R v Le; R v Nguyen [2005] VSCA 284

1 On 1 February of this year the first appellant, Roy Le, pleaded guilty before the County Court in Melbourne to one count of trafficking in a drug of dependence (heroin) in a commercial quantity between 29 April and 23 June 2003. The maximum penalty for trafficking in a commercial quantity of heroin is 25 years' imprisonment. Le had no prior convictions. After a plea, on 18 February, the judge sentenced him to four years' imprisonment and fixed a non-parole period of two years.

2 The second appellant, Thang Huynh Nguyen, pleaded guilty on 9 May 2005 in the County Court at Melbourne to a presentment alleging one count of trafficking in a drug of dependence (heroin) in a commercial quantity between 29 April and 23 June 2003 and one count of handling stolen goods. The maximum penalty on the first count, as I have said, was 25 years' and on the second count is 15 years' imprisonment. Nguyen admitted 40 convictions from three court appearances between September 1997 and August 2002, including convictions for trafficking in heroin and for handling stolen goods. On 17 May the judge sentenced Nguyen on the first count to five years' imprisonment and on the second count to six months' imprisonment, all of which was made cumulative upon count 1, leading to a total effective sentence of five years and six months' imprisonment. The judge fixed a non-parole period of three years and six months' imprisonment.

3 Both Le and Nguyen were granted leave to appeal under s.582 of the Crimes Act 1958 on 12 August 2005.

4 The circumstances of the offending were as follows. In April 2003, officers of the Major Drug Investigation Unit of the Victoria Police commenced a major police operation targeting Van Tri Diep and persons associated with him. Diep is Le's nephew. Diep was the mastermind of a large-scale, middle order drug trafficking operation in Melbourne. Le's role in this trafficking operation was described by the judge as "a most important one, indeed, a pivotal one". His role was to prepare high grade heroin for distribution. The heroin was stored at Le's house at Sunshine and it was there, supervised by Diep, that Le used cutting agents supplied by Diep to mix with the heroin to prepare it for sale at street level. For this purpose Le used an electronic blender to mix the product and then a press to compress the mixed powder. The agreement between Le and Diep as found by the judge was that Diep would pay Le $500 each time the cutting, mixing and pressing operation took place at Le's home. According to Le, in a statement made to police, on a number of occasions Diep failed to pay him. The judge found that Le's motivation in becoming involved in Diep's operation was solely one of greed. He knew that what he was doing was wrong but took the risks.

5 The judge found that the conduct of the trafficking operation was relatively sophisticated, relying on the telecommunications system and using a series of coded words and messages with meanings known only to Diep and his associates. The judge said that Nguyen's role in the organisation was a most important one, indeed a critical one. Nguyen was found to be the principal "runner" employed by Diep to assist him with the distribution of heroin. Nguyen's tasks were numerous, including obtaining possession of high grade heroin for Diep supplied by an unidentified Asian male named "Hieu". Nguyen went to various locations driving his car to rendezvous with Hieu to be supplied with the product. These meetings were pre-arranged between Diep and Hieu and at times Nguyen was tasked to contact Hieu personally. Nguyen would then transport the high grade heroin to Le for preparation. Often, Nguyen, on obtaining the heroin from Hieu, would on Diep's direction supply a portion of the heroin to a further recipient known as Helen. On 14 May 2003 investigators observed Nguyen driving his car to Helen's residential premises in Tamar Drive, Deer Park. From conversations monitored and used by Diep on this day, Nguyen obtained an amount of heroin from Hieu and was tasked to supply a further amount to Helen. The remaining two-thirds was delivered to Le. On occasions, Nguyen was directed to Helen's residential address to obtain heroin supplied by her. This heroin had been pre-prepared for sale and was immediately distributed by Nguyen on Diep's behalf. This arrangement was based on Diep's and Helen's close relationship and their willingness to assist each other with the supply of heroin. Once the high grade heroin supplied to Le had been prepared, Nguyen would again rendezvous with Le to obtain the prepared product to distribute to Diep's "sub-runners". Nguyen often travelled to places in Springvale to supply Diep's heroin for sale. He would also retrieve money proceeds obtained by sub-runners in relation to the sale of heroin and return it to Diep. The judge said in sentencing reasons that Nguyen was "very actively involved in the Diep operation at a high level and you indeed were entrusted with sometimes collecting for Diep the money obtained from the sale of heroin".

