the one to get the money. You told police you had about half a gram of heroin in your possession. Police then took you, Bill Le, to see you, Ut Le. You, Ut Le, agreed to pay an initial amount of $5,000.00 as a sign of good faith, with a further $10,000.00 to be delivered later. The deposit was to be paid in William Street after Bill Le had collected the money.
51 After later discussions with police, you, Ut Le, removed a small brown bag from the top of your underpants which contained five snap lock plastic bags containing white powder which was later found to contain a mixed quantity of Diacetylmorphine weighing a total of 2 grams: (Count 3, Possess Heroin).
52 Police then continued the controlled operation in relation to the offered bribe. Arrangements were made as to where and when the money was to be handed over.
53 You were both released and honoured your arrangement to pay the bribe. You, Bill Le, handed over $4,500.00 to Caddaye: (Count 1, Attempting to Pervert the Course of Justice).
54 You, Bill Le, were later arrested by police in Little Collins Street and police seized a number of items, including keys, a magnetic swipe card, a remote controlled key card and two mobile telephones.
55 On 4 August 2006, police executed a search warrant at the place where you were then both living at Apartment 208, 83 Whiteman Street, Southbank. A number of items were seized, including:
· Cash from 3 metal tins, totalling $6,619.45.
· A Compaq Presario laptop computer and carry bag which had been stolen from the home of Robyn Marshall on 17-18 June 2006.
· An Apple G4 PowerBook laptop computer stolen from the home of Daniel DeFazio on 20 June 2006.
· An Apple iBook G4 laptop computer stolen from Andrew MacKinley on 3 August 2006.
· A Gateway Solo 5300 laptop computer belonging to Adaptive International.
· A GIO Ibanez electric guitar and case belonging to National Institute of Circus Arts stolen in the first week of June 2006.
(Count 4, Handle Stolen Goods).
56 Following your re-arrest on 3 August 2008, you were both further interviewed but made “no comment” records of interview.
57 The maximum applicable penalties for the offences the subject of this presentment are:
· Attempt to Pervert the Course of Justice – 25 years’ imprisonment;
· Traffic in a Drug of Dependence – 15 years’ imprisonment;
· Possess a Drug of Dependence for the Purpose of Trafficking – 5 years’ imprisonment;
· Handling Stolen Goods – 15 years’ imprisonment.
58 You have both spent one day by way of pre-sentence detention in relation to this presentment.
Gravity of the Offences
59 Mr Nikakis conceded the gravity of the offences, particularly on the first presentment, given the quantity of heroin alleged, your respective roles in the overall hierarchy and in your case, Bill Le, the time-frame of your offending.
60 In such cases, principles of general deterrence, specific deterrence, denunciation and condemnation and protection of the community are usually dominant sentencing factors.
Trafficking in Drugs of Dependence
61 The Courts have repeatedly observed that trafficking in drugs of dependence, particularly in heroin, is a very serious crime. As Buchanan JA said in R v Chaouk [2000] VSCA 238, at 41:
“The effects of the use of heroin are pernicious. It often ruins the lives of those it does not kill. Persons who facilitate the use of heroin for their financial gain must expect condign punishment.”
Attempting to Pervert the Course of Justice
62 In R v John Healy (Unreported decision VSCA, 4 August 1997, BC9703737), Charles JA, dealing with a case where the appellant had attempted to bribe the victim of a sexual assault to withdraw charges, said:
“The offence to which the applicant pleaded guilty was correctly described by the learned judge as a very serious one and one which in most cases attracts a custodial sentence. As his Honour put it,
‘the administration of justice depends upon the system operating so that people who commit crimes are pursued, are brought to court and are punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned.’
Indeed, in R v Andrews [1972] 57 Cr App R254, Lord Widgery, CJ said, at 258, that –
‘there are few more serious offences possible in the present day than those which tend to distort the course of public justice and prevent the courts from producing true and just results in the cases before them ...’
Plainly any sentence should reflect a substantial element of general deterrence.
Furthermore, the applicant was well aware of the criminality of his attempts to silence the victim's accusations, as can be demonstrated by his repeated attempts to disguise the bribe and his warnings that all involved had to be careful.”
63 Fortunately this is not a prevalent crime and the maximum applicable penalty applies only to the worst possible class of offending.[1]
[1]See DPP v Aydin and Kirsch [2005] VSCA 86, at paragraphs 11, 26 and 28
64 Among the matters to be considered are:
· Whether the conduct constituted a continuing offence and was persistently pursued or was a momentary lapse of judgment.
· The degree of premeditation.[2]
[2]See DPP v Josefski (2005) 13 VR 85 at paragraph 74
· Whether the conduct sought to influence matters regarding bail.[3]
[3]DPP v Aydin and Kirsch (supra)
· Whether the conduct relates to the concealment or falsifying of evidence or exhibits.
· Whether the conduct was an attempt to bribe police officers in the execution of their duty.[4]
[4]DPP v Aydin and Kirsch (supra) and R v Reading [1998] VSCA 37
· Whether there is an element of entrapment.[5]
[5]See R v Reading (supra)
· Whether the offending included threats of physical violence.[6]
[6]See DPP v Aydin and Kirsch (supra); and R v Flett [2005] VSCA 87, at paragraph 24
· Whether the offender was the instigator or was drawn in to the offending by others.[7]
· Motive.
[7]DPP v Josefski (supra)
65 The dominant sentencing factors in such cases are denunciation and specific and general deterrence.
Handle Stolen Goods
66
“Handling stolen goods is generally regarded by Victorian courts as a more serious offence than theft, and generally through the modern history of the offence, this has been reflected in its greater maximum penalty. This gravity is generally linked to the role of the offence in ensuring the success of the forms of stealing which precede it in point of time. The handler indirectly, at least, encourages the thief.”[8]
[8]Victorian Sentencing Manual, Chapter 26.3.4
67 Among the matters to be considered are:
· The period of offending;
· Whether the offender was in the business of handling stolen goods; and
· The amount involved.
Aggravating Features
68 On the Kaids Presentment, you, Ut Le, participated in this offence during the operational period of a suspended sentence imposed on 9 February 2004. On that day you were sentenced to an aggregate sentence of one months’ imprisonment wholly suspended for six months, in respect of one count of trafficking in a drug of dependence and one count of driving a motor vehicle whilst authorisation was suspended. The operational period was due to expire on 8 August 2004. You participated in this offence only four months after having been given the opportunity to be released into the community and in respect of the same type of offence.
69 On the Bribery Presentment, these offences were committed whilst you were both on bail for the offence the subject of the Kaids Presentment. The offences committed on bail include similar offending to the pending charge.
Plea in Mitigation
70 In a succinct plea made on behalf of both of you, Mr C Nikakis conceded the gravity of the offending and that the only appropriate disposition is one involving your immediate imprisonment. Nevertheless, he submitted that in both cases there were a number of mitigating circumstances justifying a more lenient sentence and a longer than usual parole period.
71 Mr Hardjadibrata did not challenge the accuracy of the facts advanced on behalf of each of you. Nor did he speak against the ultimate submissions made as to penalty.
72 As to the Kaids Presentment, Mr Nikakis relied on the following points in your favour:
BILL LE:
(1) Your relative youth at the time of offending – you were aged twenty-four;
(2) Your lack of prior convictions;
(3) Your guilty plea;
(4) Your remorse;
(5) Delay;
(6) Principles of parity;
(7) Your personal history and circumstances; and
(8) Your prospects for rehabilitation.
UT LE:
73 On your behalf, Mr Nikakis relied on eight points in your favour:
(1) Your relative youth at the time of offending – you had only just turned twenty-one;
(2) Notwithstanding your prior convictions, all but the most recent of them were committed while you were a young offender. As to the relevant prior conviction, the sentence was imposed six days after your twenty-first birthday;
(3) Your guilty plea
(4) Your remorse;
(5) Delay;
(6) Principles of parity;
(7) Your personal history and circumstances; and
(8) Your prospects for rehabilitation.
74 As to the Bribery Presentment.
BILL LE:
75 Seven points were made in your favour:
(1) Your age at the time of offending was twenty-six years;
(2) You have pleaded guilty to the charges;
(3) You are remorseful;
(4) Delay;
(5) Principles of parity;
(6) Your personal history and circumstances;
(7) Your prospects for rehabilitation.
UT LE:
76 Seven points were made in your favour:
(1) Your age at the time of offending was twenty-three years;
(2) You pleaded guilty;
(3) You are remorseful;
(4) Delay;
(5) Principles of parity;
(6) Your personal history and circumstances;
(7) Your prospects for rehabilitation.
