R v Le [2002] QCA 17

Court of Appeal (Qld)|2002-02-06|Before: Pherson JA, Thomas JA, Ambrose J

The applicant had no previous convictions. It emerged in the material placed before the sentencing Judge that the applicant had a brother who conducted a heroin trafficking business at Cabramatta in Sydney. The applicant acted on behalf of his brother to conduct his brother's heroin distribution business in Brisbane. He was at the level of distributing heroin to other wholesalers of that drug in the heroin trafficking business in Queensland.

During the four months of trafficking to which he pleaded guilty bank records demonstrated that he deposited into two accounts in his brother's name the sum of $326,000. These were obviously the receipt of funds he obtained from distributing heroin as a wholesaler to other wholesalers in the heroin trafficking business in Queensland.

When apprehended, the applicant did not cooperate with the police officers. A careful examination provided overwhelming evidence against him which was based upon heroin found in his possession, telephone surveillance where discussions were recorded between him and his brother and his fingerprints found on banking records which disclosed the extent of his business operations in distributing heroin in Queensland and sending the proceeds to his brother.

The offences on the material were based on a commercial enterprise in selling heroin and there was no suggestion that the applicant was in any way addicted to or dependent upon heroin.

The sentencing Judge upon this plea of guilty indicated that he would start with a figure of 19 years' imprisonment, but to reflect the plea of guilty he reduced this to 15 years. However the Crown had contended that the appropriate sentence on the facts of the case was one of 14 years, and so his Honour imposed a sentence of 14 years.

It is contended for the applicant that in exercising his sentencing discretion, his Honour was affected by a mistake that he made concerning the nature of the plea.

His Honour indicated that the applicant did not indicate an intention to plead guilty prior to the committal held in February and it was only in June 2001 that he indicated an intention to plead guilty at an early stage. He said that in determining the period of imprisonment he would start at a level of 19 years' imprisonment on the facts of the case keeping in mind that the maximum penalty under the Act was 25 years.

He then observed that he would give due recognition to his plea of guilty, but described it as a rather late one. It was pointed out, and not really contested by the Crown on this application, that his Honour simply erred in describing the plea as a rather late one and it is contended for the applicant that his discretion must have been affected by this error and consequently the sentence ought be set aside and this Court ought embark upon a consideration afresh of all the facts placed before the sentencing Judge and impose what it determines to be the appropriate penalty.

In my view, looking at the whole of the material, it could not be said that the sentence of 14 years actually imposed by the sentencing Judge was so influenced by any error that he may have made as to the lateness of the plea as to warrant this Court simply setting aside the sentence and embarking upon a resentencing exercise.

If there has been an error made by a sentencing Judge, this Court should not in my view without more simply set the sentence aside and embark upon a resentencing. One must look at the nature of the error and any effect that it must have had or may have had upon the sentence actually imposed.

In my view, if one looks at the sentence imposed upon the facts of this case, it cannot be said that the sentence was manifestly excessive.

His Honour referred to the reward which the applicant may have received. It was said on his behalf that he received about $500 per transaction that he was involved with in sending off the proceeds of the wholesale heroin business to his brother.

His Honour declined to accept that and observed that he had no idea of what financial reward the applicant received for his conducting the business for his brother in Brisbane.

His Honour said that apart from mitigation based upon the plea of guilty, he would have imposed a sentence of about 19 years, but that this should be reduced to 15. However the Crown contended for a sentence of 14 years, so his Honour said that having regard to that, he would impose a sentence of 14 years' imprisonment.

For the applicant it was contended that an appropriate starting point for his Honour before making allowance or discounting for the plea of guilty was not 19 years but 18 years. It was said that if a 20 per cent or 25 per cent reduction was made to give effect to the plea of guilty, the sentence would then come down to between roughly 14 and a half years and 13 and a half years, depending on which percentage was applied.

If the 19 year period stood, and in my view a couple of comparable sentences referred to indicate that it would have been open to his Honour to start with a 19 year sentence before discounting it, then depending upon whether a 20 per cent discount was made, or a 25 per cent discount was made, the penalty would be something over 15 years in one case, or something over 14 years in the other.

In my view, the sentencing exercise is not simply a mathematical calculation exercise based upon sentences said to be comparable. All those sentences do is establish a range and in my view every sentence must be arrived at on the facts of the case before the sentencing Judge, who of course is assisted by looking at other sentences that have been approved in this Court or imposed by other Judges, but it cannot be the situation that each one has to be analysed in detail so that the facts relevant to that sentence are compared in detail to the fact relevant to the sentence under consideration.

In my view, it cannot be said that the sentence of 14 years is manifestly excessive. I would simply refuse the application.

McPHERSON JA: I agree. His Honour's error, if that is what it was, in describing the plea as a rather late one, did not in my opinion affect the sentencing discretion in such a way or to such an extent as to bring about a sentence being that imposed that was excessive in the case of the criminality of the applicant's behaviour in this case.

THOMAS JA: I agree. I think that the learned sentencing Judge did overlook the ongoing formulation of details by the Crown after committal and that his expressions in relation to the plea describing it as "not early" and "rather late" were inappropriate. It is conceded here by counsel for the Crown that a timely plea was in fact notified. However I do not think that this led to an incorrect result.

The starting point for this sentence and the level of discount that should be allowed for the plea are both imprecise factors. The end result of 14 years seems perfectly appropriate, given the actual circumstances.

In the result then, the sentence was not manifestly excessive and notwithstanding his Honour's misconception, I do not regard the sentencing discretion as having miscarried.

McPHERSON JA: The application for leave to appeal is refused.

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