R v Tong, Ong & Vuong
[2003] VSCA 15
•26 February 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 209 of 2001
No. 210 of 2001
No. 211 of 2001
| THE QUEEN |
| v. |
| KO KON TONG |
---
JUDGES: | BUCHANAN, VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 February 2003 | |
DATE OF JUDGMENT: | 26 February 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 15 | |
---
Criminal law - Sentencing - Trafficking in heroin - Parity with sentence of a co-offender whose conviction has been quashed and a re-trial ordered - Principals in the trade - Sentences of 21 years' imprisonment with a minimum of 17 years' imprisonment and 12 years' imprisonment with a minimum of nine years' imprisonment not manifestly excessive.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Young | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant Tong | Mr L. Carter | Leanne Warren & Associates |
| For the Applicant Ong | Mr D. Wraith | Victoria Legal Aid |
| For the Applicant Vuong | Mr C. Boyce | Galbally & O'Bryan |
BUCHANAN, J.A.:
The applicants were arraigned in the County Court and pleaded guilty to a presentment alleging that each of them trafficked in not less than a commercial quantity of heroin between 28 May 1999 and 3 August 1999. Tong was sentenced to be imprisoned to a term of 16 years with a non-parole period of 12 years. Vuong and Ong were each sentenced to be imprisoned to a term of 12 years with a non-parole period of 9 years.
The applicants pleaded guilty to dealing with two consignments of heroin from China to Melbourne in June and August 1999. Vinh Lac Lao ("Lao") obtained the heroin and sold it to Tong, a resident of Hong Kong, who was based at the hotel at Crown Casino during the period of trafficking and who was assisted by the applicants Ong and Vuong, a de facto couple who lived in Melbourne. Tong sold the heroin to Thanh Hung Nguyen ("Nguyen"), who then distributed it in Melbourne.
The Crown case consisted principally of transcripts of intercepted telephone conversations and recorded face-to-face conversations between the applicants, Lao, Nguyen and others throughout the period covered by the presentment and evidence of covert surveillance of all the participants in the trafficking. The applicants were in almost daily telephone contact and Tong frequently met either or both Vuong and Ong. Tong relied upon the local knowledge of Vuong and Ong to further his dealings with Lao and Nguyen. Vuong addressed Tong as her boss.
The first consignment was brought to Melbourne and distributed. The second consignment was intercepted when heroin in the boot of a motor car controlled by the applicants was seized by the police. The heroin in the boot of the car consisted of 20 blocks of a gross weight of 6.8494 kilograms. The pure heroin component was 4.363 kilograms. A commercial quantity of heroin is 250 grams, and the maximum penalty for the offence is 25 years' imprisonment.
Nguyen and Lao pleaded not guilty to a like charge, although covering a more extended period and three consignments, not two. They were found guilty after a trial. Lao was sentenced to a term of 21 years' imprisonment with a non-parole period of 17 years and Nguyen to a term of 12 years' imprisonment with a non-parole period of 9 years. Lao and Nguyen successfully appealed against their convictions. On 20 October 2002, the Court of Appeal set aside the convictions and ordered retrials. Lao and Nguyen have yet to be retried.
The applicants seek leave to appeal against their sentences.
Each of the applicants contend that the sentencing judge erred in imposing sentences that breached the principle of parity in that the sentences were unjustifiably disparate from that imposed upon Nguyen.
At first sight, the sentence imposed upon Nguyen, whose criminality was of the order of that of Lao and Tong and greater than that of Ong and Vuong, would appear to give rise to a justifiable sense of grievance in the applicants, at least at the time when the grounds of the applications for leave to appeal were formulated. The present position, however, is that Nguyen's sentence fell with his conviction. The sentence imposed upon Nguyen may have significance in the future. If Nguyen is convicted after a retrial, the sentencing judge will be required to have regard to the former sentence imposed upon him. The sentence does not, however, constitute a ceiling which cannot be exceeded upon Nguyen's resentencing. As McHugh, Gummow and Hayne, JJ. said in R.H.McL v. R[1]:
"If the appellant is convicted on any count at the retrial, the sentencing judge will also have to take into account another important factor in the sentencing process. Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a retrial than he or she received at the original trial. If the sentencing judge at the retrial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion."[2]
[1](2000) 203 C.L.R. 452 at 475-6.
[2]See also R. v. Chen [1993] 2 V.R. 139; R. v. Bolton [1998] 1 V.R. 692; R. v. Petersen [1999] 2 Qb.R. 85 at 87.