77 I shall now deal with each of these points in more detail.
BILL LE:
Relative Youth
78 Section 3 of the Sentencing Act defines a “young offender” as a person under the age of twenty-one at the time of sentence. You are now aged twenty-eight. As I have said, you were aged twenty-four when you committed the offence the subject of the Kaids Presentment and aged twenty-six when you committed the offences the subject of the Bribery Presentment. Although you were not a young offender, I am entitled to have regard to your relative youth and, if appropriate, moderate your sentence: See R v Angelopoulos [2005] VSCA 258, at paragraphs 56 and 66.
79 Ordinarily when sentencing a youthful offender rehabilitation is the predominant objective: See R v Mills [1998] 4 VR 235, at 241. However, sometimes this will be outweighed by other considerations, such as deterrence, denunciation, just punishment and protection of the community: See R v Hatfield [2004] VSCA 195, at paragraph 11.
80 In sentencing you today, I regard your rehabilitation as an important, although not the predominant objective.
Prior Good Character
81 At the time of committing the offence the subject of the Kaids Presentment, you had no prior convictions nor were there any outstanding matters. Although the absence of prior convictions is of less relevance in drug trafficking matters, it is nevertheless of some relevance. In any event, the absence of prior convictions is relevant to the consideration of your prospects of rehabilitation and to how much, if any, weight needs to be given to specific deterrence.
82 When you committed the offences the subject of the Bribery Presentment, you had not yet been convicted of the Count the subject of the Kaids Presentment. You chose to have both presentments dealt with at the same time before me and all relevant facts and matters in relation to both presentments were placed before me in order to assess your prospects for rehabilitation and the totality of your culpability.
Guilty Pleas
83 You have pleaded guilty to all the charges the subject of both presentments. Although your pleas were not entered at the first opportunity, they may nevertheless properly be regarded as having been entered at the first reasonable opportunity in relation to the Kaids Presentment. The Crown has properly conceded that in the initial stages of this prosecution, in which you were joined with many other co-offenders, the Crown's main focus was on the principal players, namely Hoang and Truong. It was not until after the committal proceedings that the Crown was able to consider in finer detail the role played by each offender. Thereafter negotiations took place between your representatives and the Crown. As a result of those negotiations, the current Kaids plea presentment was filed over the trial presentment.
84 As to the Bribery Presentment, your pleas cannot be regarded as having been entered at the first opportunity. I accept you first indicated your intention to plead guilty at about the same as you did in the “Kaids” matter.
85 A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount.
86 In assessing the weight to be given to your guilty pleas, I take into account
· The timing of such pleas, noting the matters to which I have referred in this regard;
· You are entitled to a statutory discount because of your pleas;
· I accept that your pleas are indicative of your true remorse;
· You have avoided the cost and inconvenience of one lengthy and one short trial. You have spared witnesses the inconvenience of giving evidence;
· You played little role at the committal conducted in relation to the Kaids presentment. As to the Bribery presentment, three witnesses were cross-examined at committal. At the conclusion of those proceedings you reserved your plea, although the matter was listed for trial on 8 September 2008 as I have already said;
· There is true value in your plea on the Kaids presentment since the case against you was based in large part on circumstantial evidence including phone intercept material and surveillance, and the inferences to be drawn therefrom.
The case against you on the Bribery Presentment was overwhelming in relation to Counts 1 and 4.
As to the trafficking count (Count 2), the Crown case relied on the drawing of an inference that the transaction witnessed was the sale of heroin.
As to the possession count (Count 3), you were not found in possession of any heroin, it was in your brother’s possession and you were both held separately in police custody. You had no means of accessing or controlling the drugs when they were found in Ut Le’s possession. Nevertheless, you have accepted, by your plea that he held that drug for both of you;
· There is social utility involved in your pleas of guilty and by taking this course I accept that you have facilitated the course of justice.
Remorse
87 It was submitted on your behalf, and not contested, that you regret your involvement in all the offences. I accept that you are truly remorseful for your conduct.
Delay
88 There has been a four-year delay on the Kaids Presentment and a two-year delay in relation to the Bribery Presentment. The delay in relation to the Kaids Presentment was not attributable to you.
89 As to the Bribery Presentment, in the two-year period since being charged you have stayed out of further trouble and have taken very positive steps towards your rehabilitation. At the time of offending in 2004, you were both living in St Albans at premises organised by those higher up in your syndicate. You were using heroin, smoking it, and participated in the crime to fund your habit and also for financial gain. The Crown accepts, however, that there is no evidence of enrichment.
90 By August 2006, you were using the rented accommodation in Whiteman Street. After being charged with the Bribery Presentment charges, you finally took matters seriously and decided to stop using heroin.
91 You now live with your mother, who was present in Court to support you. Since committing the offences in 2006, you have been able to secure employment, and indeed your work supervisor was your surety for bail. I accept that the period of delay has been stressful for you and that finally you have resolved to lead a law-abiding life. You have been successful in this regard for some two years now.
Principles of Parity
The Kaids Presentment:
92 I have already dealt with a number of your co-offenders:
93 Thi Hoang and Hung Truong pleaded guilty on August 27, 2007. They both pleaded to:
· One count of trafficking in a commercial quantity of heroin - 750.8 grams (Count 1). The maximum applicable penalty for this charge was 25 years’ imprisonment;
· One count of trafficking in methyl amphetamine - 147.1 grams (Count 2). The maximum applicable penalty to this charge was 15 years’ imprisonment;
· In addition, Thi Hoang also pleaded guilty to one count of trafficking in 3, 4-Methylenedioxy-N-methylamphetamine (MDMA) – potential sale in excess of 5000 tablets.
94 There were particular circumstances that do not apply in your case.
95 Thi Hoang was a heroin addict at the time of her offending. She had no prior convictions for drug-related matters.
96 Hung Truong was also a heroin addict at the time of offending. He had a prior conviction for trafficking in a drug of dependence in respect of which he was sentenced to a term of imprisonment for a period of 30 months.
97 I sentenced Thi Hoang as follows:
· on Count 1 - convicted and sentenced to three years’ imprisonment, the base count;
· on Count 2 - convicted and sentenced to one years’ imprisonment;
· on Count 3 - convicted and sentenced to one years’ imprisonment.
98 I directed that three months of the sentences imposed in respect of Counts 2 and 3 be served cumulatively with the sentence imposed on Count 1 and with each other, resulting in a total effective sentence of three-and-a-half years. I directed that she serve a minimum of 18 months before becoming eligible for parole.
99 I sentenced Hung Truong as follows:
· on Count 1 - convicted and sentenced to three years’ imprisonment, the base count;
· on Count 2 - convicted and sentenced to one years’ imprisonment.
100 I directed that three months of the sentence imposed in respect of Count 2 be served cumulatively with the sentence imposed on Count 1, resulting in a total effective sentence of three years and three months. I directed that he serve a minimum of 18 months before becoming eligible for parole.
101 Hung Vinh Tran pleaded guilty to one count of trafficking in a drug of dependence, heroin. The maximum applicable penalty was 15 years’ imprisonment. He was implicated in a small number of telephone intercepts. He assisted Hoang and Truong by supplying them 38 grams of heroin which was to be supplied to Rom.
102 On 17 June 2008, I convicted and sentenced Hung Tran to 12 months’ imprisonment, wholly suspended for 12 months.
103 He had no prior convictions, but had a subsequent matter. He spent 17 days by way of pre-sentence detention.
104 Van Sang Hoang pleaded guilty to one count of trafficking in Cannabis L. The maximum applicable penalty was 15 years’ imprisonment. The total Cannabis he offered the sale, sold or had in his possession for the purposes of sale was 22.045 kilogram.
105 On 30 June 2008, I convicted and sentenced Van Hoang to 18 months’ imprisonment, 12 months of which was suspended for two years.
106 He had no prior convictions for drug matters.
ANH THI PHAM and NGOC HA DO:
107 Anh Thi Pham and Ngoc Ha Do pleaded guilty to three counts of Trafficking in a Drug of Dependence, Count 1 (heroin: Anh Thi Pham very limited role in collection of part of debt owed for one transaction, as principal’s girlfriend; Ngoc Ha Do was involved in trafficking of 445.1 grams over the period February to May 2004), Count 2 (MDMA – 2 sample tablets only) and Count 3 (methylamphetamine 28.4 grams).
108 Ngoc Ha Do also pleaded guilty to a further count of Trafficking in a Drug of Dependence, Count 4 (Cannabis L close to, but under 25 kilograms). The maximum penalties were fifteen years’ imprisonment on each count.
109 I assessed Anh Thi Pham’s role as no greater than Hung Tran’s. She had no prior convictions and no drugs actually ever passed through her hands. The case against her was far from overwhelming.
110 The Crown characterised Ngoc Ha Do’s role as that of middleman, a conduit between Nghia Le and Thi Hoang, both of whom were higher up in the overall hierarchy. I accepted that Do was not the instigator. He was carrying out instructions and was also collecting money. Of the 445 gram total relevant to Count 1, it was accepted that only 112.2 grams actually passed through his hands. He had no prior convictions.