6 The judge said that Nguyen, who was aged 24 at the time of the offences, was himself drug-addicted, engaged in smoking heroin. His actual monetary gain from the drug activities on Diep's behalf was minimal. He was paid by Diep by the supply of drugs to support his own habit and for expenses incurred whilst undertaking the trafficking operation.

7 There was also before the court a written statement by Detective Senior Constable Adam Paul McFarlane, which included a valuation of 2,159.8 grams of heroin trafficked according to telephone intercepts and in which Diep, Le and Nguyen were involved. If that quantity of heroin was sold in ounce lots, McFarlane's evidence was that it would realise nearly $700,000. If it was sold in one gram lots it would realise a monetary value in excess of $860,000.

8 In relation to Le, the judge accepted that he had made full and frank admissions to the police when arrested. He pleaded guilty at an early stage. He had willingly assisted the police with their enquiries into the drug trafficking operation and agreed to tell the police about other persons involved. Furthermore, and most importantly, he gave a sworn undertaking to the court that he would give evidence if and when called upon to do so for the Crown against other persons still awaiting trial. As a consequence, Le has been serving his sentence at Ararat Prison in a form of protection. There had been a delay of some two years prior to sentencing.

9 Le at the time of sentencing was 64 years old. He had obtained the rank of sergeant in the South Vietnamese army and was wounded in 1963. In 1977 he fled Vietnam, leaving behind his wife and six children. In 1982 his family joined him in Australia, but in 1981 he had been involved in a major workplace accident and received injuries requiring surgical intervention. In 1997 his wife left him, but he had since remarried and he and his wife lived in Melbourne. Le and his wife are now both in receipt of pensions. The court was informed that because of Le's use of his house for the purpose of processing the heroin, the Crown had placed restraining orders over his residential property and his car. His counsel argued accordingly that there was a significant risk that he would lose this property pursuant to the Confiscation Act 1997 and invited the court to take this into account when sentencing him. The judge, however, refused to do so, considering it inappropriate having regard to the scant material placed before him. Medical evidence before the court showed that Le still had significant low back problems as a result of that workplace accident in 1991 and was also suffering from a hepatitis C infection. For his back condition he had been prescribed a continuing regime of anti-inflammatory and pain-relieving medication. The judge accepted that given his age and state of health, prison would be more onerous for him. His Honour accepted that he was remorseful and that it was unlikely that he would re-offend in similar fashion. Against this the judge was, of course, required to measure the gravity of the offending, since it was a most serious offence with which he had been charged, and that it was not an isolated act but part of a continuing course of conduct. Le's role in the Diep operation was properly described as a most important and central role.

10 In relation to Nguyen, the judge said that he had been trapped into his part in this drug-trafficking operation by his own significant drug habit, although his drug-addicted status the judge thought did little to mitigate the seriousness of his offence. At the time of his offending he was on a community-based order in relation to his earlier drug offences, which included trafficking. The judge said of Nguyen that he was presently 26 years old, having come to Australia with his family when aged three. His family life had been happy until his parents separated in 2000, his father then being diagnosed with schizophrenia, his tragic illness probably having led to the family breakdown. Nguyen had been a promising student until leaving school during year 11. His employment history thereafter had been patchy. In the prison system he had developed depression for which he needed medication. There was before the judge a psychological report prepared by Mr Warren Simmons, which stated that Nguyen would benefit from ongoing drug and alcohol treatment. The judge plainly accepted that Nguyen had reasonable prospects for rehabilitation, being a young man who had already embarked on the road to rehabilitation and who had good support from his family and his partner. He had pleaded guilty at an early stage. As with Le, there had been considerable delay between the offending and the time at which he was brought before the court for sentence.

