Cao v Regina; Phan v Regina; Nguyen v Regina

Cao v Regina; Phan v Regina; Nguyen v Regina - [2009] NSWCCA 273 - NSWCCA 2009 case summary — Zoe

[18]

Cao 9 Cao was born in 1975. He is the partner of Phan. He was educated in Vietnam until nine years of age and subsequently attended school in Australia. He left school after completing year nine of high school to work as a tailor in the family business. In 2002 he separated from his wife, with whom he has three children of primary school age. He had a problem with gambling, which he attributed as the reason for the breakdown of his marriage and for his initial involvement in this offence. His motivation was greed. The applicant expressed his remorse and in particular his sorrow for involving other members of his family. Her Honour accepted he genuinely regretted involving his two sisters and brother-in-law. Her Honour considered it difficult to assess his prospects for rehabilitation given the inevitably lengthy period he must remain in custody, but considered they would appear to be reasonable. Her Honour allowed a 25 per cent discount for an early plea. 10 Her Honour described the role of the applicants, Cao and Phan, as follows: "[Cao and Phan] were principals in this criminal enterprise. Each of them recruited couriers, financed the couriers airfares, expenses, and fees for the importation, liaised with the man Bay Chanh in Vietnam, who on behalf of the syndicate oversaw the couriers activities and their payment while they were in Vietnam, helped organise one of the other syndicate members to meet the couriers on their arrival in Perth, and to escort the suitcases to Sydney, organised two people to meet the courier Tan, who was expected to arrive in Darwin on 18 April 2006, maintained regular phone contact with the couriers while they were in Vietnam, maintained regular telephone contact with those who had been sent to meet the couriers on their arrival, and had telephone contact with people about the supply of the drugs and the payment of money. Peter Cao had other responsibilities in that he instructed Bay Chanh when to collect the suitcases with the heroin concealed inside from the supplier, Tan (the uncle) and to hand it over to the couriers, just prior to their return to Australia. He did not liaise personally with the uncle who supplied and concealed the heroin in the suitcases, rather Mr Cao liaised with his brother-in-law, Mr Vu, who in turn had direct contact with the man referred to as Uncle. In this way Mr Cao kept himself at arms length from the supplier and from the risks that direct contact would entail. He and Vu Khahn would then on-supply the heroin to various purchasers in Sydney."

[21]

Dung Vu 14 Vu was born in 1973 in South Vietnam. He married the Applicant Nguyen in January 2000. He led a fairly simple life in Vietnam, his parents being vegetable sellers at the market and he worked at their stall. He came to Australia in 2001. His marriage is apparently completely broken down. Her Honour found his prospects of rehabilitation were reasonable. He was charged with the same offence as Nguyen. He pleaded not guilty, went to trial and was found guilty. He was sentenced to 16 years imprisonment commencing on 12 December 2006 and expiring on 11 December 2022 with a non-parole period of 9 years and 6 months commencing on 12 December 2006 and expiring on 11 June 2016. 15 His role in the conspiracy, as found by her Honour, was: "On the evidence presented in his trial which the jury must have accepted, this offender's role in the agreement was to liaise directly with the heroin supplier and the person who concealed it in suitcases in Vietnam, a man variously referred to as Ong Lun, Than, Shortie, Mr Shortie, or 'the uncle' in the trial and the telephone intercepts. In late November 2005 the offender travelled to Vietnam and in fact he met with the supplier there. Thereafter he was the only person who passed on messages and received messages from him. That fact was established by means of telephone intercepts which were in existence on a large number of phones held by the various offenders. Some of the messages themselves were intercepted by the offender used his wife's telephone on which there was a lawfully obtained telephone intercept. The offender's own mobile phone or phones were never intercepted and the evidence in the trial established that he regularly changed his SIM card. The offender also travelled from Australia to Thailand from 24 January to 1 February 2006. He accompanied his wife when she went to meet the courier, Kim Ahn Ly in early February 2006. Quite clearly he had a crucial role in this criminal enterprise to import large quantities of heroin into Australia. His involvement related to the same importations as his wife, a total of approximately five kilos of pure heroin. While he has a different role to play from that of his wife I find that his level of responsibility is equal to hers, that of a trusted lieutenant. He was the person the principals, Cao and Phan entrusted to be the direct contact with the supplier of heroin in Vietnam."

