Voong v The Queen
[2000] WASCA 220
•23 AUGUST 2000
VOONG -v- THE QUEEN [2000] WASCA 220
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 220 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:4/2000 | 8 JUNE 2000 | |
| Coram: | KENNEDY ACJ WALLWORK J PARKER J | 23/08/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal against sentence granted Appeal allowedSentence reduced | ||
| PDF Version |
| Parties: | CHI KHAN VOONG THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Possession of heroin in excess of commercial quantity reasonably suspected of having been imported into Australia Co-operation with authorities |
Legislation: | Customs Act 1901 (Cth), s 233B |
Case References: | Hayes v R [1981] WAR 252 Lowndes v The Queen (1999) 73 ALJR 1007\t, 7 R v Duffy (1996) 85 A Crim R 456 R v Gallagher (1991) 23 NSWLR 220 Attwell v The Queen [1990] 1 WAR 540 Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997 Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997 Miles v The Queen (1997) 17 WAR 518 Quach v The Queen [1999] WASCA 210 R v Bond (1997) 95 A Crim R 246 R v Cartwright (1989) 17 NSWLR 243 R v Darwell (1997) 94 A Crim R 35 R v Dinic (1997) 149 ALR 488 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Foster (1992) 59 A Crim R 14 R v Golding (1980) 3 A Crim R 26 R v Greenwood, unreported; CCA SCt of WA; Library No 960277; 21 May 1996 R v Hayes (1981) 3 A Crim R 286 R v Heryadi v The Queen (1998) 98 A Crim R 578 R v Many (1990) 51 A Crim R 54 R v Salameh (1991) 55 A Crim R 384 R v Tait (1979) 46 FLR 386 "S" v The Queen [2000] WASCA 34 Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995 Verschuren v The Queen (1996) 17 WAR 467 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : VOONG -v- THE QUEEN [2000] WASCA 220 CORAM : KENNEDY ACJ
- WALLWORK J
PARKER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Possession of heroin in excess of commercial quantity reasonably suspected of having been imported into Australia - Co-operation with authorities
Legislation:
Customs Act 1901 (Cth), s 233B
Result:
Leave to appeal against sentence granted
Appeal allowed
Sentence reduced
(Page 2)
Representation:
Counsel:
Applicant : Ms A G Braddock
Respondent : Mr H G Dembo & Ms N L Cave
Solicitors:
Applicant : Andree Horrigan
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hayes v R [1981] WAR 252
Lowndes v The Queen (1999) 73 ALJR 1007\t, 7
R v Duffy (1996) 85 A Crim R 456
R v Gallagher (1991) 23 NSWLR 220
Case(s) also cited:
Attwell v The Queen [1990] 1 WAR 540
Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997
Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997
Miles v The Queen (1997) 17 WAR 518
Quach v The Queen [1999] WASCA 210
R v Bond (1997) 95 A Crim R 246
R v Cartwright (1989) 17 NSWLR 243
R v Darwell (1997) 94 A Crim R 35
R v Dinic (1997) 149 ALR 488
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Foster (1992) 59 A Crim R 14
R v Golding (1980) 3 A Crim R 26
R v Greenwood, unreported; CCA SCt of WA; Library No 960277; 21 May 1996
R v Hayes (1981) 3 A Crim R 286
R v Heryadi v The Queen (1998) 98 A Crim R 578
(Page 3)
R v Many (1990) 51 A Crim R 54
R v Salameh (1991) 55 A Crim R 384
R v Tait (1979) 46 FLR 386
"S" v The Queen [2000] WASCA 34
Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995
Verschuren v The Queen (1996) 17 WAR 467
(Page 4)
1 KENNEDY ACJ: On 12 January 2000, the applicant pleaded guilty in the Supreme Court to a single count in an indictment that, on 29 April 1999, at Perth, he did, without reasonable excuse, have in his possession prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied, namely, narcotic goods consisting of a quantity of heroin, being not less than the commercial quantity applicable to that narcotic substance, which was reasonably suspected of having been imported into Australia in contravention of the Act, contrary to s 233B(1)(ca) of the Act.
