Thu Hien Le v Director of Public Prosecutions (Cth)
[2019] VSCA 232
•17 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0220
| THU HIEN LE | Appellant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
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| JUDGES: | BEACH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 October 2019 |
| DATE OF JUDGMENT: | 17 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 232 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Le (Unreported, County Court of Victoria, Judge Wischusen, 3 August 2018) |
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CRIMINAL LAW – Sentence – Appeal – Importing commercial quantity of border controlled precursor – Sentence of 6 years and 6 months, with non-parole period of 4 years – Whether judge failed to give appropriate weight to findings that appellant under pressure from family and in fear of those to whom she was subordinate – Whether judge took irrelevant considerations into account – Whether sentence manifestly excessive – Errors contended for not made out – Sentence not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms G F Connelly | Greg Thomas, Barrister & Solicitor |
| For the Respondent | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
BEACH JA
WEINBERG JA:
On 26 July 2018, the appellant pleaded guilty in the County Court to one charge of importing a commercial quantity of a border controlled precursor (pseudoephedrine) contrary to s 307.11(1) of the Criminal Code 1995 (Cth). The maximum term of imprisonment for this offence is 25 years.
On 3 August 2018, the appellant was sentenced to a term of imprisonment of 6 years and 6 months. A non-parole period of 4 years was fixed.[1]
[1]DPP v Le (Unreported, County Court of Victoria, Judge Wischusen, 3 August 2018) (‘Reasons’).
On 6 February 2019, a judge of this Court granted the appellant leave to appeal[2] on the following grounds:
[2]Le v The Queen (Unreported, Court of Appeal, Kyrou JA, 6 February 2019).
1.Having found the appellant’s involvement was under pressure from her own family and that she was in fear of those to whom she was subordinate, the judge erred in:
(a)failing to apply this finding in mitigation of the offending rather than merely treating it as explicatory of the appellant’s role; and/or
(b)failing to give this finding adequate weight.
…
3.The judge erred in having regard to irrelevant considerations, namely:
(a)the ‘theoretical yield’; and
(b)the monetary value of methylamphetamine capable of being produced from the pseudoephedrine.
4.The sentence and non-parole period are manifestly excessive.
Circumstances of the offending
On 14 July 2012, the appellant made arrangements with a friend, one Truong, to have a parcel delivered to Truong’s residence in Hampshire Road, Sunshine. She made this arrangement by a series of text messages, in which she secured Truong's agreement by telling Truong that she did not want her sister to know that her aunt was sending ‘stuff’ to her. The appellant obtained from Truong particulars of her address and full name, and also an assurance that there would be someone home to receive the parcel when it was delivered.
On 5 August 2012, Customs officers intercepted a parcel which had originated in Vietnam and which was addressed to Truong. Inspection of the parcel found nearly seven and a half kilograms of powder, concealed in packets of breadcrumbs. Upon testing, the powder was found to contain 5,349 grams of pure pseudoephedrine. The parcel was deconstructed and four packets of pancake mix was substituted for all but 20 grams of the original powder.
On 7 August 2012, the appellant sent five text messages to a mobile number ending with the numbers 963 (‘the 963 number’), discussing a return trip to Sydney and a difficulty about ‘transferring paperwork from Sydney to Melbourne’. In her texts, the appellant referred to the possibility of her friend becoming suspicious. She asked if she could find another address, saying ‘over here people are feeling apprehensive about having stuff sent to their place for someone else’.
On 9 August 2012, Customs officers attempted to deliver the reconstructed parcel to Hampshire Road, but no one was home. A ‘missed delivery’ card was left, bearing a phone number to be called to arrange delivery.
Later that day, the appellant sent SMSs to someone she addressed as ‘Uncle’ asking for more time to pick up and deliver the parcel to his place. Later still on that day, the appellant exchanged SMSs with Truong, to see whether the parcel had been received. After Truong arrived home from work, she contacted the appellant and told her about the missed delivery card.
That evening, the appellant sent further texts to the 963 number, explaining that the package could not be collected until tomorrow and expressing concern about her position and the parcel.
The next day, Friday 10 August 2012, the appellant and Truong went to the Sunshine Post Office to pick up the parcel. They were told that they had to call the number on the missed delivery card. The appellant then called and texted the number on the missed delivery card, and was told that the parcel could not be delivered until Monday.
At the same time this was occurring, the appellant sent texts to the 963 number, expressing her anxiety about how to explain the delay and informing the receiver that Truong had gone to Queensland and would not be back until Monday.
