Le v R (Cth) [2010] NSWCCA 285

New South Wales Court of Criminal Appeal

CITATION: Le v R (Cth) [2010] NSWCCA 285

HEARING DATE(S): 17 November 2010

JUDGMENT DATE: 7 December 2010

JUDGMENT OF: Simpson J at 1; Price J at 47; Howie AJ at 48

(i) extension of time to file the application granted; (ii) leave to appeal against each sentence be granted; DECISION: (iii) the appeals against the sentences with respect to the first and third counts be dismissed; (iv) with respect to the sentence imposed on count 2, the appeal be allowed, the sentence quashed, and the applicant be re-sentenced to imprisonment for 12 years and 6 months, with a non-parole period of 8 years and three months. The earliest date on which the applicant will be eligible for release on parole will be 13 March 2015.

CATCHWORDS: CRIMINAL LAW – particular offences – drug offences – import traffickable quantity of prohibited drug (heroin) – trafficking commercial quantity of controlled drug (heroin and methamphetamine) – money laundering – CRIMINAL LAW – application for extension of time for leave to appeal – appeal against severity of sentence – role of applicant – not principal – no error in assessment by sentencing judge – CRIMINAL LAW – disparity in sentence with that of co-offender – larger disparity warranted – applicant re-sentenced

LEGISLATION CITED: Criminal Code 1995 Customs Act 1901

CATEGORY: Principal judgment

PARTIES: Hong Phong Le (Applicant) Regina (Cth) (Respondent)

FILE NUMBER(S): CCA 2008/7209

COUNSEL: S Odgers SC (Applicant) L Crowley (Respondent)

SOLICITORS: Greg Goold (Applicant) Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0399

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 25 September 2008

IN THE COURT OF CRIMINAL APPEAL 2008/7209

SIMPSON J PRICE J HOWIE AJ

7 December 2010 Hong Phong LE v R (Cth) Judgment 1 SIMPSON J: The applicant seeks an extension of time to apply for leave to appeal against sentences imposed upon him in the District Court on 25 September 2008 following his pleas of guilty to three charges brought against him by the Commonwealth Director of Public Prosecutions ("CDPP"). The charges to which the applicant pleaded guilty were:

● conspiracy to import a traffickable quantity of a prohibited import (heroin), committed between 28 November 2005 and 23 May 2006;

● conspiracy to traffic in a commercial quantity of controlled substances (heroin and methamphetamine), committed between 6 December 2005 and 23 July 2006;

● conspiracy to deal with money, to the value of $1,000,000 or more, intended to be an instrument of crime, committed between 28 November 2005 and 27 June 2006. 2 Pursuant to s 233B(1)(a)(iii) of the Customs Act 1901, the first and third offences carry maximum penalties of imprisonment for 25 years; pursuant to s 302.2(1) and s 400.3(1) of the Criminal Code 1995 respectively, the second offence carries a maximum penalty of imprisonment for life. 3 On each of the first and third counts, Berman DCJ sentenced the applicant to imprisonment for 7 years; on the second count, he sentenced the applicant to imprisonment for 13 years and 6 months. He ordered that all sentences commence on 14 December 2006, and be served concurrently. He specified a single non-parole period of 9 years, to expire on 13 December 2015. The non-parole period was thus fixed, in accordance with convention, at 66.6 per cent of the head sentence. 4 The appellant raises two grounds of appeal:

(1) that the sentences are manifestly excessive;

(2) that, by reason of disparity between the sentences imposed upon the applicant, and a sentence imposed upon a co-offender, Khanh Hoang Tran, he has a legitimate sense of grievance.

