R v Le Van Huu [1999] VSCA 40

[1999] VSCA 40

Court of Appeal (Vic)|1999-04-19|Before: PHILLIPS, C.J., ORMISTON, J.A. and SMITH, A.J.A.

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Court

Court of Appeal (Vic)

Decision date

1999-04-19

Before

PHILLIPS, C.J., ORMISTON, J.A. and SMITH, A.J.A.

Source

Original judgment source is linked above.

Judgment (55 paragraphs)

[1]

[1999] VSCA 40

[2]

CRIMINAL LAW - Appeal against sentence - Ground of manifest disparity of sentence with another offender not upheld - Appeal allowed by majority on ground of manifestly excessive sentence

[3]

The applicant, who is aged 32, pleaded guilty in the County Court at Melbourne on 5 June last to one count of trafficking in a drug of dependence, namely heroin. This offence, which carried a maximum penalty of 15 years' imprisonment, was committed at Melbourne between 12 August and 2 September, 1997. After hearing a plea for leniency, the learned judge sentenced the applicant, who had no prior convictions, to be imprisoned for five years and His Honour fixed a non-parole period of three and a half years. A declaration of 183 days pre-sentence detention was also made. Earlier that month the learned judge had made pecuniary penalty orders against the applicant in the sum of $22,300. That sum represented a benefit received by the applicant from his offence. Upon the plea, the judge received defence Exhibit 1, which was a report by a Forensic Psychologist, Mr Bernard Healey. This described the applicant's family background, his education, his drug abuse and pathological gambling. He was, according to Mr Healey revealed upon testing to have sound average intellectual capacity and in tact memory function. Personality testing reflected upon depression and anxiety linked to his past problems and his present apprehensions.

[17]

On 2 September, 1997 at 9.05 a.m. the officer telephoned the applicant and ordered a quarter of an ounce, seven grams of heroin. The applicant stated that he was away and would be back on Wednesday and that his "sister" would conduct the transaction. The purchase was arranged to take place at 10.00 a.m. in Market Street, West Footscray. At 9.40 a.m. the applicant called the officer and confirmed the meeting time with the "sister". He said, "You don't want a big one last time" and the officer said "no, but he would get an ounce and a half off him later in the week". At 9.57 a.m. the officer received a call from the applicant who stated that his "sister" was unable to do the deal and had gone home. He stated it was a small deal and a big deal would be no problem. The officer told him he did not have enough money for an ounce. At 10.28 a.m. the officer received another phone call from the applicant who apologised for cancelling his order. He stated that he was in Perth and would be back on Thursday. The officer said that he wanted one and a half ounces on Thursday and the applicant stated that there was no problem and quoted a price of $14,500. At 10.40 a.m. the applicant again telephoned and stated that the deal for the quarter of an ounce was "back on" with his "sister", and a meeting time of eleven o'clock was arranged. At about 11.30 a.m. the officer attended and parked in Market Street, Footscray. He was approached by an unknown Asian male. This man got into the officer's vehicle and identified himself as "Tony". The officer then handed "Tony" $2,600 and "Tony" handed over the heroin. The officer asked if he would be dealing with him or the applicant and "Tony" replied that it would be him. "Tony" handed over a ripped piece of Asian newspaper which contained a mobile number, 0411715295 with the word "Tony" written on it. "Tony" also stated that he could do deals within two minutes. There was also discussion about the possibility of one and a half ounce deal being done on Thursday, 4 September, 1997.