111 I sentenced Anh Thi Pham on 11 August 2008 as follows:
112 On Count 1- taking into account that she had served 83 days by way of pre-sentence detention – she was convicted and sentenced to 8 months’ imprisonment, wholly suspended for 12 months.
113 On Count 2 - convicted and fined $200.00
114 On Count 3 - convicted and fined $750.00
115 On the same day I sentenced NGOC HA DO as follows
116 On Count 1 - convicted and sentenced to 20 months’ imprisonment. This is the base count.
117 On Count 3 - convicted and sentenced to 9 months’ imprisonment.
118 On Count 4 - convicted and sentenced to 18 months’ imprisonment.
119 I directed that 4 months of the sentence imposed in respect of Count 4 and two months of the sentence imposed in respect of Count 3 be served cumulatively upon the sentence imposed on Count 1, the base count, and with each other, resulting in a total effective sentence of 26 months’ imprisonment. I directed that 16 months of the sentence imposed be suspended for 3 years.
Your role and place in the overall hierarchy
120 Bill Le – the Crown assesses and you accept that your role was similar to that played by Ngoc Ha Do. You were no higher up in the overall hierarchy of the respective syndicate to which you belonged.
The Bribery Presentment
121 I accept that you were not the instigator. When your brother offered the bribe, you were not present. You were drawn onto the offending after Ut Le had already made the proposal and suggested you would be paying the bribe. I accept that you participated because of a misguided sense of loyalty. Otherwise, as to the remaining counts on the presentment I consider that as equal partners you and your brother are equally culpable.
Your Personal History and Circumstances
122 As I said earlier, you live with your mother. You are single. You escaped Vietnam and fled to Malaysia in about 1989. You spent three years in Malaysia in a refugee camp and arrived in Adelaide in 1991. You had an uncle in Melbourne and after six months you moved with your mother and siblings to Melbourne. Your father remained in Vietnam.
123 You were educated at Springvale Primary School and then completed Year 12 at Springvale Secondary School. Thereafter you promptly obtained employment as a factory worker. You are extremely close to your brother, Ut Le, and he has followed in your footsteps. You have always kept close company with him.
124 Since your release on bail in August 2006, you obtained employment at the Wholesale Fruit and Vegetable Market in Footscray.
Your Prospects for Rehabilitation
125 As I said earlier, you have no prior convictions. It is a pity that you did not treat the 2004 charge more seriously. I do, however, accept that after the 2006 charges were laid, you turned your life around. I am satisfied in all the circumstances, including your relative youth at the time of committing the 2004 charge, that your prospects for rehabilitation are reasonably good.
126 I turn to the factors in mitigation advanced on behalf of Ut Le.
Relative Youth
127 I have already referred to the legal principles that are ordinarily applicable when sentencing youthful offenders. As I have already observed, at the time of your involvement in the count the subject of the Kaids Presentment, you had only just turned twenty-one years. Notwithstanding the fact that you have prior convictions, I am still able to regard your rehabilitation as an important, although not necessarily the predominant objective in sentencing you.
Prior Convictions
128 I have already referred to this.
Your Guilty Pleas
129 You have pleaded guilty to all the charges the subject of both presentments. Although your pleas were not entered at the first opportunity, they may nevertheless properly be regarded as having been entered at the first reasonable opportunity in relation to the Kaids Presentment. The Crown has properly conceded that in the initial stages of this prosecution, in which you were joined with many other co-offenders, the Crown's main focus was on the principal players, namely Hoang and Truong. It was not until after the committal proceedings that the Crown was able to consider in finer detail the role played by each offender. Thereafter negotiations took place between your representatives and the Crown. As a result of those negotiations, the current Kaids Presentment was filed over the trial presentment.
130 As to the Bribery Presentment, your pleas cannot be regarded as having been entered at the first opportunity. I accept you first indicated your intention to plead guilty around the same time as you did in the “Kaids” matter.
131 A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount.
132 In assessing the weight to be given to your guilty pleas, I take into account
· The timing of such pleas, noting the matters to which I have referred in this regard;
· You are entitled to a statutory discount because of your pleas;
· I accept that your pleas are indicative of your true remorse;
· You have avoided the cost and inconvenience of one lengthy and one short trial. You have spared witnesses the inconvenience of giving evidence;
· You played little role at the committal conducted in relation to the Kaids Presentment. As to the Bribery Presentment, three witnesses were cross-examined. At the conclusion of those proceedings you reserved your plea although the matter was listed for trial on 8 September 2008 as I have already said;
· There is true value in your plea on the Kaids Presentment since the case against you was based in large part on circumstantial evidence including very few phone intercepts and surveillance of you entering and leaving Yan Yean place and the inferences to be drawn from that material. The case against you on the Bribery Presentment was overwhelming in relation to Counts 1, 3 and 4;
As to count the trafficking (Count 2), the Crown case relied on the drawing of an inference that the transaction witnessed was the sale of heroin;
· There is social utility involved in your pleas of guilty and by taking this course I accept that you have facilitated the course of justice.
Remorse
133 It was submitted on your behalf and not contested that you regret your involvement in all the offences. I accept that you are truly remorseful for your conduct.
Delay
134 There has been a four-year delay on the Kaids Presentment and a two-year delay in relation to the Bribery Presentment. The delay in relation to the Kaids Presentment was not attributable to you.
135 As to the Bribery Presentment, in the two-year period since being charged you have stayed out of further trouble and have taken very positive steps towards your rehabilitation. At the time of offending in 2004, you and Bill Le were both living in St Albans at premises organised by those higher up in your syndicate. You were using heroin, smoking it, and participated in the crime to fund your habit and for financial gain. The Crown accepts, however, that there is no evidence of enrichment.
136 By August 2006, you were using the rented accommodation in Whiteman Street. After being charged, you finally took matters seriously and decided to stop using heroin.
137 You also live with your mother, who was present in Court to support you. Since committing the offences in 2006, you have been able to secure employment, and indeed your work supervisor was also your surety for bail. I accept that the period of delay has been stressful for you and that finally you have resolved to lead a law-abiding life. You have been successful in this regard for some two years now.
Principles of Parity
138 I have already referred to the sentences imposed in the cases associated with the Kaids Presentment. As to your role, I accept that you were a lesser player and were involved for a more limited period of time. I assess your culpability as less that that of both your brother Bill Le and Ngoc Ha Do.
139 As to the Bribery Presentment, you were the instigator of the bribery charge. You drew your brother into this crime. Otherwise, as to the remaining counts on the presentment I consider that as equal partners you and your brother are equally culpable.
Your Personal History and Circumstances
140 These are essentially the same as those of your brother. As I said in my sentencing remarks to him, you followed in Bill’s footsteps, both in terms of your education, employment, accommodation and drug use.
Your Prospects for Rehabilitation
141 Notwithstanding your prior convictions, for reasons similar to those in your brother’s case, I am satisfied that your prospects for rehabilitation are reasonably good.
Sentences to be Imposed
142 I have taken into account the roles you each played in both sets of charges and in the overall hierarchy in the Kaids matter. Principles of parity are an important consideration.
143 I take into account all of the matters personal to each of you to which I have referred, including your prospects of rehabilitation. I must also take into account matters such as deterrence, especially general deterrence. I do not consider specific deterrence is a significant factor, given the period of delay and your reformation in that period. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
144 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
BILL LE:
145 Dealing first with Presentment C0404241.2b (“the Kaids Presentment”)
146 I have no alternative to the imposition of a term of imprisonment.
147 You are convicted and sentenced to twenty (20) months’ imprisonment. This will be the base count for all sentences to be imposed today on both Presentments.
On Presentment C0605282.1 (“the Bribery Presentment”)
148 I have no alternative to the imposition of terms of imprisonment in relation to each of the counts.
149 On Count 1, attempting to pervert the course of justice, you are convicted and sentenced to twelve (12) months’ imprisonment.
150 On Count 2, trafficking in a drug of dependence, you are convicted and sentenced to six (6) months’ imprisonment.
151 On Count 3, possession of a drug of dependence, you are convicted and sentenced to two (2) months’ imprisonment.
152 On Count 4, handling stolen goods, you are convicted and sentenced to twelve (12) months’ imprisonment.
153 On the question of cumulation,
154 In determining whether to order any period of cumulation, and, if so, how much, I must take into account that all of these charges are discrete and were committed in differing circumstances and involved offending of such gravity that total concurrency would fail to do justice.[9] Further, I must give weight to the fact that the second set of offences were committed whilst on bail for the first. I must pay regard to principles of totality and proportionality, and I must avoid imposing a crushing sentence.