2 The applicant was 33 years of age at the time of sentencing. He had been born in Vietnam. It appears that his early life was tragic. He became a refugee in South Korea, where he remained in a refugee camp for a period of some years before being granted residency in New Zealand in 1993. He married in that country, but he has since separated from his wife. He moved to Melbourne in 1998, staying with his sister, whom he had "rediscovered", intending to remain permanently in Australia. He lived on the savings he had accumulated during his time in New Zealand. By reason of his deprived background, he has had little education. He is not fluent in the English language.
3 The applicant met a number of Chinese people in Melbourne, including a man named Jamie, who introduced him to a man named Peter. Peter had a lot of Asian visitors to his house. He introduced the applicant to a man named Ken. Ken used regularly to change his telephone number. In late 1998 or 1999, the applicant travelled to Perth with Ken in a hire car. They stayed at the Ibis Hotel for four or five days.
4 During their visit to Perth, the applicant was introduced by Ken to a man named Foo, to whom the applicant ultimately admitted having delivered the heroin the subject of the charge against him, but who has pleaded not guilty to a charge of the same nature as that of which the applicant has been convicted. Ken was said to have introduced him to Foo, in a manner which conveyed the idea that their relationship would be based on "good friendship" and that Foo was a man who could be trusted. The applicant did not explain why it was that he had travelled to Perth with Ken in the first place, but his Honour inevitably inferred that it was to lay the groundwork for the applicant's subsequent visit to this State to deliver the heroin. After his arrest, the applicant indentified Ken and Foo in photographs shown to him by the police.
5 Back in Melbourne in April 1999, the applicant was contacted by another Asian man, known as Simon. The applicant agreed with Simon to transport illegal drugs to Perth in return for $7,000 in cash. He was
(Page 5)
- provided with $2,500 for his airfare and he was given six blocks of white powder, which was obviously heroin. The applicant divided the blocks into six parcels, then wrapped them in gift paper to give the appearance of presents. As his Honour indicated, it was inconceivable that the applicant was not fully aware that he was engaged in the trafficking of an enormous amount of heroin.
6 The applicant placed the parcels of heroin in a backpack and, according to him, he requested two people who were travelling to Perth by train to take the backpack with them because he claimed that he had too much luggage for his flight. It is impossible to believe that the two people were ignorant of what it was they were to carry. He flew over to Perth and booked into the Ibis Hotel for two days. He was telephoned on the day after his arrival by the two people with the backpack. He met them away from the hotel, but he then returned to the hotel with them. They gave him the backpack. The applicant did not disclose their identity.
7 The applicant subsequently left the hotel once again and went for a walk in the city, during which time he was telephoned by Foo. He returned briefly to the hotel and then, carrying his backpack, he walked to King Street to what was obviously a prearranged meeting with Foo. Foo drove up in a 4-wheel drive vehicle. The applicant climbed into the passenger seat with his backpack, and shortly afterwards alighted from the vehicle, leaving the backpack behind in the vehicle. Shortly afterwards, Foo was arrested. The applicant was arrested a little later. In fact, the applicant had for some time been under constant surveillance by officers of the National Crime Authority.
8 The amount of heroin in the backpack was substantial. It totalled 2.1158 kilograms in weight, of which 1,562.5 grams consisted of pure heroin, translating into an overall purity of about 74 per cent. It was of high quality and most probably had been brought into Australia from South-East Asia. Its street value was said to be between $1 million and $1.2 million.
