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[2019] VSCA 80
General information, not legal advice.
Court of Appeal (Vic)
2019-04-10
Beach JA, McLeish JA, Weinberg JA
Original judgment source is linked above.
R v Le (Unreported, County Court of Victoria, Judge Hampel, 17 May 2018)
CRIMINAL LAW - Appeal - Sentence - Importation of commercial quantity of border controlled drug - 3.689 kilograms of pure heroin - Plea of guilty - Sentenced to 10 years' imprisonment with non-parole period of 6 years and 6 months - Whether findings of fact adverse to applicant as to her level of involvement in importation open on evidence - Nguyen v R [2011] VSCA 32; considered - considered - Findings of fact open - Sentence moderate in any event - Leave to appeal refused.
Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
1 On 4 December 2017, the applicant pleaded guilty to having imported a commercial quantity of heroin. She was sentenced to a term of 10 years' imprisonment, with a non-parole period of 6 years and 6 months. Her plea came late, having been entered after 12 days of pre-trial hearings.
2 The applicant now seeks to rely upon a single ground of appeal, albeit one which is expressed in elaborate terms:
The learned sentencing judge overstated the role, culpability and degree of involvement of the applicant in the offence by misapplying, or failing, to apply principle and/or making findings that were not open on the evidence.
Particulars
3 On 29 October 2016, a consignment of machinery parts arrived in Melbourne, by ship. On 9 November 2016, Customs detected a quantity of heroin in that consignment. Subsequently, after the heroin had been removed, and replaced with an inert substance, a controlled delivery took place. Three men, Tung Nguyen (Tung), Anh Tran (Tran) and Van Nguyen (Van), were arrested.
4 The heroin had been concealed in a consignment of machinery parts. By the time the men were arrested, neither the machinery parts, nor the inert substance, were still in their possession.
5 One of the men, Tran, had received a number of messages linked to the arrangements for delivery of the shipment. Those messages had passed between the applicant and himself.
6 On 18 January 2017, the applicant was arrested at Sydney Airport just as she was about to fly out of Australia, on her way to Vietnam. She was questioned, but released without charge. She flew to Vietnam the following day.
7 On 27 February 2017, after her return to Australia, the applicant was re-arrested in Sydney, and remanded and extradited to Melbourne. She was charged with the importation of a commercial quantity of heroin. She has been in custody since that date.
8 The applicant originally pleaded not guilty to the charge of importation. Tung, Tran and Van were each charged with attempted possession of a commercial quantity. This was on the basis that the heroin originally imported into this country had been replaced with the inert substance before they took possession of the consignment.
9 The applicant's trial was listed to commence on 13 November 2017. It was originally to be a single trial involving all four accused. As indicated, there was lengthy pre-trial argument.
10 The applicant's counsel argued, among other things, for the exclusion of her record of interview. This was on the basis that the translation provided was so inaccurate that it would be unfair to permit the interview to be led. That application was successful. As a result, the prosecution could no longer rely upon a number of answers which were said to be lies, and to constitute 'incriminating conduct'.
11 During that pre-trial hearing period, the prosecution reassessed its case against the applicant. It seems that it arranged for a number of telephone intercepts, involving conversations in Vietnamese, to be translated into English.
12 It was decided, after this had been done, to recast the case against the applicant. An amended summary of the prosecution opening, for trial, was filed in order to reflect the proposed changes.
13 Originally, the charge of importation brought against the applicant had been put on the limited basis that what she had done with regard to the consignment, after its arrival in Australia, was sufficient to render her liable for its importation. In its recast form, the prosecution case was put more broadly. It was alleged that the applicant had actually imported the heroin - that is, played a major role in relation to its importation into this country.
14 When the applicant, having been confronted with the additional evidence upon which the prosecution now proposed to rely, finally pleaded guilty, her counsel did not, at that stage, indicate that the applicant would challenge the basis upon which the case against her was now being put. It was not until the third day of the plea that counsel first raised with her Honour a concern that the newly recast case might be presenting the applicant in an objectively worse light, so far as her involvement in the enterprise was concerned, than the evidence actually supported. Indeed, at one point, counsel submitted that the applicant had little autonomy or decision-making power, and had been acting under instruction. He acknowledged however, that the judge would have to accept the applicant's evidence in order to arrive at that finding.
