R v Nguyen
[2008] VSCA 235
•28 November 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| No 309 of 2007 |
| R |
| v |
| HAI MINH NGUYEN |
| No 313 of 2007 |
| R |
| v |
| LANG DANG |
| No 316 of 2007 |
| R |
| v |
| LIEN THUY LY |
| No 325 of 2007 |
| R |
| v |
| HOA VAN NGUYEN |
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JUDGES: | WARREN CJ, VINCENT and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 November 2008 | |
DATE OF JUDGMENT: | 28 November 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 235 | |
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CRIMINAL LAW – Appeal – Sentencing - Co-offenders with various roles in syndicate trafficking large commercial quantity of heroin – Whether mitigatory factors including delay, guilty pleas, remorse, depression, separation of parent from child appropriately weighed – Application of parity principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Ryan SC | Office of Public Prosecutions |
For the Applicant Hai Minh Nguyen | Mr C B Boyce | Robert Stary and Associates |
For the Applicant Lang Dang | Mr S R Johns | Balmer and Associates |
For the Applicant Lien Thuy Ly | Mr O P Holdenson QC with Mr T Kassimatis | Valos Black and Associates |
| For the Applicant Hoa Van Nguyen | Mr J Dickinson SC | Parsons Solicitors |
WARREN CJ:
I have read the draft judgment of Dodds-Streeton JA. For the reasons stated by her Honour, I would dismiss each of the applications for leave to appeal against sentence.
VINCENT JA:
I have read the judgment of Dodds-Streeton JA and I agree that each of the applications should be dismissed, for the reasons given by her Honour.
DODDS-STREETON JA:
There are four related applications for leave to appeal against the sentences passed on the applicants, Hai Minh Nguyen (‘Hai’), Lang Dang (‘Dang’), Lien Thuy Ly (‘Ly’) and Hoa Van Nguyen (‘Hoa’) for offences committed in the course of the activities of a heroin trafficking syndicate.
Hai was charged with, and pleaded guilty to, one count of trafficking in a large commercial quantity of a drug of dependence. He was sentenced to eight years’ imprisonment with a non-parole period of five years, and 129 days recognised as already served.
Dang was charged with, and pleaded guilty to, one count of trafficking in a large commercial quantity of a drug of dependence (count 1) and one count of trafficking in a drug of dependence (count 2). She was sentenced to 13 years’ imprisonment on count 1 and one year’s imprisonment on count 2, with a total effective sentence of 13 years, a non-parole period of nine years, and 394 days recognised as already served.
Ly was charged with, and pleaded guilty to, one count of trafficking in a large commercial quantity of a drug of dependence. She was sentenced to 13 years’ imprisonment with a non-parole period of nine years, and 54 days
recognised as already served.
Hoa was charged with, and pleaded guilty to, one count of trafficking in a commercial quantity of a drug of dependence. He was sentenced to five years and six months’ imprisonment with a non-parole period of three years and six months, and 52 days recognised as already served.
Pursuant to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’), the maximum sentence for trafficking in a commercial quantity of a drug of dependence is 25 years’ imprisonment.
Pursuant to s 71 of the Act, the maximum sentence for trafficking in a large commercial quantity of a drug of dependence is life imprisonment.
The applicants were arrested on 30 August 2003. The presentments related to offending which occurred during the period from 1 February 2003 until the date of their arrest. Ly was granted bail in September 2003. Hoa was granted bail on 3 October 2003. Hai was granted bail in December 2003. Dang was granted bail in August 2004. After a number of directions hearings and mentions, committal hearings occurred in May and June of 2005. A co-accused, Michael Smithers, was sentenced in March 2005. Further multiple case conferences occurred throughout 2005 and 2006. Other co-accused, George Tsatsis and Robert Goddard, were sentenced in June 2006 and April 2007 respectively. The applicants’ pleas were heard with those of their co-accused Beau Goddard and Hung Minh Nguyen (‘Hung’) on 3 September 2007. The applicants, together with Beau Goddard and Hung, were sentenced on 24 September 2007.
