R v Diep; R v Vosinthavong [2003] VSCA 203

[2003] VSCA 203

Court of Appeal (Vic)|2003-12-11|Before: ORMISTON, BATT and VINCENT, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2003-12-11

Before

ORMISTON, BATT and VINCENT, JJ.A.

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

[ 2003] VSCA 203

[2]

CRIME - Sentencing - Trafficking in heroin - Plea of guilty - Parity - Low level but continuous trafficking - Manifest excess - Pecuniary penalty orders - To be related to benefit received - Co-offenders not to be ordered to pay more than total benefit received - Equal division in absence of further evidence.

[3]

The appellants (who for convenience sake will be called "Diep" and "Vosinthavong") each pleaded guilty to one count of trafficking in a drug of dependence, namely diacetylmorphine, between 1 March 2001 and 2 June 2001. The appellant Diep also pleaded guilty to one count of having had diacetylmorphine in his possession on 1 June 2001 and likewise one count of having in his possession on the same day another drug of dependence namely cannabis L. In the case of the appellant Vosinthavong she was sentenced to be imprisoned for a period of 5½ years with a direction that she serve 3½ years before becoming eligible for parole. There was also an order for the payment of a pecuniary penalty of $15,000 pursuant to the . In the case of the appellant Diep he was sentenced to a term of 8 years' imprisonment on count 1 and, with respect to the counts of possessing drugs of dependence, to 2 years' imprisonment on the count relating to the possession of heroin and to a fine of $100 on the count relating to the possession of cannabis. His total effective sentence was therefore 8 years' imprisonment and the judge fixed a minimum period of 6 years before the appellant was eligible for release on parole. In his case a pecuniary penalty order was made in the sum of $23,000.

[7]

As a result of the agreement between the parties the circumstances of the trafficking, at least in the case of Diep, were relatively simple. His and Vosinthavong's participation were entirely at street level, there being no evidence as to how and from whom the heroin was obtained, although it seems to have come from one Hung, a person not otherwise identified, and in a manner not described. The method adopted was relatively simple inasmuch as potential customers on a regular basis would contact Diep or Vosinthavong by phone, normally by ringing their house at Blackburn but occasionally on Diep's mobile phone, and arrangements would be made to fix a price and a meeting point. The customer would arrive at the designated meeting point, would ring Diep again and shortly thereafter he would arrive, sometimes alone, sometimes with Vosinthavong and very occasionally Vosinthavong came alone. The appellants, either separately or together, would arrive in a car, frequently a black Suzuki owned by Vosinthavong's parents and occasionally in a BMW apparently owned by Diep. The heroin would be exchanged for the agreed money sum and the transaction would ordinarily be finished in less than a couple of minutes. The meeting points were usually close to the Blackburn Station, although it seems that different streets and different points along each street would be chosen specifically for each transaction. Occasionally, especially in the earlier stages, a meeting point in Forest Hills was chosen and used. The phone calls were largely made to the appellants' premises at Blackburn where after the arrest some heroin was found together with the equipment, to which I have referred, which was necessary to package the heroin professionally into an acceptable form. It seems that more often than not Diep would answer the phone to take the order, but there were many occasions on which Vosinthavong answered the phone and took the order, though occasionally passing the phone to Diep. To what extent they each participated in the preparation of the heroin for sale is not clear, for, although Diep made most admissions readily upon being interviewed, Vosinthavong denied any knowledge of the transactions other than a suspicion that Diep might have had had an occasional dealing in the heroin. On the other hand records were found suggesting that Vosinthavong at least participated in the preparation of the "books" relating to the trafficking business.

[10]

Doing the best I can, I would draw the following inferences from the materials now provided to the Court. As to storing and parcelling of the heroin, there must be little doubt that Vosinthavong was well aware of the business being carried on at their unit in Blackburn, so that she was clearly party to that aspect of the trafficking. As to the taking of orders, although it would seem that Diep was the prime contact and the one who most frequently fixed the places where the dealing would occur, there is again little doubt that Vosinthavong frequently answered the phone and took orders and made arrangements, at least occasionally, as to carrying out of the dealing. She was sufficiently familiar with the method of dealing to reach agreement as to individual transactions and, in fact, on occasions to carry them out by herself. On the other hand, there can be little doubt that most of the actual direct sales transactions with customers were carried out on the street by Diep. On a number of occasions Vosinthavong came too in the sense that she was either driving the car or in the car while the transactions took place. Sometimes it seems that she was the person who handed over the heroin in return for the money. The difficult matter is to determine how often she was in fact present for, although in one statement that appeared to be on almost every second occasion, her participation seems to have been less according to other witnesses. That, however, says nothing about the occasions in respect of which there is no direct evidence. Of course the matter cannot be determined merely by ascertaining who the direct perpetrator of each sale was, for, if she were a party to the transactions and acting in concert with Diep, then it may be that her responsibility was greater than if she were merely occasionally aiding and abetting him. The plea, nevertheless, was to a joint count of trafficking over the whole of the relevant period and the agreement as to degree of participation must therefore be solely as to the level of direct activity, not of responsibility. There is much material which suggests that she was the beneficiary, at least to a significant degree, of the business of trafficking carried on by both of the appellants, for the evidence as to the accounting records, such as they were, would strongly support that inference. That was reflected in the pecuniary penalty orders, whatever their conceptual defects, bearing in mind that no appeal was brought specifically as to the extent of the order against her.

[15]

It was further said that the judge failed to give sufficient weight to Diep's plea of guilty and for this purpose ignored the statements of the High Court in Cameron's case. The dispute largely turned on whether the appellant Diep had pleaded guilty at the earliest opportunity. There is no doubt that at the Magistrates' Court the principal charge was first expressed in terms confined to the period in the count to which the appellants pleaded. At that hearing, because of the materials contained in the depositions, the principal charge was in effect expanded to allege trafficking over the period 1 December 2000 to 2 June 2001. Negotiations took place on and off thereafter, but a decision was made to present the two appellants for trial in respect of the count for trafficking over the longer period. It was only in the period immediately before the proposed trial that prosecutor and defence counsel reached agreement that each appellant would plead to a count confined as it had been in the first place, namely in respect of the period 1 March to 2 June 2001. This sort of bargaining is very frequent in relation to drug counts and it may be said that it is essential for those pleading guilty that they should have a firm understanding of the nature of the offending alleged against them before agreeing to make a plea. Doubtless it could have been said in this case, if Diep had pleaded at an earlier stage, that he pleaded at the earliest possible opportunity, but the converse would perhaps not be entirely fair to an accused in these circumstances, at least where the depositional materials were more consistent with a longer period of trafficking. The judge observed in this case that the pleas were made after the case had been called on for trial and in fact after there had been certain submissions relating to the law. He said that the Crown case was very strong and that must certainly be accepted in the case of Diep, who made a significant number of admissions in the course of his record of interview.