15 The applicant's plea hearing was adjourned to the end of the trial of the co-accused. That trial subsequently ran, and all three were acquitted.
16 The applicant's plea was originally estimated to run for about a day. In fact, it ran for four days, on 19, 21, 22 and 23 February 2018. The prosecution filed a plea opening which, by and large, replicated the amended trial opening.
17 In essence, the matters raised on behalf of the applicant in the course of the plea put in issue the following contentions put forward by the prosecution in the plea opening:
18 On behalf of the applicant, it was submitted that she should be sentenced on a quite different, and narrower, factual basis:
19 As we have said, in the amended trial opening, it was clear that the prosecution was putting its case on the basis that the applicant was the importer of the drugs. The opening identified various items of evidence, and the inferences that it was submitted should be drawn from those items of evidence, to make good that contention. We emphasise that the plea of guilty to the offence of importation had been entered after the prosecution had provided its amended opening, and the entirely recast basis upon which it rested.
20 In essence, the only significant matter contained in the prosecution opening on the plea, which had not been in the amended trial opening, was the assertion that not only had the applicant imported the heroin, but that she was the principal behind that importation. The evidence relied upon to make good that contention was the same as that relied upon to make good the contention that the applicant had imported the heroin.
21 The applicant gave sworn evidence about her involvement with the consignment, and her personal circumstances. The parties then filed written submissions, and made additional oral arguments.
22 The sentencing judge outlined why she ultimately arrived at the factual conclusions that she did. Her Honour noted that on 29 October 2016, a crate had landed in Melbourne on board a ship from Bangkok. The crate was transported to a warehouse where it was examined by Customs. It contained 10 hydraulic arms, essentially lifting devices. Two of those hydraulic arms had heroin concealed within them. There was just under 10 kg of bulk powder yielding a total weight of 3.689 kg of pure heroin. The wholesale value of that heroin was said to be between $1.26 and $1.82 million.
23 It seems that AV United Pty Ltd (AV), a Melbourne based import/export company, occasionally engaged the services of Dung Anh Le (Dung), a Vietnamese based freight forwarder.
24 Early in October 2016, Dung approached AV and arranged for it to take delivery of a consignment from Thailand. This was to be on behalf of another client of Dung, who did not have the capacity, or expertise, to deal with such an importation. AV agreed to act in the matter. It subsequently discovered that another Melbourne based company, SH Plastic Recycling Pty Ltd (SH), was the designated consignee of the crate. AV asked Dung why he had sought its assistance, given that SH was listed as the consignee. Dung replied that SH had refused to assist in the matter.
25 Dung instructed AV to deliver the consignment, after it had cleared Customs, to a Sydney address. He gave AV a contact name, 'Malisa', and a contact number. AV told Dung that the cost of delivery to Sydney would be considerable, given the weight and size of the consignment.
26 Several days later, Dung instructed AV to deliver the crate to an address in Melbourne. Dung gave AV the name 'Jessica Wong' as the contact. However, the contact number given was the same as that previously provided for 'Malisa'.
27 As we have said, the heroin in the hydraulic arms was removed and replaced with an inert substance. This was to facilitate what is generally described as a 'controlled delivery'. The crate was delivered to the address in Melbourne that Dung had provided to AV. This happened to be Tung's home address. When the crate was delivered, Tung identified himself as the person who was to take delivery of the consignment. He opened the crate, with the assistance of Tran and Van. They had been 'sitting off' the address, in a rented van. They had gone to Tung's home immediately after the delivery vehicle had dropped off the crate and left.
28 The three men loaded the hydraulic arms into the rear of the van. Tran and Van drove off in the rented van, while Tung remained at his home. Police followed the van for some time, but ultimately, lost sight of it.
29 Several hours later, the empty van was returned to the rental company. The hydraulic arms were never located, and it was never discovered who took delivery of them. Tung, Tran and Van were all arrested later that day and remanded in custody.
30 An examination of Tung's telephone records revealed contact between the applicant's phone, and that of Tung, two days before Dung instructed AV to deliver the consignment to Tung's address. The phone records also showed text messages, and phone calls, passing between the applicant and Tung the day before the delivery took place.
