R v Vinh Khang LE [2003] NSWCCA 197

New South Wales Court of Criminal Appeal

CITATION : R v Vinh Khang LE [2003] NSWCCA 197 HEARING DATE(S) : 15 July 2003 JUDGMENT DATE : 15 July 2003

JUDGMENT OF : Sheller JA at 1; James J at 31; O'Keefe J at 32 DECISION : 1 Leave to appeal granted; 2 Appeal dismissed.

CATCHWORDS : SENTENCE - supply prohibited drug - whether sentence excessive LEGISLATION CITED : Crimes Act 1900 Drug Misuse and Trafficking Act 1985 R v Wong & Leung (1999) 48 NSWLR 340 R Pauna (unreported) CCA 2 December 1997 CASES CITED : R v Pham [2001] NSWCCA 307 Hameed (2001) 123 A CrimR 213 R v Cheng [2002] NSWCCA 225 PARTIES : Vinh Khang Le - Applicant Crown - Respondent FILE NUMBER(S) : CCA 60084/03 COUNSEL : A P Cook - Applicant D Howard - Crown SOLICITORS : D Humphreys - Applicant S E O'Connor - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 00/11/0714 FILE NUMBER(S) : LOWER COURT Shadbolt DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60084/03

SHELLER JA JAMES J O'KEEFE J

Tuesday, 15 July 2003 R v Vinh Khang LE Judgment 1 SHELLER JA: The applicant, Vinh Khang Le, seeks leave to appeal from a sentence imposed upon him on 12 September 2001 by his Honour Judge Shadbolt after the applicant had been found guilty by a jury of one count of supplying not less than a large commercial quantity of heroin. The charge was laid under s25 of the Drug Misuse and Trafficking Act 1985. The maximum penalty prescribed by s33 of that Act is life imprisonment. The sentencing Judge was asked to take into account on a Form 1, one charge of goods in custody pursuant to s527C(1)(a) of the Crimes Act 1900. That offence carries a maximum penalty of six months imprisonment. It related to the applicant's possession of $4,000 cash being the sum of money found in his possession when he was arrested immediately after the supply of the heroin, the subject of the indictment. 2 Judge Shadbolt sentenced the applicant to twelve years imprisonment with a non-parole period of nine years commencing from 24 January 2000, which was the date upon which the applicant was arrested, and making him eligible for release to parole on 23 January 2009. 3 The sentencing Judge described the circumstances about which the jury must have been satisfied beyond a reasonable doubt in order to convict the applicant. For some time on 24 January 2000 police had been intercepting calls between the applicant and a woman called Cham, whose family name was also Le. These calls were in a crude form of code where bottles of wine and their prices were discussed. They began at 10.36 am and concluded with a call at 4.01 pm on the day in question. After the last of these conversations, the applicant was seen in a motor vehicle in the vicinity of Wentworth Park Road, Glebe. He entered a house at 29 Wentworth Street, Glebe carrying a black satchel. Soon afterwards the police officers observed him to leave. He walked to a car, QWB 896, parked nearby in Phillip Street, Glebe where he was observed to hand the satchel to one of the two occupants, Wei Mang, and then to walk towards his own vehicle. He was arrested as were the two occupants of the other car. The black satchel was found to contain $160,000. When the applicant was searched the amount of $4,000 was found on him. 4 Almost immediately the police raided the premises at 29 Wentworth Street. They were denied entry but heard taps running. It took them a minute or so to force their way in. In the kitchen they seized heroin weighing 28 grams from the kitchen sink. A knife, scales, blister packs of Panadine Forte and wet newspaper were also found in the house. The sink in which the heroin was found had had a tap running. Samples of water in drains were quickly secured and were found to contain traces of heroin. 5 Sergeant Nguyen listened to the tapes of the telephone conversations that day and identified one of the voices as being that of the applicant. Sergeant Nguyen had spoken to the applicant at Balmain Police Station where he had been held since his arrest. Sergeant Nguyen gave evidence of the price of heroin and the use of crude codes by Vietnamese drug dealers. 6 Judge Shadbolt described the Crown case as largely circumstantial. Its elements were