11 In relation to Le, his grounds of appeal included that the judge erred -

1. in failing to take into account the fact that the appellant would almost certainly lose his property pursuant to the automatic forfeiture provisions of the Confiscation Act 1997;

3. in failing to give any weight to the delay between arrest and sentence;

4. in that the sentence is manifestly excessive in view of Le's age, state of health, undertaking to assist, his hardship whilst in custody, absence of prior convictions and early guilty plea;

5. in imposing a sentence which offends the principles of parity.

I have omitted ground 2, which refers to the fact that the judge originally imposed a four year partially suspended sentence, contrary to s.27 of the Sentencing Act, which was invalid and vacated.

12 Mr Elston originally contended that the judge was entitled to disregard the fact that the appellant would almost certainly lose his property on the ground that inadequate submissions and material had been placed before the court. However, during argument, Mr Elston conceded, in my view properly, that this ground had been made good. The judge had been informed that the Crown had placed a restraining order over Le's house and his car. It was plainly open in these circumstances for his Honour to have regard to the likely forfeiture of Le's interest in his house pursuant to the provisions of the Confiscation Act; see R. v. Do[1]; DPP v. Phillips[2]. The nature of automatic forfeiture pursuant to this Act is that it will not occur until after conviction, but will occur thereafter as a matter almost of inevitability, provided the preconditions are met. As in R. v. Do and DPP v. Phillips, the appellant's house had been used for the purpose of trafficking, which tainted the property. It followed that forfeiture would occur unless an exclusion order were made. We were told this morning that an exclusion order had been made in favour of the appellant's wife, that the property itself had a value of approximately $100,000 and a mortgage on it of approximately $20,000. The forfeiture of the appellant's interest will therefore result in a loss to him of the order of $40,000. The appellant is a pensioner with a very limited capacity for work as a result of his injuries. To lose his interest in his house at the age of 64 is inevitably substantial additional punishment.

13 In these circumstances, and acknowledging Mr Elston's concession, ground 4 is made good and the sentencing discretion is re-opened. In any re-sentencing, one would take into account his age, his health, his undertaking to assist and assistance to police, his absence of prior convictions and his plea of guilty and the delay.

14 The judge was, however, quite entitled to say of his role in the trafficking operation that it was most important, indeed pivotal. His Honour later described it as central. Even though Le had no prior convictions and was aged 64, the sentence to be imposed for this very serious offence must take into account the gravity of the offending. A wholly suspended sentence, for which counsel contended at the plea, would plainly not be adequate. In all the circumstances, in re-sentencing Le I would propose that he be sentenced to three years' imprisonment and would fix a non-parole period of 18 months.

15 The grounds of appeal upon which Nguyen relies are that the judge erred -

1. in the application of the parity principle;

2. by denying the appellant procedural fairness, in that he made findings as to the appellant's role in the heroin trafficking which were significantly more serious than the position accepted in the course of the plea;

3. by making findings as to the nature and extent of the appellant's involvement in the heroin trafficking that were not open to the required standard on the evidence;

4. in the application of the totality principle by ordering that the entirety of the sentence imposed on count 2 be served cumulatively on count 1;

5. in imposing sentences that were manifestly excessive.

16 The argument on grounds 2 and 3 was made together. Mr Carter argued that there had been no dispute as to the appellant's role as outlined by the prosecutor. It was accepted that Nguyen collected purchases of undiluted heroin for Diep which he delivered to Le, delivered heroin from Le to other runners, collected takings and delivered them to Diep, made small sales and accounted to Diep for them and received in return for his conduct a subsistence level of heroin plus petrol money. Nguyen had been characterised by the Crown as Diep's "main employee". During the plea the judge appeared to have accepted that Nguyen was not, in contrast to Le, a key figure and was "disposable". It was submitted that Nguyen should have been characterised as a busy but disposable foot soldier rather than a trusted confidante or lieutenant. On the evidence he had no part in the direction or control of the business or its profits and indeed by the middle of the period covered by the presentment Diep, the controller and owner of the business, was plainly suspicious of Nguyen and was sidelining him.