[23]

In respect of count 2, this offender travelled to Vietnam in January 2006 on behalf of the syndicate and returned with heroin concealed in at least one suitcase on 5 February 2006. On the same day, she conveyed the heroin to Sydney. From the intercepted phone calls, it appears that she was paid $10,000 in addition to expenses in respect of this importation. In respect of the first count, she is to be sentenced on the basis that she was trusted to carry out in Perth the instructions and requirements of the syndicate heads who were based in Sydney. As to count 2, she is to be sentenced on the basis that she was a courier bringing more than the marketable quantity of heroin into Australia, approximately one kilogram." 18 The maximum penalty for these offences was imprisonment for 25 years and/or a fine of $550,000. The trafficable or marketable quantity was 2 grams of pure heroin. This offender pleaded guilty on the third day of her trial. Her sentences were reduced by 10 per cent for the pleas. She was convicted in respect of both counts and was sentenced, as to the first count, to imprisonment for 8 years to commence on 24 July 2006 and expire on 23 July 2014. As to count 2 she was sentenced to imprisonment for 8 years to commence on 24 July 2008 and expire on 23 July 2016. A single non-parole period of 5 years to date from 24 July 2006 and expire on 23 July 2011 was set. Her Honour found: "The youngest child was born when the offender was in custody and was removed from her after a few days. Naturally this is a matter of great distress to her and she would like to be included in the mothers and children program which allows children to remain with their mothers up until school age. The offender is not able to be included in such a program until she is sentenced. I heard evidence from Ms Belinda McInnes who has been the co-ordinator of this program for six years. She was not able to speculate about what decision would be made about the offender's application but there had been no problems with the offender's conduct while in prison. Ms McInnes did say that if the offender's non-parole period exceeded six years the process would be 'a lot more difficult'. While I cannot impose a non-parole period on that basis alone, it is a relevant factor. The evidence establishes that the offender's partner is having difficulty coping with the three children in Sydney, a city unfamiliar to him. He is 'struggling as a single parent'. That is not surprising as he has the sole care of an eight month old baby and two other school aged children, both of whom are apparently reacting to the absence of their mother and to the move from their previous home in Perth. I find the hardship occasioned to this family by the offender's imprisonment to be so exceptional that I am able to take it into account on sentence."

[40]

[COUNSEL]: Yes your Honour, it's a decision that I would not suggest to you that a great deal of time should be spent of considering that. I think the figure is perhaps a little high … In the other case of Tan the starting point I think is 10 years according to Judge Hughes and that may be a more realistic point from which to start." 32 It is clear from those comments that counsel for the applicants was aware of the quantity of the importations made by Ho and Tan and he regarded that information as forming part of the material to which he and the Court were entitled to have regard. He expressly dealt with the Crown's written submissions, but raised no objection to para 12 thereof, which expressly relied upon the actual quantities imported on the last two occasions. 33 In my opinion, it is clear that the sentencing hearing was conducted on the basis that the parties and the Court would have regard to the amounts of pure heroin imported by Ho on 28 February 2006 and by Tan on 18 April 2006. 34 The Crown submitted that the importation by Ho involved 1.9 kilograms of pure heroin and the importation by Tan on 18 April 2006 involved 862 grams of pure heroin. The average of the pure heroin contained in each of the three suitcases involved in those importations was 915 grams. If the average importation was 915 grams, then the total importation was 6,405 grams, which was within the range of her Honour's approximation. If her Honour's approximation of the total amount of heroin imported in the six known importations was considered to be an error, it was an error which was of little or no consequence to the sentencing of the applicants. 35 Counsel for Cao submitted that this Court should rely only upon the agreed facts and inferences therefrom and should find the amount of pure heroin imported was 4.5 kilograms, ie, 750 grams multiplied by six. 36 Counsel for Phan submitted that the Court should rely upon a total importation of 4.5 kilograms, or, if the actual figures for the last two importations were coupled with each of the four earlier importations, being of 750 grams pure heroin, a total amount of 5.762 kilograms resulted, which was materially and substantially different from the approximately 7 kilograms found by her Honour. 37 In R v Palu (2002) 134 A Crim R 174 Howie J (with whom the other members of the Court agreed), at [21], said: "… If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the courts which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP (1992) 28 NSWLR 593 at 606. All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court." 38 In this matter the actual amounts of pure heroin imported in the first four importations are not capable of being established other than by inference. The amounts imported in the last two importations are known. They provided the best evidence as to the approximate amount of pure heroin imported on the first four occasions. In my opinion, it is appropriate to take the average of the contents of the three suitcases involved in the last two importations to arrive at the most likely estimate of the amounts of pure heroin imported in the first four importations. 39 The resulting figure of 6,405 grams is, in my opinion, within the range of her Honour's approximation of 7 kilograms and no error has been demonstrated. Nor has any miscarriage of justice occurred, notwithstanding that her Honour's calculation may have been reached by a somewhat different route than has now been taken. These grounds of appeal accordingly fail.