31 One of those messages was a text in which Tung confirmed his address in Melbourne. Within an hour of that being sent, Tran had rented the van which was used the following day for collecting the goods. Less than an hour after Tran had rented the van, the applicant had sent a text message to Tung with a description of the van, and its registration number.
32 The crate was delivered at 10:45 am on 18 November 2016, to Tung's address. By 11 am, the hydraulic arms had been transferred into the rental van, which had driven off. At midday, call charge records showed that Tung had telephoned the applicant. Just after 9 pm that night, there were two unanswered calls from the applicant to Tung's phone.
By 9 December, a telephone intercept warrant had been placed on your phone. That revealed a number of conversations which the prosecution relied on to support the inference you were not only involved in dealing with the heroin, once imported, by arranging for others to recover it once the crate was cleared by Customs, but were the principal behind the importation, and were proposing to do further business with the Vietnamese suppliers of the heroin.
The intercepted conversations reveal that you were aware the three co-accused had been arrested, and were seeking the court documents which would reveal the evidence relied on by the police to implicate them. At one stage, in a conversation on 16 December, you explained your purpose in seeking the documentation as:
'so I can send it to the mob over there and advise them, otherwise they keep saying that I am faking it, you know.'
In further calls on 4 January, you variously said:
'so I can work, because those over the other end, once they start confirming I will not be able to do anything at all.'
'so I can confirm and do a new one, because it is already the end of the year - it has just finished'
'tell her to get it [meaning the court documents] and send it to me. I need to do the summing up and go to Vietnam', and;
'tell her to send me ... today tomorrow ... or the next day please. So I can confirm and do a new one because it's already the end of the year, it's just finished.'[1]
34 The prosecution, having finally had these conversations translated and transcribed, submitted that they showed that the applicant was seeking to establish to the suppliers in Vietnam that she had not stolen the drugs, and was not responsible for their disappearance from the consignment. They were also said to support the contention that the applicant was the importer, or at least, intimately involved in the importation of the heroin. Finally, it was said, that they showed that the applicant intended to continue in business with the suppliers in Vietnam, and needed the documents to maintain that relationship.
Further SMS and telephone intercepts reveal that on 11 January 2017, you were sent a PDF document entitled 'Statement of Facts Remand App.pdf'. The remand summary contains details of the discovery of the heroin in the hydraulic arms and its replacement, the discovery of your phone number stored in Tung's phone, and Tung's assertions when interviewed that it was you who had asked him to take delivery of the consignment on your behalf.
Shortly after the PDF file was sent to you, you telephoned a man by the name of Hai, the person you had been in contact with seeking the court documents. You told him, appearing to express shock that there were 'even' references to you in the court documents. You instructed him to erase all messages, and not to call you on the phone number you had been using anymore. You told him you would advise a different number on which you could be contacted.[2]
36 When interviewed, after she was arrested at Sydney Airport on 18 January 2017, the applicant denied any involvement in or knowledge of the importation.
37 In sworn evidence on the plea, the applicant denied having had any involvement in bringing the heroin into Australia. She claimed that her role had been limited to agreeing, on request, to facilitate a delivery address in Melbourne. She maintained that she had no specific knowledge of the nature of the drugs, or the quantity involved. She said that she had been promised only a limited reward for her involvement.
38 In more detail, the applicant claimed to have met a man by the name of Hoang when working at a massage parlour. He had offered her more money than she could earn working in the parlour if she moved in with him. After several months, Hoang had asked her if she knew anyone in Melbourne who could provide an address to receive prohibited goods. He had offered her a return ticket to Vietnam, and $2,000 in spending money. She had agreed because she wanted to go back home in order to see her children, and could not afford the airfare.
39 The applicant claimed in evidence to have met Tung once before when she had previously visited Melbourne with her friend, a man named Hai. She had obtained Tung's phone number from Hai, and asked Tung whether he would accept delivery of prohibited goods in return for payment. Tung had agreed and sent the applicant his address, which she passed on to Hoang, the man with whom she was ostensibly living. He told her that she did not have to do anything further until after the goods had arrived. She claimed that she was at Hoang's home when he received the registration details of the hired van. She said that acting on Hoang's request, she had passed those details onto Tung.