The syndicate
The syndicate comprised a number of persons, including the applicants, who conducted a business of trafficking commercial quantities of heroin throughout the metropolitan suburbs of Melbourne on a continuous basis. The syndicate’s activities were investigated by the Victorian Police Asian Squad in a special operation, in coordination with a federal police operation targeting the importation of heroin from Vietnam to Australia. The applicants played distinct roles in the syndicate’s activities. Dang and Ly were, in effect, partners who, during the period of offending conducted a joint enterprise of trafficking a large commercial quantity of heroin, the total amount of which approximated 12 kilograms. Hoa, who was Dang’s defacto husband, and his son Hai (Dang’s stepson), played lesser, but not insignificant, roles.
Together Dang and Ly purchased blocks of heroin from as many as five sources, including, for some of the charge period, Beau Goddard. Goddard, an acquaintance of Hai, sold heroin and cultivated cannabis at his premises.
Goddard also sold heroin to non-syndicate members, including Michael Smithers, who bought it in large commercial quantities. Smithers repackaged and stored the heroin at his home and sold it to persons who were encouraged by Goddard to purchase from Smithers. Goddard collected the proceeds of sale from Smithers and paid him for his activities.
Dang and Ly sometimes diluted the heroin with a mixing agent and on-sold it for an increased price. Both Dang and Ly sometimes bought and sold small quantities of heroin (of up to about one ounce) independently of each other.
Dang and Ly would collect the funds to pay Goddard for the heroin blocks, which cost between $105,000 and $115,000 each. The heroin bought and sold by Dang and Ly constituted a large commercial quantity under the Act. Dang and Ly did not seriously challenge the Crown’s allegation that the total quantity of heroin they trafficked approximated 12 kilograms.
At the time of the offending, Dang resided at Footscray with her husband, the applicant Hoa. Dang and Hoa had a young son who was born on 16 June 1997. Hoa supported Dang’s trafficking activities as required.
Both Dang and Hoa had children from their past relationships. Dang had two children from a relationship which ended in about 1995. Hoa had two sons, Hung and the applicant Hai, who both participated in the activities of the syndicate.
Hai
Hai was born 26 October 1981. He was aged 21 at the time of the offences and 25 at the date of sentence.
He acted at Dang’s direction as a conduit for negotiations with Goddard. Hai’s flat was used as a meeting point for the delivery and exchange of heroin and money.
With his brother Hung, Hai also sold heroin in relatively smaller quantities, generally at the equivalent of street dealer activity.
His Honour found that Hai bought heroin from Dang, used some himself and sold some to pay for it. As his Honour recognised, Hai was a facilitator and intermediary. He did not sell heroin in quantities comparable to those sold by Dang and Goddard. He acted on their instructions, and passed information between them. His Honour noted that, ‘[a]lthough [Hai] did not generate trafficking activity off his own bat, he played a role of some significance’ in relation to trafficking of 4.7 kilograms of heroin and, on some occasions, in other forms of trafficking.
Hai had been a cannabis user and a heroin addict from the age of 16. His Honour accepted that Hai was close to his stepmother, Dang, and that his offending arose from his ‘emotional and chemical dependence’, his friendship with Goddard and the need for his English language skills.
Hai had 17 prior convictions arising from four court appearances, including three for heroin trafficking. His Honour acknowledged that the convictions occurred when Hai was young, and that the trafficking had funded his heroin habit, but observed that Hai had now repeated his offending and that prior prison terms had not deterred him.
In the four years between his offending and sentence, Hai had not used heroin or re-offended. He had become estranged from Dang and Hoa. He and his partner of seven years had also had a daughter who was aged two at the date of sentence. He was well regarded by his partner’s family, who furnished positive testimonials on his behalf.
His Honour acknowledged that he found Hai the most difficult co-offender to sentence. In Hai’s favour, his Honour recognised that:
(a) his more subordinate role warranted a less severe sentence;
(b)his early intention to plead guilty and his conduct since the arrest suggested remorse and reasonable prospects of rehabilitation;
(c) he was young and had good prospects of rehabilitation; and
(d) the period of delay was relevant.
Set against those matters were Hai’s role, his prior convictions for trafficking and the fact that he had now trafficked in a large commercial quantity and had not been deterred by the penalties previously imposed.