[9]See R v O’Rourke [1997] 1 VR 246, at 253; and DPP v Grabovac [1998] 1 VR 664
155 Taking into account all relevant factors, I consider that it is appropriate to order some period of cumulation between the Presentments and between most of the counts on the Bribery Presentment C0605282.1.
156 I therefore direct that four (4) months of the sentence imposed on Count 1 and two (2) months of each of the sentences imposed on Counts 2 and 4 on Presentment C0605282.1 be served cumulatively with Count 1 on Presentment CO404241.2b and with each other.
157 This makes a total effective sentence of twenty-eight (28) months’ imprisonment in respect of all offences for which you are presently before the Court (i.e., in relation to both Presentments to which I have referred).
158 I will fix a single non-parole period applicable to both Presentments.
159 Your counsel has submitted that a longer than normal period on parole would be appropriate in your case. The Crown does not disagree with that proposition.
160 Among the matters to be taken into account are:
(a) That a non-parole period has a punitive element;
(b) That where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c) An offender’s prospects for rehabilitation are almost always a significant consideration: see DPP v Josefski (2005) 13 VR 85, at paragraph 43.
161 In fixing the non-parole period, I take into account your relative youth, your remorse, your prospects for rehabilitation, principles of parity, as well as principles of just punishment, condemnation, general deterrence and protection of the community. I consider you would benefit from a longer than normal period of parole. For that reason, I direct that you serve a minimum of twelve (12) months’ imprisonment before becoming eligible for parole.
162 Under s.18(4) of the Sentencing Act 1991, I declare that a period of thirteen (13) days is to be reckoned as a period of imprisonment already served under the sentence on Presentment C0404241.2b and I direct that the fact of this declaration and its details be noted in the records of the Court and a period of one (1) day under the sentence imposed on Presentment C0605282.1, and I direct that the fact of these declarations and their details be noted in the records of the Court.
163 By virtue of the recent enactment of s.6AAA of the Sentencing Act, I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences but for the plea of guilty. Therefore, pursuant to s.6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty pleas, I state that but for your guilty pleas the sentences I would have imposed are as follows:
On Presentment C0404241.2b (“the Kaids Presentment”)
164 You would have been convicted and sentenced to thirty (30) months’ imprisonment. This would have been the base count for both Presentments.
On Presentment C0605282.1 (“the Bribery Presentment”)
165 On Count 1, attempting to pervert the course of justice, you would have been convicted and sentenced to eighteen (18) months’ imprisonment.
166 On Count 2, trafficking in a drug of dependence, you would have been convicted and sentenced to nine (9) months’ imprisonment.
167 On Count 3, possession of a drug of dependence, you would have been convicted and sentenced to three (3) months’ imprisonment.
168 On Count 4, handling stolen goods, you would have been convicted and sentenced to eighteen (18) months’ imprisonment.
169 On the question of cumulation, I would have ordered some period of cumulation between the presentments and between the counts on the Bribery Presentment C0605282.1.
170 I would have directed that six (6) months of the sentence imposed on Count 1 and three (3) months of each of the sentences imposed on Counts 2 and 4 on Presentment C0605282.1 be served cumulatively with the sentence imposed on Count 1 on Presentment C0404241.2b and with each other. This would have resulted in a total effective sentence of forty-two (42) months’ imprisonment in respect of all offences for which you are presently before the court (i.e., in relation to both presentments).
171 I would have fixed a single non-parole period in respect of both Presentments. I would have directed that you serve a minimum of twenty-eight (28) months’ imprisonment before becoming eligible for parole.
172 I direct pursuant to s.6AAA Sentencing Act 1991, that the sentences that would have been imposed but for the plea of guilty be noted in the Court’s records.
UT LE:
On Presentment C0404241.2b (“the Kaids Presentment”)
173 I have no alternative to the imposition of a term of imprisonment.
174 You are convicted and sentenced to eighteen (18) months’ imprisonment.
On Presentment C0605282.1 (“the Bribery Presentment”)
175 I have no alternative to the imposition of terms of imprisonment in relation to each of the counts.
176 On Count 1, attempting to pervert the course of justice, you are convicted and sentenced to eighteen (18) months’ imprisonment.
177 On Count 2, trafficking in a drug of dependence, you are convicted and sentenced to six (6) months’ imprisonment.
178 On Count 3, possession of a drug of dependence, you are convicted and sentenced to two (2) months’ imprisonment.
179 On Count 4, handling stolen goods, you are convicted and sentenced to twelve (12) months’ imprisonment.
180 In determining whether to order any period of cumulation, and, if so, how much, I must take into account that all of these charges are discrete and were committed in differing circumstances and involved offending of such gravity that total concurrency would fail to do justice.[10] Further, I must give weight to the fact that the second set of offences were committed whilst on bail for the first. I must pay regard to principles of totality and proportionality, and I must avoid imposing a crushing sentence.
[10]See R v O’Rourke [1997] 1 VR 246, at 253; and DPP v Grabovac [1998] 1 VR 664
181 Taking into account all relevant factors, I consider that it is appropriate to order some period of cumulation between the Presentments and between most of the counts on the Bribery Presentment C0605282.1.
182 I therefore direct that six (6) months of the sentence imposed on Count 1 and two (2) months of each of the sentences imposed on Counts 2 and 4 on Presentment C0605282.1 be served cumulatively with Count 1 on Presentment CO404241.2b and with each other.
183 This makes a total effective sentence of twenty-eight (28) months’ imprisonment in respect of all offences for which you are presently before the Court (i.e., in relation to both Presentments to which I have referred).
184 I will fix a single non-parole period applicable to both Presentments.
185 Your counsel has submitted that a longer than normal period on parole would be appropriate in your case. The Crown does not disagree with that proposition.
186 Among the matters to be taken into account are:
(a) That a non-parole period has a punitive element;
(b) That where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c) An offender’s prospects for rehabilitation are almost always a significant consideration, see DPP v Josefski [2005] 13 VR 85, at paragraph 43.
187 In fixing the non-parole period, I take into account your relative youth, your remorse, your prospects for rehabilitation, principles of parity as well as principles of just punishment, condemnation, general deterrence and protection of the community. I consider you would benefit from a longer than normal period of parole. For that reason, I direct that you serve a minimum of twelve (12) months’ imprisonment before becoming eligible for parole.
188 Under s.18(4) of the Sentencing Act 1991, I declare that a period of thirteen (13) days is to be reckoned as a period of imprisonment already served under the sentence on Presentment C0404241.2b and I direct that the fact of this declaration and its details be noted in the records of the Court and a period of one (1) day under the sentence imposed on Presentment C0605282.1, and I direct that the fact of these declarations and their details be noted in the records of the Court.
189 By virtue of the recent enactment of s.6AAA of the Sentencing Act, I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences but for the plea of guilty. Therefore, pursuant to s.6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty pleas, I state that but for your guilty pleas the sentences I would have imposed are as follows:
On Presentment C0404241.2b (“the Kaids Presentment”)
190 You would have been convicted and sentenced to twenty-seven (27) months’ imprisonment. This would have been the base count for both Presentments.
On Presentment C0605282.1 (“the Bribery Presentment”)
191 On Count 1, attempting to pervert the course of justice, you would have been convicted and sentenced to twenty-seven (27) months’ imprisonment.
192 On Count 2, trafficking in a drug of dependence, you would have been convicted and sentenced to nine (9) months’ imprisonment.
193 On Count 3, possession of a drug of dependence, you would have been convicted and sentenced to three (3) months’ imprisonment.
194 On Count 4, handling stolen goods, you would have been convicted and sentenced to eighteen (18) months’ imprisonment.
195 On the question of cumulation, I would have ordered some period of cumulation between the presentments and between the counts on the Bribery Presentment C0605282.1.
196 I would have directed that nine (9) months of the sentence imposed on Count 1 and three (3) months of each of the sentences imposed on Counts 2 and 4 on Presentment C0605282.1 be served cumulatively with the sentence imposed on Count 1 on Presentment C0404241.2b and with each other. This would have resulted in a total effective sentence of forty-two (42) months’ imprisonment in respect of all offences for which you are presently before the court (i.e., in relation to both presentments).
197 I would have fixed a single non-parole period in respect of both Presentments. I would have directed that you serve a minimum of twenty-eight (28) months’ imprisonment before becoming eligible for parole.
198 I direct pursuant to s.6AAA Sentencing Act 1991, that the sentences that would have been imposed but for the pleas of guilty be noted in the Court’s records.
Ancillary Orders
199 The Crown seeks a Disposal Order in relation to the items seized at the apartment in Whiteman Street. The Order is not opposed. I proposed to grant the Order in the form submitted for my signature.
200 The Crown also seeks a Forfeiture Order in relation to the cash located and this matter will be adjourned.
201 The Crown also seeks Orders pursuant to s.464ZF of the Crimes Act. The Orders are not opposed. I propose to grant those Orders. Are there drafts?