Next, the appellant sent texts to Uncle, explaining that her friend was away until Monday and that nothing would happen before then. She then texted the 963 number, saying that ‘Mr PC’ was angry, and that she was frightened and would remain so until it was sorted out. The appellant also sent texts to another number, explaining that she would collect ‘it’ tomorrow evening.
On 13 August 2012, in further texts to the 963 number, the appellant expressed an intention to ‘bring it’ to Sydney.
Later that same day, a Customs officer posing as Australia Post informed the appellant that the parcel would be delivered in ten to fifteen minutes. The appellant said she would be at home. About fifteen minutes later, the Customs officer delivered the parcel to Truong, who signed for it and sent the appellant a text saying that it had been delivered. She then sent a text to Uncle, saying ‘train leaves at 8 o'clock’, before sending a message to the 963 number that it was ‘50% done’.
The appellant then went to Hampshire Road, collected the parcel and unpacked it. She took the four packets of pancake mixture, leaving the other food packets which were in the parcel at the premises. She told Truong that she was going to take a train from Sunshine to Southern Cross, and from there to Sydney, returning to Melbourne the following day.
At 5:42 pm that day, the appellant rang Customs asking for another box ‘as the box that had been delivered was missing something’. She then sent a series of texts to the 963 number, addressed to ‘Ba’, saying (amongst other things) that she was very scared, and that she was concerned that the delivery people might have been Customs officers.
The next day (14 August 2012), the appellant sent a series of texts to Ba, on the 963 number, as follows:
·Ba. Will they believe that I lost it
·He knows that I am clever how could I have lost it
·Ba. Please save me
·He is very angry. I am dying, Ba
·Ba, please call him for me
·Where can I go now, Ba?
·What do I do to pay off the debts to Uncle pc, Ba?
Then followed a series of SMS exchanges between the appellant and her mother in Vietnam, in which the appellant’s mother tries to reassure her, and in which the appellant pleads to be allowed to go back to Vietnam because of her concerns about being arrested, the pressure that she was under, and about paying off a debt.
On 23 August 2012, the appellant was arrested and interviewed. During the course of the interview, the appellant denied committing any offences, saying that she did not know what was imported; and that she had had food sent from Vietnam to a friend because she (the appellant) would not be home to sign for it. The appellant said that the concerns she expressed in her texts had an innocent explanation, to do with her schooling. She said that she knew nothing about drugs.
The appellant was granted bail at a filing hearing the following day. The matter was listed for trial on 12 May 2014 and almost right up until that time, she complied with, what the judge referred to as ‘the quite strict daily reporting conditions of [her] bail’.[3] However, she absconded just before trial and a warrant was issued. She was not apprehended until 19 October 2017. The appellant was in custody from that time until sentencing.
[3]Reasons [18].
Appellant’s background
The appellant was born in Vietnam in December 1992. She was 19 at the time of the offending, and 25 at the time of sentencing. She has no prior or subsequent criminal history.
The appellant grew up in Vietnam where, as the judge put it, her family life was ‘somewhat disturbed by [her] father’s drinking, violence and fluctuating mental health’.[4] Her family life was also disturbed by threats to the family made by her brother’s creditors in relation to his gambling debts.
[4]Ibid [25].
Upon completion of her secondary schooling, the appellant ‘did a year or so’ at the National Economics University in Hanoi. She applied for, and received, a student visa to study for a business degree at a Melbourne university.
In December 2011, the appellant arrived in Australia on a student visa. In Australia, the appellant lived with cousins in Sunshine and studied English. She also worked as a nail technician, managing to send money from this employment home to her family.
Sentencing reasons
The judge commenced his reasons for sentence with a description of the appellant’s offending and her background.[5] Taking the figure from the prosecution opening, the judge said that the imported powder contained 5,371 grams of pure pseudoephedrine,[6] which if sold in kilogram amounts would realise between $130,000 and $140,000. He then said that if it was ‘converted to methamphetamine’ the street value, depending on how it was converted, would be between $1.684 million and $6.017 million.[7]
[5]Ibid [1]–[27].
[6]While the applicant’s plea counsel (not counsel who appeared in this Court) accepted the accuracy of the prosecution summary on the plea, the evidence in the depositions available to the judge was that the powder in fact contained only 5,349 grams of pure pseudoephedrine. This discrepancy was not explained.
[7]Reasons [19].
The judge said it was difficult to reach a conclusion about the appellant’s exact role in the offending, but he accepted that there were others involved to whom she was subordinate, that she was in fear of them, and that her involvement was under pressure from her own family.[8] The judge also accepted that, at least in part, the appellant’s motivation for her offending ‘had something to do with debts owed in Vietnam’.[9]
[8]Ibid [28].
[9]Ibid [29].
