R v Thomas Ty Phu LEE

Importation in December 2005 15In November of 2005, the offender and Phong Le travelled to Germany for a holiday. There, they recruited a German citizen (Springer) to import heroin from Vietnam to Australia. In early December 2005, the offender, Phong Le, another member of the syndicate and Springer each travelled to Vietnam. Whilst in Vietnam the offender met up with Springer. The offender purchased Springer's ticket to fly to Australia to import heroin for the syndicate. The offender also provided Springer with some cash for the trip. The offender contributed his own money to part finance this importation. 16The offender disputes that he purchased Springer's ticket and that he provided Springer with cash. The offender also disputes that he contributed his own money towards the importation. Having regard to a number of text messages and telephone calls on 5 and 6 April 2006 (Exhibit A on sentence), where a co-offender refers to the offender having purchased Springer's ticket, and in which the offender himself refers to "losing paper", I am satisfied beyond reasonable doubt that the offender financed the importation to the extent set out above. 17On 16 December 2005, Springer arrived at Sydney airport in possession of 71.8 g pure heroin internally secreted. This was only one third of the drugs that were anticipated by the syndicate. Springer was arrested and charged. 18For some months, the syndicate was unaware of Springer's arrest. The offender, Tran, Phong Le and others speculated as to whether Springer had "ripped them off". The offender eventually rang a number of gaols in Sydney and ascertained that Springer had been arrested and was in custody. The offender advised the syndicate of this fact.

Trafficking between 13 February and 10 March 2006 19On about 10 March 2006, two couriers travelled to Melbourne on behalf of the syndicate in possession of two 350 g blocks of heroin and 1 kg of crystal methamphetamine for supply to two co-offenders. The couriers also had an ounce of heroin for supply to the offender. The offender took possession of that ounce, valued at $10,000. The couriers told the other syndicate members that the remainder of the heroin was stolen, or accidentally discarded, whilst the couriers were in Melbourne. 20The offender, Tran and Phong Le again suspected that the couriers had "ripped them off". At Tran's request, the offender contacted the couriers and sought explanations from them. The offender later advised Tran and Phong Le of those explanations and was requested by Tran to escort the couriers back to Sydney. 21The offender later sold the heroin and attempted to buy some of the methamphetamine that had been delivered to a co-offender. This aspect of the Crown case is denied by the offender. However, a number of text messages and phone calls on 10 and 11 March 2006 provide clear evidence to this effect.

Trafficking between 17 March and 23 March 2006 22On 22 March 2006, a co-offender took approximately 417 g pure of crystal methamphetamine from Sydney to Melbourne on a domestic flight. He was intercepted leaving the aircraft in Melbourne and police found the drugs within a carry-on bag. He was arrested and charged with trafficking in a controlled drug. He pleaded guilty to this offence and was sentenced. 23While the co-offender was at Sydney airport, he contacted the offender to advise him that he was at the airport and that he would meet with the offender when he arrived in Melbourne. 24When the co-offender did not make contact with anyone in Melbourne, Tran asked the offender to make efforts to find out what had happened. The following day, the offender contacted Tran and informed him that the co-offender had been arrested.

Importation between 4 March 2006 and 14 April 2006 25A large number of lawfully intercepted telephone calls during March and April 2006 establish that the offender, Tran, Phong Le and others were speaking about various drug couriers and heroin importations from Vietnam to Australia. 26On a number of occasions, the offender spoke with the syndicate's supplier in Vietnam (Dung) regarding past, current and future heroin supplies and the arrangements for payment of money from the syndicate to him for those supplies. After these various conversations with Dung, the offender spoke to either Phong Le or Tran to advise them of the matters discussed. 27On 14 April 2006, Phong Le arranged for a courier to import a quantity of heroin from Vietnam to Australia for the syndicate. The courier was paid at least $15,000 with the promise of further payment. The offender gave the courier $9,500 as part payment for bringing the heroin into Australia.

