Regina v Le

[2002] NSWCCA 232

CITATION:	Regina v LE [2002] NSWCCA 232
FILE NUMBER(S):	CCA CCA 60118/02
HEARING DATE(S):	14 June, 2002
JUDGMENT DATE:	14 June 2002
PARTIES :	Thi Phuong Le (appellant) Regina (respondent)
JUDGMENT OF:	Adams J at 1, 15; Blanch AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0993
LOWER COURT JUDICIAL OFFICER :	Payne DCJ

COUNSEL :	C Simpson (appellant) R Herps (Crown)
SOLICITORS:	P Baird, Baird & Associates (appellant) SE O'Connor (Crown)
CATCHWORDS:	Criminal law - appeal against sentence - take part in supply of large commercial quantity of heroin
LEGISLATION CITED:	Drug Misuse and Trafficking Act, 1985 s25(2)
CASES CITED:	R v Pham [2001] NSWCCA 307 Olbrich v The Queen (1999) 73 ALJR 1550 Lowe v The Queen (1984) 154 CLR 606 R v Pilley (1991) 56 A Crim R 202 R v Chan [1999] NSWCCA 103
DECISION:	Leave to appeal granted. Appeal dismissed.

- 7 -IN THE COURT OF

CRIMINAL APPEAL

ADAMS J

BLANCH AJ
14 June 2002
REGINA v Thi Phuong LE
JUDGMENT

1 ADAMS J: I will ask Blanch J to give the first judgment.

2 BLANCH J: This is an application for leave to appeal against a sentence imposed on 22 February 2002. The applicant stood trial on a charge of knowingly take part in the supply of a large commercial quantity of heroin contrary to s25(2) of the Drug Misuse and Trafficking Act between 14 and 24 May 2001. She was convicted and on 22 February 2002, sentenced to nine and a half years imprisonment, to commence on 13 April 2000, with a non-parole period of five years and four months, to expire on 12 August 2005.

3 The applicant was involved in the commission of the offence with three other co-offenders. The first was Tuan Ba Pham, who entered a plea of guilty and was sentenced to ten years and six months imprisonment, to date from 13 April 2000, with a non-parole period of seven years and 11 months, to expire on 12 March 2008. He was granted leave to appeal against this sentence in this Court, but the appeal was dismissed on 13 August 2001. The second co-offender was The Anh Nguyen, who entered a plea of guilty and was sentenced to seven and a half years imprisonment with a non-parole period of four years. He has lodged an application for leave to appeal against his sentence, but that application has still not come before the Court, although he was sentenced on 20 April 2001. The third co-offender is alleged to be a man, Cuong, who has not been arrested.

4 The amount of the heroin involved was 2,103.5 grams. On analysis, the substance was found to contain 893 grams of pure heroin. The sale initiated was for six blocks of heroin, each weighing 12.5 ounces at $51,000 per block. It was estimated the heroin had a street value of $2.1 million, but the sentencing judge accepted that as a vague estimate.

5 In the appeal of Pham, Wood CJ at CL, summarised the facts as follows:

“3. The offences were detected during a targeted NCA operation, and involved a somewhat sophisticated and well organised criminal venture on the part of those involved. It is common ground that the offender occupying the highest rung in the distribution chain was a person Cuong, known by the honorific 'Uncle'. It was he who initially held the drugs, and it was from him that the others took instructions. However, both the applicant and a co-offender, Nguyen, were significantly involved in the operation, being persons described by his Honour as 'secondary principals'. This was a term of somewhat uncertain meaning and of dubious value. However, it can be taken to mean that these two offenders were the persons entrusted with authority to arrange the sale of drugs and to effect their delivery once a sale had been negotiated.

4. In the case of the applicant, his involvement began in Melbourne, where he met a covert operative, Alex, on 4 April 2000, and offered to him six blocks of heroin, each of 12.5 ounces, for sale in Sydney. A price of $51,000 per block was negotiated between the applicant and Alex. Arrangements were made for a meeting in Sydney. That meeting took place at the Star City Casino on 12 April 2000. It was attended by the applicant, by Alex and by another covert operative, Dat.

5. On this occasion, Alex and Dat showed the applicant $200,000 in bank notes in a sports bag. The applicant gave to Alex three paper packets containing the two small quantities of heroin (one being white in colour and one beige), and the small quantity of methylamphetamine, which were respectively, the subject of the three lesser supply charges. They were offered as samples, the applicant asking Alex what kind of heroin he preferred, and also indicating that he could supply 'ice', or methylamphetamine, of good quality at the price of $120,000 per kilo. Arrangements were made for a further meeting on the following day.

6. On the afternoon on 13 April, Alex met the applicant and a co-offender, Nguyen, in Ultimo. They were joined by Dat, who was carrying $306,000 as show money in the boot of his vehicle. After some discussion, the applicant, Nguyen and Alex, drove to a block of home units in Illawarra Road, Marrickville. They were followed by Dat in his vehicle. Further discussions took place those premises concerning the arrangements for the exchange of the heroin and the money.

7. At this point, Alex and Dat changed their roles, Alex remaining in Dat's vehicle with the money, while Dat went with the applicant and Nguyen to a unit inside the Illawarra Road building. Dat was there introduced to another person, Le, with whom further discussion took place in relation to the way in which the exchange would be effected.

8. Le indicated that the transaction would take place at another location. She then walked with Dat to Ewart Street in Dulwich Hill, where they were both picked up by an Asian male, driving a motor vehicle registered to Le.