40 The applicant said that Hoang had subsequently told her that it was possible that Tung had been arrested. She asked her friend Hai to make enquiries and he confirmed that this was so. The applicant was upset because Tung was her friend,[3] and she had approached him to receive the goods. She asked Hoang what he could do to assist Tung. He told her that she should obtain the court papers, and that he would arrange for help to be provided.
41 According to the applicant, Hoang went to Vietnam in late December 2016. The applicant was supposed to provide him with the court papers concerning Tung, when she went there in January 2017. However, Hoang did not meet her as promised. Accordingly, Hoang never received the papers and the applicant was never paid the $2,000 she had been promised.
42 When reminded in cross-examination that the papers were not in her luggage when it was searched on her way to Vietnam, the applicant responded that they were on her phone. When then reminded that the papers were not on her phone when it was searched after her arrest, she could provide no explanation.
43 The applicant said that she told Hai to delete her messages to him after she read the court papers because it was only at that stage that she first became aware that the hydraulic arms had contained heroin.
44 The applicant acknowledged, in her evidence on the plea, that she had told lies to the police during her record of interview. She had falsely denied knowing Tung and communicating with him. She had also invented a person called Hoa, who she had claimed had used her phone, and who therefore, must have been the person communicating with Tung.
45 Having considered the evidence led on the plea, including the applicant's own testimony, the judge concluded that she was a 'self-confessed liar', who was prepared to 'and adept at making up elaborate stories to suit her own ends'.[4] Her Honour noted that in her evidence, the applicant had said that she had deliberately given a false account to the police when they interviewed her, denying that she knew Tung, omitting any reference to Hoang, and inventing the person called 'Hoa' in an attempt to explain the otherwise incriminating calls and texts from her phone to Tung and Hai.
46 Plainly, as the judge observed, the 'Hoa' story was a complete fabrication. In her Honour's view, the 'Hoang story' was equally implausible. It did not sit comfortably with the evidence concerning the nature of the applicant's contacts with Tung and Hai, as revealed by the captured texts and intercepted conversations. The judge observed that the applicant came across, in the intercepted calls, as a much more sophisticated, intelligent, and aware woman than the timid and dependent person she portrayed herself as, particularly when telling the 'Hoang story'.
47 The judge then turned to the applicant's personal circumstances. She had come to Australia in January 2014, on a student visa, aged 29 at the time. Her husband and two young children had remained behind in Vietnam. She enrolled in a business course, but repeatedly failed English assessments because she was working, and not able to study. From about May 2015, she knew that her student visa would be cancelled. In August 2015, she married an Australian citizen. She claimed that her first marriage had broken down in 2013, and that she had divorced in March 2015.
48 The judge remarked, somewhat sardonically, that the second marriage did not appear to have been a 'love match'.[5] When interviewed, the applicant did not appear to remember her second husband's name. Even when she gave evidence on the plea, she could only remember his first name, but not his last. She gave entirely differing accounts as to how long she and her second husband had lived together before and after the marriage. At best, it was only a few months. She was shown a document that appeared to be a contract dated 1 September 2015. That agreement required the applicant to pay her second husband $65,000 in four instalments over the period of 12 months.
This acknowledged systematic dishonesty in relation to your attempts to obtain a spouse visa to stay in Australia, in combination with the acknowledged lies in your police interview, is sufficient for me to view with scepticism anything you said in evidence, unless it was independently supported.[6]
I am satisfied beyond reasonable doubt that the combination of the provision of Tung's address for delivery of the crate, so soon after the telephone call between you and him, the timing and content of the text messages and phone calls on the day before the delivery of the crate, the timing of the phone calls made by you to Tung on the day of delivery, and the content of the intercepted telephone conversations following his arrest in relation to obtaining the court documents establish that you were intimately involved in the importation of the heroin. I am not satisfied that your role was confined to facilitating a delivery address in Melbourne.
I am satisfied that the intercepted telephone conversations with Hai that I have quoted reveal not only that you were involved in the importation - that is, the bringing of the heroin into Australia - but that you had to account to those in Vietnam with whom you had been dealing for what had happened to that heroin, and that you are at least saying that you were in a continuing business relationship, and desirous of arranging further importations.