[41]

Nguyen 40 Nguyen was concerned only with the last four importations. Her Honour held that these importations involved importation of approximately 5 kilograms of pure heroin. It was submitted that this finding was a finding of fact which was not open to her Honour and that, on the available evidence, it was only open to her Honour to find that those importations involved a total of 3 kilograms of pure heroin, being 75 grams in each of four suitcases. 41 Nguyen was present in court with Cao and Phan on 19 November 2007 when Exhibit A, which included the Crown's submissions, was tendered, and again on 22 February 2008 when she, Cao and Phan were sentenced. However, Nguyen's sentencing hearing occurred on 21 November 2007. She was not present at the sentencing hearing of Cao and Phan on 22 November 2007, when her Honour first referred to having received the sentencing remarks of McKechnie J and Hughes DCJ. 42 The transcript of Nguyen's sentencing hearing does not record any reference to the sentencing remarks in respect of Ho and Tan, or the amounts of pure heroin imported by them on 28 February 2006 and 18 April 2006 respectively. 43 However, Nguyen's counsel had received the Crown's submissions that contained reference to the importation by Ho and Tan and the total amount of pure heroin alleged to be imported by them. As he made no objection to these submissions (and they were referred to on a number of occasions, including by him), in my opinion, it should be concluded that Nguyen's sentencing hearing was conducted on the basis that the court could have regard to the statements in the Crown's submissions as to the actual amounts of pure heroin imported in the last two importations, without the necessity for formal proof of those amounts. If objection had been taken to this course, evidence relevant to the size of the shipments could have been led. In these circumstances and as there is no reason to believe that the statements in the Crown's submissions were inaccurate, Nguyen should be treated as bound by the manner in which the case was conducted before the sentencing judge (see generally Crampton v The Queen [2000] HCA 60; (2001) 206 CLR 161 at [12]-[20]; [47]-[52]; [150], [165]; Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166). 44 Adopting the calculations made in respect of Cao and Phan, the total importation of pure heroin for the last four importations is 4,575 grams. This is within the range of approximately 5 kilograms adopted by her Honour. 45 In my opinion, no error or miscarriage of justice has resulted from her Honour's finding of importation of approximately 5 kilograms. This ground of appeal fails.