Next, the judge accepted that the matter had hung over the appellant’s head since she was first arrested in 2012. The judge observed, however, that the delay was mostly of the appellant’s own doing — she having absconded on bail and then delayed from then until her ultimate plea of guilty. The judge said that, in those circumstances, delay was not something which he could give much weight to in mitigation.[10]
[10]Ibid [30].
The judge noted that it was common ground that a conviction, leading inevitably to a term of imprisonment, would result in the appellant’s deportation and the loss of opportunity to settle in Australia. The judge accepted that the loss of opportunity to settle in Australia and concerns about her father’s health would weigh upon her during any period of incarceration.[11]
[11]Ibid [31]–[32].
The judge noted that since the appellant’s remand, she had availed herself of rehabilitation opportunities offered and had been ‘very diligent in [her] pursuit of educational opportunities whilst in custody’.[12]
[12]Ibid [33].
The judge described the offence of importing a commercial quantity of a border controlled precursor as ‘a very serious offence’, carrying as it does a maximum term of imprisonment of 25 years. The judge referred to the amount imported as being 4.48 times the commercial quantity, which he said was ‘a very significant importation’.[13]
[13]Ibid [34].
The judge described the appellant’s role in the offending as ‘far from insignificant’. He noted that the appellant secured the compliance of Truong to have the parcel delivered to her address, and that she must have played some part in conveying that address to those who sent the parcel from Vietnam. She was also active in the pursuit of its delivery. She unpacked it after delivery. She queried the people who she thought were Australia Post when the contents of it were not what she expected, and it appeared that she intended to transport it to Sydney.[14]
[14]Ibid [35].
The judge observed that the value of the financial benefit the appellant stood to derive from her involvement (whether for herself or for her family) ‘remain[ed] obscure’.[15]
[15]Ibid [36].
The judge concluded his sentencing reasons by referring to applicable sentencing principles, saying:
They include that the quantity imported is relevant to the assessment of the objective seriousness; that general deterrence is to be given chief weight in the sentencing consideration, so that stern punishment is to be expected; that involvement at any level should attract a significant sentence in the interests of deterrence; and that personal factors, such as a lack of prior offending, prospects of rehabilitation and relative youth, are given less weight than they might otherwise be.[16]
[16]Ibid [37].
Analysis
Before turning to the appellant’s three grounds of appeal, it is necessary to say something about the factual basis upon which the appellant was sentenced.
In the deposition material available to the judge on the hearing of the plea, the evidence was that the parcel the appellant imported contained 5,349 grams of pure pseudoephedrine. The prosecution opening, however, asserted that the amount was 5,371 grams.
As we have already observed, the appellant’s counsel on the plea accepted the correctness of the prosecution’s opening. The judge relied upon the figure in the prosecution opening, leading him to conclude that the appellant had imported 4.48 times the commercial quantity of pseudoephedrine,[17] whereas she in fact only imported 4.46 times the commercial quantity.
[17]The commercial quantity for pseudoephedrine is 1.2 kg.
While there is no ground of appeal which suggests that the difference between the amount disclosed in the evidence and the amount described in the prosecution summary is material, we propose to consider the grounds of appeal on the basis of the evidence that was in fact available to the judge — namely that the importation was 4.46 times the commercial quantity.
Ground 1: the mitigatory weight to be given to the pressure and fear the appellant was under
Under ground 1, the appellant makes complaint that the judge, having found that her involvement was under pressure from her own family and that she was in fear of those to whom she was subordinate, erred in failing to apply this finding in mitigation and/or in failing to give the finding adequate weight.
In precise terms, the judge’s findings on the topics of pressure and fear were in the following terms:
I do accept, relying here more on the recorded communications than anything said in the record of interview, that there were others involved in this importation to whom you were subordinate, that you were in fear of them, and that your involvement was under pressure from your own family and of the risk of arrest, and all the more so when the collection did not go as planned.
I accept, at least in part, that the motivation for this offending had something to do with debts owed in Vietnam. As to these, there was some indication that they concerned your father’s illness and your brother’s gambling debts, although in the end, the situation is far from clear.[18]
[18]Reasons [28]–[29].
While the judge did not expressly state that his findings about the pressure and fear the appellant was under were to be applied in mitigation of the appellant’s offending,[19] it seems to us that that is exactly the approach the judge took. In his reasons, the judge did not seek to diminish these matters as being merely an explanation for the appellant’s offending. To the contrary, the judge referred to these matters in the context of the submissions made to him by the appellant’s plea counsel.
[19]See Tiknius v The Queen (2011) 221 A Crim R 365, 374–377 [30]–[54].