Trafficking between 4 and 10 May 2006 28On 9 May 2006, two couriers transported a quantity of heroin to Melbourne by car. The couriers supplied a co-offender with half a 350 g block and the remainder of that block went to another co-offender. A further 350 g block was supplied to another member of the syndicate.

Trafficking between 11 and 13 May 2006 29On 12 May 2006, two couriers flew from Sydney to Melbourne each carrying a 350 g block of heroin. Each block was delivered to another member of the syndicate.

Importation between 25 April and 22 May 2006 30In the latter half of May 2006, the offender travelled to Vietnam and met with a co-offender for the purposes of arranging an importation of heroin for the syndicate. Phong Le and the offender had several telephone conversations in which plans were made for the offender to negotiate importations with the Vietnam suppliers. 31While in Vietnam, the offender contacted other members of the syndicate and discussed arrangements for importations and prices for heroin. The offender and Tran met with Dung at a restaurant in Hanoi where further negotiations took place. 32The offender disputes that he was responsible for these negotiations. Rather, he maintains that he was merely present at negotiations conducted by others over the price of the heroin. A number of phone calls between 5 and 16 May 2006 (Exhibit A) strongly indicate otherwise. In particular, a phone call on 14 May establishes that the offender was responsible for "getting better rates" for the heroin. 33On the morning of 22 May 2006, a courier from Vietnam arrived in Sydney with 24 pellets of heroin. The heroin was collected by Phong Le and other members of the syndicate, who prepared and packaged it for delivery. This heroin formed part of a quantity of heroin later delivered on behalf of the syndicate to buyers in Melbourne (see below).

Trafficking between 20 and 24 May 2006 34On the evening of 22 May 2006, a quantity of heroin imported from Vietnam was transported by two couriers from Sydney to Melbourne on a domestic flight. The heroin was supplied to two other members of the syndicate. 35The offender arrived back in Australia from Vietnam on 20 May 2006. He was contacted by Phong Le and asked to collect money from a buyer in Melbourne, then send the money to Sydney via the usual money remittance business. 36The buyers in Melbourne subsequently complained about the quality of the heroin. At the direction of Phong Le, some of the drugs were returned to the offender who later attempted to sell them in Melbourne on behalf of the syndicate.

Trafficking between 25 and 30 May 2006 37During the evening of 29 May 2006, three 350 g blocks of heroin were transported by three couriers from Sydney to Melbourne on a domestic flight. The heroin was supplied to three other members of the syndicate. 38The offender collected the money from the buyers in Melbourne, acting on instructions from Phong Le, and remitted an amount of money to Phong Le in Sydney from the supply of those drugs. 39The quality of the drugs were again the subject of complaints by the buyers in Melbourne. Phong Le again arranged for the drugs to be given to the offender while new buyers were sought. The offender later attempted to sell the drugs. 40The offender disputed that he was directly involved in the sale of drugs on these occasions. A number of phone calls in late May, June and early July 2006 record the offender speaking to Phong Le and others in coded terms about "holding" a quantity of drugs for sale, waiting for buyers to pay outstanding amounts and "balancing the books". I am satisfied to the requisite standard that the offender was engaged in selling the heroin that had been returned by disgruntled purchasers.

Trafficking between 18 and 29 June 2006 41On 21 June 2006, a co-offender was intercepted by police after leaving another offender's residence at Wolli Creek in Sydney. A search revealed approximately 500 g of crystal methamphetamine which was destined for supply to Melbourne. This co-offender was arrested and charged with supplying a commercial quantity of a prohibited drug. 42Phong Le and two other persons who had dealings with the syndicate were waiting for the co-offender at Yagoona.

Trafficking between 30 May and 22 July 2006 43On about 21 June 2006, approximately 250 g of heroin was imported from Vietnam into Australia. On 21 June, the heroin was unwrapped and broken up by Phong Le and other members of the syndicate at Yagoona, in preparation for supply to Melbourne. The heroin was then repackaged and hidden in the premises at Yagoona for a number of weeks. 44On 10 July 2006, members of the syndicate discovered that the heroin had been taken, possibly by other people connected with the syndicate.

