R v Vo
[2005] VSCA 21
•17 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 338 of 2003
| THE QUEEN |
| v. |
| RO SI VO |
---
JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 February 2005 | |
DATE OF JUDGMENT: | 17 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 21 | |
---
CRIMINAL LAW – Sentence – Trafficking in heroin – Fact-finding – Role of accused in criminal activity – Cooperation with police – General deterrence – Whether sentence manifestly excessive – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C. Quin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr O.P. Holdenson, Q.C. | Lewenberg & Lewenberg |
WINNEKE, P.:
For the reasons given by Charles, J.A., I agree that this appeal should be dismissed.
CHARLES, J.A.:
On 11 November 2003 the appellant pleaded guilty in the County Court at Melbourne to one count of trafficking in a drug of dependence, heroin, for which the maximum penalty was 15 years’ imprisonment. After a plea, on 14 November the judge sentenced the appellant to four years’ imprisonment and fixed a non-parole period of two years and eight months.
On 30 July 2004 leave to appeal was granted pursuant to s.582 of the Crimes Act 1958. The appeal is now brought on the grounds that –
1.Having regard to all the circumstances and the judge’s findings, the sentence imposed was manifestly excessive;
2.the judge failed to have regard or sufficient regard to the appellant’s prospects of rehabilitation;
3.the judge failed to have regard or sufficient regard to the appellant’s change in lifestyle, and the fact that the appellant had formed a stable and permanent relationship with his partner and that they expected the birth of a child on or about 19 March 2004;
4.the judge erred in determining that the appellant’s “level of culpability [lay] marginally below that of the principal”.
The facts giving rise to the appellant’s offence, none of which were in issue, were as follows. At 2.59 p.m. on Tuesday 30 July 2002 the appellant was driving a Ford car in an easterly direction along the Princes Highway west of Cann River. There were two passengers in the car. He was intercepted at a random breath-testing station. The police noticed that the appellant appeared nervous and asked
what he had been doing. He replied that he had been fishing but there was no fishing gear in the open boot. The police noticed a white package resting between the seat-belt clip and centre console. Photographs were taken and the appellant was arrested for the possession of heroin. The interior of the boot was searched thoroughly and a square jar was found. It contained a white powder, mannitol, which is used as a cutting agent. Also found was a back-pack containing six bundles of cash totalling $28,000.
The appellant, questioned by police, said that he had met a man at the Crown Casino, Tony Vinh, who had given him the white package and asked him to take it to Wollongong in return for $2,000. The appellant denied knowing his two passengers. A search warrant was then executed at his home at 18 Bulla Parade, Lalor. An additional amount of $2,005 was found there together with the constituent parts of a heroin press. When the white package found in the car was analysed, it was found to contain 184.7 grams of heroin with a purity of 70%. The value of the heroin was said to be not less than $60,000, and perhaps as much, on the streets, as $200,000.
During the plea, two witnesses were called on behalf of the appellant. Kim Tran, his present partner, gave evidence of the relationship between them, and the fact that she was now pregnant with the appellant’s child, due to be born on 19 March 2004. She said she would be supportive of him and would wait for him until he was released. She also said that he now gambled less, although this was stated to be because “he doesn’t have that much money”. A second witness, Duong Hoang Lanh Pham, said that he had worked with the appellant as a clothes presser and gave some evidence of his drinking and gambling habits.
It is convenient to take first ground 4, the complaint as to the appellant’s level of culpability. The judge accepted in his sentencing reasons that the appellant’s role was that of courier. His Honour referred to the fact that trafficking in drugs is regarded as a most serious offence and said that “drug-related offending is attacking the very fabric of our community”. His Honour continued[1] –
“9.Whilst this Court accepts that you are not, as it were, the principal in the trafficking operation, you come to be sentenced here as a courier. It is beyond argument that the courier has a most pivotal role to play in any drug distribution operation. Without the courier the proscribed drugs could not find their way onto our streets and so into our community.
10.For the purpose of sentencing this Court takes the clear view that your level of culpability for the present offence lies marginally below that of any principal, and indeed you’ll be sentenced on that basis.” (Emphasis added.)
[1]Reasons, p.46.
Mr Holdenson for the appellant made no complaint as to paragraph 9. He argued that for the purposes of sentence the courts have traditionally drawn a distinction between “mere couriers” and their “principals”, the submission being that the courier should receive a lesser sentence than the principal. The argument accepted that couriers in drug cases are not treated with the same degree of leniency that their equivalents are afforded in other areas of offending, but nevertheless it was put that couriers are not treated in the same manner as the principals, nor is their level of culpability assessed as merely being “marginally below” that of the principal. Mr Holdenson reminded us that in the recent decision of R. v. Olbrich[2] Gleeson, C.J., Gaudron, Hayne and Callinan, JJ. said[3] that –
[2](1999) 199 C.L.R. 270.
[3]At [13].
“We do not accept that the identification of the precise nature of the accused’s involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.”
Their Honours continued[4] -
[4]At [21].
“Whether others stood to gain from the respondent’s conduct does not, it seems to us, affect what sentence should have been passed on him. That depended upon what he had done and who he was, not on what others may have hoped to gain from his activity. But even if this were thought to be a useful enquiry, it was one that could not be pursued in this manner because there was no evidence about it.”
In R. v. Nicholas[5] this Court[6] said that from the majority judgment the following statements of principle might be gleaned –
“1.The identification of the precise nature of an offender’s involvement in the act of importation of drugs is not an essential aspect of the sentencing process (see [13]).
2.For sentencing purposes, concentration should be on what it was that the offender actually did, in the setting of the offence for which he stood to be sentenced. (See [19] and [21].)