Whether you were the only person behind the importation, or the principal person behind it, or the real consignee as the prosecution puts it, I am unable to determine. I am satisfied however you were directly involved in the arranging of the importation, and the accounting to the suppliers in Vietnam for what happened to it.[7]
There is in my view no meaningful distinction in the circumstances to be drawn between a finding that you knew or believed the substance in the hydraulic arms was heroin, or whether you were aware that there was a substantial risk the arms contained heroin. Parliament draws no distinction in the maximum penalty available for this offence in relation to state of mind. Having regard to the conversations with Hai to which I have referred, I am in any event satisfied beyond reasonable doubt that you believed the substance in the hydraulic arms was heroin. That, in my view, is the only explanation for your statements that you needed to obtain the court documents in order to satisfy the people in Vietnam that you were not faking it. That is, that the heroin had in fact been removed and replaced with an inert substance by the authorities and not by you.
If you participate in a venture of importing of heroin concealed in heavy machinery items, it stands to reason that the quantity of drugs to be imported must be of sufficient weight and value to justify the expense of the means used to bring them in. It is not necessary, in my view, to be satisfied that you are aware of any particular weight, once that is accepted.[8]
52 The judge then took into account the various mitigating factors upon which the applicant relied on her plea. These included the fact of the plea itself, which although late, had utilitarian value. They also included the fact that the applicant would serve her sentence isolated from family and friends. Her English was limited, and this would increase the burden of imprisonment. So too would the applicant's inability to see or effectively communicate with her children.
53 Her Honour noted that the seriousness of the applicant's plight had finally been brought home to her. Nonetheless, she had shown no genuine remorse for her conduct. Moreover, the objective gravity of her offending was high.
I have sought to assess your criminality by reference to your involvement in the steps taken to effect the importation, and I have sought to avoid categorisation of your role in a hierarchy. This is one of those cases where the full nature and the extent of the enterprise is not known. That others might also have been involved in Australia as well as overseas does not mean that your role should be downplayed to only a middle level of responsibility. If you are not the principal, I am satisfied you were one of the principals in the importation into Australia.[9]
55 All of these matters, taken together, resulted in the sentence that the judge imposed.
Applicant's written case and oral submissions
56 The applicant submitted that the findings of fact under challenge, as particulars of the ground of appeal, were all erroneous. She submitted that, having regard to the onus and requisite standard of proof, none of these findings had been open on the evidence.
57 More specifically, it was submitted that the judge erred in characterising the applicant as the 'importer', or 'a principal', in the enterprise. Her Honour had also erred in describing her culpability as being at a 'high level'. It was said that these findings demonstrated that the judge had adopted an erroneous approach to the fact-finding exercise, because this was a case where the actual extent of the enterprise, and the applicant's role within it, simply could not be established.
58 The applicant cited various authorities, all of which establish that any finding of fact, adverse to an offender, would have to be proved beyond reasonable doubt. It was submitted that the evidence as to the applicant's role, and position in the hierarchy of this criminal enterprise, as well as her level of involvement in the importation, was entirely circumstantial.
59 It was further submitted that although the judge had been required to make some sort of finding as to these matters, in order to sentence the applicant appropriately, the evidence did not enable any such finding to be made, and certainly not to the requisite standard. The fact that the applicant gave an account, or led evidence that was rejected by the judge, did not justify the conclusion that she had played anything like the role that her Honour had found.
60 It was submitted that the problems of ascertaining the applicant's precise level of involvement in this importation were particularly acute. There was a paucity of evidence concerning the nature and extent of what was plainly a sophisticated and complex operation. All that could be said was that, some weeks after the importation must have been arranged, the applicant was involved to some degree in organising an alternative delivery address. She had dealt with Tung, the man who lived there, in order to facilitate the delivery to him. Certainly, she had attempted contact with him after things went awry. But that did not prove that she was relevantly a principal in the importation. Nor did the fact that some weeks later, she was apparently required to account to the Vietnamese suppliers for the loss of the heroin.
61 It was next submitted that, on the evidence, the applicant was only marginally higher in the hierarchy than the mere pawns in the mechanics of delivery, Tung, Tran and Van. None of the tasks that she actually performed would justify characterising her as having played a major role in this enterprise. Nor would they warrant describing her as having been responsible for the shipment. It was said that there were a number of viable alternative hypotheses available, and the judge ought to have recognised that fact.
