Regina v Chinh Vu Quoc Le

[2002] NSWCCA 26

CITATION:	Regina v Chinh Vu Quoc LE [2002] NSWCCA 26
FILE NUMBER(S):	CCA 60215/01
HEARING DATE(S):	11/02/02
JUDGMENT DATE:	11 February 2002
PARTIES :	Regina (Resp) Chinh Vu Quoc Le (Appl)
JUDGMENT OF:	Hidden J at 25; Kirby J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0871
LOWER COURT JUDICIAL OFFICER :	Blanch CJ/DC

COUNSEL :	L Lamprati (Crown - Resp) C T Loukas (Appl)
SOLICITORS:	S E O'Connor (Crown - Resp) D J Humphreys (Appl)
CATCHWORDS:	Criminal Law & Procedure - Sentence - Appeal against severity - Youth - Deterrence must yield to rehabilitation to a degree
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	Regina v Smiroldo [2000] NSWCCA 120 Regina v Huang and Lin [2001] NSWCCA 76 Regina v Khaled [2001] NSWCCA 169 R v GDP (1991) 53 A Crim R 112
DECISION:	Appeal allowed.; Ref para 24 for orders

60215/01
Hidden J
Kirby J


Monday 11 February 2002

REGINA v Chinh Vu Quoc LE

Judgment

: Chinh Vu Quoc Le (the applicant) was charged with an offence under s 25A of the Drug Misuse and Trafficking Act 1985 (“the Act”). The indictment, omitting formal parts, was in these terms:

“That between 23 August 1999 and 22 September 1999 he did, on three or more separate occasions, supply a prohibited drug, namely, heroin for financial or material reward.”

2 Mr Le pleaded guilty. On 29 March 2001 he was sentenced by Blanch CJ DC to imprisonment for five years with a non parole period of three years. The sentence was backdated to 7 March 2000 to reflect time in custody. The applicant seeks leave to appeal against the severity of that sentence.

The Offence

3 Mr Le was arrested at premises at Newtown. The premises had obviously been established for the sale of drugs. Access was by means of a side lane. Entry was through a gate which was locked and topped with barbed wire. Neighbours complained about the traffic of persons to and from the premises.

4 On 22 September 1999 the police acted on these complaints. They arrested a person, not the applicant, who was known to be associated with the premises. They also conducted surveillance, observing the passage of people to and from the premises during the course of the day. Ultimately the police entered the premises, forcing the side gate. The applicant, Mr Le, was inside the house. He was seated on the floor. He was surrounded by the familiar paraphernalia of drug dealing. He had electronic scales, which he acknowledged were his, a razor blade and the remnants of a block of heroin. He had himself already smoked heroin that day.

5 The police interviewed others within the premises. They were addicts who had used the premises as their source of supply in the month or so preceding. They had dealt with Mr Le and another individual, being the person arrested earlier that day.

6 His Honour recognised that it was necessary to form some appreciation of the magnitude of the operation (Hulme J, Regina v Smiroldo [2000] NSWCCA 120 paras 14-17). The witnesses who provided the police with statements were vague as to the frequency of their dealings and whether they dealt with the applicant or an associate. His Honour noted that the indictment charged more than three occasions of supply in the course of a month, that the amounts supplied were small, and that it was not possible to say where in the hierarchy of drug supply Mr Le should be placed.

The Subjective Case

7 Before going to his Honour’s remarks on sentence, and the complaints made on this appeal, it is convenient to identify the significant matters which were raised which were personal to the applicant, that is, the subjective characteristics of his case. First was his youth. He was born on 7 February 1981. He was eighteen at the time of these offences. He was just twenty when sentenced. He had never been to prison before, though he had a number of criminal convictions. Mr Le came before the Children’s Court on two occasions, the first in 1997 (take and drive conveyance and driving without a licence). In 1999 he was placed on a bond for having goods in custody reasonably suspected of having been stolen and possessing a prohibited drug. He was charged with larceny and shoplifting in February 2000.

8 Secondly, Mr Le suffered significant dislocation in his early life. He was born in Vietnam. His family had fled to Malaysia where they were accepted as refugees. They had emigrated to New Zealand. In 1992 his parents separated. They moved to Australia. There was an attempt at reconciliation, which was unsuccessful. They permanently separated in 1994.

9 Thirdly, there were positive signs for the applicant’s rehabilitation. I will return to this issue shortly.

Complaints About Sentence

10 Dealing with the complaints made about the sentence imposed by his Honour, three things were said on behalf of the applicant:

· First, that his Honour erred in giving insufficient weight to the plea of guilty;

· Secondly, there was error in giving insufficient weight to the applicant’s youth;

· Thirdly, that the sentence was manifestly excessive.

