R v Bao Vinh Ha [1999] NSWCCA 385

New South Wales Court of Criminal Appeal CITATION : R v Bao Vinh Ha [1999] NSWCCA 385 FILE NUMBER(S) : CCA 60714/98 HEARING DATE(S) : 26 November 1999 JUDGMENT DATE : 26 November 1999

PARTIES : Bao Vinh Ha (applicant) Regina (respondent) JUDGMENT OF : Spigelman CJ at 1,19, 22; Dunford J at 21; Hidden J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0010 LOWER COURT JUDICIAL OFFICER : Gibson DCJ

COUNSEL : Paul Byrne SC (applicant) G. J Bellew (respondent) SOLICITORS : Hovan & Co (applicant) Commonwealth Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - Sentence - import heroin - trafficable amount - whether manifestly excessive R v Bernier (1998) 102 ACrim R 44 CASES CITED: R v Olbrich (1999) 166 ALR 330 R v Doan (CCA unreported 27 September 1996) DECISION : Sentence reduced

IN THE COURT OF CRIMINAL APPEAL 60714/98

SPIGELMAN CJ DUNFORD J ` HIDDEN J

26 November 1999 Regina v Bao Vinh Ha

Judgment

1 SPIGELMAN CJ: I invite Mr Justice Hidden to deliver the first judgment. 2 HIDDEN J: The applicant, Bao Vinh Ha, seeks leave to appeal against sentences imposed upon him in the District Court after he pleaded guilty to two charges: firstly, being knowingly concerned in the importation into Australia of a trafficable quantity of heroin and, secondly, being in possession of prohibited imports, being also a trafficable quantity of heroin. On the first charge he was sentenced to 12 years imprisonment, on the second charge to 4 years imprisonment, and a non-parole period of 8 years was fixed. 3 Shortly stated, the facts are these. The applicant came to this country with his family from Vietnam in 1987, when he was about seventeen years old. In due course he became an Australian citizen. However, he did not sever his links with his country of origin, and in 1996 he opened a coffee lounge in Ho Chi Minh City and apparently became involved in another business venture in that city. For that reason he travelled frequently between Australia and Vietnam. 4 In 1997 he sent a quantity of heroin to Australia by post. The heroin was in heat-sealed plastic bags contained in envelopes which were addressed to one or other of two post office boxes, one of which was in his name and the other in the name of his fiancee. Between March and June 1997 police retrieved a total of twenty such envelopes. The gross weight of the heroin in them was 449.7 grams with an average purity of 70.7 per cent, yielding a total quantity of pure heroin of 317.9g. This was the subject of the first count. 5 The second count arose from a search of the applicant's home in Sydney conducted by police in September 1997. Police found fifteen heat-sealed plastic bags identical to those which had been found secreted in the envelopes. They contained 123g of heroin of a purity of about 70.8 per cent, yielding 87.72g of pure heroin. In addition, police found in a glass jar a further 206.3g of heroin of a purity of about 67.4 per cent, yielding 139g pure. The total gross weight of the heroin when seized was 779.9g; the total amount of pure heroin was 544.6g. 6 In evidence before his Honour the applicant claimed to have been approached in Ho Chi Minh City by a man, of whom he could only supply a first name, who offered to assist him to obtain a liquor licence if he would provide in Australia a post office box for the receipt of parcels. His Honour rejected that account and that rejection has not been challenged in this Court. His Honour concluded that the applicant was either the sole operator or one of the principals in the venture, and he sentenced him on the basis that he was not a mere courier. 7 The applicant is now twenty-eight years old and has no prior convictions. In this country he has a creditable background in terms of his education and employment. He has enjoyed the continuing support of his family and, I gather, of his fiancee. He expressed remorse, which his Honour accepted as genuine. 8 His Honour intended the twelve year sentence in respect of the first count to embrace the criminality of both charges, observing that they arose from a continuing course of conduct. The question is whether that effective sentence is manifestly excessive for those offences involving, as they do, a total quantity of pure heroin of 545g in round figures. 