62 In particular, the fact that no person, other than the applicant, had been identified as having organised the importation, at the Australian end, did not enable the judge to find that she must have played that role. For example, it was suggested that Dung would have to be seen as a serious candidate for the organiser of the scheme. It was even submitted that 'Jessica Wong' (assuming that any such person ever existed) may have been the Australian organiser of the importation.
63 It was also submitted that there was 'simply no evidence that the applicant did anything other than facilitate the second delivery address.' Of course, that was something of an oversimplification of the way in which the case had been put below, because it was not suggested that the applicant had done nothing more than provide a delivery address. Plainly, she had also dealt with Tung, the man who lived there, in order to facilitate the delivery to him. Her Honour's observation that she was 'not satisfied' that the applicant's role was so confined was said to involve a reversal of the proper approach to the fact-finding exercise, and a misapplication of principle.
64 More particularly, it was said that her Honour misused and/or placed undue weight on the post-offence telephone calls. These revealed nothing about the applicant's knowledge or involvement at the time the offence was committed. At most, they were capable of supporting the conclusion that whatever her original involvement may have been, she was subsequently required to account to some party, in Vietnam, for the ultimate failure of the delivery to the second address she had facilitated. It was said that there were many explanations for how that scenario may have come to pass.
65 It was submitted that the applicant's references, in the intercepted calls, to a 'new one' and to be able to 'work' again were ambiguous, and could not sustain the various findings that the judge had made. Even having rejected the applicant's explanation for those calls, their meaning remained opaque.
66 Next, it was submitted that merely because the applicant's evidence on the plea was rejected, in its entirety, did not mean that the judge was entitled to find that she was a principal, as far as the importation was concerned. Indeed, the very nature of the applicant's conduct, amateurish as it was, tended to show that she was not a sophisticated figure, 'high up' in this drug enterprise.
67 In addition, her Honour's rejection of the existence of Hoang could not be used to confirm, bolster, or fill in gaps in the circumstantial case.
68 Moving away from the factual findings under challenge, it was submitted that, contrary to the judge's finding, the applicant had exhibited genuine remorse. After all, she had elected to go into the witness box and expose herself to cross-examination. In doing so, she had given evidence as to her concern and sorrow at having involved Tung in the offending, and as to her desire to assist him.[10]
69 Finally, in relation to the gravity of the offence, it was submitted that the 'comparators' upon which the prosecution relied on the plea[11] all involved more serious offending than that of the applicant. Moreover, those 'comparators' were inapt for that purpose.
Respondent's written case and oral submissions
70 The respondent noted that the gravamen of the applicant's complaint was that her Honour's findings were erroneous because:
71 The respondent submitted that there was no basis for any conclusion that any of the asserted errors had been made. The applicant had given sworn evidence on the plea in support of her version of the facts in dispute. The judge had found, correctly, that anything the applicant said in her evidence had to be viewed with scepticism. The effect of the rejection of the applicant's account, and in particular, in relation to the actions of 'Hoang' in procuring her involvement, meant that the only reasonable inference that could be drawn was that she had facilitated the importation of the drugs, and coordinated their delivery.
72 It was noted that the applicant had entered her plea of guilty after having been provided with an amended trial opening, which characterised her as the importer of the drugs, and explained how that conclusion had been reached. The amended plea opening also alleged that she was the principal behind the importation. It relied, for that conclusion, upon the same evidence as was used to support the contention that she was an importer.
73 The respondent noted that the judge had made it clear, in her sentencing remarks, that she was unable to determine whether the applicant was the principal, a principal, or the only person, behind the importation. Her Honour was satisfied, however, that the applicant was directly involved in organising that importation, and in accounting to the Vietnamese suppliers for the loss of the drug. Plainly, given these findings the applicant would have occupied a significant role, at a high level, in the syndicate.
74 As regards the applicant's knowledge of the nature of the consignment, and her belief that it contained heroin (as opposed to merely being reckless as to that element) it was submitted that this finding was not erroneous. It was made in light of the fact that the applicant had sought court documents relating to Tung's arrest to satisfy her Vietnamese connections that she had not stolen the drugs, but that Customs authorities had replaced the heroin with an inert substance.