Dealing with the Proceeds of Crime 45Four money remittance businesses in Sydney and Melbourne were regularly used by the syndicate to transfer money for drug purchases and to facilitate the commission of further offences. The syndicate used these businesses (and others) to transfer money between Melbourne and Sydney and between Australia and Vietnam. The terms "papers", "tickets" or "vouchers" were used to refer to money in the course of telephone conversations between members of the syndicate, including the offender. 46These various businesses charged a small commission for the remittance of money and often confirmed these transfers via facsimile, including notification of the name of the intended recipient and the remittance amount. Phong Le and Tran largely directed the transfer of money between Melbourne and Sydney, and between Australia and Vietnam. 47Between 28 November 2005 and 23 July 2006 a minimum of 110 remittances took place on behalf of the syndicate, totalling in excess of $4,380,205. Approximately $515,000 of this amount was sent from Australia to Vietnam on behalf of the syndicate. The syndicate also arranged for further remittances to Vietnam through another remittance agency, although the total amount of these remittances is not known. 48A number of persons, including the offender, remitted and collected money on behalf of the syndicate during the period 28 November 2005 to 23 July 2006. 49The offender personally deposited or collected $533,000 in that period. 50Other members of the syndicate deposited similar or lesser amounts, with the exception of Ngoc Nguyen, who personally deposited in excess of $938,600 in the same period.

The Nature and Circumstances of the Offences 51The Crown's submission, that the syndicate was involved in an ongoing, open-ended criminal enterprise involving the importation and domestic trafficking of substantial quantities of illicit drugs and the laundering of money to facilitate and finance these activities, is obviously well founded. That aspect of the Crown's submissions is not in issue. 52The offender disputes the Crown's submission, that he was a "key participant" in the syndicate and that his involvement was consistent and significant. The Crown submissions went further and described the offender as the Melbourne "branch manager" for the syndicate operations in Victoria, who played an active and important role in most of the syndicate's activities. The offender seeks to characterise himself as "at best a middle ranking" participant in the syndicate "where he was directed and/or instructed to carry out tasks by both Tran and Phong Le". 53The principle support for this submission derives from the evidence given at trial by Phong Le. He indicated that by March 2006, the offender was making mistakes with respect to the orders placed with Dung in Vietnam, and that he, Phong Le, spoke directly to Dung on some occasions. The offender further submits that the fact that he resided in Melbourne ought not lead to the conclusion that he exercised any authority in that jurisdiction. 54Whilst Phong Le may not have regarded the offender as completely reliable, the evidence overwhelmingly establishes the offender's participation within the upper ranks of the organisation. The offender communicated directly with Tran and Phong Le, both of whom were acknowledged as principals of the syndicate. 55I accept that the offender's criminality falls to be determined as a subordinate to Tran and Phong Le, although the offender's role as the principal Melbourne agent for the syndicate's activities suggests that the extent of the departure from the sentences imposed upon Tran and Phong Le ought not be great, after allowing for relevant factors such as pleas of guilty and the provision of assistance. The sentencing exercise should not be distorted by somewhat strained attempts at positioning the offender precisely within a notional hierarchy. 56The sentences imposed upon the offender must recognize the offender's agreement to participate in three extensive criminal conspiracies, as evidenced by the nature and number of overt acts carried out by the offender over the course of the conspiracies. These included arranging the transfer of money from Melbourne to Sydney for the purchase of drugs, physically collecting money from buyers and couriers in Melbourne and depositing that money for transfer to Sydney, meeting with drug couriers who brought drugs from Sydney to Melbourne, warehousing drugs in Melbourne when required, arranging buyers for drugs in Melbourne when required, liaising with other syndicate members, arranging for couriers in Vietnam to bring drugs into Australia, arranging for money to be provided to the syndicate's Vietnam heroin suppliers and couriers, travelling to Vietnam together with Tran in order to meet the syndicate's heroin suppliers, negotiating prices and amounts of drugs with the Vietnam heroin suppliers and attending to the syndicate operations in Melbourne, according to the instructions of Tran and Phong Le. 57The substantial amount of the drug imported and/or trafficked in the course of the conspiracies is also a relevant factor in assessing the offender's criminality. Similarly, the amount of money laundered by the syndicate (over $4 million) and the fact that those funds were ploughed back into the purchase and distribution of illicit drugs, to the knowledge of the offender, are important factors in sentencing on count 1 of the indictment. The offender was personally responsible for at least 18 separate transactions. 58The offences were obviously committed for financial gain, which must have been considerable. The offender's legitimate source of income in 2005 - 2006 is said to have arisen out of his employment by his sister in a freight company. The offender's role in the freight company was to travel to overseas markets to source new contracts. This activity was entirely consistent with the business of drug trafficking. The scale of the syndicate's activities had the potential to reap huge financial benefits to those involved, particularly in the upper echelons of the organisation. 59General deterrence is a fundamental factor in sentencing for these offences. The importance of signalling by the length of the sentence imposed that the courts will severely punish those who engage in drug trafficking and money laundering cannot be overstated.