9 His Honour remarked upon the implausibility of some of the applicant's statements and the applicant's vagueness as to the identities of the two persons who, he claimed, fortuitously happened to be travelling by train to Perth at the time. His Honour concluded, with justification, that the use of lower level couriers who, whether witting or unwitting, actually took the risk of carrying the package by train, was part of a general scheme and that those persons must have been under the general supervision of the applicant, particularly having regard to the value of the
(Page 6)
- drug being brought into Western Australia. His Honour therefore concluded that, within the criminal enterprise, the applicant's role was "somewhat greater than that of a mere courier". However, he was unable precisely to determine the extent of that role.
10 The learned sentencing Judge noted that, although, initially, the applicant had pleaded not guilty to the offence, in October 1999 he had entered a plea of guilty before a Magistrate. His Honour then referred to the applicant's co-operation with the authorities. He rightly observed that such co-operation, as a matter of high public policy, obliges a sentencing Judge to exercise a degree of leniency, not by reason of the personal attributes of the offender, but in order to encourage others, when apprehended, to identify their collaborators in the criminal enterprise and to provide evidence for those persons' eventual prosecution. Such co-operation, his Honour suggested, is essential to enable law enforcement agencies to detect and deal with organised crime; but, he said, that co-operation is more likely to attract greater leniency when it extends to information and assistance beyond the current criminal enterprise. Furthermore, his Honour noted that, when first interviewed, the applicant had exercised his right of silence and only when he was interviewed again some months afterwards did he make a statement and co-operate. By this time, it appears that the applicant knew the strength of the case against him, although it must have been apparent from the beginning that it was very strong indeed. The applicant also gave evidence in a preliminary hearing of "an alleged co-offender" (presumably Foo), and in his statement he gave some details of his Melbourne connections. Necessarily, that information, particularly in relation to telephone numbers and addresses, was to some degree stale. Nevertheless, the time factor in the case of co-operation with the authorities is not always so critical from the point of view of mitigation as it is in the case of a plea of guilty. Furthermore, the relevant authority made no comment regarding the staleness of the information provided.
11 His Honour expressly took the following factors into account in determining the applicant's sentence: the quantity of heroin involved and its purity; the commercial gain, both to himself and to others in the enterprise; the fact that he had committed the offence purely for money and not because he was a heroin addict; his detailed knowledge of the drug and his participation in concealing it so far as possible by disguising it as a number of presents; his having the drug delivered in this State by others; his general position in the hierarchy, which, as indicated, his Honour took to be that of "a high level courier"; the need to stress to the applicant and to others that the Court would not tolerate trafficking in
(Page 7)
- heroin, having particular regard to the level of misery and crime which was likely to flow from it had the enterprise been successful. His Honour concluded that a lengthy term of imprisonment was the only realistic option. Before making deductions for factors in mitigation, he considered that the crime required a sentence of 21 years' imprisonment. He then reduced that period by 1 year, having regard to the plea of guilty, by a further period of 3 years, having regard to the applicant's co-operation with the authorities, and by a further 1 year, having regard to the applicant's antecedents. He therefore sentenced the applicant to a term of 16 years' imprisonment. He fixed a non-parole period of 10 years. The maximum sentence for the offence of which the applicant was convicted was life imprisonment.
12 The applicant sought leave to appeal against his sentence on the ground that the sentence imposed, including the determination of the non-parole period, was manifestly excessive, particularly having regard to the applicant's plea of guilty, his co-operation with the authorities, his undertaking to give evidence at the trial of Foo and his personal circumstances. It was claimed that his Honour erred in his assessment of the value of the applicant's information and co-operation, in that he found that it was stale and failed properly to assess the degree of co-operation which his Honour stated was "not of the highest order such as to attract an inordinate degree of lenience".
13 Having regard to the quantity, quality and value of the heroin involved in the offence, I am not persuaded that his Honour's adoption of 21 years as the starting point was too high, although it was, perhaps, at the top end of the range. The grounds of appeal were, in fact, addressed mainly to the deductions which his Honour allowed from his commencing figure.