In my opinion, the sentences imposed upon the applicants should not be approached on the basis that Nguyen will be convicted again and that the sentencing judge will necessarily impose no greater sentence than that which Nguyen received after his first trial. As I will explain later, in my view, the sentences imposed upon the applicants were within the range available to the sentencing judge, and I think I should proceed on the basis that if Nguyen is convicted again, it may well be that either his sentence will accord with the sentences imposed upon the applicants, or a substantially lesser sentence will again be imposed because his personal circumstances or the circumstances of the offence of which he is convicted warrant that disparity. Further, I do not think that the mere fact that the sentence imposed upon Nguyen, which appears (at first sight at least) to be disparate, shows that any error was made in the sentences imposed upon the applicants rather than that imposed upon Nguyen himself.
The applicant Tong has also complained about the disparity said to exist as between the sentences imposed on him and Vuong and Ong. Tong contends that he was not the master of Ong and Vuong. It was not contended by Tong that the sentences failed to properly reflect the personal circumstances of the applicants.
The sentencing judge found that Tong was the organiser of the activities of Ong and Vuong, who assisted in carrying into effect an enterprise conducted by Tong, but were essential to the enterprise. The sentencing judge described Tong as a man who rarely left the casino complex, while Ong and Vuong knew the drug trafficking trade in Melbourne and Sydney. His Honour said: "Your input was central to the success of Tong's drug operation." Tong spoke little English and no Vietnamese. He relied on Ong and Vuong to sell heroin in the Melbourne Vietnamese community. In the outline of his argument, counsel for Tong described the applicant as a "broker". He was not a broker who merely organised the formation of a contract between Lao and Nguyen. He was a principal who purchased the heroin in his own right and resold it.
In my opinion, the sentences imposed upon the applicants are in accordance with the roles each of them played in the trafficking.
Tong's counsel submitted that the applicant’s offence was less serious than that of Lao. As Lao pleaded not guilty, it may well be that the sentencing judge viewed his criminality as comparable to that of Tong. If he did, I think he was justified in doing so. The sentencing judge referred to the deference displayed by Tong to Lao. That was presumably due to the fact that the entire trade in heroin in Australia depends upon those who organise its shipment from overseas. But that does not diminish Tong's role. Without a person fulfilling Tong's function, Lao was helpless. I think it futile to attempt to draw distinctions between the importance of persons conducting the operations of Lao and Tong.
I turn to another ground to which the applicants Tong and Ong subscribed, namely, that the sentences were manifestly excessive. The applicant Vuong does not in terms complain that the sentence imposed upon her is manifestly excessive, but she does contend that the judge failed to give sufficient weight to certain factors and too much weight to others, which amounts in effect to a complaint that the sentence imposed upon her was outside the range available to the sentencing judge.
In order to evaluate this ground it is necessary to have regard to the matters concerning the personal circumstances of the applicants that were advanced in the course of the pleas made on their behalf.
Tong is 47 years old. He and his family, consisting of a wife and four sons ranging in age from 9 to 17 years and his parents, live in Hong Kong. The applicant is in Australia quite alone. Tong was educated to primary school level, becoming a labourer at the age of 15 years. After a succession of unskilled jobs he became a nightclub manager and later a trader in toys and a restaurateur. He had always gambled and eventually became a professional gambler.
Vuong is 48 years old. She was born in Vietnam to an ethnic Chinese family. When she was 25 years old the applicant came to Australia. Her counsel told the sentencing judge that she had worked hard in menial positions for many years. With the money she had saved from her wages she established a business of a gift shop in the mid-1990s. The business failed, and as a result she slid into a life of crime. The applicant commenced to gamble and by 1998 she had become a substantial customer of the Crown Casino. In 1999 she formed a relationship with Ong and spent her time at the casino gambling tables and at the Crown Hotel.
Ong is 49 years of age. After a difficult early life in Vietnam, the applicant left in 1982 and came to Australia. Here, he formed a de facto relationship and had a son. The applicant worked in and used gambling establishments and consequently was usually in financial difficulties. In 1992 he began to use heroin, to which he became addicted. With Vuong, Ong practically daily assisted Tong in organising the sale of heroin. It was Ong who recruited Nguyen, the principal purchaser from Tong.
The crimes were grave indeed. The quantity of pure heroin in the second consignment alone was some 17 times the commercial quantity specified by the Act. The damage which the distribution of that quantity of heroin is capable of inflicting upon society and many of its younger and less fortunate members has been demonstrated time and again. Those who are addicted to heroin court death and their lives and those of their families and the victims of the crimes they may commit to sustain their addiction are inevitably blighted. The applicants were not mere couriers: they played substantial roles in the commercial transactions upon which distribution of heroin depends.
