R v Thomas Ty Phu LEE

[2011] NSWSC 89

Supreme Court of NSW|2011-02-25|Before: Latham J

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Court

Supreme Court of NSW

Decision date

2011-02-25

Before

Latham J

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

SENTENCE 1The offender, Thomas Ty Phu Lee, pleaded guilty on 29 July 2010 to conspiring with others to deal with money, in excess of $1 million, with the intention that it would become an instrument of crime (s 400.3(1) Criminal Code Act 1995 (Cth)), conspiring with others to import not less than the traffickable quantity of heroin (s 233B(1)(a)(iii) Customs Act 1901 (Cth)) and conspiring with others to traffic in a marketable quantity of heroin and methamphetamine (s 302.3 Criminal Code Act ). Each of these offences carries a maximum penalty of 25 years imprisonment. 2The pleas of guilty came on the eleventh day of a trial after the principal witness in the Crown case, a co-conspirator, had given evidence and was part way through cross examination. The offender had formally admitted, pursuant to s184 Evidence Act 1995, that the conspiracies existed as they were particularised by the Crown. The only live issue at trial was whether the offender was a party to those conspiracies. 3The Crown prepared a statement of facts for the purposes of sentencing, parts of which were disputed by the offender. The offender took issue with the Crown's interpretation of a number of telephone intercepts. Ultimately, the resolution of this dispute fell to the Court according to the onus and standard of proof that applies in criminal matters : The Queen v Olbrich [1999] HCA 54. The Crown relied upon the whole of the Crown brief, including two volumes of telephone intercept material. I have had regard to that material in finding to my satisfaction beyond reasonable doubt that the interpretations advanced by the Crown are correct. The particular areas of dispute are indicated within the summary of facts that appears below.

[2]

The Offences 4In June 2005, the Australian Crime Commission commenced an investigation into the money laundering activities of several money remittance businesses in Melbourne and Sydney. The investigation was later expanded to include the importation and trafficking of drugs, as evidence relating to the commission of those offences came to light. The scope of the investigation focused principally upon members of the syndicate dubbed the "Ken syndicate". Members of the syndicate were based in both Sydney and Melbourne. The head of the syndicate was Khan Hoang Tran (Tran) also known by the anglicised name "Ken" or "Kenny". Hong Phong Le (Phong Le) was a principal member of the syndicate who was based in Sydney and worked closely with Tran during the commission of the money laundering, drug trafficking and drug importation offences. 5The syndicate and their members in Sydney sold drugs to buyers in Melbourne. The drugs were couriered down to Melbourne by various syndicate members. The Melbourne buyers would remit money to Sydney for the purchase of the drugs. Purchase moneys were remitted both before and after the delivery of drugs. This occurred between November 2005 and July 2006. 6Tran or Phong Le acquired drugs through various means, including through the importation of drugs from Vietnam and through purchases from domestic suppliers. The drugs would then be warehoused in Sydney, until couriers were arranged to transport the drugs to Melbourne. Various types of drugs were acquired and sold by the syndicate, including heroin and methamphetamine. 7Tran or Phong Le would arrange for various members within the syndicate to act as couriers to transport the drugs to Melbourne, either by personally carrying the drugs with them on commercial airline flights or by transporting the drugs to Melbourne by car. The actual delivery of the drugs in Melbourne was arranged and facilitated through the Melbourne-based members of the syndicate, including Ngoc Thuan Nguyen (Ngoc Nguyen) and the offender. 8Payment for the drugs was effected by a number of different methods. On occasions, the purchasers would deposit the money with the various money remittance businesses in Melbourne and requested that it be sent to similar businesses in Sydney for collection by Tran or Phong Le. On other occasions, the money would be provided directly to the couriers, who would either use the money remitting businesses to send it back to Sydney or simply bring the money back with them on their return. On other occasions, Ngoc Nguyen and the offender would receive money from the buyers in Melbourne and deposit it with the Melbourne money remittance businesses for transfer to Sydney. 9The offender (who was previously known as Be Van Tran) lived in Melbourne. He is the uncle of Phong Le. Throughout the period of the syndicate's activities, the offender was commonly referred to as "Be" or "uncle Be". 10The offender carried out various tasks for the syndicate as and when required. The offender would generally carry out these tasks as directed or instructed by either Phong Le or Tran. 11One of the offender's main roles in Melbourne was to collect and remit drug purchase moneys through the Melbourne remittance businesses to facilitate the movement of drugs between New South Wales and Victoria. These activities related to the offence of conspiracy to deal with money as the proceeds of crime. 12The offender also liaised with the couriers for various purposes once they arrived in Melbourne to deliver drugs and on occasions the offender received or warehoused the drugs that were returned or rejected by the buyers in Melbourne and thereafter attempted to sell those drugs on behalf of the syndicate. These activities related to the offence of conspiracy to traffic in controlled drugs. 13The offender introduced the syndicate to his drug contact in Vietnam (Dung) and thereafter, together with Phong Le and Tran, the offender was involved in the arrangements for the importation of heroin on behalf of the syndicate. On occasions when the offender was in Vietnam, he would deal directly with the suppliers and couriers there. At other times he would contact the same people by telephone from Australia and discuss prices, amounts and courier arrangements. On other occasions, the offender met, or made arrangements to meet, with couriers arriving in Australia or paid couriers for importing drugs into Australia on behalf of the syndicate. 14Between November 2005 and July 2006 the syndicate was involved in the business of selling illegal drugs on a day to day basis. Throughout this period, a number of discrete importations and instances of trafficking occurred. The evidence of these offences was principally derived from extensive lawfully intercepted telephone material, surveillance and other corroborative material. The following summary of 11 specific occasions of importations and trafficking is representative of the scope of the activities of the syndicate and the offender's role therein.

[15]

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.

[16]

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.

[17]

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.