14 So far as the mitigatory effect of the plea of guilty is concerned, to some degree it may overlap with the allowance for the applicant's co-operation. In relation to the plea of guilty by itself, this was a case in which the evidence against the applicant was overwhelming, and it is sufficiently clear that, for good reason, the applicant deferred his plea until he was fully informed of the strength of the Crown case. In these circumstances, a substantial discount is not to be expected. I am not persuaded that the reduction of 1 year reveals any error on the part of his Honour. It might well have been greater but, in my opinion, it fell within the appropriate range and it is not for this Court to substitute its own opinion - see Lowndes v The Queen (1999) 73 ALJR 1007
(Page 8)
15 In relation to the reduction for co-operation with the National Crime Authority, I would repeat what I said in R v Duffy (1996) 85 A Crim R 456, at 457:
"It is not in question that, purely upon the basis of expediency, a sentence which would otherwise be imposed upon an informer may be reduced by reason of assistance he has given to the police. The amount by which what would otherwise be the sentence should be reduced will depend upon a number of variable features, including, in particular, the quality and quantity of the material disclosed by the informer, its accuracy and his willingness to confront other offenders or to give evidence against them. It has repeatedly been said that one of the most effective weapons in the hands of the police is the informer, because once the identity of a suspect can be established, even if he does not confess, it will often be possible to obtain scientific or other evidence to connect him with the crime, so as to corroborate the informer. It has also been said to be to the advantage of law abiding citizens that criminals should be encouraged to inform upon their criminal colleagues. An expectation of a substantial reduction in what would otherwise be a proper sentence is required in order to produce the result sought."
- This is what Gleeson CJ, in R v Gallagher (1991) 23 NSWLR 220, at 227, referred to as "the utilitarian consideration". See also Hayes v R [1981] WAR 252, per Burt CJ at 253 - 254, and Fox and Freiberg, Sentencing, State and Federal Law in Australia, 2nd ed (1999) at 3.803 - 3.809.
16 The information before the learned sentencing Judge was to the effect that the applicant had provided investigators with a full and open confession with regard to the circumstances leading up to his arrest and the arrest of Mr Foo, that he had given evidence for the Crown in the Perth Court of Petty Sessions at the preliminary hearing in relation to Mr Foo, when the latter had been committed for trial, and that he had undertaken to give evidence at any future trial of Mr Foo, having signed an undertaking under s 32E of the Crimes Act 1914 (Cth). It is clear that the Authority considered the information provided to it as being "significant" and it provided sufficient details as to its nature to justify that characterisation. There was no complaint by it concerning any staleness of any information. In my opinion, the co-operation was such as to require a more substantial reduction than the 3 years allowed by his
(Page 9)
- Honour. In saying this, I am mindful of the observations of Gleeson CJ in Gallagher's case, at 232, as to the court being astute to ensure that it has been given accurate, reliable and complete information concerning the alleged assistance and the benefit said to flow from it. I am satisfied that, in all the circumstances, the learned sentencing Judge fell into error in allowing only 3 years for the applicant's co-operation. The authorities indicate that a reduction of up to 50 per cent is not considered excessive in a proper case - see Fox and Freiberg, op cit, at 3.807. An appropriate deduction in this case, in my opinion, would have been 6 years.
17 So far as the deduction in respect of the applicant's personal circumstances is concerned, I do not consider that his Honour erred in allowing only 1 year. The fact that the applicant was a person of prior good character and antecedents does not carry a great deal of weight in connection with the offence of possessing drugs, and certainly not when it relates to heroin of the quantity and quality involved in this case.
18 I would grant the applicant leave to appeal, allow his appeal, and vary the sentence by reducing it to one of 13 years. In consequence, I would reduce the non-paro`le period to 7 years and 6 months.
19 WALLWORK J: I agree with Kennedy J's reasons for decision and with the orders proposed by his Honour.
20 PARKER J: I agree with the orders proposed by the Acting Chief Justice and with the reasons which he has now published.
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