75 In any event, it was not necessary for the prosecution to prove that the applicant was aware of the specific type of border controlled drug being imported, merely that it was a border controlled drug as such. In addition, being reckless as to the nature of the substance was not, per se, a mitigating factor.[12] Similar arguments were said to apply to the judge's finding regarding the applicant's knowledge as to the quantity of drug imported. It was noted that the fault element, with regard to proof of a commercial quantity, involves absolute liability.[13]
76 The finding that the applicant was in a continuing business relationship with the Vietnamese drug suppliers, and desirous of arranging further importations of heroin into Australia, was said to be unimpeachable. There was no other sensible explanation for the discussions that she had with Hai in December 2016 and January 2017.
77 Certainly, the applicant was holding herself out as a person so engaged. In part, this was because she needed court documents to establish that she had not stolen the drugs. To ensure that Hai provided these, she explained that her ongoing business relationship would be jeopardised if she could not account for the lost drugs.
78 The judge, of course, made it clear that she was sentencing the applicant for her involvement in this one importation, and not because she intended, or even said that she intended, to carry out future such activities.
79 Finally, the judge's finding that the applicant stood to gain a substantial benefit from her offending (rather than merely a return flight to Vietnam and $2,000 spending money) was said to be clearly open, having regard to the applicant's role, and the sophisticated and expensive method of importation that had been adopted.
80 It should be noted that the respondent submitted, in the alternative, that even if the applicant were able to persuade this Court that the judge had made one or more of the factual errors identified in the particulars to the ground of appeal, the role that she played was so central to the overall criminal enterprise as to warrant the very moderate sentence that had been imposed. In other words, it was submitted that leave to appeal should be refused on the basis that there was no reasonable prospect that this Court, if it were to resentence the applicant, would impose a less severe sentence than the 10 years she is currently facing.
81 We accept, of course, that a sentencing judge is not permitted to take facts into account in a way that is adverse to the interests of an accused unless those facts have been established beyond reasonable doubt. So much was determined by the High Court in The Queen v Olbrich.[14] Plainly, her Honour was well aware of the need to apply that standard of proof in relation to any findings of fact of that kind.
82 In Nguyen v R, Maxwell P set out a number of propositions which he considered could be distilled from a then recent New South Wales decision regarding sentencing for drug importation offences.[15] These included:
83 Redlich JA, in Nguyen, agreed that the appeal should be dismissed. His Honour did not, however, endorse Maxwell P's enumerated list of factors relevant to be taken into account when sentencing for importation offences. Rather, he said that these matters should be reserved for an occasion that required such consideration.[18]
84 Although there is no ratio in Nguyen, regarding Maxwell P's list of relevant sentencing factors, those that are set out above at [82] all seem to be soundly grounded in authority, and principle.
85 In Pham v The Queen, [19] Redlich JA observed that it will often be difficult to categorise the role of an offender within a criminal enterprise, or to determine that offender's role relative to others. His Honour said that the focus must then be upon the degree of criminality of the acts performed, and their importance in accomplishing the organisation's criminal purpose.
86 In Pham, the offenders were all part of a criminal enterprise, and were less than forthcoming with investigators, and with the Court, about how they came to be involved. They gave false accounts to police, and to the Court, regarding that matter. As a result, the full nature and extent of the enterprise, and their conduct, was unknown, and unknowable.
87 In those circumstances, Redlich JA observed that the applicants could have no basis for grievance on appeal, with the limited findings of the sentencing judge as to their respective positions, and roles within the criminal enterprise.
88 The principles set out above in Nguyen and Pham are all applicable, in various degrees, to this application for leave to appeal against sentence. The facts found by the sentencing judge in the present case showed that, at the very least, this applicant played a material role in facilitating the movement of the (substituted) drugs after their arrival in this country. As her Honour made clear, if the applicant was not the principal, at the Australian end of the operation, she was at least a principal.[20]
89 The importation involved a very large quantity of heroin. Its street value was immense. The inference that the applicant stood to gain significantly more than an airfare to Vietnam, and $2,000 spending money was almost irresistible. Her counsel put to the judge that she was now penniless, on Legal Aid, and that this in some way demonstrated that she had not been either the principal, or a principal, behind the importation. Of course, her supposed impecuniosity, at the time of the plea, did not indicate, one way or another, whether she had played the role attributed to her by the prosecution.