The facts 5 The facts were put before the sentencing judge by way of an agreed statement. That statement is lengthy and detailed. It discloses that, from November 2005 until his arrest on 14 December 2006, the applicant was intimately involved in a drug importing and distributing syndicate. The syndicate became known to investigating authorities as the "Ken syndicate". 6 The Ken syndicate was so named because its principal was Khanh Hoang Tran, who was also known as "Ken" or "Kenny". Although the syndicate was based in Sydney, and apparently received shipments of drugs in this city, it couriered the drugs to Melbourne where they were sold. Money was remitted by Melbourne buyers to Sydney. 7 The statement of facts records nine individual incidents in which the applicant was actively involved. In November 2005, he and another man travelled to Germany, where they recruited a third man, Patrick Springer, to travel from Vietnam to Sydney with a quantity of heroin internally secreted in his body. Springer did so, although with only about one-third (80 grams) of the quantity intended, having left the remainder in a hotel in Vietnam out of fear of the risk created by the large quantity. 8 On his arrival in Sydney, Springer was arrested and charged with importation of a border-controlled drug. He identified the applicant from a photo board, and provided information, confirming the applicant's role and that of others. After Springer's arrest, the applicant attempted to locate him, in order to ascertain whether he had been arrested. 9 In February and early March 2006, the applicant made arrangements for the delivery, by two couriers, of two 350 gram blocks of heroin and 1 kilogram of crystal methamphetamine to Melbourne, for a price of $150,000 for each of the heroin blocks. The price of the methamphetamine is not disclosed. The couriers did deliver the crystal methamphetamine, and approximately 1 ounce of heroin (worth $10,000) but reported that the remainder of the heroin had been stolen. The applicant was actively involved in making the arrangements for the supply and transport of the drugs, and the aftermath of the alleged theft. 10 In March and April the applicant was in Vietnam, where he was involved in making arrangements for heroin to be brought to Australia. Until June of 2006, the applicant continued to arrange and supervise the supply of heroin and methamphetamine. 11 Members of the Ken syndicate used money remittance businesses in Sydney and Melbourne to transfer money for drugs. Tran and the applicant had general oversight of these arrangements. Between 5 December 2005 and 22 July 2006, in excess of $4,700,000 was dealt with in this way. Approximately $515,000 was sent to Vietnam. The applicant's participation in these arrangements constituted the money laundering offence. 12 An "incident amount schedule" annexed to the agreed statement of facts showed that approximately 3.5 kilograms of bulk heroin and 2.3 kilograms of bulk methamphetamine were known to have been dealt with by the syndicate between December 2005 and June 2006. The commercial quantity applicable to heroin is 1.5 kilograms pure. The commercial quantity applicable to methamphetamine is 750 grams pure. For the most part, the precise purity of the drugs the subject of the transactions is not known.

The applicant's personal circumstances 13 Evidence of the applicant's personal circumstances was put before the sentencing judge by way of a Pre-Sentence Report, a psychologist's report provided by Mr W John Taylor, a letter written by the applicant directed to the sentencing judge, and letters from his mother and brother. The applicant gave oral evidence, as did Ms Thi Kim Phong Nguyen, the applicant's partner with whom he has been involved since June 2006, and with whom he has, since his arrest and incarceration, participated in "a commitment ceremony". From this evidence the following emerges. 14 The applicant was born in September 1979 of Vietnamese parents, but in a Malaysian refugee camp, they having fled Vietnam in 1978. In 1979 the family was sponsored by a Canadian couple and granted refugee status in Canada. They were given Canadian citizenship in 1984. A younger brother was born about two years after the applicant. 15 The applicant and his brother were raised and educated in Canada. In Canada the applicant attained the equivalent of the Higher School Certificate and thereafter secured employment as a Martial Arts instructor, and an insurance sales representative. The applicant began using cannabis at age 17, and cocaine at 21. He enrolled in a Diploma of Finance in 2001. 16 In 2004 all of the members of the family came to Australia on 12-month tourist visas, during which time they travelled to Vietnam. The applicant and his brother were granted working holiday visas in Australia. 17 The psychologist, Mr Taylor, excluded any personality disorder, but considered that the applicant has some instability in his personality adjustment, and a drug abuse disorder. In custody, he is suffering from depression. 18 Mr Taylor assessed him as of at least average intellectual ability, and as of low-moderate risk of recidivism. 19 In Australia the applicant met Khanh Hoang Tran, who was a casual boyfriend of his mother's sister. To the applicant's observation, Tran was "really well off"; he paid for restaurant meals, drove an expensive car, and always had a lot of money to spend. With Tran the applicant discussed his own previous drug taking and he thus became aware that Tran was also a drug user. Tran supplied the applicant with some heroin, which the applicant had never before used. The applicant began assisting Tran in what he described as "errands". Tran introduced the applicant to methamphetamine, to which the applicant quickly became habituated. He also quickly became heavily involved in Tran's drug business, and became a senior and integral part of it. At times when Tran was incapacitated by drug use, the applicant filled his role. 20 The applicant said that he also developed a gambling habit, for which he sometimes used Tran's money. As a result of that and his drug use, he came to owe Tran a considerable sum of money. 21 In about July of 2006 the applicant wanted to extricate himself from involvement, and approached Tran in order to arrange this. He also spoke to his aunt and uncle, to seek their help. Tran would not agree to his ceasing his activity, and told him that he owed a sum that the applicant had no way of repaying. 22 To the author of the Pre-Sentence Report, to Mr Taylor, and to others, and in his evidence, the applicant expressed regret and remorse for his involvement. Mr Taylor assessed this as "quite genuine", as did, in his Remarks on Sentence, the judge. 23 On 13 March 2008 the applicant signed a lengthy statement that runs to 283 paragraphs. I mention its length because it is obvious that the statement is the result of prolonged consultation and conferences with law enforcement officers. The applicant has signed an undertaking to provide assistance, which includes provision of information and giving evidence in proceedings against other offenders. He gave evidence that he intends to comply with that undertaking. His assistance was assessed as "valuable, accurate and genuine". As a result, the applicant is serving his imprisonment in special protection, in circumstances that impose significant limits upon his association with others, and even some limitations upon his access to educational facilities. Notwithstanding that, he is undertaking a real estate licensing course by correspondence.

