R v Trinh

[1997] QCA 220

COURT OF APPEAL

[1997] QCA 220

DEMACK J
DOWSETT J

HELMAN J

CA No 140 of 1997
THE QUEEN
v.

VUI VAN TRINH	Applicant
BRISBANE ..DATE 17/06/97
JUDGMENT
170697 D.1 T5/BP M/T COA 130/97

DEMACK J: This is an application for leave to appeal against the sentence imposed in respect of one charge of unlawfully supplying heroin and there was also a charge of possession but that does not enter significantly into this matter.

The sentence imposed in respect of the supply of heroin was 12 years imprisonment. The sentence in respect of possession was 12 months imprisonment, both sentences to be served concurrently.

The circumstances that gave rise to the charge follow an undercover operation undertaken by police operatives in 1994. The applicant's wife, who was called Rose Trinh, was involved in the supply of some 10 amounts of heroin to the undercover operative and his daughter Susan, who is aged 18 years, acted as the go-between between Rose and the undercover operative. Susan pleaded guilty to four counts of supply.

The sentence imposed on Rose was one of seven years imprisonment in respect of each of the counts of supply and she was also charged with and pleaded guilty to trafficking. She received a sentence of 20 years imprisonment for that, with a recommendation for parole after six years.

In relation to Rose, the earlier counts of supply involved in all 43 grams. The count of supply which is the one to which the applicant also pleaded guilty involved an amount of 220 grams of heroin.

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The facts briefly were that after the undercover operative had established a relationship with Susan and Rose, he offered to purchase 12 ounces of heroin. The Trinhs lived in the Brisbane area and an arrangement was made for them to acquire the 12 ounces and for the transactions to take place at the Casino at Surfers Paradise. The Trinhs were to book into a room there and remain there during the day and overnight and the transaction was to be concluded the following day.

An order was obtained for the installation of a listening device in the room that they were taking and there were substantial recordings made both of conversations among the Trinhs and of conversations by telephone. Those recordings indicate clearly that the applicant was the person who was organising the whole of the transaction. It was apparent that he knew of his wife's and daughter's contact with the undercover operative and had a good idea of the transactions that had taken place earlier. It was the case that the applicant had a substantial gambling habit and the money being obtained was to be used to meet that need.

The telephone calls that were made indicate that the applicant had some difficulty assembling the 12 ounces of heroin to have the material available for 11 a.m. on the second day. He made trips to Brisbane and to Burleigh Heads that day to collect quantities of heroin from other people. It was apparent that he was well placed to assemble the 12 ounces of heroin that his wife and daughter had arranged to sell to the undercover operative. The purchase price was $120,000.

The arrangement was that the daughter Susan would make contact

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with the operative and check that he had the money. She did this and the money was placed in a locked locker in the Casino area. She then went with him to another floor where her mother had the heroin assembled and her mother produced that and they proceeded to weigh it out. When this had all happened the operation was brought to a close and the two women were arrested.

The applicant was found down near the locker, apparently keeping an eye on the money. He was arrested and charged. He did not, as his wife and daughter did, plead guilty at some time soon after arrest. He went to trial contesting the admissibility of the recordings that were made. After three days those recordings were admitted as evidence and he changed his plea. He was sentenced to 12 years imprisonment as I've said.

In sentencing him, the experienced and learned sentencing Judge referred to the earlier sentences. I should have said that in respect of the daughter Susan, the sentence initially imposed on her was such that the Attorney-General appealed. In this Court, the Judges were divided as to an appropriate sentence.

Mr Justice Ambrose expressed the view that 10 years was appropriate. Mr Justice Davies expressed the view that 7 years was appropriate for the daughter, but supported a recommendation for parole after 12 months. Mr Justice Fitzgerald agreed with that approach of Mr Justice Davies although his preference was not to interfere with the sentence at all which had been for five years wholly suspended for an operational period of five years.

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The principal ground argued on appeal was a lack of parity between the sentences imposed on Rose in respect of supply and on Susan in respect of the four counts of supply. However it is clear enough from the decision in respect of Susan that that is not a case that can be firmly relied upon as establishing that when there is a supply of 220 grams of heroin, the appropriate sentence is seven years. That was clearly a case on its own facts of a young girl who was under the influence of both her mother and her father, as we now know, and who foolishly responded to the family pressures put upon her.

Neither can it be said that the sentence of seven years on Rose Trinh for the 11 counts of supply can be treated as indicating that the appropriate sentence in respect of each of those counts was seven years. Clearly the sentencing Judge was concerned primarily with trafficking and he indicated the gravity of that by imposing a sentence of 20 years.

In respect of the applicant here, it is now apparent, as it was not apparent to the sentencing Judge who first dealt with Rose and Susan that the applicant was the person who was controlling the whole operation. The sentencing Judge here expressed some sense of having his hands tied by the sentences previously imposed and clearly would have preferred to impose a higher sentence on the present applicant than the 12 years. However he imposed 12 years, no doubt taking into account the order for parole of Rose after six.

That gave an effective sentence which put the applicant on parity with his wife because it had become apparent that he and

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his wife were equally to blame for the whole operation. He was of course only sentenced in respect of the supply of 220 grams of heroin but the size of that supply and the gravity of the situation that was displayed warranted that sentence of 12 years. It does not seem to me that there is any basis here for saying that there is a lack of parity.

In relation to the question of fixing an earlier non-parole period, the submission is based largely on the fact that no recognition was given for the plea of guilty. This was a very reluctant plea of guilty by someone who preferred to remain the shadowy figure behind a serious trafficking operation. It was a plea of guilty that in its own particular circumstances did not in my mind attract any call for the kind of leniency that might be shown in other circumstances.

In my view, the sentences imposed should stand and the to appeal against sentence is refused.

application should be refused.
DOWSETT J: I agree.
HELMAN J: I agree.

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