[37]

I now turn to ground 6. Such a ground, as counsel for the applicant conceded in argument, does not ordinarily admit of a deal of argument. Once the relevant circumstances are identified then a sentence either appears on its face to be relevantly excessive or it does not. Performing this exercise I have come to conclude that the applicant's sentence is manifestly excessive. Prominent among my reasons for so concluding are the age and antecedents of the applicant, his lack of prior convictions, his plea of guilty at the earliest opportunity, the committal mention, the judge's finding that he was remorseful and his cessation of offending prior to his arrest. While specific error need not be identified, an aspect of this matter readily prompts concern. The substantial part of the plea made on behalf of the applicant was that he returned to Vietnam from May to July, 1997. There he met a young woman with whom he became friendly. All this followed the collapse of his marriage in the previous year. On his return to Melbourne, under pressure of gambling debts and with his judgment impaired by heroin smoking, he accepted an invitation to sell heroin on behalf of others, "not at street level" to use his counsel's expression. After his trafficking he accepted the urgings of the young woman and returned to Vietnam on 6 September, whereupon they became engaged and set a date for their wedding, in Vietnam, of 28 December. He was departing for the wedding when arrested. His last offending had been on 2 September. In his early weeks in custody he successfully overcame such addiction as he had to heroin. This part of the plea consisted of statements by his counsel (none of which were gainsaid by the Crown prosecutor) and repeated references to the report of Mr Healey, which had been tendered without objection. It was squarely put to the learned judge that the applicant was remorseful and that a combination of the above circumstances and his lack of prior convictions made him a good prospect for rehabilitation. His Honour found that the applicant was indeed remorseful but as to the other matters I cannot discern His Honour's view. Of course, a judge is not obliged to specifically advert to every matter he has considered in composing a sentence. But one would expect that reasons would be given if His Honour had taken the view that the undisputed submission of counsel carried little or no weight. Yet, to my mind, the relationship between the non-parole period and the head sentence suggests that this is what has occurred. Ms Pullen has drawn the Court's attention to a decision of this Court in R. v. Van Hung Quach, unreported, judgment given 12 March, 1997, and has submitted that this decision supports the view that in drug cases non-parole periods in the cases of first offenders may be properly fixed at somewhat higher levels than might be regarded as usual. I do not agree that this decision should be so construed. The relevant judgment is that of Charles, J.A. with whom the learned President and Hedigan, A.J.A. agreed. His Honour said (at p. 7):

[49]

The counts here charged against the two offenders were not for the same offences, as the Chief Justice has pointed out in his judgment, but, even if they were, there are many other factors of difference in relation to the two sentences here sought to be compared. The difficulty, if I might respectfully say so, is that the principles to which I have just referred should in logic make it almost impossible to say that the principles of parity have been broken whenever it is sought to argue that particular offenders should have been treated alike (or differently, as the case may be). There are, occasionally, some obvious cases where, on any understanding of the facts, disparity has resulted from a higher sentence being given to a person with obviously less criminality. Nevertheless, since Lowe was decided 15 years ago the principles and practice in relation to sentencing have so changed that it must be almost impossible for a co-offender to have a legitimate and justifiable sense of grievance based on objective factors. However much a co-offender may know of the circumstances relating to the commission of the offence (and even there separate sentencing hearings may produce different versions of those circumstances which lead without error to different findings by sentencing judges), it is almost impossible for the co-offender to know sufficient of the background, the antecedents and personality of any co-offender for it to be possible for a fair assessment to be made in the other co-offenders's mind. The factors which have to be brought into account make it difficult enough for the sentencing judge and for courts of appeal who have to assess such differences between offenders, let alone is it practicable for the co-offender to know and understand what those differences may be. Of course co-offenders frequently have a sense of grievance, for it cannot be surprising that those sent to gaol, other than those inured to the system, should think that they have been hardly done by, but what do they truly know of the relevant characteristics of their co-offenders? They may know that a co-offender has a record, but do they know when those offences were committed and how counsel has explained the commission of the last or the more serious of those offences? They may know the co-offender has a drug problem or exhibits signs of some psychiatric or psychological condition, but do they know what is contained in the psychological and other reports tendered to and read by the judge? Are they aware of the evidence which has been called as to the social and cultural background of a co-offender or of the significance of factors such as delay in sentencing or co-operation with the authorities which have been relied on? What precisely do they know of the judge's sentencing remarks in the other case, except on a second-hand, hearsay basis, for those remarks are not transcribed unless there is an appeal?