Counsel for Hai alleged specific error, in that the sentencing judge had treated the mitigatory force of the delay as a factor common to all the co-offenders and failed to take into account its stronger impact on Hai, given his particular circumstances.
In my opinion, his Honour did not err as alleged. He was, as was conceded, alive to the significance of Hai’s unique circumstances and expressly recognised the relevance of the impact of delay upon him. His Honour’s statement that the delay was a consideration ‘common to you all’ and was, on the basis of the specified authorities such as R v Todd,[1] a mitigatory matter, avoided undue repetition in relation to the many co-offenders he was required to sentence. It did not signify a failure to take into account the interaction of the delay common to all co-offenders with the particular circumstances of each individual. His Honour expressly recognised what he described as ‘the different roles played by the different quantities involved and a myriad of matters personal to each of you’.
[1][1982] 2 NSWLR 517.
In relation to the guilty plea also common to all the co-offenders, his Honour stated that he had taken it into account, together with ‘any variation particular to each of you’. While he did not expressly so state, in my opinion, he also took into account the common factor of delay differentially, in accordance with the co-offenders’ individual circumstances, which he carefully recited.
Counsel for Hai submitted that the total effective sentence imposed on him was manifestly excessive in circumstances where he entered an early guilty plea; was remorseful; had reasonable rehabilitation prospects; had reduced moral culpability due to his youth, more limited role, heroin addiction and emotional dependence; and the delay, including his conduct during that period.
Counsel also submitted that the sentencing judge erred in giving too much weight to Hai’s prior convictions, because they reflected his heroin addiction, while in contrast, the present offence was aiding and abetting the others to traffic in larger quantities of heroin.
Further, counsel submitted that the sentencing judge erred in failing to find that Hai’s moral culpability was reduced by his drug addiction and the likelihood that he received no financial benefit from the trafficking beyond funding his heroin use. Counsel also emphasised that Hai’s only trafficking on his own account was street level.
At the plea hearing, counsel for Hai conceded that Hai owned a collection of basketball cards valued at about $100,000, but disputed the Crown’s allegation that the cards were purchased with the proceeds of heroin trafficking. Throughout the charge period, Hai was unemployed and did not receive Centrelink benefits. Counsel conceded that, during the charge period, Hai made repayments of $35,000 on a credit card, purchased $21,000 worth of basketball cards and sold approximately $2,902 worth of cards, but submitted that he received no fee for his middleman activities and applied the proceeds of heroin trafficking to his own drug use. That issue remained in dispute.
I am not persuaded that his Honour erred as alleged. His Honour acknowledged that Hai was the most difficult co-offender to sentence, given the factors now emphasised on his behalf. His Honour expressly recognised Hai’s emotional and chemical dependence, Dang’s role as his substitute mother and Hai’s early drug addiction. His Honour implicitly, if not expressly, concluded that those matters reduced Hai’s moral culpability. He was nevertheless justifiably concerned that Hai had multiple drug-related prior convictions and had not been deterred by the penalties imposed, including imprisonment. Irrespective of Hai’s drug addiction and whether he made use of the proceeds of trafficking beyond funding his drug habit, in circumstances where, as the Crown opening revealed, Hai regularly ordered and received heroin (in amounts of up to 4 oz) from the principals, which he cut and traded to customers in his own right; was shown by the telephone intercepts to have been involved in trafficking heroin in 12½ oz blocks valued at about $115,000 each, and totalling 4.7 kilograms; was involved in most of the transactions between Dang and Goddard; apparently facilitated the use of Goddard as a source; was an active middleman with language skills assisting in relation to Dang’s limited English; and supplied a venue important to the syndicate’s activities; he cannot fairly be regarded as a peripheral ‘hanger on’. He played an important role in the syndicate’s operations.
In my opinion, his Honour took into account all mitigatory factors in Hai’s favour and weighed them appropriately in a balancing exercise which was, as he said, difficult.
The maximum penalty prescribed for the offence reflects its prevalence and gravity, and the threat it poses to the life, health and well being of the community, including vulnerable young people. Hai’s prior convictions established that previous sanctions had proved ineffective deterrents. His Honour was required to give effect to the goals of general and specific deterrence, denunciation and just punishment. In all the circumstances, the sentence imposed on Hai is within the available range and is not, in my view, manifestly excessive.