202 MR HARDJADIBRATA: I can't recall whether I handed those drafts up or not. They're here.
203 HER HONOUR: Thank you.
204 MR HARDJADIBRATA: Maybe we haven't provided them. Can I - - -
205 HER HONOUR: I'll have another look through the file.
206 MR HARDJADIBRATA: Yes.
207 HER HONOUR: I have to actually find the order.
208 MR HARDJADIBRATA: Yes, that's right. We haven't got it here, Your Honour, I apologise.
209 HER HONOUR: That's all right, maybe it is here, I'll have another look through the file. No.
210 MR HARDJADIBRATA: If the matter could be shortly stood down so an order could be obtained, draft orders could be obtained, Your Honour. We don't appear to have it here. I apologise for that.
211 HER HONOUR: That's all right, is there a form in the Act?
212 MR HARDJADIBRATA: Yes.
213 MR NIKAKIS: The application was actually served and I know there isn't any opposition to the order being made.
214 HER HONOUR: I need to pronounce it so I just wondered if there was a form can read it and actually make the order and sign it later.
215 MR NIKAKIS: Yes.
216 HER HONOUR: Now long will it take for you to get one, Mr Hardjadibrata.
217 MR HARDJADIBRATA: Half an hour I'm told, Your Honour.
218 HER HONOUR: All right, so can we reconvene at ten to one?
219 MR HARDJADIBRATA: Yes, Your Honour, I've got the notice of application here but that won't assist Your Honour.
220 HER HONOUR: Is there draft order attached to it?
221 COUNSEL: No.
222 MR NIKAKIS: There's only the forfeiture and the disposal orders.
223 HER HONOUR: All right, let's reconvene at ten to one.
224 MR HARDJADIBRATA: Thank you, Your Honour.
225 MR NIKAKIS: As the court pleases.
(Short adjournment.)
226 MR HARDJADIBRATA: Your Honour, I have the orders in triplicate here to hand up to Your Honour.
227 HER HONOUR: Thank you. Ut Van Le and Thanh Van Le, I make orders that each of you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. Having considered the seriousness of the circumstances of the forensic sample offence I am satisfied that in all the circumstances the making of the orders are justified for the following reasons:
· The seriousness of the circumstances of the offence warrant the order;
· The order is not opposed;
· The granting of the order is in the public interest in the case of each of you.
228 I must inform both you, Ut Van Le and you, Thanh Van Le that a member of the police force may use reasonable force to enable the forensic procedure to be conducted. Thanh Van Le, do you understand?
229 PRISONER THANH LE: Yes.
230 HER HONOUR: Ut Van Le, do you understand?
231 PRISONER UT LE: Yes.
232 HER HONOUR: Are there any other matters that need to be dealt with?
233 COUNSEL: No, Your Honour.
234 HER HONOUR: I wish to also thank you both as I have thank all counsel in the associated cases with the enormous care and attention you've given to the preparation and presentation of the matter and that this has assisted in the administration of justice. I thank you both.
235 COUNSEL: Thank you, Your Honour.
Appendix 1
Exhibit A
THE QUEEN
-v-
THANH VAN LE AND UT VAN LE
PROSECUTION OPENING FOR PLEA HEARING
(OPERATION KAIDS: PRESENTMENT C0404241.2b)
1.In January 2004, the Major Drug Investigation Division of the Victoria Police commenced an investigation named Operation Kaids. The principal targets of that operation were Thi Thanh Houng Hoang and her defacto partner Hung Van Truong.
2.A covert police operative using the assumed name “Rom Diamor” was introduced to facilitate controlled purchases of illegal drugs from Hoang and Truong.
3.From February 2004, telephone intercept warrants were obtained by the police in relation to various mobile telephones. These included the mobile phones of Hoang and members of two Vietnamese syndicates that were supplying Hoang and Truong with illegal drugs. The intercepted calls between Hoang and Truong and members of the two Vietnamese syndicates were largely conducted in the Vietnamese language.
4.One of those syndicates was headed by Nghia Le who was based in Sydney. Le’s agents in Melbourne were Ngoc Ha Do, and later Ahn Thi Pham. They were responsible for the supply and delivery of drugs to Hoang, and also for collecting and accounting for money for drugs supplied to her.
5.Nghia Le’s syndicate supplied illegal drugs, including heroin, to Hoang and Truong between February 2004 and May 2004. Some of the drugs supplied were on sold to covert operative Rom. By May 2004 however, Nghia Le had refused to supply Hoang and Truong with further drugs until they had paid outstanding amounts for large quantities of heroin that had already been supplied. It was at about this time that the telephone intercepts revealed increasing contacts between Hoang and Tam Pham.
6.The Crown alleges that Tam Pham was the head of the second syndicate which took over from Nghia Le in supplying heroin to Hoang and Truong. The Crown alleges that the two prisoners Than (Bill) Van Le and Ut Van Le had the responsibility of the delivery of heroin on behalf of Tam Pham to Hoang and Truong.
7.The telephone intercepts reveal that:
a.Contact between Hoang and Tam Pham’s group began on 1 March 2004[i];
b.Tam Pham visited the home of Hoang and Truong at 3 Yan Yean Place on 12 April 2004[ii];
c.Further contact was made between Hoang and Tam Pham on 1 May 2004[iii];
d.Hoang discusses with others obtaining heroin from Tam Pham at $8,000 per ounce[iv].
8.In mobile phone or SMS calls between Rom and Hoang between 19 April 2004 and 7 June 2004, Hoang continued to offer to sell Rom heroin and invited him to contact her for this purpose. On 15 June 2004, Rom telephoned Hoang and ordered a sample of heroin and agreed to meet later that day at 3 Yan Yean Place.[v] At that meeting, Rom ordered five ounces of heroin at a price of $9,500.
9.In a later intercepted telephone call between the prisoner Bill Le and Hoang on the same day, the latter asks him to give her a sample to try as she has just got an old customer back (Rom) who will take 1 ounce. Bill Le agreed to drop by later.[vi] There were further exchanges of telephone calls between Hoang and Rom, and Hoang and the prisoner Bill Le on 15 and 16 June 2004 in which the delivery of the sample of heroin was discussed.[vii] Finally, at 8:50pm on 16 June 2004, Hoang hands Rom a silver foil at 3 Yan Yean Place.[viii] The foil contained white powder which was later analyzed as 0.1 grams of heroin of 50% purity.
10.There were further telephone calls between Rom and Hoang on 18 and 19 June 2004. In the call of 19 June 2004, Rom ordered from Hoang 5 ounces of heroin at $10,000 per ounce.[ix] At 2:33pm a call between Hoang and Bill Le is intercepted in which Hoang is recorded as saying to the latter, “Now my friend has all the paperwork here to get five of the ones, you gave me last time”.[x] A later SMS on the same day from Hoang to Bill Le records the text message “I need 5 pieces size 7.5 my friend has papers already”.[xi] A further telephone call is intercepted at 2:43pm between Hoang and Tam Pham in which the latter tells Hoang that there is “no more of the 7.50 one” and Hoang replies that “we can take the other one and thingy”.[xii]
11.In these calls between Hoang and Bill Le and Tam Pham the Crown alleges that arrangements were being made for the supply of 5 ounces of heroin that Hoang is to purchase from Tam Pham at the initial price of $7,500, which heroin is then to be on sold to Rom.
12.On 19 June 2004, between 4:52pm and 5:26pm, there were two telephone calls and an SMS message exchanged between Hoang and Bill Le in which arrangements are made for Bill Le to come over in an hour and deliver the heroin after the money from the customer (Rom) is counted.[xiii] At about 6:07pm, Rom arrives at 3 Yan Yean Place and shows Hoang cash of $50,000.[xiv] After showing the money, Hoang goes to another room at the rear of the house and makes a phone call to Tam Pham at 6:11pm in which she tells him, “All is ready now…sitting at my home now…you give me another 3 only”.[xv] A short time later, Hoang tells Rom that the supplier was bringing the heroin to them.
13.At approximately 6.43 pm Detective Senior Constable Ibbott observed the prisoner Ut Le walk out of Denton Avenue, St Albans then north in Browne Avenue and into Yan Yean Place where he entered the driveway of 3 Yan Yean Place.[xvi] At the time, the two prisoners lived at 189 Denton Avenue, St Albans.
14.At approximately 6.43 pm, Rom heard a door knock. Hoang spoke to an unknown person (Ut Le) through the closed door. Hoang then told Rom that the supplier was there. Hoang then went outside to speak with the supplier. About one minute later, Hoang returned inside the house. Hoang said that she kept her customers inside the house so the supplier couldn’t meet them.