The applicants were entitled to discounts when they pleaded guilty. Their previous good character was also a mitigating factor, and Tong could point to the hardship of serving a sentence in an Australian prison, far from his family and friends. Despite the presence of these mitigating factors, I do not consider that the sentences for these crimes of trafficking were beyond the range that was available to the sentencing judge.
There remain a number of grounds complaining of particular errors by the sentencing judge.
In the case of Tong, his counsel submitted that the sentencing judge failed to give sufficient weight to his plea of guilty. The sentencing judge said that he took into account the strength of the case against the applicant and did not state that the plea was entered at the earliest opportunity. The discounting fact given to Tong appears to have been significant when compared to the sentence imposed upon Lao. The sentencing judge was entitled to view the strength of the Crown case as bearing upon the degree of contrition experienced by Tong. The plea may have been entered at the earliest opportunity. That conclusion depends upon taking into account a number of factors in order to assess the time of the earliest opportunity. Those factors include the fact that counsel was not briefed until December 2000, legal aid funding was not confirmed until later, there was a large volume of evidence which took the form of transcripts of tapes, which required time to assimilate and assess, and the fact that the decision by the Crown as to the appropriate count took some time to evolve. The sentencing judge did not reject the conclusion that the plea was entered at the earliest practical opportunity. At the end of the day, I am not persuaded that the sentencing judge did not give due weight to the timeliness of Tong's indication that he would plead guilty.
Tong also complains that the sentencing judge erred in aggravating the sentence imposed upon him by reference to matters that might have eventuated outside the period of the trafficking alleged in the presentment. The complaint is based upon the judge's reference to future plans for trafficking made by Tong. His Honour referred to a conversation with a man called Hung in which the applicant discussed his present and intended operations and later said that the applicant planned to become a "main player" in the wholesale heroin trade in Melbourne to defeat named opposition suppliers. That finding was in error, for the statement was properly attributed to another person, one Tran. The sentencing judge did say, however, that Tong's offending took place over a specified period, and in my view the references to the plan which the applicant made as to the future was not a factor that in fact added to the length of the sentence. The sentencing judge had earlier said that Tong played a "central pivotal role in the wholesale supply of heroin in Melbourne". In my view, his Honour's remarks as to future plans added nothing but the notion that the business was ongoing, and that was a conclusion that was open to him. In my view, it has not been demonstrated that the applicant was sentenced for a crime or crimes apart from the offence specified in the presentment.
Finally, Tong's counsel contended that the sentencing judge erred in giving undue weight to the applicant's professional gambling. His Honour did refer to the level of the applicant's gambling turnover and described his lifestyle as "irresponsible and extravagant". If it could be established that the sentencing judge used those matters as aggravating circumstances, it may be said that there is error. On the other hand, the sentencing judge was entitled, indeed required, to address the cause of Tong's offending, and to address an activity that was relevant to the trafficking by operating as a camouflage for it and a means of transferring the money required to conduct it, and to make some assessment of the character of the applicant and the nature of the life which he led, in order to assess the likely effect of the sentence which he intended to impose upon him. Having regard to the evidence, I do not regard the description of the life led by Tong as being inaccurate, and I do not think that the sentence was increased as a consequence of the manner in which the applicant chose to spend his time and money.
Vuong has complained that the sentencing judge erred in reducing the significance of the plea of guilty as a consequence of the strength of the Crown case. Counsel contended that the sentencing judge was not entitled to reduce the significance of the guilty plea on this basis. The plea was made at the earliest practical opportunity, and that was made clear several times by her counsel to the sentencing judge in the course of the plea.
In my opinion, the sentencing judge did not err. His Honour expressly recognised that the applicant was remorseful and said that contrition was demonstrated by the plea of guilty, but at the same time thought that factor was to be tempered in the light of the strong Crown case. Remorse is usually a matter of degree. In evaluating the applicant's remorse, a relevant circumstance, in my view, was the strength of the Crown case.
For the foregoing reasons, I would dismiss each of the applications for leave to appeal against sentence.
VINCENT, J.A.:
I agree that each of these applications should be dismissed and I do so for the reasons advanced by the learned presiding judge.
EAMES, J.A.:
I agree that the application should be dismissed and in each case I do so for the reasons stated by Buchanan, J.A.
BUCHANAN, J.A.:
The order of the Court will be that each of the applications is dismissed.
(Discussion ensued re certificates under the Appeal Costs Act.)
---
0
0
0