I would dismiss Hai’s application for leave to appeal.
Dang
Dang was born on 4 November 1968. She was aged 34 at the time of the offending and 38 at the date of sentence. She was one of six children born in Vietnam and educated to year 12 level. Sponsored by her brother, she migrated to Melbourne at the age of 22. Although she had a large family in Melbourne, her relationship with her family broke down and she lost their support, apparently because they disapproved of her male partners. She met the co-accused, Hoa, in 1996 and their son was born in 1996.
Dang was a heavy gambler who incurred gambling debts. She initially conducted a restaurant business with Hoa, which was lost due to her gambling debts. She borrowed extensively from a Vietnamese credit group and trafficked in heroin to repay her large gambling and other debts.
Dang used various mobile telephones to communicate with her associates including her ‘partner’ Ly, drove various cars and operated various bank accounts in order to conduct her activities. Intercepts of conversations between Dang and Ly recorded their various ‘coded’ references to heroin and showed them organising the purchase of blocks of heroin from Goddard, in conjunction with Hai. When sufficient sales had been made by Dang and Ly, Dang phoned Goddard or requested Hai to do so, advising that money could be collected from Hai’s flat.
Dang and Ly commenced by purchasing one block of heroin per week, but subsequently increased their purchases to between five and seven 12½ blocks per week. There were approximately 16 regular customers, including Hai. Dang also sold varying amounts (up to 350 gram blocks) to her own customers.
Dang conceded that she had trafficked in significant amounts of heroin from 1 February to 30 August 2003, and that the trafficking reached a very high level in around May 2003. She received 7.35 kilograms between May and July 2003 and conceded that the total quantity of heroin trafficked was about 12 kilograms.
Dang spent 377 days in custody following her arrest. She was released on bail in August 2004, and was at large, knowing that she would be re-incarcerated.
During that time, she lived with her son and a new domestic partner, who was prepared to care for her son (aged 11 in 2007) during the period of her imprisonment.
Counsel for Dang submitted that the sentencing judge erred in failing to give sufficient weight to her admissions and early plea of guilty. In particular, counsel submitted that the fact that the same sentence was passed on Dang, Ly and Goddard demonstrated that the sentencing judge did not take due account of the fact that Dang’s plea was early, in contrast to the pleas of her co-accused Ly (whose plea was entered at a late stage) and Goddard (whose plea was entered at a very late stage). His Honour therefore, it was submitted, erred in failing to address the mitigatory effect of Dang’s plea and admissions on ‘a separate and distinct basis’.
In my opinion, the sentencing judge did not err as alleged. He expressly took Dang’s admissions and her guilty plea into account on the basis that they were early.
He did not reduce the mitigatory effect because Dang pleaded guilty only on the arraignment on 6 October 2006 (having reserved her plea at the committal). Negotiations as to the quantity of the heroin trafficked (in which Dang had an interest) occurred in the interim.
Further, in her police interview, Dang downplayed the quantity of heroin trafficked. She did not admit to selling block weights of heroin and stated that Ly and Goddard were only ‘friends’. The tenor of Dang’s interview was less than frank, but his Honour liberally accorded her the unqualified benefit of an early and very valuable guilty plea and admissions.
The fact that the same sentence was ultimately passed on Dang, Ly and Goddard does not bespeak a failure to give Dang credit for her earlier plea and admissions. The characteristics and circumstances of each co-offender were not identical and while the timing of the respective guilty pleas was comparatively favourable to Dang, it was but one of a number of relevant individual factors, some of which comparatively favoured Dang’s co-accused, and all of which the sentencing judge was required to balance and synthesise in relation to each co-offender.
Counsel for Dang further submitted that the sentencing judge erred in failing to accord sufficient weight to the effects of the delay between her arrest and sentence, in circumstances where, during the relevant period, she was either in custody in remand (for over a year) or on strict bail; had indicated a willingness to plead guilty; and did not re-offend or resume her gambling. Dang’s significant rehabilitation during the relevant period was not, counsel submitted, accorded sufficient weight.