15.At approximately 6.46 pm Ibbott observed Ut Le walk out of the driveway of 3 Yan Yean Place, then south in Brown Avenue towards Denton Avenue.[xvii] At approximately 7.08 pm, after repeated enquiries by Rom as to when the heroin was to be delivered, Hoang walked to the bedroom and returned saying the supplier had dropped off 2 ounces instead of 5 ounces. Hoang said that the supplier had to come back with the rest of the order. Hoang said that she hadn’t placed the order initially because she hadn’t seen the money, however next time she would know that he (Rom) would have the money.
16.At about 7.25 pm Hoang walked to the bedroom and spoke to Truong. Hoang then returned carrying 2 plastic bags containing white rock each purporting to contain an ounce of heroin.
17.Hoang then handed Rom both plastic bags containing the heroin. Rom then weighed each plastic bag on a set of scales and observed that each bag weighed 28.4 grams. Rom then asked for the other three ounces and asked Hoang to ring the supplier.
18.At about 7.30 pm Hoang walked out of the lounge room and telephoned an unknown person and spoke in a foreign language. Hoang returned to the lounge and said that the supplier told her they couldn’t talk on the phone while they were driving.
19.A telephone call between Hoang and Tam Pham at 7:31pm is intercepted in which Hoang tells Tam Pham to tell him (Bill Le) to hurry up and deliver it as the customer has all the money and has been waiting a long time.[xviii] Between 7:31pm and 8:20pm there are flurry of a further 4 phone calls and 2 text messages exchanged between Hoang and Bill Le in which the former tells the latter to hurry up, and in which the latter replies that he needs more time.[xix]
20.At about 8:40pm, Truong was observed to pick up car keys and leave the premises. At 8:56pm, Bill Le rings Truong on Hoang’s mobile phone and asks to speak to Hoang, but is told that he is out and she is at home. Bill Le says that “then I will drop by”.[xx]
21.At approximately 9.05pm Ibbott, observed Ut Le walk north in Browne Avenue from Denton Avenue and enter the driveway of 3 Yan Yean Place. At approximately 9.07pm Ibbott observed Ut Le walk out of 3 Yan Yean Place and back to Denton Avenue.[xxi] At about 9.10pm, Rom told Hoang that he was leaving if the three ounces of heroin weren’t there soon. Hoang told Rom that her husband (Truong) wasn’t too far.
22.At about 9.15pm, Truong returned to the house and handed Rom three additional plastic bags of heroin. Truong’s hands were covered in white powder and he indicated to Rom that the remaining heroin (of approximately 5-7 grams) was for another customer. Rom paid $50,000 for the five bags of heroin, which were later analysed as 138.8 grams of heroin at 60% purity.
23.At 10:38pm, Truong rings Bill Le and tells him to “come over” and Bill Le says “yeah, coming over”.[xxii] The Crown says that in this last call, arrangements are made for Bill Le to come over to collect the money to complete the sale of heroin to Rom.
24.Over the next month there are further calls between Hoang, Tam Pham and Bill Le in relation to the supply of heroin.[xxiii] In an SMS message on 14 July 2004, Hoang tells one of her customers “Linda” that she has a regular supply of heroin now and can supply her as much as she wants.[xxiv]
25.On 20 July 2004, Rom telephoned Hoang and ordered five ounces of heroin and arranged to meet at Hoang’s house.[xxv] Hoang then calls Bill Le at 11:56am and orders “four tops” or four ounces of heroin to be delivered to her place :[xxvi]
“H:…if you could give me ah...four
….money immediately…
….four tops…yeah yeah.. four o’clock...come over to my place so we can go and buy the tops……
…give me call as soon as you have them, so I can tell them to come up..
T: Can we leave it for another few hours?
H: Yeah how long?
T: Ah...two three hours
H: Yeah Ok…”
26.A series of telephone calls then follow between Hoang and Bill Le, Bill Le and “Phuoc”, and Hoang and Rom in which arrangements are made for the delivery of the heroin in the evening of 20 July 2004.[xxvii]
27.At about 6:40pm on 20 July 2004, Rom attended at 3 Yan Yean Place and purchased five ounces of heroin from Hoang for $50,000. The heroin was later analysed as 138.8 grams of heroin of 50% purity. Following the delivery of the heroin to Rom and collection of the money, Hoang calls Bill Le and tells him to come over.[xxviii]
28.By 21 July 2004, Bill Le suspects that the police are following him. On 22 July 2004 at 12:08am, he complains to Tam Pham over the phone that “all morning there are 4-5 dogs at the front of my place…they even follow me…follow me everywhere I went...”[xxix]
29.Over the period 29-30 July 2004, police executed search warrants at various premises and arrested suspects the subject of investigations under Operation Kaids, including the prisoners Bill Le and Ut Le. When police executed a search warrant at 189 Denton Street, St Albans, at 11:20pm on 29 June 2004, Tam Pham and two other persons were also present at the premises with the two prisoners.[xxx]
30.Both Bill Le and Ut Le were separately interviewed by police on 30 July 2004. Bill Le made “no comment” answers to most of the question put to him by police.[xxxi] Ut Le also made “no comment” answers to most of the question put to him by police.[xxxii] He made some admissions during his interview, including that he had been living at 189 Denton Avenue for 4 months (Q13) and that he knew Tam Pham (Q34), but denied knowing Hoang or visiting 3 Yan Yean Place (Q45-60).
31.The total heroin supplied by Tam Pham and delivered by the prisoners Bill Le and/or Ut Le to Hoang and on sold to Rom is as follows:
DATE DETAILS AMOUNT 16/6/04 Heroin sample provided (Bill Le)
0.3 grams @ 60% 19/6/04 Heroin sold for $50,000 (Bill Le and Ut Le) 138.8 grams @ 60% purity 20/7/04 Heroin sold for $50,000 (Bill Le) 138.8 grams @ 50% purity Total $100,000
277.7 grams @ 50-60% purity
i SMS 360-2108 on 1/3/04, Hoang-T Pham: “I need to see you for urgent business”
iiTI 1585-2108 on 12/5/04, T Pham-Truong: T Pham returns a call made by Hoang. Truong invites him over to Yan Yean Place and provides the address
iiiSee following TI’s: 222 (SMS), 223, 225, 227, 228, 232, 233, 234, 235, 236-2138 on 1/5/04 between Hoang, Bill Le and Tam Pham.
ivTI 462-2169 on 31/5/06, Hoang-Unknown male, Hoang in the background speaks to Truong and tells him that Bill Le said he could get good quality heroin from Vietnam at $8,000 per ounce; TI 659-2169-0001 on 14/6/04, Hoang discusses with Nga Le pooling money to get from Tam Pham heroin from Vietnam at $8,000 per ounce.
v TI 681-2169-0001
viTI 685-2169-0001
vii15/6/04 Hoang – Bill Le: TI 690-2169-0001; TI 607-2169-0001. 16/6/04, Hoang and Bill Le: TI 722-2169-0001; 724-2169-0001; Hoang and Rom: TI 740-2169-0001; 750-2169-0001.
vii Rom statement at 253-254/83-84; transcript of listening device at 1686-1694/1254-1262.
ix TI 856-2169-0001
xTI 861-2169-0001 at 3495
xi SMS 863-2169-0001
xiiTI 865-2169-0001 at 3497
xiiiTI 866-2169-0001 at 3499; SMS 868-2169-0001
xiv Statement of Rom at 250-261/86-91; transcript of listening device tape at 1695-1786-1263-1354
xviTI 870-2169-0001 at 3502
xvi Depositions/HUB at 129/320
xvii Ibid
xvii TI 871-2169-0001
xix TI 877, SMS 878, TI 881, 883, SMS 886-2169-0001
xxTI 889-2169-0001 at 3509
xxi Depositions/HUB at 129/130
xxii TI 908-2169-0001 at 3511
xxiii TI T1 1317, 1406, 1472-2169-0001; SMS 8, 9 -2169-0102; 17, 184-2169-0101; SMS 21-2218-0002; 90-2218-0002
xxiv SMS 75-2169-0101 on 14/7/04
xxv TI 335-2169-0101
xxvi TI 193-2218-002, 4252-4253/4684/4685
xxvii TI 341, 346, 347, 349, 360, 363, 365-2169-0102; 200, 201, 202, 203, 204, 206, 208, 210, 211-2218-0002; SMS 356-2169-0102
xxviii TI 226-2218-002
xxix TI 254-2220 at 4799
xxx Depositions/HUB (Ibbott) at 137/328
xxxi Depositions 4702-4708
xxxii Depositions at 4709-4722
xxxii SMS 360-2108 on 1/3/04, Hoang-T Pham: “I need to see you for urgent business”
[1] TI 1585-2108 on 12/5/04, T Pham-Truong: T Pham returns a call made by Hoang. Truong invites him over to Yan Yean Place and provides the address
[1] See following TI’s: 222 (SMS), 223, 225, 227, 228, 232, 233, 234, 235, 236-2138 on 1/5/04 between Hoang, Bill Le and Tam Pham.
