R v Luong, Nguyen and Cao - [2005] VSCA 94

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 113 of 2003

No. 114 of 2003

No. 116 of 2003

THE QUEEN
	v.
TUYET GIANG LUONG, THI HONG NGUYEN and THI HUONG CAO

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2005
DATE OF JUDGMENT:	29 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 94

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Criminal law – Sentence – Trafficking in commercial quantity of heroin on wide scale – Applicants and several other co-offenders part of an elaborate heroin distribution organization – Whether sentences imposed failed to reflect moral culpability of applicants, principles of parity and hardship and pleas of guilty – Whether addiction to gambling relevant to mitigation of sentence discussed – Sentences of 10 years with minimum of 7½ years, 9 years with minimum of 7 and 8 years with minimum of 6 not manifestly excessive.

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APPEARANCES:

Counsel

Solicitors

For the Crown

For the Applicant Luong

For the Applicant Nguyen

For the Applicant Cao

Mr. J.D. McArdle, Q.C.

Mr. O.P. Holdenson, Q.C.

Mr. P.F. Tehan, Q.C.

Mr. M.J. Croucher

Solicitor for Public Prosecutions

Theo Magazis & Associates

Michael J. Gleeson & Associates

Lewenberg & Lewenberg

WINNEKE, P.:

The three applicants whom I shall call “Luong”, “Nguyen” and “Cao”, were three of a large number of Vietnamese people who came under the consideration of the police in or about February 2000, during the course of what was initially a “money laundering investigation” known as “Operation Cran”. It initially centred on Nguyen who was spending very large amounts of money at the Casino; and was thereby thought to have been engaged in laundering of that money. Ultimately it was perceived that the three applicants and significant numbers of the Vietnamese community in which they moved were engaged in the trafficking of large quantities of heroin. These people were the subject of covert surveillance, the use of covert police operatives to purchase heroin from them, and the target of listening devices and telephone intercepts.

In March 2000 a search of the Office of Housing records with the Department of Human Services showed that Nguyen claimed to be a single mother with three children residing at a Housing Ministry flat in Hoddle Street, Collingwood, and that her sole income was from a single parent pension and family payment. In contrast, records obtained from Crown Casino in May 2000 demonstrated that Nguyen had since May 1999 gambled hundreds of thousands of dollars at the Casino and acquired VIP status and membership of the Mahogany Room.

Between May and September 2000 warrants were obtained authorising the interception of communications from the telephone services of Nguyen and others. Listening devices were placed in premises at Kent Road, Lalor, where Cao lived with one, Tran. Cao was the mother of Nguyen. Video surveillance was also maintained at Cao’s premises. Generally speaking, the investigations established that Cao obtained heroin stocks from a supplier in New South Wales. She was a trusted customer and received the heroin on credit.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] VSCA 94
Decision Date: 29 April 2005

CaseChat Overview and Summary

The applicants in this case were convicted of trafficking in a commercial quantity of heroin on a wide scale as part of an elaborate heroin distribution organisation. They were before the court to challenge the sentences imposed on them, arguing that the sentences failed to reflect their moral culpability, the principles of parity and hardship, and their pleas of guilty. The applicants also argued that their addiction to gambling was relevant to the mitigation of their sentences.

The legal issues before the court were whether the sentences imposed by the primary judge were manifestly excessive, and whether the primary judge took into account relevant considerations in arriving at the sentences. The applicants submitted that the sentences imposed were manifestly excessive and that the primary judge failed to take into account the principles of parity and hardship, as well as their pleas of guilty. The applicants also argued that their addiction to gambling was relevant to the mitigation of their sentences.

The court found that the sentences imposed were not manifestly excessive, and that the primary judge had taken into account all relevant considerations in arriving at the sentences. The court noted that the applicants were part of an elaborate heroin distribution organisation and that they had played a significant role in the trafficking of heroin. The court also found that the primary judge had appropriately considered the principles of parity and hardship, as well as the applicants' pleas of guilty. The court rejected the applicants' argument that their addiction to gambling was relevant to the mitigation of their sentences.

The court dismissed the applications for leave to appeal against sentence. The sentences of 10 years with a minimum of 7½ years, 9 years with a minimum of 7, and 8 years with a minimum of 6 were affirmed as not manifestly excessive.

Orders