In my opinion, his Honour did not err as alleged. Sufficient weight was accorded to the delay. As the respondent submitted, his Honour expressly took it into account in Dang’s favour, despite the absence of any suggestion of undue delay or any evidence of positive steps taken towards her rehabilitation during the period.
Counsel for Dang submitted that the sentencing judge fell into specific error by failing to give any or any sufficient weight to the exceptional circumstance that her child would lose both his parents, Dang and Hoa, to custody. His Honour, it was said, ignored the resultant hardship both to the child and Dang. It was submitted that the necessity for care by Dang’s domestic partner, a non-family member, coupled with the length of Dang’s sentence, was so exceptional that it amounted to a sentencing factor.
In my opinion, his Honour did not err as alleged. It was, and remains, unclear how the release of the child’s father, Hoa, (who is subject to a shorter sentence of five years and six months, with a non-parole period of three years and six months) would affect the arrangements for the child. It is also doubtful that care by a ‘step- parent’ who is not a blood relation, but has apparently accepted the child as his own, and was willing to assume continued responsibility, is exceptional, or properly regarded as non-familial care. Sadly, a degree of adverse impact on a child and parents separated due to parental imprisonment is an unavoidable norm.
Before the sentencing judge, however, no evidence or submissions were advanced to suggest that the imprisonment of both parents would adversely affect Dang’s child to an exceptional extent, such as to constitute it a mitigatory sentencing consideration. Adequate arrangements for the appropriate care of the child were apparently in place. Further, as Vincent JA observed in the course of the hearing of the application, to the extent that the hardship of separation from her child was a mitigatory factor in Dang’s favour, it tended to be neutralised by the damaging role she had played in her step-sons’ offending.
The ultimate sentence passed on Dang is within the available range, and confirms, in my opinion, that all mitigatory factors were weighed in her favour to an appropriate degree.
Counsel for Dang submitted that the sentencing judge breached the parity principle by failing to impose on her a shorter head sentence and non-parole period than that imposed on Goddard, who received the same sentence, and by imposing a significantly longer sentence on Dang than that imposed on another co-offender, Smithers, who was sentenced to six years and six months for trafficking and three months for possession (total effective sentence being six years and six months) with a non-parole period of four years and nine months.
The applicant contended that Dang’s criminal activity was less than that of Goddard and was not greatly different from that of Smithers, who also received large quantities of heroin from Goddard.
In my opinion, the sentencing judge did not err as alleged. Goddard was not the first or sole supplier of heroin to Dang and Ly and all those co-offenders dealt in, sourced and trafficked in heroin in block form and lesser amounts.
As his Honour stated:
In this case it is clear that the business conducted by Mr Goddard on the one hand, including his dealings with Miss Dang and Miss Ly, and his separate dealings with Mr Smithers, and the business conducted by Miss Dang and Miss Ly including their dealings with Mr Goddard and their separate dealings with others, were flourishing businesses and businesses which customarily and frequently deal with very significant quantities of heroin. Each business and each level of trafficking was greatly in effect the minimum quantity required under s. 71. As one counsel put it “it was very large scale trafficking”:. It was trafficking involving very large sum of money and generally very large profits.
His Honour stated that he gave considerable consideration to the principle of parity of sentencing, but that:
Because of the different roles played, the different quantities involved and a myriad of matters personal to each of [the co-offenders], I do not think that strict parity is required, but some concept of equivalence or approximation is appropriate in certain instances and … I bear in mind when sentencing one [co-offender] the sentences I propose for others.
Goddard’s level of criminality, measured by reference to not only the quantity of the drug trafficked, but the magnitude of the business (represented by the length of the period of the trafficking, the intensity, volume, frequency and regularity of trafficking instances) was not, in my view, of a materially different order from that of Dang or Ly. Moreover, as his Honour recognised, there were relevant circumstances personal to Goddard, including his relative youth at the date of the offending and a ‘disturbed and unfortunate childhood’.
Smithers was not charged with large commercial trafficking, but with trafficking in not less than a commercial quantity, and with possession of cannabis. He received, his Honour found, 3.113 kilograms of heroin from Goddard to traffic it to others on Goddard’s behalf. While, as his Honour found, Smithers was a more ‘serious’ offender than Hoa (so that parity between them was inappropriate), he was not, like Dang or Ly, a large commercial quantity trafficker. His sentence therefore invoked no principle requiring like treatment of like offenders and provided no meaningful guidance in relation to the sentences passed on Dang or Ly.