[1] TI 462-2169 on 31/5/06, Hoang-Unknown male, Hoang in the background speaks to Truong and tells him that Bill Le said he could get good quality heroin from Vietnam at $8,000 per ounce; TI 659-2169-0001 on 14/6/04, Hoang discusses with Nga Le pooling money to get from Tam Pham heroin from Vietnam at $8,000 per ounce.
[1] TI 681-2169-0001
[1] TI 685-2169-0001
[1] 15/6/04 Hoang – Bill Le: TI 690-2169-0001; TI 607-2169-0001. 16/6/04, Hoang and Bill Le: TI 722-2169-0001; 724-2169-0001; Hoang and Rom: TI 740-2169-0001; 750-2169-0001.
[1] Rom statement at 253-254/83-84; transcript of listening device at 1686-1694/1254-1262.
[1] TI 856-2169-0001
[1] TI 861-2169-0001 at 3495
[1] SMS 863-2169-0001
[1] TI 865-2169-0001 at 3497
[1] TI 866-2169-0001 at 3499; SMS 868-2169-0001
Appendix 2
Exhibit B
THE QUEEN
-v-
THANH VAN LE AND UT VAN LE
PROSECUTION OPENING FOR PLEA HEARING
(ATTEMPTING TO PERVERT THE COURSE OF JUSTICE: PRESENTMENT C0605282.1)
1.In the period of two to three months between June and August 2006, Julia Curtain and Robert Curtain noticed certain persons loitering suspiciously in the vicinity of William Street and Little Collins Street. Two of those persons were males in their 20’s, of Asian appearance, with long black hair tied in a pony tail. Sometimes these two men would drive a blue coloured sedan. Julia Curtain informed the police of her observations.[11]
[11] Depositions at 129-131; 132-134
2.At about 1:00pm, on Thursday, 3 August 2006, plain clothes members of the Melbourne Regional Response Unit commenced surveillance duties. Acting Senior Sergeant Damien Caddaye and Senior Constable Adam Tanner were in an unmarked police vehicle in the vicinity of Henty Lane and Little Collins Street. Senior Constable Weber was on the mezzanine floor of an office building in Little Collins Street, with a view of the surrounding area.[12]
[12] Caddaye, 68; Weber 98-109
3.A group of three to four scruffy looking males were observed using the public phone on William Street, just north of Little Collins Street. These men then walked down to Little Collins Street where they waited.[13]
[13] 68-69
4.At about 1:50pm, a blue Toyota sedan registration no.DTJ184 arrived and stopped near the intersection of Little Collins Street and Henty Lane. The Toyota was observed to contain two occupants, a driver and a front seat passenger. The scruffy looking males who had been waiting, then one by one, quickly approached the passenger side window of the blue sedan and exchanged money for small items.[14] The Crown alleges that heroin was being sold by the occupants of the blue sedan. (Count 2, traffic heroin)
[14] 68-69
5.After the exchanges, the blue Toyota sped off fast in a westerly direction up Little Collins Street, before turning south down Spencer Street. The blue Toyota was followed by the unmarked police car. It was intercepted by police, in Clarendon Street, just south of Whiteman Street, as the car executed a U-turn.[15]
[15] 69
6.The occupants of the car were Asian males with long dark hair tied in a pony tail. They were handcuffed by police after they got out of the car. The male in the passenger seat was identified as the prisoner Ut Le; the male in the driver’s seat was identified as the prisoner Thanh (Bill) Le.[16]
[16] 69
7.The two prisoners were separated and an external search was conducted of their person, and of their vehicle. No drugs were found on their person, or in the blue sedan that they were driving. [17]
[17] 69
8.Weber conducted the pat down search of Ut Le and located $390 cash in his front right hand pocket of his pants. Weber tried to search Ut Le’s groin area, but he pulled away from him and refused to let him finish the search.[18]
[18] 69; Webber, 109
9.The two prisoners were then conveyed in separate police vehicles to Melbourne West Police Station so that a full (strip) search could be conducted. Ut Le was conveyed in the divisional van operated by Leading Senior Constable Cairney and Constable Tsiros; Thanh Le was conveyed in the car driven by Caddaye and Weber.
10.On their arrival at the Melbourne West Police Station at about 2:31 pm, the accused Ut Le was placed in Holding Cell 1; and Thanh Le in Holding Cell 2. Both accused were still handcuffed.
11.Sergeant Caddaye went in to Holding Cell 1 to check on the accused Ut Le. When he entered the cell, Ut Le asked him to close the door and come close to him. On approaching him, Ut Le then told Caddaye that he would give him and his friend, referring to Weber, $15,000, if they let him go without searching him. He said he was on bail and that he had half a gram on him. Caddaye told Ut Le that he would have to speak to Weber first.[19]
[19] 69-70
12.After he left the cell, Caddaye reported the conversation to his supervisor, Senior Sergeant Davies, who directed that he and Weber should play the part of corrupt policeman, and confirm the conversation with Ut Le on a tape recorder.[20]
[20] 70-71
13.Meanwhile, the accused Thanh Le was strip searched in Holding Cell 2 by Weber and Senior Constable Tanner. No drugs were found on his person.
14.Following his search of Thanh Le, Weber was briefed by Davies and Caddaye on his role in further discussions with Ut Le. Caddaye and Weber then entered Holding Cell 1. Caddaye was wearing a concealed micro cassette recorder, which he activated before entering the cell.[21]
[21] 71; Transcript of covert tape at 79-92
15.Upon the police entering the room, Ut Le asked that they leave the cell because of the presence of a camera in the corner of the cell. It was later discovered that the camera was not in fact recording. Ut Le was then taken to an adjacent conference room where persons in custody could speak to their solicitors or friends and relatives.[22]
[22] 71
16.In that room, Caddaye asked how it was going to work. Ut Le told him that his brother, referring to Thanh Le, would bring the money later. Caddaye told him he wanted the money now. After that conversation, Ut Le was returned to his cell.[23]
[23] 71
17.As they were speaking to Ut Le, his mobile phone was constantly ringing. The calls were answered by Senior Constable Tanner.[24]
[24] 71
18.After obtaining further directions from Senior Sergeant Davies and checking the quality of the recording on the tape, Caddaye and Weber again took Ut Le into the conference room adjacent to his cell. In that room, there was further conversation in which Ut Le told them, amongst other things, that
· there would be a grand for each of them
· he had about half gram of drugs on him
· Caddaye had not asked him for a cent
· they should talk to his brother, referring to Thanh Le, as he will get the money.[25]
[25] 71-72
19.Thanh Le was then removed from Holding Cell 2 and taken to see Ut Le. Ut Le agreed to pay an initial amount of $5,000 as “good faith”, with a further $10,000 delivered later. The initial payment was to take place in William Street, near Little Collins Street, after Thanh Le had collected the money. After the two brothers spoke to each other quickly in Vietnamese, they were returned to their respective cells.[26]
[26] 73
20.Thanh Le was then removed from his cell and a further conversation about payment was discussed in the conference room. After being spoken to by Sergeant McGowan about his treatment by police, Thanh Le was released from custody. As he left the police station he had further conversations with Caddaye and Weber. At one stage he asked whether he would be charged if they went through with the bribe and Caddaye assured him this would not happen. He told them that if they were interested in the bribe they had to take him to his car and then he would collect the money. Caddaye told him that they could not then leave his brother.
21.After obtaining further directions from Sergeant Davies, Caddaye then re-entered alone into Holding Cell 1 and took him again to the conference room. Caddaye told Ut Le that he had to give the drugs to him now as his boss was about to have him strip searched. With Caddaye’s assistance, Ut Le removed a small brown tie bag from the top of his underpants. The bag contained five snap lock plastic bags containing white powder. After returning Ut Le to his cell, the bag was given to Sergeant Davies.[27]
[27] 74
22.The white powder contained in the plastic bags were later forensically examined and found to contain a mixed quantity of diacetylmorphine (heroin) weighing a total of 2.0 grams. (Count 3, possess heroin)
23.After a conference with members of a surveillance team given the task of following them for the collection of the initial payment, Caddaye and Weber left the police station at about 4:05pm. They could not locate Thanh Le at the designated meeting place, but saw him outside the Menzies Tavern, further down Little Collins Street. Caddaye activated the micro cassette recorder on leaving the police car.[28]
[28] 74
24.There was visual and video surveillance conducted for the meeting between Caddaye and Weber and Thanh Le.[29]
[29] 74; Hullick 230-231
25.Caddaye and Weber met Thanh Le inside the Menzies Tavern, but he was unhappy to see them. He told them that he was under surveillance by police. Caddaye assured him they were the only police present.[30]
[30] 74
26.They then followed Thanh Le to 501 Little Collins Street, a block of apartments adjacent to Henty Lane and near the corner of William Street. Before entering the building, Thanh Le told Caddaye to follow him in 10 minutes.[31]
[31] 75
27.A short him later, Thanh Le beckoned Caddaye inside the building. They walked to the first floor of the building where Le then reached into his jacket and pulled out a bundle of cash. In a soft voice Thanh Le said $4,500, which Caddaye repeated loudly. Thanh Le then walked off. The money was later counted and given to Sergeant Davies at the police station.[32] (Count 1, attempting to pervert the course of justice)
[32] 75
28.Thanh Le was later arrested by police in Little Collins Street at 4:26pm. The police seized the following items from him after his re-arrest:
- A red and white “Liverpool” jacket he was wearing;
- One set of three coloured keys and a magnetic swipe card;
- Two Nokia mobile telephones;
- One remote control key card.[33]
[33] 76; Tanner 115
29.On Friday, 4 August 2006, the police attended Apartment 208 at 83 Whiteman Street, Southbank and executed a search warrant. No persons were present. The Crown alleges that at the time the two accused were living at that address.