Factors Personal to the Offender 60The offender was born in South Vietnam in January 1975, the second youngest of 10 children. The family arrived in Australia as refugees in 1982 and settled in Melbourne. The offender had a normal upbringing and maintains a good relationship with members of his family. His father died in 2001. 61The offender has been married since 2000 and has two young sons both of whom reside with his wife in suburban Melbourne. The offender is described by his wife and by close friends (see Exhibit 2) as a devoted father and husband, who was essentially led astray by "the wrong crowd". He is also described as a "kind, intelligent and hard-working individual". He has no criminal history, but his prior good character was a factor that allowed him to travel freely for the purposes of engaging in drug trafficking, uninhibited by the scrutiny of the authorities. 62The offender was in reasonably regular employment since leaving school after year 12 in Victoria. He obtained certificate qualifications in real estate practice and operated his own business between 1999 and 2005. The business closed due to financial difficulties. It was at this point that the offender's sister employed him in her business for a period of approximately 12 months. After the offender's arrest and release on bail he was employed by his brother-in-law from February 2009 to August 2010 as an apprentice electrician. He has completed the second year of his apprenticeship and wishes to pursue a career in this field. 63The offender reported a history of ecstasy use on weekends from the beginning of 2006. By March 2006 he was using methamphetamine, largely under the influence of his co-offenders. The offender says he has not used illicit drugs since August 2006. 64The offender's remorse for the commission of these offences was expressed to the Probation and Parole officer responsible for preparing a report on 8 October 2010 (Exhibit B), and to a psychologist (Exhibit 1). The offender acknowledged that he had done "the wrong thing" and that illicit drugs cause considerable damage within the wider community. The offender was regretful that his incarceration had left his wife and children without support and had caused embarrassment within his local community in Melbourne. To the extent that the offender accepted responsibility for his offending, he has minimised his involvement in the offences as a "debt collector", "runner" and general factotum for one of the co-offenders in Sydney. It is difficult to accept the offender's statement that "he thought his involvement at the time was all right because he was not the one who instigated the drug deals", given the offender's undoubted sound intelligence and functioning. 65I have already made findings of fact that completely undermine the offender's professed role in the syndicate's activities. The equivocal nature of the offender's contrition and his attempts to avoid punishment commensurate with his criminality explain the delay in entering pleas of guilty to the offences. That is one of the significant distinguishing features between the offender and the majority of his co-offenders, including Tran and Phong Le, both of whom pleaded guilty at a relatively early stage following their arrest and received a substantial discount for the promise of assistance to the authorities. 66However, the offender did substantially facilitate the efficient conduct of the trial, by way of the admissions made under s 184 of the Evidence Act 1995. The confinement of the issue at trial to the offender's participation in the relevant conspiracies significantly streamlined the Crown case. In the absence of those admissions, it may have been necessary to play a very large number of intercepted telephone calls, in addition to proving a number of translations. Accordingly, I have determined that a lesser sentence than might otherwise be appropriate ought be imposed in order to recognize the offender's willingness to facilitate the course of justice. Ultimately, the sentence must not be unreasonably disproportionate to the nature and circumstances of the offences.