17 It was argued that the judge had, however, found that Nguyen was involved with Diep "at a high level" in the operation and that this was inconsistent with the evidence and involved a denial of procedural fairness given the indications of the sentencing judge in the course of the plea. This had not been a case of the judge merely remaining silent, but his Honour had given every appearance of accepting counsel's submissions as to the relative position of Nguyen compared with Le; see R. v. Duong[3]. As to parity, Mr Carter submitted that Le's role and level of culpability were more serious than that of the appellant since he was responsible for the storing and cutting of the heroin for distribution. He accepted on the other hand that Le had important matters in mitigation, such as his willingness to give evidence, his assistance to investigators, his age and lack of prior convictions and his ill health. However, he put it that Le's role outweighed these mitigating features and in any event prior good character is less significant in cases of trafficking in commercial quantities of heroin. He argued that Nguyen should not have been sentenced to a term of imprisonment one year higher than Le, even though he had offended whilst on a community-based order. I should add that under Ground 5 it was submitted that the sentences were manifestly excessive because of Nguyen's plea of guilty, the fact of his addiction, his relative youth and reasonable prospects of rehabilitation, his depression which had developed whilst in custody and the delay (nearly two years) between the offence and sentencing.

18 Mr Elston for the Crown submitted that the judge had not overstated the role of the appellant and was entitled to make the findings he did. In my view, however, grounds 2 and 3 are made out. The judge did, I think, accept in argument that Le's role was more significant than that of Nguyen, and that the former was "a key figure" in the operation, having a responsible and important position compared with Nguyen, who was disposable.

19 Furthermore, I should add that a decision to reduce Le's sentence does, having regard to considerations of parity, involve the necessity to vary Nguyen's sentence to some extent also.

20 Notwithstanding the foregoing matters, when considering re-sentencing Nguyen, it must be recalled that he had considerable prior convictions, including for trafficking in heroin. Le, suffering from hepatitis C and with other medical problems, will find prison particularly difficult. While Nguyen made admissions upon arrest, they were not as full and frank as those made by Le, nor did he provide a confessional statement, nor did he give an undertaking to assist authorities. Nguyen pleaded guilty, but his plea was not made as early as Le's. The judge specifically found that Le was remorseful, making no such finding in Nguyen's case. Nguyen also offended whilst on a community-based order.

21 In the circumstances, I would sentence Nguyen on count 1 to four years' imprisonment. Count 2 relates to a laptop computer allegedly purchased cheaply from a person, apparently at a railway station. The judge was satisfied that Nguyen was aware that the laptop was stolen property, either at the time of purchase or shortly afterwards. In relation to count 2, I would impose a sentence of six months' imprisonment and would make three months of this sentence cumulative upon the sentence imposed on count 1. The total effective sentence would therefore become four years and three months. I would impose a non-parole period of two years and eight months.

2. The sentence imposed on 18 February 2005 on count 1 is set aside.

3. In lieu thereof the appellant is convicted and sentenced to 3 years' imprisonment.

4. The Court orders that the appellant serve a period of 18 months' imprisonment before becoming eligible for parole.

5. The order for the taking of an intimate forensic sample is confirmed.

6. The Court declares that as at this day the period to be reckoned as already served under the sentence is 334 days and directs that the fact of the making of this declaration and its details be noted in the records of the Court.

2. The sentence imposed on 17 May 2005 is set aside.

3. In lieu thereof, on count 1 the appellant is convicted and sentenced to 4 years' imprisonment. On count 2, the appellant is convicted and sentenced to 6 months' imprisonment.

4. The Court orders that three months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1.

5. The total effective sentence is therefore 4 years and 3 months' imprisonment.

6. The Court orders that the appellant serve a period of 2 years and 8 months before becoming eligible for parole.

7. The orders for the taking of an intimate forensic sample and the forfeiture and destruction orders made in the court below are confirmed.

8. The Court declares that as at this day the period to be reckoned as already served under the sentence is 893 days and directs that the fact of the making of this declaration and its details be noted in the records of the Court.

[1] [2004] VSCA 203 at [13] per Buchanan, J.A.

[2] [2005] VSCA 112 at [7], [10], [13] & [14].

[3] [1998] 4 V.R. 68 at 77-78 per Kenny, J.A.