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 (1) the contents of the phone calls, (2) that the applicant was seen arriving and leaving with a black satchel, (3) when seized the satchel contained $160,200 and when the applicant was searched a further $4,000 was found, (4) the evidence of the raid at 29 Wentworth Street and the material found which included water taken from the drain. 7 Alternatively, there was a case based on direct evidence of the phone calls explained by the expert, Sergeant Nguyen, and the observations of police made of the applicant's conduct coupled with the evidence of what was subsequently found at the house. 8 The weight of the heroin involved was to be determined by the jury on the evidence disclosing the telephone calls and Sergeant Nguyen's opinion in respect of the contents of those calls. In the second of those at 10.41 am, it was arranged that three units or bottles be supplied, but by 11.26 am that number was increased to four units or bottles. These units were said by Sergeant Nguyen to represent 350 grams at a price of $47,000 to $48,000. The amount would represent 1.4 kilograms and it was upon this evidence that the Crown case as to a large commercial quantity rested. The money represented a price of $41,000 per unit. 9 The applicant gave no evidence. His counsel relied principally on the inadequacies of the Crown case regarding weight, both in the first count, that of a large commercial quantity for which the appellant was convicted, and the alternative second count of the commercial quantity. By their verdict, the jury rejected these submissions and was satisfied beyond reasonable doubt as to the weight of the heroin delivered. 10 Judge Shadbolt pointed out that the crime was so serious that the legislature had seen fit to enact a maximum penalty for its commission of life imprisonment. However, he did not regard the case to be the most serious of its type if judged by quantity alone. Much larger quantities were not beyond the bounds of possibility, nor in the execution of the crime were there any of those features which would heighten its seriousness irrespective of the amount. The police were confronted by two persons using mobile phones and talking in such obvious terms about the transaction that it could, in reality, hardly be regarded as a code. 11 Turning to the applicant's part in the enterprise his Honour said that it appeared that his task was arranging the sale, and delivery of the heroin and receiving payment for it. The evidence was that for this he received $4,000, the separate sum taken from him. The evidence supported the conclusion that he was a sales and delivery man but did not go further. His Honour thought that the persons in the car were, in all probability, higher in the hierarchy than the applicant. 12 His Honour identified problems of appropriate sentencing for reason that the Judicial Commission figures of comparative figures were scant. The judgment of R v Wong & Leung (1999) 48 NSWLR 340 was referable to Commonwealth offences with which the categories of punishment under the Drugs Misuse and Trafficking Act did not precisely equate. His Honour remarked that as the law stood from the cases relied upon by the Crown, thirteen years and four months appeared to be the heaviest sentence imposed in R v Pauna (unreported) CCA 2 December 1997. The Judicial Commission figures indicated ten years as being the most applied head sentence. His Honour said: "If reliance in these circumstances could be placed on [ Wong ] it would appear by weight alone that his offence would represent a high range trafficable quantity exposing the prisoner to an appropriate sentence of somewhere between 7 and 10 years following a plea of guilty." 13 His Honour continued: "The sentencing of [the applicant] is complicated firstly by the fact that this is a conviction following trial and secondly that [the applicant] has already been in prison for aid and abet supply of a large commercial quantity when he was sentenced to two years and six months with an additional term of 10 months on 15 December 1993." He must be regarded under these circumstances as a repeat offender and the range suggested by the Court of Criminal Appeal in Wong and Leung is therefore not applicable. 14 The applicant's pre-sentence report, while stating that he was no longer addicted, was, in other respects, bleak and uninformative. He came to Australia in 1984 as a refugee with his brother. He was divorced. He had little contact with members of his family. He denied involvement in the crime saying that he was only visiting the sister of a friend when arrested. 15 He admitted he abused illicit substances stating that he had been smoking heroin for about one and a half years before his arrest. He claimed he used his income to finance his addiction. He had never sought assistance to give up his substance abuse. In gaol he had not attended drug counselling, claiming that since he had detoxified he did not need drugs nor assistance in staying away from them in the future. Under summary and sentencing options it was said: "Mr Le appeared to have had a difficult childhood with civil war and poverty a feature of his formative years. He is still close to his family but he appeared to have his own separate and non traditional life. Whilst in interview Mr Le was friendly and open, he appeared to have little insight into his abuse of illicit substance and no goals for his life." 16 Judge Shadbolt said: "Less the prisoner harbours some sense of grievance that he has been more severely dealt with than Le Cham it should be pointed out that this woman was indicted under a different section carrying a lesser penalty and pleaded guilty. Further, she did not have a record for drugs but one for dishonesty. She was sentenced to 6 years imprisonment with a 4 year non-parole period." 17 Counsel made no submission about special circumstances. There was no evidence of any matter which could be regarded as a special circumstance. The applicant was a single man without dependants in apparently good health who had been in prison before, who had rendered the State no particular service and would not be at any known disadvantage in serving his term. He had shown no contrition and had made no promise of reform. Accordingly, his Honour found no special circumstances. Taking these matters into account his Honour imposed the penalty to which I have referred. 18 The application for leave to appeal was put on behalf of the applicant by Miss Flannery of counsel and it was put, if I may say so, with care and skill and with careful attention to what was a very difficult matter. The substance of the application for leave to appeal was that whilst the offence merited a heavy penalty, the sentence, in all the circumstances, was manifestly excessive. 19 It was pointed out that the applicant was thirty-three at the time of the offence having been born in Vietnam to Chinese parents. His parents and three of his siblings live in Vietnam. He and a brother had come to Australia in 1984 as refugees. He was married in 1989 and divorced in 1994. He had no children. His education was virtually non-existent. He never attended any formal school. He had to work from a young age and helped to support his family, who were poor. He was not literate in any language. His employment since arrival in Australia had been limited to short periods of casual work. He had developed a dependency on heroin about eighteen months before the commission of the offence. Whilst being in gaol in relation to the offence he had obtained a Certificate in Competency in Hairdressing and Universal Infection Control Procedures. 