The Remarks on Sentence 24 The sentencing judge recounted the circumstances of the offences. He paid particular attention to the role in the ongoing enterprise played by the applicant. He said: "Matters progressed to the stage where the offender became Kenny's right hand man, or lieutenant, or secretary. I have described Kenny as a 'Mr Big'. The offender became a 'Mr Big Enough'. The offender worked closely with Kenny, carrying out his instructions and directions concerning money laundering, drug trafficking and drug importing." 25 He noted that the syndicate appeared to have been "well organised and very productive". Later, he said: "The offender played the role I have identified, of Kenny's right hand man, enthusiastically and, it appears, efficiently. The syndicate was very successful, at least partly due to the offender's ongoing illegal conduct … the offender's illegal conduct in this case appears to have involved perhaps thousands of individual illegal acts. He was an essential part of the syndicate's operations. At times Kenny was affected by drugs and so his ability to carry on the operation was compromised. On these occasions it seems that the offender had to step in and take control."

There was no challenge to the sentencing judge's assessment of the role played by the applicant. 26 His Honour also recounted the evidence concerning the applicant's personal circumstances. He considered the applicant's attempts to extricate himself to be "a matter in his favour". He noted the restrictions imposed upon the applicant's conduct whilst in custody to which I have referred above. He noted that a number of others involved in the syndicate had been sentenced, but also noted that they were charged with individual offences, and not the ongoing conspiracies, to which the applicant pleaded guilty. He considered, therefore, that parity considerations had little application. (At that time, Tran had not been sentenced.) 27 Having regard to what he called "a substantial overlap" between the three offences, and that the first and third offences were "really subsets" of the second offence, he determined to impose wholly concurrent sentences. He found the rehabilitation, contrition and remorse to be "very genuine". He also determined to allow a reduction in sentence, referable to both the plea of guilty and the assistance given by the applicant, of 50 percent. In this respect, he said: "If this case had not involved the offender's plea of guilty in assistance to the authorities it might well have been a case where the offender was sentenced to life imprisonment. As I said, the offender may not have been 'Mr Big', but he was 'Mr Big Enough'. There is no rule that life imprisonment is reserved only for the 'Mr Bigs' of the drug trafficking and importation world. The offender's substantial involve[ment] objectively, as I mentioned earlier, may well have been enough to put him in the category of a case where life imprisonment is appropriate. However, not only is there the plea of guilty and assistance but the very genuine rehabilitation, contrition and remorse."

He then imposed the sentences of 7 years in respect of the first and third counts, and said: "On count two, after discounting the sentence I would otherwise have imposed by fifty percent to reflect the plea of guilty and assistance, the offender is sentenced to imprisonment for thirteen and a half years to date from 25 September 2006. I set a non-parole period of nine years which will expire on 24 September 2017 …" 28 It is appropriate to mention here that the applicant subsequently, on 29 May 2009, appeared before Solomon DCJ for sentence in respect of other matters, charged under NSW legislation. These were three charges of demanding money with menaces, committed in July 2006. Although this Court was told that these were unrelated to the offences the subject of the present application, each was alleged to have been committed in company with Tran, and with another man, and were drug related offences. As will appear below, Tran was charged identically. It seems unlikely that these offences were unrelated. On each count, Solomon DCJ sentenced the applicant to imprisonment for 3 years and 3 months, with a non-parole period of 2 years, commencing on 29 May 2009 and therefore wholly concurrent with, and subsumed in, the sentences the subject of this application. The sentences imposed by Solomon DCJ are not presently in issue.

The co-offender Khanh Hoang Tran 29 Of more importance for present purposes, having regard to the second ground of appeal, are the sentences imposed upon Tran, who was also sentenced by Solomon DCJ, on 11 December 2009. Tran pleaded guilty to offences identical to those to which the applicant pleaded guilty. 30 Solomon DCJ described Tran as "at the top of the hierarchy", and "the principal", a view entirely in accord with that taken by Berman DCJ. In relation to Tran's role vis-a-vis that of the applicant, Solomon DCJ said: "As to the role of the offender, I have indicated that I regard the offender as being at the top of the hierarchy of the organisation and as such his managerial and decision making function make him more culpable than those lower in the hierarchy, including that of his co-offender Hong Phong Le." 31 At the time Solomon DCJ was imposing sentence, the applicant had been sentenced by Berman DCJ, and his sentencing remarks were available to Solomon DCJ. In that respect, Solomon DCJ said: "I wish to make the following comments insofar as parity is concerned. I find the offender [Tran] to be at the very top of the hierarchy in relation to each of the conspiracy offences and I regard Le to be his first lieutenant. Further, I find that this offender was involved in the trafficking of drugs prior to Le's involvement with such trafficking. Further, I have found that this offender is entitled to a discount of forty per cent for his plea of guilty and for the assistance given to authorities whereas Le was given a discount of fifty per cent."