Dang and Ly were, as his Honour found, effectively partners in the trafficking enterprise and although each also had particular personal circumstances which his Honour weighed and recognised, there was, on balance, no material ground of distinction between them to warrant different sentences.
It follows from the foregoing that, in my view, the sentencing judge had appropriate regard to all mitigatory factors in Dang’s favour. As his Honour observed, heroin has deleterious anti-social consequences, and trafficking is attended by great harm, both actual and potential, to the community. As such, it is a vice sternly condemned by the courts and the gravity of trafficking large commercial quantities of heroin is reflected in the maximum penalty of life imprisonment prescribed by the legislature.
The quantities of heroin Dang trafficked were, as the sentencing judge observed, so large that they would have penetrated ‘largely and deeply into the community’. His Honour therefore, correctly, in my view, gave considerable weight to the principles of denunciation and deterrence, both general and specific.
In my view, the sentence passed on Dang was not manifestly excessive.
In my opinion, Dang’s application for leave to appeal should be dismissed.
Hoa
Hoa was born on 24 December 1956. He was aged 46 at the time of the offending and 50 at the date of sentence.
His Honour found that Hoa was not Dang’s business partner or an integral part of her operation. Rather, he was Dang’s assistant or helper in the distribution of heroin and an aider and abettor of her trafficking activities, in relation to a quantity of heroin which exceeded the limit for a commercial quantity.
Counsel for Hoa did not challenge the respondent’s assertion that Hoa assisted Dang’s trafficking activities as follows:
(a) Driving her to places where she made deliveries of heroin,
(b)Supplying heroin to customers when Dang was unavailable to do so,
(c) Recovering outstanding drug debts for Dang,
(d) Operating a number of mobile telephones in false names,
(e)Providing intelligence to Dang about the price of heroin whilst he was in Vietnam,
(f)Using his bank account to launder funds derived from Dang's drug trafficking in circumstances where he was aware that she trafficked in 12 1/2 ounce (350 g) blocks of heroin at $115,000 per block and where he knew that both his sons Hai and Hung, were also involved in trafficking heroin with her.
The sentencing judge found that Hoa was lowly placed in the hierarchy, but had benefited from his conduct, which assisted Dang’s business.
Hoa pleaded guilty shortly after the committal. He had only one insignificant prior conviction. Following his arrest, his relationship with Dang terminated. He was on bail for three and a half years. He acquired a new domestic partner and ran a lawn-mowing business. He had also performed voluntary work for the Vietnamese Veterans Association.
His Honour noted that Hoa had demonstrated a capacity to live ‘a right-minded’ life and it was not appropriate to achieve parity of sentencing with Smithers, who was a ‘serious’ trafficker.
Counsel for Hoa submitted that the sentencing judge erred in failing sufficiently to differentiate between the roles of, on the one hand, Hoa and, on the other hand, his co-offenders Dang and Ly.
As was conceded, a classical claim of manifest disparity invites a comparison between persons who have committed the same offence. Dang and Ly pleaded guilty to large commercial trafficking in heroin, while Hoa pleaded guilty to commercial trafficking in heroin.
The fundamental principle of equal justice, of which the parity principle is one expression, may nevertheless require, as his Honour recognised, some consideration of the relative roles and characteristics of co-offenders participating in a syndicate, in order to obviate any justifiable sense of grievance engendered by their sentencing. In the present case, his Honour bore such considerations in mind. The sentence passed on Hoa did not, in my view, offend the principle of equal justice and did not justify a sense of grievance.
His Honour carefully and comprehensively took into account all the mitigatory factors in Hoa’s favour, including his serious attempts at rehabilitation, and clearly registered his significantly lesser role.
As his Honour stated, Hoa acted on Dang’s instructions and was ‘lowly placed in the drug hierarchy’, but that was reflected in the sentence passed. The maximum sentence for the offence is 25 years’ imprisonment.
The mitigatory factors of Hoa’s guilty plea, prospects for rehabilitation, the familial context of his offending, the delay and Hoa’s lack of significant prior offending were all expressly recognised, and, in my view, appropriately weighed. The sentence was within the available range and was not, in my opinion, manifestly excessive.