First and Second Grounds

11 The applicant made some admissions upon arrest. However, his plea of guilty was a late plea, as his counsel acknowledged. His Honour referred to the plea in his remarks. He acknowledged the need for a discount to reflect that plea and that it was a sign of contrition. No error is manifest in his Honour’s remarks.

12 Moving to the second complaint, his Honour was certainly conscious of the applicant’s youth. He referred to his age at the time of the offences (18) and the fact he had just turned 20 at the time of the sentence. His Honour was also conscious of the fact it was his first time in custody. It is clear, therefore, that his Honour did not overlook this important aspect in the applicant’s case, nor mistake the principles which should guide him.

Was the Sentence Manifestly Excessive?

13 The real complaint of the applicant concerns the sentence which his Honour determined, taking these various issues into account. It is said that it was manifestly excessive, such that, even though his Honour averted to relevant criteria, he must have given insufficient weight to such criteria.

14 The applicant drew attention to the statistics of the Judicial Commission. Such statistics in respect of these offences must be approached with some caution. The magnitude of the operation will not always be apparent. (Barr J, Regina v Huang and Lin [2001] NSWCCA 76 at para 24). Having said that, the statistics certainly suggest that the sentence imposed upon the applicant was toward the upper end of cases reflected in the sample.

15 Perhaps a more reliable guide is provided by the circumstances of the individual cases, and the sentences imposed. A comparison of one case with another has its difficulties. The sentence is necessarily a synthesis of the objective criminality and the subjective circumstances of the person being sentenced.

16 Having said that, the sentence imposed upon the applicant is significantly longer than the cases in the schedule provided with the applicant’s submissions, apart from Huang and Lin, where the operation was substantially larger.

17 The Crown pointed to the policy behind s25A of the Act. As Wood CJ at CL said in Regina v Khaled [2001] NSWCCA 169, that section was introduced to provide a strong deterrent to those who may be tempted to engage in ongoing trade in heroin or other drugs. In this case his Honour, in his remarks, emphasised what he terms “a significant element of general deterrence so far as the community is concerned”. However, deterrence, though significant, must, to some degree, yield to rehabilitation in the case of young offenders. Mathews J (with whom Gleeson CJ and Samuels JA agreed) analysed the authorities in R v GDP (1991) 53 A Crim R 112, where she said this: (at 116)

“The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (unreported, Supreme Court, NSW, 15 August 1979), Yeldham J remarked during the course of sentencing of a young offender that ‘in the case of a youthful offender … considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation’”

18 Commenting on that decision, Mathews J added: (at 116)

“Subsequent decisions of this Court, however, suggest that considerations of general deterrence should not be ignored completely when sentencing young offenders. …

In C, S and T (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Allen and Studdert JJ, 12 October 1989), Gleeson CJ accepted a submission that
‘in sentencing young people … the consideration of general deterrence is not as important as it would be in he case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.’”

19 Here, there were encouraging signs of the applicant’s potential for rehabilitation. First, he was a very young man. At the time of this appeal, several years after the offences, he is just twenty one years old. Secondly, his addiction to heroin was not one of long-standing. He resorted to drugs when aged seventeen and a half. These events occurred approximately one year later. Thirdly, his arrest and incarceration have brought about his detoxification. He provided a letter to the sentencing judge which was poignant and was in these terms:

“I have heroin addiction which destroyed everything. A year has passed so slow inside for me, about six months ago I realised that not only is justice served but it has also saved my life. I also realised that the only way I become a normal person again was to admit that I was wrong and admit that I needed help. If given a chance I will be a law-abiding citizen again, be the person that my parents pictured me to be.”

20 The letter, to my mind, suggests some insight and a commitment to reform.

21 Fourthly, whilst in gaol he has been given the position of sweeper, which is a position of trust. A number of certificates have been tendered to this Court which deal with courses completed by the applicant whilst in prison. There is, I believe, reason for optimism in respect of the applicant’s rehabilitation.

22 I am persuaded that the sentence imposed was manifestly excessive. I believe, therefore, that this Court should intervene and re-sentence. For the reasons his Honour stated, I would find special circumstances. Mr Le certainly will require extensive supervision upon completion of his non parole period. The element of deterrence, both personal and general, remain very real considerations.

23 The sentence which I believe is appropriate in the circumstances, and especially having regard to the applicant’s youth, is imprisonment for four years, commencing on 7 March 2000 with a non parole of two years, expiring on 6 March 2002.

Orders

24 The orders I would propose are as follows:

1. Leave to appeal should be granted.

2. The appeal should be allowed and the sentence quashed.

3. In lieu of that sentence, I would propose the applicant be sentenced to a term of imprisonment of four years commencing on 7 March 2000, and with a non parole period of two years expiring on 6 March 2002, at which time the applicant will be eligible for release on parole.

: I agree. The orders of the Court will be those proposed by Kirby J.

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