30.Items located and seized during the search were recorded by means of a video recorder. Amongst the items seized from the apartment were the following:[34]
[34] Davies 226-229
- Three metal cash tins containing respectively, $960.00, $4,695 and $964.45 cash;
- One white Apple iBook laptop computer with charger;
- One black Samsung mobile phone and charger;
- One Gateway Laptop computer;
- One grey Sony Ericsson mobile phone;
- One guitar case with guitar;
- Two diaries containing documents in the name of Bill Le;
- One set of scales and numerous plastic bags;
- One Apple PowerBook G4 laptop computer;
- Victorian Driver’s Licence in the name of Bill Le;
- Further documents in the name of Bill Le and Ut Le;
- One Compaq Presario computer.
31.Amongst the documents located in Apartment 208 were two Notices of Bail Undertaking in the names of Ut Van Le and Bill Le. The Undertakings were signed at the Melbourne Magistrates’ Court on 1 December 2005 in respect of charges that included charges for trafficking and possess heroin. These Bail Undertakings were the Trial Bail of the prisoners in relation to the Operation Kaids matters in which Detective Senior Constable Aaron Ibotts was the informant.[35]
[35] 278-281
32.Apartment 208 was leased on 11 June 2005 to Le Ti Thanh Truong and Phuong Huynh. They moved into the apartment with Thao Bui, but Truong moved out in August-September 2005 to live with her parents. She completed a Transfer of Tenancy form in October 2005, but this was never processed by the real estate agents. Thao Bui is a friend of the accused Ut Van Le and Thanh Van Le.[36]
[36] Truong 140-142; Bristow 143-146
33.In August 2006, one magnetic swipe card was active in respect of Apartment 208, which enabled access to the building, the building car park, and the apartment. A log is kept on computer at the office of the building manager of 83 Whiteman Street showing the dates and times the swipe card is used. Video surveillance footage from the building recorded between 24 July 2006 and 3 August 2006 show the accused Ut Le and Thanh Le appearing on a daily basis. This included footage of their attendance on the 20th floor of the apartments, the floor on which apartment 208 is located.[37]
[37] Tanner 119-120; Carrafa 138
34.The video surveillance footage also showed the two accused in the building car park in a number of vehicles including the blue Toyota sedan registration no.DTJ184, and a yellow Toyota coupe registration no.TYE199. The yellow Toyota is registered in the name of Bill Van Le.[38]
[38] 119-120
35.The Compaq Presario Laptop computer and blue coloured carry bag was stolen from the home of Robin Marshall on 17-18 June 2006, and was reported to the police a short time later. On 14 August 2006, Marshall attended the Melbourne West Police Station and identified the computer and the blue carry bag as the items stolen from her.[39] (Count 4, handle stolen goods)
[39] 152-153
36.The Apple G4 PowerBook Laptop computer was stolen from the home of Daniel DeFazio on 20 June 2006, and was reported to the police a short time later. On 14 August 2006, De Fazio attended the Melbourne West Police Station and identified the computer as the one stolen by way of the serial number noted on the Tax Invoice for the purchase of the computer that he produced.[40] (Count 4, handle stolen goods)
[40] 147-149
37.The Apple iBook G4 laptop computer was stolen from Andrew MacKinley on 3 August 2006, while he was away on business. The video surveillance footage at 83 Whiteman Street shows that on 3 August 2006, the two accused return to the building at 11:35 am after exiting 29 minutes earlier. Ut Le is seen on the video footage carrying a white Apple Laptop computer. McKinley discovered the laptop missing on his return on 5 August 2006. On 14 August 2006, MacKinley attended the Melbourne West Police Station and identified the computer as the one stolen by way of the serial number noted on the receipt for the purchase of the computer that he produced.[41] (Count 4, handle stolen goods)
[41] Tanner 119-120; 150-153
38.The Gateway Solo 5300 Laptop computer belonged to Adaptive International, an information technology company that was taken over by Synergy Plus Pty Ltd. It was purchased in 2001 or 2002, but the circumstances surrounding the theft of this computer are unknown. The former Managing Director of Adaptive International and current Synergy Plus employee Michael Hodder identified the computer on 17 August 2006. He was able to do this by way of a sticker on the computer showing it was the property of Adaptive International, and also by its serial number.[42] (Count 4, handle stolen goods)
[42] 156-157
39.The GIO Ibanez Electric Guitar and case belonged to the National Institute of Circus Arts and was stolen from one of NICA’s premises in the first week of June 2006. On 17 August 2006, NICA administrator Fiona Spurrell-McKebery identified the guitar and case by means of the acronym and phone number of NICA engraved on the guitar and case, and the serial number obtained from the receipt of the purchase of those items.[43] (Count 4, handle stolen goods)
[43] 154-155
40.The gold Nokia 7370 mobile phone located by Senior Constable Tanner in the possession of Thanh Le contained a Vodaphone SIM card which was examined to have the telephone number 0406691728. The silver and black Nokia 6060 that Tanner located in the possession of Ut Le contained a SIM card which was examined to contain the telephone number 0412383963. The black Samsung SHG-DH820 mobile phone located at Apartment 208 contained a Telstra SIM card which was analyzed to have telephone number 0437598949. Images stored on these phone revealed images of the two accused and also Thao Bui.[44]
[44] 121, 128
41.An analysis of the data recorded on each of the three mobile phones was conducted by Detective Senior Constable Russell Brown of the Computer Crime Squad. Amongst other things, the analysis revealed text messages sent and received on those mobile phones in the period 3 August 2006 and 9 August 2006, which the Crown alleges contain messages for the sale of heroin.[45]
[45] 209-216
42.Those text messages include the following recorded on 3 August 2006 on the Nokia 7370 mobile phone with telephone number 0406691728:[46]
[46] 121-123
- 10:54am from mobile phone number +6143306077 :
‘hey. Can u please do me something 4 120? It’s all I have to later this arvo? I’m 15 away. Thanks Liz. If you do me a 150 I’ll fix up the 30 next time? Ring u when I’m there.’
‘OK I do u 150’
‘Thank u A5’
‘Here now. could you make it a good 90? Can we also keep this one between us? Thanks.’
‘Ok’.
- Outgoing reply to +6143306077:
- 11:11am from +6143306077:
- 11:43am from mobile phone number +6140667764:
- Outgoing reply to +614667764:
43.Call Charge Records for the period 27 July 2006 and 4 August 2006 were obtained in relation to Telstra Pay Telephones in William Street, Melbourne. The Telstra Payphone with phone number 03961449X2 is recorded as being used to call mobile phone number 0406691728 on 26 occasions in this period.
44.On 8 August 2006, digital video footage from the security systems and cameras at the Melbourne West Police Station was downloaded onto Compact Disc. The footage was of the following areas at the station between the hours 2:00pm to 3:59pm on Thursday, 3 August 2006:[47]
[47] Riley, 135-136
a.First Floor Interview Rooms, Corridor Entry, Melbourne West Custody Area;
b.First Floor Secure Lift Foyer, Melbourne West Custody Area;
c.North East Corner External Flinders Street under walkway PTZ.
45.Following the re-arrest of the prisoners on the evening of 3 August 2006, they were separately interviewed by police but made “no comment” records of interview.[48]
[48] Ut Le 405-441; Thanh Le 442-473
46.The maximum penalties for the offences on the Presentment are as follows:
a.The maximum penalty for attempting to pervert the course of justice is Level 2 imprisonment, 25 years.
b.The maximum penalty for trafficking in a drug of dependence is Level 4 imprisonment, 15 years.
c.The maximum penalty for possessing a drug of dependence is Level 6 imprisonment, 5 years (trafficking purpose not excluded).
d.The maximum penalty for handling stolen goods is Level 4 imprisonment, 15 years.
,
.
0
6
0