[42]

Ground 2: Excessive 46 The sentencing judge held the enterprise was: "… a sophisticated and successful criminal enterprise of great objective gravity. The only motivation appears to have been the opportunity to make large amounts of money easily. Even after the arrest of the courier, Ms Ho, in February 2006 the offenders were not deterred from their chosen path other than temporarily. Had their activities not been brought to a halt by their arrest in May 2006, no doubt they would have continued in their endeavours." 47 The applicants submitted the sentences imposed were manifestly excessive. They sought to support that submission by reference to sentences imposed in earlier cases, including cases contained in the Schedule appended to the judgment of this Court in R v Lee. Senior counsel for Phan referred the Court to some additional cases which, as he observed, were not truly comparable. 48 There was also reference to the cases collected in the Schedule appended to R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340; 108 A Crim R 531. It was conceded, correctly in my opinion, that as those cases were concerned with couriers and low-level participants in importations they were of little assistance in the circumstances of the subject cases. This Court has also expressed doubts as to the continuing utility of those authorities: N v R; AP v R [2009] NSWCCA 108 at [38]. 49 The difficulty faced by the applicants in this regard was that her Honour had found the roles of Cao and Phan were those of principals, whilst the role of Nguyen was that of second in charge. Few of the cases referred to were concerned with persons so high in the hierarchy. Senior counsel for Phan observed, "I have been unable to find anything which is a truly comparable case, that is, cases post the repeal of s 16G [of the Crimes Act 1914 (Cth)]". It was accepted that her Honour could take into account that the importations in this case would have continued but for the arrest of the conspirators. 50 Two cases were reasonably comparable. 51 The first of these was Regina v Jack Chick Chen [2003] NSWCCA 328. Chen was either a principal or, at the least, a significant organiser in the hierarchy of a conspiracy to import heroin. 12.6 kilograms were imported in two air shipments. The imports would have continued but for the conspirators being arrested. A plea of guilty was entered. Chen was sentenced to a total of 31 years imprisonment with a non-parole period of 23 years. He received a discount of 20 per cent pursuant to s 16G. 52 The second of these was Lee. In Lee the offender had been charged with importing 76.3 kilograms of heroin in two shipping containers. He was in charge of the organisation in Australia, but not at the pinnacle. He pleaded not guilty but was convicted and on a Crown appeal, sentenced to a non-parole period of 18 years and 11 months with an additional term of 8 years and 6 months. This Court observed in that case, at [38]: "There is little, apart from the fact that he has no prior criminal history, to ameliorate the sentence and that is of minimal significance. But for the fact that this is a Crown appeal a non-parole period significantly in excess of 20 years was appropriate." 53 It was submitted that these cases were distinguishable, as the amount of heroin involved was much greater than that involved in the present case and the enterprises were more sophisticated. 54 However, as observed by the High Court in Wong v R at [67]-[69], the particular amount of narcotic involved can have significance in fixing the sentence to be imposed, but in many cases: "… a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved." 55 Sentencing involves a discretionary judgment. There is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime which applies: Markarian v R [2005] HCA 25; (2005) 215 ALR 213. 56 As there is no single correct sentence, it is necessary for the appeal court to evaluate the permissible range of sentence in the light of all the admissible considerations affecting the case in hand, and drawing upon its own accumulated knowledge and experience: R v Holder [1983] 3 NSWLR 245 at 254 in order to determine if the sentence imposed is so excessive as to manifest error. 57 As McClellan CJ at CL observed in Lee, at [37], in respect of the Schedule of Cases: "If comparisons are confined to sentences imposed after the repeal of s 16G of the Crimes Act it can be seen that offenders who, although not at the pinnacle, were key organisers or critical to the success of the operation received head sentences in excess of 20 years and a number received life sentences. Non-parole periods are also significantly greater than the 11 years imposed on the respondent." 58 An analysis of previous cases referred to does not cause me to conclude that the sentences for Cao and Phan were other than appropriate sentences for principals in a long-standing and ongoing conspiracy, the object of which was to make multiple importations of heroin. There is no conflict between these sentences and those imposed in earlier cases to which reference has been made. Similarly, the cases referred to do not cause me to conclude that the sentence imposed upon Nguyen was inappropriate. In my opinion, the sentences imposed upon the applicants have not been demonstrated to be manifestly excessive, particularly having regard to the fact that the offence attracts a maximum penalty of life imprisonment. 59 I reject this ground of appeal.

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