Further, the judge dealt with these issues in that part of his reasons that considered the various mitigatory matters relied upon by the appellant on the plea. Indeed, when one matches the applicant’s submission on the plea with the judge’s treatment of the matters relied upon by the applicant, one observes that the judge carefully and systematically dealt with, as being mitigatory, each of the matters relied upon by the applicant, including the matters that are the subject of this ground of appeal.
Moreover, nothing in the sentence imposed by the judge suggests to us that the judge did not give the findings he made adequate weight.
Ground 1 must be rejected.
Ground 3: the theoretical yield and monetary value of methylamphetamine issues
Under ground 3, the appellant complains that the judge erred in having regard to irrelevant matters, namely the theoretical yield, and monetary value, of methylamphetamine capable of being produced from the imported pseudoephedrine.
The appellant’s complaints relate to the last half of the last sentence of Reasons 19. In that sentence, the judge said:
The street value of the pseudoephedrine, if sold in kilogram amounts, would have realised between $130,000 and $140,000 and if it was converted to methylamphetamine, the street value, depending on how it was converted and how it was sold, would be between $1.684 million and $6.017 million.
The appellant makes no complaint about the street value of the pseudoephedrine. It is only the street value of the methylamphetamine that is said to be irrelevant and about which complaint is made.
The theoretical yield and street value of methylamphetamine capable of being produced from the pseudoephedrine imported by the appellant was the subject of evidence before the judge. This evidence was referred to in the outline of Crown submissions on the plea. No objection was taken to this evidence on the plea. Nor was it suggested that the evidence was somehow unreliable or not relevant in the exercise of the sentencing discretion.
To the extent that the appellant submitted that the monetary value of any methylamphetamine that might be made from the pseudoephedrine she imported was irrelevant, we reject that submission. While the potential street value of methylamphetamine that was capable of being produced from the imported pseudoephedrine may not have been capable of assuming any great significance in the sentencing synthesis in the present case, it could not be said to be wholly irrelevant or irrelevant to a point where to make mention of it would involve error. So much appeared to be accepted by the appellant during the course of oral argument.
The appellant’s central argument under this ground of appeal was that the judge was wrong to accept the evidence of the theoretical yield of methylamphetamine without accepting the evidence that theoretical yields ‘are rarely if ever obtained’.[20] The appellant submitted that, at worst for her, the judge should only have relied upon what was described in the evidence as the ‘practical yield’. The evidence on the plea was that a 60 per cent practical yield would be a reasonable estimate for the most commonly employed production method of deriving methylamphetamine from pseudoephedrine. If the judge had accepted this evidence then the street values referred to in his reasons would have been reduced by 40 per cent, from a figure between $1.684 million and $6.017 million to a figure between approximately $1 million and $3.6 million.
[20]The evidence from the relevant forensic scientist about the theoretical yield of methylamphetamine contained the caveat that in practice theoretical yields are rarely if ever obtained ‘due to side reactions and losses in sample isolation and clean up’.
In his reasons for sentence, the references to the theoretical yield of methylamphetamine and its street value were contained in that part of the judge’s reasons that summarised the offending. When the judge came to deal with sentencing principles, he referred to the significance of the quantity of the drug actually imported rather than referring to the potential street value of what might have been produced from it.
In circumstances where no complaint was made about the admission of the evidence now sought to be impugned, and where the judge appears to have confined his consideration of sentencing principles to matters connected with pseudoephedrine rather than the potential production of methylamphetamine, we are not persuaded that the judge erred in the way contended for by the appellant. In any event, even if one concluded that the figures referred to by the judge in relation to the theoretical methylamphetamine yield were wrong, and that the judge could only legitimately take account of figures based upon the practical yield (which would produce a range between approximately $1 million and $3.6 million) we are not persuaded that any such error could have been material in the present case.
Ground 3 must be rejected.
Ground 4: manifest excess
Importing a commercial quantity of a border controlled precursor carries a maximum term of imprisonment of 25 years. In this case, the appellant imported more than four times the relevant commercial quantity. She was sentenced to a term of imprisonment of 6 years and 6 months. A non-parole period of 4 years was fixed. The judge took account of all of the matters relied upon by the appellant in mitigation of sentence.
As the judge described it, the appellant’s importation was a ‘very significant importation’.[21] Notwithstanding the significance of the importation, at best for the appellant, it might be said that the sentence of 6 years and 6 months was at the higher end of the range rather than the lower end.
[21]Reasons [34].
That conclusion, however, is not sufficient to make out a complaint of manifest excess. While a different sentencing judge may have sentenced the appellant to the term of imprisonment a little less than that imposed by the judge, there is no basis for this Court to interfere on the grounds of manifest excess.
Ground 4 must be rejected.
Conclusion
The appeal will be dismissed.
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