R v Saencahi
[2005] VSCA 201
•11 August 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 321 of 2004
| THE QUEEN |
| v. |
| CHAIYA SAENCHAI |
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JUDGES: | ORMISTON, BUCHANAN and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 August 2005 | |
DATE OF JUDGMENT: | 11 August 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 201 | |
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Sentence – Trafficking heroin – One of four offenders – Whether want of parity in sentence imposed – Different levels of criminality – Different circumstances of offenders – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr C.B. Boyce | Leanne Warren & Associates |
ORMISTON, J.A.:
I will ask Ashley, J.A. to deliver the first judgment.
ASHLEY, J.A.:
The appellant, Chaiya Saenchai, was one of four men charged with trafficking heroin in consequence of a police investigation into events which occurred in November and December 2002. On 8 November 2004 he was sentenced on a count of trafficking to three years' imprisonment with a non-parole period of two years. On a second count, of possessing a small quantity of methylamphetamine on 17 December 2002, he was fined $100. I need say nothing more about the latter conviction and penalty.
The appellant appeals by leave against the sentence of imprisonment on the trafficking charge. He relies upon a single ground of appeal: that the sentence was manifestly excessive having regard to want of parity between it and the sentences passed on his co-offenders.
The co-offenders were Hue Nguyen, Lam Hai Le and Anh Nguyen. Lam Hai Le was sentenced on 2 April 2004 by the County Court judge who later sentenced the appellant and Hue Nguyen. Anh Nguyen was sentenced by another County Court judge on 27 April 2004. The judge who sentenced Anh Nguyen was apprised of the sentencing remarks which had earlier been made in the case of Le. Hue Nguyen and the appellant were sentenced on 8 November 2004.
The sentences imposed were as follows:
Period of Non Parole Pre-Sentence
Imprisonment Period Detention
Hue Nguyen 3 years and 6 months 2 years and 3 months 692 days
Appellant 3 years 2 years 1 day
Lam Hai Le 3 years 1 year and 9 months 37 days
Anh Nguyen 2 years 6 months 1 year and 6 months 498 days
I focus first upon the role of the four men in the criminal conduct.
Hue Nguyen was sentenced on the footing that in the period late November to mid December 2002 he had been "heavily involved in trafficking and at a level above the street selling level". According to conversations that had been recorded he had sold eight ounces of heroin over an 11-day period. A search of his factory had found 280 grams of heroin. Of the four men, in short, he had been involved in the most serious criminal behaviour.
Lam Hai Le was sentenced on the basis that over a period of weeks in November and December 2002 he had been supplied heroin by Hue Nguyen and had made sales of quantities varying between .2 gram and 1 ounce to a number of buyers including the appellant. He had sold the smallest of those quantities for $50, and the largest for $7,500. A search of his factory on 17 November 2002 led to the discovery of 34.1 grams of heroin. He was, according to the judge's finding, "engaged in trafficking in heroin as a full-time occupation, both at the retail and, to a more limited extent, wholesale level". The judge also found that Le " ... must be regarded at least as a full-time retailer of heroin who from time to time made sales of larger quantities which [he] sold to other retailers when the opportunity arose."
Anh Nguyen occupied a room in Hue Nguyen's factory. When the factory was searched on 17 December 2002, 280.4 grams of heroin was found in his room. That was the same heroin, as I understand it, which was made referable to Hue Nguyen. At trial he pleaded guilty to trafficking heroin. He was sentenced on the footing that his offending was confined to a single day. Anything beyond that was speculation.
The appellant was sentenced on the footing that in the period November to December 2002 he had purchased significant quantities of heroin from Lam Hai Le. Included therein were two purchases of one ounce, for each of which he paid $7,000 or thereabouts. The learned sentencing judge found that the appellant used his own funds - being moneys unwittingly provided by a generous father - to purchase the drugs. The quantities which he purchased exceeded his own needs as an addict. He on-sold some of the heroin to an associate. He was not shown to have been a regular retailer.
If the respective roles of the four offenders in the overall criminal conduct was all that there was to sentencing, then it would be very difficult to explain why the sentence imposed upon the appellant should have been as great as that imposed upon Lam Hai Le, and why the non-parole period fixed in the appellant's case was greater than the non-parole period fixed in respect of that other man. It might well have been thought, also, that parity would reasonably have required that his head sentence and non-parole period should not have exceeded those imposed upon Anh Nguyen. But there is and was in this case much more to the sentencing process than that.
Hue Nguyen was aged 46 at the time of sentence. He had no previous convictions. He had a background of legitimate work which had unfortunately culminated in the collapse of his business. That had been, it was said, a cause of him turning to criminal behaviour. He was, the judge found, remorseful. He had pleaded guilty to the offence with which he was charged. He had spent 692 days in detention before sentence. By reason of the language barrier, the judge found, that period would have been a much more isolating experience than for an English-speaking prisoner.
Lam Hai Le was aged 46 at the time of his offending. A refugee from Vietnam, he had engaged in legitimate but poor-paying work in Australia. As at late 2002 he was married and had a young child.[1] The judge implicitly found that he had turned to criminal behaviour because his earnings in legitimate work were low; although evidently that did not excuse what he had done. He made an early plea of guilty and the judge accepted that he was remorseful. He had no previous convictions.