In my opinion, Hoa’s application for leave to appeal against sentence should be dismissed.
Ly
Ly was born on 6 March 1959. She was aged between 43 and 44 years at the time of the offending and was 48 at the date of sentence.
His Honour noted that Ly was, generally speaking, a partner of Dang with whom she conducted jointly 80 percent of her trafficking. She had probably been introduced to the enterprise by Dang and had some initial direction. He noted that it seemed that Ly generally deferred to Dang, who was chiefly responsible for supply, storage, mixing and preparation of the heroin.
According to the prosecution opening, during the period of the offending, Ly resided in Footscray with her de facto husband and their young son. In March 2003, together with family members, she opened a jewellery shop in Footscray, from which she occasionally trafficked heroin. She also used various mobile telephones to communicate with her associates to arrange the supply and distribution of heroin. She purchased it from a number of sources and, in some instances, she mixed it for resale.
Ly regularly supplied block weights to a particular customer, had a number of regular customers, displayed good knowledge of the quality of heroin diluted at various ratios and, together with Dang, discussed the use of an unidentified female as a courier, who would be ‘the one in danger’.
Ly drove with Dang to premises to collect outstanding moneys for heroin and discussed with her the purchase of a jewellery shop for $450,000. She was frequently cautious in speaking of drug related matters, using ‘codes’ to discuss them.
During Ly’s police interview, she denied knowing Dang, denied any involvement in buying and selling drugs and stated that she was employed at a jewellery store for wages of $250 per week and did not remember well, because she ‘had a sickness’.
The sentencing judge noted that Ly’s early life in Vietnam was difficult. She was married young and was a widow with two young children when she arrived in Australia as a refugee. She worked hard to raise the children alone. She remarried in 1997, had another child (now aged 9) and was devastated by her second husband’s subsequent desertion. Ly had a good work history, but was a heavy gambler whose debts were the incentive for her involvement in trafficking.
His Honour observed that Ly had lost the money she had derived from trafficking due to her gambling. She also suffered from chronic depression. His Honour accepted that Ly was remorseful, and that, although she pleaded guilty at a late stage, her plea was of considerable utilitarian value.
His Honour also observed that the lengthy passage of time was a mitigatory factor in Ly’s favour.
Counsel for Ly submitted that the sentencing judge erred in failing to recognise that the parity principle required a lesser sentence for Ly than for Dang and Goddard, in view of the co-offenders’ comparative roles, the quantum of heroin they trafficked, their remorse, previous and other criminality and personal circumstances.
Counsel for Ly submitted that a shorter sentence for Ly was mandated because her co-offenders, Dang and Goddard, were found to have trafficked in 12 kilograms or more (emphasis added), whereas no such finding was made in relation to Ly. Counsel also relied on Goddard’s prior convictions and Dang’s conviction on an additional count.
As stated above, I am not persuaded that his Honour breached the parity principle in passing an identical sentence on Dang, Ly and Goddard.
The sentencing judge acknowledged that it was impossible to reach a completely accurate record of the quantity of heroin trafficked by each of Dang, Ly or Goddard.
Of Dang, he stated:
the Crown does not dispute your estimate of about 12 kilograms, give or take a kilo or two, a figure very similar to that which Ms Ly acknowledges as the quantity she trafficked.
Of Ly, he stated ‘you do not seriously challenge the Crown estimate of something in the order of 12 kilograms.’
Of Goddard, (who did not accept the Crown estimate of the quantity of heroin he trafficked), his Honour was satisfied that he trafficked known amounts which totalled ‘some 12.3 kilograms’ and observed that there were other instances of trafficking in unknown but probably smaller quantities. His Honour concluded:
I do not think, Mr Goddard, it is doing you an injustice to say that the quantity of your trafficking was in the order of 12 kilograms or more.