20 It was submitted on his behalf that for a person at the point of "a sales and delivery man" whose reward was some $4,000, a twelve year sentence was excessive, notwithstanding his previous conviction for a related style of offence. Miss Flannery referred us to the statistics produced by the Judicial Commission of New South Wales. Reference was made to the statistics for the head sentences/full term for supplying a prohibited drug, including deemed supply of heroin in a large commercial quantity, and for the non-parole periods for like offenders. It was submitted that the applicant had been sentenced both in terms of head sentence and non-parole period to periods which were right at the top of the scale. 21 Reliance was placed on other cases: R v Pham [2001] NSWCCA 307, a case in which the accused pleaded guilty to supply of not less than a large commercial quantity of heroin and was sentenced also on two counts of supplying a prohibited drug (heroin) and one count of supplying 5.2 grams of the prohibited drug methylamphetamine. The amount of heroin, the subject of the first charge, was 2.1 kilograms of heroin. The Court of Criminal Appeal observed: "It is also clear that he occupied a significant role in a well organised and sophisticated operation for the supply of drugs in a quantity, and in circumstances, which were only consistent with its occurrence at a wholesale and not a street level. The number of persons used, the steps taken to avoid detection, and the awareness of those involved as to the risk which they were undertaking attests to that fact." 22 On a plea of guilty he received a total sentence of ten years and six months with a non-parole period of seven years and eleven months. He was thirty at the date of the offence and had a previous criminal history for matters including burglary, theft, obtaining money by deception and making false statements. He had previously served a term of imprisonment. 23 Reference was also made to Hameed (2001) 123 A CrimR 213. The accused was sentenced on two counts of supplying a large quantity of heroin and one count of supplying a commercial quantity. Two counts of supplying a large commercial quantity of heroin were taken into account on a Form 1. He was considered to be, from the Court's view, at the middle-man level. He pleaded guilty and gave some assistance to the authorities. He received a total sentence of seven years and six months, with a non-parole period of five years and six months. 24 In R v Cheng [2002] NSWCCA 225 the accused was convicted of conspiracy to supply a large commercial quantity of heroin. The amount was 2 kilograms with an overall average purity of 73.6 per cent. Ms Cheng pleaded not guilty but was found guilty after a trial. She had no previous criminal history. She was twenty-six years old. She was considered to be at a level of upper middle-man in the relevant hierarchy of offenders. She was sentenced to fourteen years with a non-parole period of eight years. On appeal, this was considered to be manifestly excessive and reduced to twelve years imprisonment with a non-parole period of seven years. 25 It was submitted that considered against the sentences imposed in these cases, a total sentence of twelve years with a non-parole period of nine years, notwithstanding the plea of not guilty and the earlier record, was manifestly excessive in the present case. It is to be observed that in Cheng the Court determined there were special circumstances arising from the applicant's prior absence of any record of criminal offences, her relative youth and the model fashion in which she had behaved whilst in custody. Thus, it seemed that the applicant's prospects for successful rehabilitation were high. This Court said that the starting point, when considered against the maximum available, fourteen years was at the top of the range but not beyond the range. 26 The Crown submitted that it was difficult to see any real distinction between the role of the applicant in this matter and the role of the applicant in Pham. Pham pleaded guilty and received a 25 per cent discount for this, combined with contrition from a fourteen year starting point. Pham's antecedents did not include any previous matters relating to drug supply. In that case Wood CJ at CL said: "40 No greater threat is posed to the community, and to its young, than that which is presented by those who stoop to engage in this evil trade. Inevitably such offenders are selfishly heedless of the disastrous consequences which narcotics have for the law and order and health budgets for those who fall into their snare as users, and for their families, who suffer the despair and anxiety associated with the inevitable degradation which follows. 41 The stakes in the drug trade are high, but so are the risks. Any person who seeks to enter into this trade must accept those risks which inevitably include the fate of a heavy sentence of imprisonment if caught." 27 In the present case the applicant did not plead guilty, had shown no contrition and made no promise to reform and denied any involvement in the crime. Furthermore, he had a prior conviction for aiding and abetting the supply of a large commercial quantity of heroin. He had not attended drug counselling in gaol and had never sought assistance to give up his substance habit. 28 Hameed had pleaded guilty at the first opportunity and was afforded a significant discount for that and a further discount for providing what the report described as a very substantial and productive assistance to the authorities. There were additional charges involved but they were part of a series of transactions. The accused had no significant "priors" and no previous conviction for a similar offence. He was serving his sentence on protection with the likelihood of remaining on the witness protection scheme after his release. The discount seems to have been in the order of 50 per cent. 29 Paying full account to the material before the sentencing Judge and a comparison with the cases relied upon, and also taking account of the statistics to which Miss Flannery referred, there is no doubt that the sentence imposed in this case was a severe one at the top end of what is regarded as the appropriate scale. Having said that, however, I am not persuaded, in the circumstances which I have outlined, that the sentence imposed ranged outside the scope of a proper exercise of his Honour's sentencing discretion. 30 Accordingly in the present case, I would grant leave to appeal but I would dismiss the appeal. 31 JAMES J: I agree with the reasons given by the Presiding Judge and with the orders proposed by the Presiding Judge. 32 O'KEEFE J: I too agree. 33 SHELLER JA: The order of the Court is that leave to appeal is granted but the appeal is dismissed. ********** Last Modified: 07/23/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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