Parity in Sentencing 67It is common ground that the offender occupied a position in the hierarchy below that of Tran and Phong Le, both of whom were charged with the same three conspiracies, but for the amount of the drugs involved in the conspiracy to traffic. Tran and Phong Le both pleaded guilty to conspiring to traffic in a commercial quantity, an offence carrying a maximum penalty of life imprisonment. That factor goes a significant way towards explaining the complete concurrency of the sentences imposed on Tran and Phong Le for each of the three offences upon which they were sentenced. 68As noted above, each of these co-offenders provided substantial assistance and received commensurate discounts. In the result, Phong Le received an aggregate sentence of 12 years 6 months imprisonment with a non parole period of 8 years and 3 months ; Le v R [2010] NSWCCA 285. The offender Tran received an aggregate sentence of 18 years imprisonment with a non-parole period of 11 years. 69It is also common ground that the offender occupied a position within the organisation which was of greater significance than that of John Viet Nguyen and Anthony Si Nguyen ; see R v Nguyen [2010] NSWCCA 331. Each of these co-offenders were found guilty after trial of one count of conspiracy to traffic in a marketable quantity of drugs and one count of conspiracy to deal with the proceeds of crime involving more than $100,000, in which the fault element alleged was recklessness. Thus, the only relevant comparison for parity purposes is the sentence imposed on these co-offenders for the conspiracy to traffic in a marketable quantity of drugs. Each of the co-offenders received a term of imprisonment for five years in relation to that offence. These sentences were described by the Court of Criminal Appeal as lenient, although not manifestly so. Furthermore, each of these co-offenders was sentenced on the basis that they were couriers for the organisation. 70Of further relevance to the sentencing exercise, the co-offender Ngoc Nguyen was sentenced after a plea of guilty to the conspiracy to deal in money to a value in excess of $1 million, with the intention that it be used as an instrument of crime, to a term of imprisonment for 5 years and 3 months. Ngoc Nguyen was a primary syndicate member based in Melbourne and carried out many of the same activities carried out by the offender at a similar level for the purposes of the remittance of moneys between Melbourne and Sydney and the distribution of drugs. However, Ngoc Nguyen was not involved in the importation activities of the syndicate. Ngoc Nguyen was said to occupy a middle position within the hierarchy, comparable to that occupied by the offender, according to the Crown's submissions.

Sentence 71Taking all of these matters into account, I propose a sentence in respect of each offence which, following accumulation, will result in an aggregate term of 12 years imprisonment. Some accumulation of the sentences is warranted in order to fully reflect the totality of the offender's criminality, constituted by his active participation in three substantial conspiracies. 72That criminality warrants a non-parole period of 8 years. Anything less would, in my view, fail to adequately reflect the principle of general deterrence and come perilously close to a penalty unreasonably disproportionate to the gravity of these offences. 73The offender served 65 days in custody prior to the revocation of his bail at trial on 16 August 2010. Accordingly, the sentence will be backdated to take account of that period. 74On count 1 of the indictment, the offender is convicted and sentenced to a term of 5 years and 6 months imprisonment, to date from 12 June 2010, expiring 11 December 2015. 75On count 2 of the indictment, the offender is convicted and sentenced to a term of 7 years imprisonment, to date from 12 June 2010, expiring 11 June 2017. 76On count 3 of the indictment, the offender is convicted and sentenced to a term of 6 years imprisonment, to date from 12 June 2016, expiring 11 June 2022. 77I fix a non parole period of 8 years to date from 12 June 2010. The offender is eligible for release on 12 June 2018.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2011