All three co-offenders were thus sentenced on the basis that they trafficked in about 12 kilograms of heroin. There was no finding that Dang in fact dealt in more, but simply a recognition of the possibility that she dealt in somewhat more or less. Goddard was sentenced on the basis that he dealt in heroin in the order of 12 kilograms or more, but there was no finding that any amount which may have exceeded 12 kilograms was significant. Further, even if it were established that Dang or Goddard had dealt in somewhat greater quantities than Ly, it would not, given the uncertainty in relation to the precise amounts trafficked and all the circumstances of the individual applicants and their offending, dictate a different outcome. Nor would an initial invitation by Dang and an apparent degree of ‘deference’ by Ly constitute a material basis for distinction between the partners’ otherwise substantially identical roles in the joint enterprise, levels of participation and serious criminality.
While some circumstances peculiar to Ly, taken in isolation, may have indicated a more favourable disposition, they were counterbalanced by other, comparatively adverse factors. For example, in contrast to Dang, Ly pleaded guilty at a late stage. Similarly, while Goddard was comparatively youthful, Ly was of mature years. His Honour, as he was required to do, had regard to and weighed all relevant circumstances of each offender and bore in mind the sentence of the others in sentencing each offender.
Counsel for Ly also submitted that, the sentencing judge erred in failing to find that Ly’s chronic depression reduced her moral culpability and the weight to be accorded to deterrence, denunciation and punishment, and by failing to take account of the impact of the depressive illness on Ly’s experience of incarceration. Counsel submitted that his Honour failed to take Ly’s chronic depression into account in ‘a discernibly meaningful way’, as reflected in the sentence he imposed.
In my opinion, the sentencing judge did not err as alleged.
The applicant conceded that counsel for Ly did not address the Court below on the significance of her depressive illness, described in the report of Dr Wong, a psychologist, of City Centre Psychotherapy, a counselling clinic, dated 23 March 2007. Dr Wong’s report stated that he had provided counselling to Ly from 2 November 2003 up to the date of the report, initially on a weekly, then fortnightly and ultimately monthly basis. The report recited Ly’s family and personal history, including her gambling problems. It indicated that Ly’s depression initially arose many years ago, when her first husband died.
The psychological evaluation stated:
Ms Ly is diagnosed with chronic depression associated with suicidal ideation and high levels of anxiety These conditions surfaced themselves initially due to the death of her husband when she was only 22 years of age and having to raise two toddlers on her own. Consequently, Ms Ly did not have time to grieve the death of her husband, and being in a foreign country with no relatives and not speaking the language made her feel lonely, abandoned and rejected. To be able to deal with her day to day activities, she pretended to be a strong and capable person but deep inside her was a person who desperately wanting to be accepted and willing to go out of her way to please others.
Her affect was profoundly sad and anxious, with minimum capacity for reactivity. She described her mood as being very sad. She said that she had frequently cried since she was arrested and charged with the current offences. Her thoughts were very depressed in content. She expressed themes of profound hopelessness, helplessness, guilt, shame and despair. She apprehensively described having suicidal ideation but she had not acted on these thoughts or made any plans to harm herself. She described feeling pervasively anxious. She said that she was always worrying and often experienced panic episodes and heart palpitation. There were no psychotic phenomena.
Before us, counsel for Ly submitted, for the first time, that the report indicated that Ly’s tendency to please others was a manifestation of a depressive illness which had contributed to her offending, and consideration of which should be reflected in her sentence, in accordance with R v Verdins; R v Buckley; R v Vo[2] (‘Verdins’).
[2](2007) 16 VR 269.
The appropriate forum for that submission was before the sentencing judge, who received no assistance in relation to the effect of Ly’s depression on her offending or appropriate disposition. In any event, the alleged inference cannot in my opinion, fairly be drawn. Although Ly may have been ‘invited in’ by Dang and somewhat deferential to her, as the telephone intercepts and other unchallenged evidence reveal, her subsequent participation in criminality, both in partnership and on her own account, was ruthless, voluntary and aimed at profit.
Dr Wong’s report provided little if any insight into the level of Ly’s depression during the period of her offending; whether and if so how the condition affected her offending; or its potential impact on her experience of incarceration.
In such circumstances, the sentencing judge had no valid basis on which to find that the depressive condition reduced her moral culpability, should moderate general or specific deterrence or would bear upon any sentence, including imprisonment, which might be imposed.
In my opinion, Ly’s application for leave to appeal should be dismissed.
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