9 The trafficable quantity for the purposes of the legislation is 2g and the commercial quantity is 1.5kg. Accordingly, the quantity here falls into the lower range of trafficable quantities, although towards the middle of it. 10 Senior counsel for the applicant referred, amongst other cases, to the decision of this Court in R v Doan (unreported, 27 September 1996) and, in particular, to the schedule of comparable cases attached to the judgment of the then Chief Judge at Common Law in that case. The cases in that schedule were concerned with the importation of trafficable quantities of heroin in amounts ranging from 18g to 863g and the sentences imposed ranged from 5 to 9 years. It is not apparent on the face of the schedule that those cases are confined to cases involving couriers, but I have always understood that to be so and it makes sense, given that Doan itself was a case involving a courier. 11 This case, of course, is different because of his Honour's finding that the applicant was a principal or the principal as the case may be. 12 The recent decision of the High Court in R v Olbrich (1999) 166 ALR 330 does not alter the fact that in many cases the role of the person in the importation and, in particular, whether the person might be classified as a courier or a principal remains of importance. 13 In any event, when one looks to previous decisions of this Court for guidance in a particular case, it has to be recognised that most of those decisions were based upon the assumption that the determination of the offender's role was essential and the classification of an offender as a courier or principal was one invariably embarked upon. That being so, the schedule of cases in Doan has to be viewed in light of the fact, as I understand it, that all were cases involving couriers. 14 That said, the present sentence of 12 years appears to me to be more appropriate for a principal in the importation of heroin at the top of the trafficable range or at the bottom of the commercial range. That appears from the cases referred to by this Court in R v Bernier (1998) 102 ACrim R 44 at 48. It is also consistent with the Judicial Commission's statistics provided to us this morning by senior counsel for the applicant. Counsel for the Crown indicated that recent research had not suggested that that view should be modified in any way. 15 That being so, it does appear to me that the sentence in the present case is manifestly excessive. I put to one side the applicant's prior good character and his pleas of guilty which are common features of cases of this kind. The fact remains that the quantity involved in the two offences, while significant, is nowhere near the top of the trafficable range. For that reason I am of the view that his Honour did fall into error and that it falls to this Court to re-sentence the applicant. 16 Having regard to the quantity involved and to the other favourable subjective features, I am of the view that the appropriate effective sentence is imprisonment for 10 years with a non-parole period of 6½ years. 17 Accordingly, the orders I would propose are that leave to appeal be granted, the appeal be allowed, the sentence imposed by his Honour on the first count be quashed but the sentence imposed by his Honour on the second count be affirmed. 18 On the first count I would propose that the applicant be sentenced to imprisonment for 10 years to date from 30 September 1997, and that with respect to the two sentences a non-parole period of 6½ years be fixed. 19 SPIGELMAN CJ: I agree with the orders proposed by his Honour and generally with his reasons. I would, however, not wish to determine on this occasion the proposition that his Honour put to the effect that 12 years was appropriate for a principal at the top of the trafficable range or the bottom of the commercial range. I should note that the cases referred to in the judgment of the Court in R v Bernier (1998) 102 ACrim R 44 at 48 to which his Honour made reference in the course of his reasons were not supplemented in any way by the Crown on this occasion. Indeed, counsel appearing for the Crown indicated that enquiries had been made and that no additional cases could be put before the Court for the purposes of determining the present case. 20 I am, however, of the view that the significance always attached to the quantity in sentencing for offences of this character was not given appropriate weight by his Honour and, therefore, that the sentence was excessive to the extent identified by Justice Hidden. I agree, that in the exercise of this Court's discretion, the sentence proposed by Justice Hidden is the appropriate one. 21 DUNFORD J: I agree with the orders proposed and generally with the reasons given by Hidden J and I also share the reservations expressed by the Chief Justice. 22 SPIGELMAN CJ: The orders of the Court are as indicated by Justice Hidden. **********