[1]His wife and child in fact arrived in Australia from Vietnam in December that year.
The judge specifically found that in Le's case the offender should be given the opportunity for early release on parole. His Honour mentioned in that connection Le's early plea of guilty and his lack of previous convictions.
Anh Nguyen was aged 39 at the time of sentence. He had no previous convictions. He pleaded guilty, but only at trial. An immigrant from Vietnam, arriving in Australia in 1988, he had engaged in legitimate work, as I understand the remarks of the learned sentencing judge, at least until the mid 1990s. The criminal conduct for which he was sentenced was said to be explained by his being a problem gambler, and by the breakdown of his marriage some years before 2002.
The judge accepted the submission of Anh Nguyen's counsel that his client's sentence should be less than that imposed on Lam Hai Le, his offending being confined to one day.
The judge evidently considered that Anh Nguyen had reasonable prospects of rehabilitation by reason of his age, his lack of previous convictions, and his undertaking and successfully completing rehabilitative courses during 498 days of pre-sentence detention.
The appellant was aged 31 at the time when he engaged in the relevant criminal conduct. Born and raised in Thailand, he had, as the judge described it, a privileged background. He had come to Australia in 1994, and had resided here thereafter. He had attempted, but not completed, a number of tertiary courses. He had received, throughout his period of residence in Australia, very substantial monetary support from his father. At time of sentence the support was continuing at some $2,000 per week. He had married an Australian woman in 1992 - that is, before migrating to Australia. That marriage had broken down in 1999. He had then formed another relationship, to which a child was born. The child had been removed from the care and custody of the appellant and his partner in May 2002. That had been the catalyst for his relapse into drug-taking. He had begun taking drugs in 1996. By 1997 he had been using heroin. Between 1997 and 2000 he had been before courts on four occasions. Particularly relevant were convictions -
•on 17 September 1997 for being in possession of and using a drug of dependence (heroin);
• on 21 October 1999 for attempting to possess a drug of dependence;
•on 17 July 2000 on three charges of being in possession of a drug of dependence;
•on 6 September 2000 for trafficking and using a drug of dependence (heroin).
On the last-mentioned occasion the appellant had been sentenced to a period of six months' imprisonment, wholly suspended for two years. The period of suspension had not long ended when the offence now relevant was committed.
The learned sentencing judge noted, as going in mitigation, that the appellant:
• had pleaded guilty at the earliest available opportunity;
•had used funds derived from his father's support - that is, not the proceeds of thefts or other illegal activity - for his purchases of heroin;
•had not indulged in widespread trafficking, but only made sales to an associate;
•had relapsed into drug use when his son was removed from his custody.
Notwithstanding the matters just mentioned, his Honour concluded that the appellant had been given a warning and had been offered an opportunity - that is, by the wholly suspended sentence - and had not taken it. He considered that there was no alternative but immediate custody.
There is no argument but that a sentence involving immediate custody was required. The complaint is that the sentence imposed upon the appellant, when considered in the context of the sentences imposed on the other three men, particularly Hue Nguyen and Lam Hai Le, would engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice had not been done - that is, by reason of the sentence imposed on the appellant being disproportionately great.
Today, counsel for the appellant laid particular emphasis upon the circumstances of his client being an addict, and at most a very small-scale trafficker. He contrasted the circumstances of Hue Nguyen and Lam Hai Le, whom he characterised as businessmen engaged in a commercial enterprise of drug trafficking. That characterisation, I think, was accurate as far as it went. But it told only part of the story.
In my opinion, the total picture showed that the appellant's participation in the criminal conduct was at least less than the participation of Hue Nguyen and Lam Hai Le. But each of them was a much older man without any criminal convictions. Each of them had a financial plight not altogether of his own making. Each was held to be remorseful. Hue Nguyen had also endured a long period of pre-sentence detention - as had Anh Nguyen. The appellant, on the other hand, was a younger man of independent means who had taken to drug use and then progressed to drug trafficking - albeit not on a large scale at all. He had twice been given the benefit of wholly suspended sentences - most recently in September 2000. It was sensible to think that he had been both warned and given an opportunity - and that he had not profited by either the warning or the opportunity.
There were, in the event, as is inevitably the case, comparisons to be made between the entire circumstances of the offenders which did not admit of precise calculation in the exercise of the sentencing discretion. In my opinion, looking at the overall picture, it should be concluded that the appellant's complaint has not been made out. I would dismiss the appeal.
ORMISTON, J.A.:
I agree. It should be understood, when making comparisons of this kind - that is, for the purposes of determining parity, that where a sentence is imposed on an offender who has had no convictions, which is the case with each of the others involved on this occasion, a very wide discretion is given to the sentencing judge, and he may therefore properly impose a far lesser sentence than otherwise would be the case. It makes the task of comparison that much harder, and in this case I am not satisfied that the appellant's complaints are justified.
BUCHANAN, J.A.:
I agree.
ORMISTON, J.A.:
The order of the Court, therefore, is that the appeal be dismissed.
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