9. The driver of this vehicle then took them a short distance down Ewart Street, before stopping at another block of home units. Le drove off, leaving Dat and the Asian driver behind. On their way into the building, they were met by an unidentified Asian male and an Asian female in the courtyard. The former handed a shopping bag to the driver, and then left with the female. Dat and the driver went into unit 13, where Dat was given the shopping bag which, upon inspection, was found to contain three packages, each containing two blocks of heroin.

10. Dat contacted Alex by mobile phone to confirm that he had received the heroin and, also, to make arrangements to bring the money to the unit. In the meantime, Alex, the applicant and Nguyen had remained together at Marrickville, in or near the vehicle which contained the money.

11. During this period, Nguyen had engaged in a number of conversations by mobile phone with Le, whom he referred to as 'Aung Phuong' and with the driver of the motor vehicle.

12. After the call from Dat was received, the money was counted and Nguyen confirmed with the driver of Le's vehicle, whom he addressed as 'Uncle', that the money was correct.

13. Nguyen then directed Alex to drive to Ewart Street. When they arrived there, Nguyen left the vehicle and went into the unit where Dat was waiting. The applicant and Alex waited outside for them. They were, at this point, arrested and the bag containing the $306,000 was recovered. When Nguyen and Dat left the unit carrying the shopping bag, with its heroin packages, they were also arrested, as was Le, a short time later.”

6 It should be noted that Pham had also entered a plea of guilty to the supply of the small sample of drugs.

7 The sentencing judge in this case found that the participation of the applicant was only on 13 April 2000. It is clear the undercover operative, Dat, went to her unit in Illawarra Road, Marrickville, and then they walked together to Dulwich Hill, where they were picked up by another person driving the applicant's car. The man driving the car and Dat got out of the vehicle in order to pick up the drugs and the applicant drove her car home. Apparently, the applicant was going to check the money, but the others had left her apartment before she returned there.

8 The sentencing judge said: "It is very difficult to determine in any precise way the respective roles of Cuong, Le, Pham and Nguyen". She went on to say: "What I am satisfied of beyond reasonable doubt is the prisoner occupied a significant role in a well-organised operation for the wholesale supply of drugs. Her role was active, critical and important, as disclosed in the tape recordings. The criminality she engaged in was very serious. Her participation was though, an isolated event". In carrying out this assessment, her Honour acted completely in accordance with the principles set out in Olbrich v The Queen (1999) 73 ALJR 1550.

9 A significant thrust of this application is to challenge the sentence on the basis of an asserted disparity with the other sentences imposed, particularly the sentence imposed on Nguyen. The sentencing judge was clearly well aware of the need to avoid any justified sense of grievance which might arise as a result of her sentence and bore in mind the principles set out the High Court in Lowe v The Queen (1984) 154 CLR 606. Her Honour correctly noted that the judge who sentenced Nguyen indicated that, apart from the plea of guilty, the sentence would have been ten years and was reduced to seven and a half years because of the plea. It was also correct to point out that Nguyen was 19 at the time of the offence although, apparently, he was on bail on charges of goods in custody, possessing prohibited drugs and possessing a knife.

10 Her Honour noted that Pham was 30 at the time of the offence and that the sentencing judge indicated that, but for the plea of guilty, he would have imposed a head sentence of fourteen years. Bearing in mind these distinguishing features in the cases of Pham and Nguyen, there is, in my view, no basis for this applicant to maintain she has a justifiable sense of grievance when comparing her sentence to the sentences of her co-offenders.

11 There was a powerful subjective case put on behalf of the applicant. She was 36 years old at the time of the offence and had no prior convictions. The psychologist's report relates a difficult background history in Vietnam, before she and her husband left to come to Australia. They spent two years in a refugee camp in Hong Kong, before arriving in Australia. Subsequently, she separated from her husband and remarried about four years ago. She has four children, born between 1985 and 1993. The psychologist's report notes she is somewhat isolated in gaol because of her limited English and the judge took that into account when passing sentence.

12 There was material tendered before the Court to indicate the applicant had been studying while in prison and it was pressed that there were special circumstances to disturb the statutory ratio. The judge accepted these submissions.

13 In my view, there is no substance to the challenge relating to disparity, for the reasons I have already given. It remains then to consider the sentence as a whole. The sentencing judge has made a very careful analysis of the material in this case, both as to the objective features of the offence itself and as to the subjective aspects relating to the applicant. It must be borne in mind, as was said by Wood CJ at CL in R v Pham supra at 6:

"However, the fact remains that trafficking in a large commercial quantity of drugs, in the course of an operation which is as sophisticated as that seen in this case, is an offence for which condign sentences are expected, both by way of punishment and in the interests of specific and general deterrence. See Pilley (1991) 56 A Crim R 202 and Chan [1999] NSWCCA 103".

14 In my view, the applicant played an active and significant role in the organised sale of a significant amount of heroin. The sentence imposed was an appropriate sentence for the applicant's participation in this crime. I would grant leave to appeal, but I would dismiss the appeal.

15 ADAMS J: I agree with his Honour and wish to add an observation of my own.

16 Leaving aside the social and personal problems caused by addiction to heroin and other such drugs, no society can long survive if persons are permitted to make a profit - and a substantial profit - out of breaking the laws; that is one of the reasons why this offence must be treated with great seriousness. Because of the circumstances in which such offences come to be committed, they bring in their train significant social problems involving serious corruption and substantial violence. On a personal level, innocent members of the public suffer burglaries and robberies, as addicts seek the means with which to satisfy their addiction in the black market created by prohibition.

17 These considerations not only justify, but require substantial sentences to be passed on persons who deliberately seek to make a profit from it.

18 The orders of the Court will be as proposed by his Honour Justice Blanch.