90 Clearly, the post-importation text messages and phone calls suggest a level of involvement, on the part of the applicant, that at least approximates that which the judge concluded had been established. The content of the telephone calls can hardly be read in any innocent manner. When one adds to the equation the plethora of lies told by the applicant to police, and the many falsehoods told in evidence on the plea, it was scarcely surprising that her Honour made the findings that she did.
91 Of course, lies told by an offender on a plea, in an effort to persuade a sentencing judge to a more lenient view of the facts, do not logically, or necessarily as a matter of common sense, lead to the conclusion that the converse of what the offender has asserted, represents the truth. Nonetheless, a farrago of lies, of the kind told by this applicant, comes at a price. At the very least, it becomes difficult to assert, as the applicant did below, that the judge should find genuine remorse on her part.
92 The applicant not only lied repeatedly, but sought to place an innocent gloss upon a series of incriminating statements that she had made in the past. Even if one were to disregard entirely everything that she said in her evidence, based upon the judge's finding that she was a witness whose word could not be accepted, those statements would plainly have justified, at least, a number of the primary conclusions drawn by her Honour. These primary conclusions would certainly have justified the sentence imposed below.
93 Clearly, the applicant had a far greater involvement in this importation than she was prepared to let on. She may not have been the sole principal, but she was certainly, as the respondent contended, a central figure in the events surrounding the retrieval of what was thought to be the heroin that had been imported.
94 Any finding that the applicant's role was limited to arranging for the delivery of the drugs, after they arrived in Melbourne, to a particular address, would not have been merely benevolent, but approaching perverse. The language and timing of the text messages, and the content of the telephone communications, bespoke a far greater role than that.
95 In addition, common sense would dictate that the applicant was well aware of the general nature, and value, of the drugs contained within the consignment. So too, it could reasonably be inferred, that she had in mind an ongoing relationship with the Vietnamese supplier. Alternatively, at the very least, she felt the need to convey the impression that she had this in mind.
96 In any event, the respondent's submission that the sentence imposed was moderate, in the circumstances, should be accepted. Because this is an application for leave to appeal, and because we consider that there is no reasonable prospect that, should leave be granted, any lesser sentence would be imposed, we would refuse leave to appeal.
97 For the reasons set out above, this application is without merit. Accordingly, leave to appeal will be refused.
[1] R v Le (Unreported, County Court of Victoria, Judge Hampel, 17 May 2018) ('Reasons') [33]-[35].
[3] We note that she described Tung as her 'friend', though she said that she had only met him once before.
[10] Just how that 'sorrow and concern' reflected genuine remorse for the drug importation was never explained.
[11] R v Jain [2004] VSCA 30; Ng v R [2010] NSWCCA 232; Zhang v R [2011] NSWCCA 233; and Lam v R [2015] NSWCCA 14.
[12] R v Lau [2011] VSCA 324.
[13] Criminal Code 1995 (Cth) s 307.1(3).
[14] (1999) 199 CLR 270 [25] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
[15] [2011] VSCA 32; (2011) 31 VR 673 ('Nguyen').
[16] Ibid [36] setting out the propositions in Nguyen & Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 [72].
[17] We interpolate the same must also be true of attempting to import a border controlled substance. See however, Taumoefolau v The Queen [2015] VSCA 221 where the Court (Hansen, Whelan and Beach JJA) observed at [34]-[36] that neither is the converse true, namely, that merely because the legislative scheme covers both the completed offence, and an attempt to traffick, does not necessarily mean that the same sentence should always be imposed for an attempt to traffick as for a completed trafficking offence. The Court in DPP v Holder [2014] VSCA 61 had earlier said that trafficking was no less serious 'merely' because drugs were not actually distributed, but the harm, actual and potential, of particular conduct may, of course, be relevant when considering the gravity of the offence charged.
Le
The Queen [2019] VSCA 80
(2011) 31 VR 673
(1999) 199 CLR 270