The view taken by Solomon DCJ of the relative roles of Tran and the applicant is consistent with the findings made by Berman DCJ. 32 In respect of Tran, Solomon DCJ found contrition, remorse, and co-operation with law enforcement authorities. He described Tran's criminality as "very high", and the objective seriousness "at the high end of the scale of objective seriousness for the offences". He noted that Tran had some criminal history, but that did not involve drugs, and had not resulted in any custodial sentence. 33 It is of some interest to note that, also before Solomon DCJ, were three counts of demanding money with menaces, in each of which the applicant was named as a co-offender. They are plainly the same offences as those for which Solomon DCJ sentenced the applicant. With respect to the offence of conspiracy to traffic in not less than the commercial quantity of controlled drugs, Solomon DCJ sentenced Tran to imprisonment for 18 years, and specified a non-parole period of 11 years. In doing so, in recognition of Tran's plea of guilty, and assistance he had given, he allowed, as he had indicated he would, a reduction of 40 per cent.

The grounds of the application 34 The first ground advanced on behalf of the applicant is that the sentences are manifestly excessive. Although, when asked, senior counsel who appeared for the applicant initially told the Court that the application concerned only the sentence imposed in respect of the second count, he retracted that and maintained that the application concerned all three sentences. No separate argument was advanced with respect to the sentences imposed for the first and third counts; the entire focus of the argument was upon the sentence imposed in respect of the second count. I have no difficulty in rejecting the contention that the sentences imposed in respect of the first and third counts were manifestly excessive. 35 Nor do I have any such difficulty in respect of the sentence imposed for the second count. 36 As will be apparent, the starting point for the sentence was imprisonment for 27 years, against a potential maximum of life imprisonment. Indeed, Berman DCJ took the view that a sentence of life imprisonment was one that was open, having regard to the extent of the applicant's criminality. 37 In support of the contention of manifest excess, senior counsel pointed out that the applicant was not the, or a, principal in the enterprise, although he was a "lieutenant"; that the quantities of heroin and methamphetamine, while well in excess of the commercial quantity specified for each drug, was not massively so, and that much of the drug appeared to be of poor quality (ie of low purity); that the applicant became involved in the conspiracy as a drug user himself; that the applicant attempted to cease his participation prior to discovery; that the applicant has no prior criminal record; that the applicant was, as was accepted, remorseful. 38 All of these are relevant considerations, and all were properly taken into account by the sentencing judge. The fact remains that the objective criminality of the applicant's offence was very high, and he occupied a trusted and active position in the drug dealings. 39 I would reject this ground of the application.

Ground 2: parity 40 As indicated above, Tran was, after reduction, sentenced to imprisonment for 18 years with a non-parole period of 11 years. Given the reduction of 40 percent, the starting point was 30 years with a non-parole period of 18 years and 4 months. There were significant variations between the two offenders, exclusively in favour of the applicant. 41 As is clear from what has been said above, Tran was more culpable in the sense of his role in the enterprise, had been involved in it for longer, had in fact recruited the applicant, and had taken advantage of the applicant's drug dependency, and had some prior criminal record (although, apparently, not sufficient to be of any real materiality). 42 In my opinion, those circumstances did warrant a larger disparity between the two sentences, such as to give rise to a legitimate sense of grievance in the applicant. 43 Accordingly, I propose that leave to appeal ought to be granted, and the appeal ought to succeed on this ground, and the applicant's sentence ought to be reduced in order to reflect the appropriate relativity. I emphasise that this comes about not by reason of any error on the part of Berman DCJ. It comes about by reason solely of the principle relating to parity of sentencing co-offenders, and the subsequent sentence imposed upon Tran. The sentence I propose will have a starting point, before reduction by 50 per cent, of 25 years, with a non-parole period of 16 years and 6 months. 44 In re-sentencing, I would maintain Berman DCJ's proportion between the head sentence and the non-parole period. 45 I propose the following orders:

(i) extension of time to file the application granted;

(ii) leave to appeal against each sentence be granted;

(iii) the appeals against the sentences with respect to the first and third counts be dismissed;

(iv) with respect to the sentence imposed on count 2, the appeal be allowed, the sentence quashed, and the applicant be re-sentenced to imprisonment for 12 years and 6 months, with a non-parole period of 8 years and three months. 46 The earliest date on which the applicant will be eligible for release on parole will be 13 March 2015. 47 PRICE J: I agree with Simpson J. 48 HOWIE AJ: I agree with Simpson J. **********

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