3.R. v. Storey[7] is to be followed as to the onus and standard of proof of sentencing facts adverse and favourable to an offender. (See [24] and [27].)”
[5](2000) 1 V.R. 356 at [158].
[6]Phillips, C.J., Ormiston and Chernov, JJ.A.
[7][1998] 1 V.R. 359.
Mr Holdenson argued that the judge had erred in his assessment of the appellant’s level of culpability, and that his Honour ought to have determined that the appellant’s culpability was lower than “marginally below that of his principal”. He submitted that the appellant was a mere conduit who was engaged because he was a vulnerable person who could be paid a derisory fee to deliver the drug to New South Wales.
The expression used by the judge in paragraph [10] of his Honour’s reasons quoted above is, I think, somewhat ambiguous. The appellant was to be sentenced, the judge had said, on the basis that he was a mere courier, who was to receive only $2,000 for carrying the package of heroin from Melbourne to Port Kembla. The principal, whoever that was, would plainly have received a much more substantial profit from the completion of the trafficking and had considerably greater culpability. But what his Honour meant by the expression “marginally below that any principal” and the significance of this distinction in sentencing can only be fairly interpreted by reference to what it was that the appellant actually did, in the setting of the offence for which he stood to be sentenced (as it was put in R. v. Nicholas[8]) and the sentence imposed by his Honour.
[8]See [2000] 1 V.R. at [158].
The prosecutor during the plea accepted the defence submission that the appellant should be sentenced as only a courier. But he argued that in the end this did not matter because the law “in relation to … couriering of this nature … is such that the courts deal with them as principals for the very reason of general deterrence”.[9]
[9]Plea, p.38.
The prosecutor in his opening had outlined the matters upon which the Crown relied as the facts on which the appellant should be sentenced, and there had been no challenge made by the appellant’s counsel to any portion of the opening. Later, in reply, the prosecutor said[10] -
[10]Plea, p.39.
“you are looking at a man who is conveying a large quantity of heroin, cash and accoutrements of trafficking to Sydney. He is courier in the sense of the word. … I content myself with saying that the penalty to be metered (sic) out to such a courier is such that it is often hard to distinguish, or perhaps one ought not really distinguish much between what would be an appropriate sentence for the principal and the courier in these circumstances.”
The appellant’s counsel (who did not appear in this appeal) did not make any challenge to these remarks, saying[11] –
[11]Plea, p.40.
“my learned friend is right when he says that you are still are able and should sentence in that category as a principal, but Your Honour can have regard to, and in fact, should have regard to what is obvious and that is people who fall into that category, are those who are more often than not, taken advantage of.”
In response to which the judge said – “The vulnerable.”
Shortly afterwards the appellant’s counsel said, after the judge had pointed to the appellant’s “Insatiable habit to gamble and feeding the habit by no doubt engaging in these activities”,“That’s right, and although Your Honour can sentence him on the basis as a principal, obviously his moral culpability is substantially less.”
a statement with which his Honour agreed.
The judge clearly accepted in this discussion that the appellant was to be sentenced as someone who had less moral culpability than a principal, but that the appellant’s role as courier was pivotal to any drug distribution. I think that his Honour’s statement that the appellant’s “level of culpability for the present offence lies marginally below that of any principal” was, as counsel for the Crown contended in this Court, merely reflective of the nature of the discussion that had taken place between the judge and both counsel. This view is strengthened when regard is had to the sentence actually imposed which, for reasons I give later, was in my view clearly within range.
This ground is not made out.
Grounds 2 and 3 may be taken together. Insofar as it was argued that the judge failed to have regard sufficiently to the appellant’s prospects of rehabilitation, his Honour plainly accepted that there was some hope for rehabilitation once the appellant was released from custody. Furthermore, the judge noted that the relationship with Kim Tran had lasted for the past seven months and referred to her evidence that she was willing to support the appellant in prison and would wait for him until his release. His Honour recorded that Kim Tran “realistically acknowledged that whilst you still have a gambling problem, such problem is presently limited by lack of funds”, a comment which suggests that the appellant’s prospects of rehabilitation were somewhat guarded.
There is nothing in grounds 2 or 3.
Ground 1 makes the claim of manifest excess, that having regard to all the matters relied on in the plea, both the head sentence and the non-parole period were manifestly excessive being simply outside the range of sentences open to the sentencing judge.
Mr Holdenson relied on the appellant’s lack of prior convictions, his level of co-operation with the police, his early plea of guilty, his family history and background, his work history, his prospects for rehabilitation and remorse.
All of these matters were taken into account by the judge who said he gave them weight. The lack of prior convictions is of less significance when sentencing for offences of this nature, the courier often being chosen because of the fact that he or she has no prior convictions. There was some co-operation with the police, to which the judge said he gave weight, although there was no evidence to suggest that any such person as “Tony Vinh” actually existed. Although his Honour said he noted the appellant’s “level of cooperation with investigating police officers”, the appellant in his interview with them seemed to know surprisingly little about his passengers, the heroin he was carrying and the very large sum of money and the cutting agent which were found in the boot of his car. The appellant’s prospects for rehabilitation were given weight, although they were limited having regard to the evidence of Kim Tran. There were, on the other hand, a number of aggravating features of the offence including the value and amount of the heroin, the amount of money carried in the car, and the accoutrements for trafficking found both in the boot of the car, and in the appellant’s home. It is unnecessary to stress that principles of general deterrence have particular importance in relation to offences of this kind.
Notwithstanding the matters relied on by the appellant including the plea of guilty, I have no doubt that the sentence imposed was within the available range. The claim of manifest excess fails.
The appeal should be dismissed.
CHERNOV, J.A.:
I also agree that, for the reasons given by Charles, J.A., this appeal against sentence should be dismissed.
- - -
0
0
0