R v Vu & Vu [2008] VSCA 64

2 As a result of the investigation, Hoa and Tien Duc Vu ('Duc') were each charged with trafficking in a commercial quantity of heroin. Hoa was then 46 years' old while Duc was 45 years' old. Hoa carried on his trafficking business in the western suburbs of Melbourne and in Geelong. He collected, delivered and stored heroin in motor cars. His customers contacted him by mobile telephone and arranged to buy drugs. Duc's business was conducted in the Western suburbs of Melbourne, using motor cars. In company with his wife, Duc prepared drugs for sale and often conducted sales from his motor car. Like Hoa, Duc used a mobile telephone to arrange drug transactions. Hoa and Duc traded with each other. When Hoa went away on holiday, Duc serviced his customers.

3 Duc was arrested on 12 January 2005. Hoa was arrested six weeks later. Both the applicants pleaded guilty at committal to charges of trafficking in a commercial quantity of heroin. Each of them pleaded guilty to a presentment that alleged that offence, although Hoa only did so after lengthy consideration of the Crown's material by him and his lawyers. On 9 May 2006 each applicant was sentenced to be imprisoned for a term of four years on a charge of trafficking in a commercial quantity of heroin. A minimum term of two years and nine months' imprisonment was fixed in each case.

4 Hoa seeks leave to appeal against conviction. Both applicants were granted leave to appeal against sentence by a single judge of this Court.

5 The ground of Hoa's application for leave to appeal against conviction that was pursued on appeal was that there was insufficient evidence to establish the commission of the offence.

6 It was not in issue that Hoa trafficked in heroin. The only question was whether the heroin trafficked by the applicant amounted to a trafficable quantity. A trafficable quantity of heroin mixed with another substance is 500 grams.[1]

7 The Crown case at the hearing of the plea was that the applicant sold, agreed to sell or offered for sale[2] 503.4 grams of heroin. The calculation appears in a document titled 'Executive Summary of Charges', which was tendered. The calculation was based upon the contents of intercepted telephone conversations. The main thrust of the applicant's case was that the terms of certain of the conversations in which he participated did not disclose concluded transactions.

8 The high water mark of the applicant's case was constituted by the following conversation:**

DUC: He came this morning. Now you're asking but it's finished.

DUC: Leave you some? Leave you some, there'd be no more to sell.

According to the Crown, 'half' meant half an ounce or 14 grams.

**9 Seen in isolation, the conversation does not amount to a certain sale, agreement or offer. The words bear a different aspect, however, when seen in the light of the other intercepted conversations. The picture which emerges from the conversations seen as a whole is one of continuous dealing, that is, treating heroin only as a commodity to be bought and sold. Whether the particular conversation represented a sale, agreement or offer in respect of a particular quantity of heroin would ultimately be a question for the jury to be determined on the whole of the evidence.

10 This was not a case in which the evidence clearly established that no offence had been committed.[3] Nor was it a case where the evidence disclosed facts which could not show the commission of an offence.[4] Rather, the evidence in this case was capable of sustaining a conviction and this Court was invited to determine for itself the guilt or innocence of the applicant.[5] The fact that this case cannot be neatly fitted into the principles formulated in R v Forde[6] does not provide an answer, for the question remains whether there has been a miscarriage of justice and those principles are not to be regarded as exhaustive of all possible cases of miscarriage of justice.[7] Nevertheless, I am not persuaded that any miscarriage of justice would result in refusing to set aside this applicant's plea of guilty.

11 The applicant and his legal representatives apparently gave careful consideration to the question whether the Crown could establish that Hoa trafficked in a commercial quantity of heroin. The applicant was supplied with a CD copy of the intercepted telephone conversations. The applicant sought and was granted a number of adjournments to enable him and his legal representatives to consider the Crown case. Transcripts of those applications reveal that the applicant was principally concerned with calculating the quantity of heroin in which he trafficked. After considering the terms of the conversations in which he participated and receiving legal advice, the applicant pleaded guilty to trafficking in a commercial quantity of heroin. In those circumstances, I view a recalculation of the amount by fresh counsel as a less than compelling basis for setting aside the plea of guilty.

12 Accordingly, I would dismiss the application for leave to appeal against conviction.

13 The application for leave to appeal against sentence by Hoa depends upon the success of his application for leave to appeal against conviction or the success of the contention by Duc in his application for leave to appeal against sentence that the sentence imposed upon him was manifestly excessive. For the reasons I will state, I do not regard the sentence imposed upon Duc as manifestly excessive. Hence I would dismiss Hoa's appeal against sentence.

14 The sentence imposed upon Duc was attacked on the grounds that it breached the principle of parity and was manifestly excessive.

15 Duc and Hoa received identical sentences. On 24 April 2006 Duc was arraigned and pleaded guilty. In the course of the plea the prosecutor said:**

At all times the prosecution has alleged that Duc Vu was receiving drugs to be on sold on Hoa. ... There's a very real sense in which Duc Vu was doing Hoa's bidding.

The sentencing judge showed some resistance to this proposition, but eventually said to the prosecutor's reiteration of the proposition that Hoa was higher in hierarchy than Duc: 'Very well.'

16 On 9 May 2006 the judge passed sentence on Duc. On the same day Hoa was arraigned and pleaded guilty. In the course of the plea Hoa's counsel contested the Crown's proposition that his client was 'further up' the chain than Duc. The sentencing judge said that he was not satisfied beyond reasonable doubt that Hoa ranked higher than Duc in the hierarchy of traffickers. His Honour said he had read the translated transcript of the intercepted telephone conversations. He continued:

That you and Duc Vu have known one another for some time is clear. It is also clear that each of you from time to time trafficked in heroin quite independently one of the other. At other times you worked together. I find difficulty in taking this material any further insofar as indicating any order or hierarchy as between you and Duc Vu.

In my view his Honour was entitled to reach that conclusion.

**17 Counsel for Duc submitted that, if the matter had been heard as a joint plea, the sentencing judge would have been compelled to the view, applying the civil standard of proof, that Duc was to be treated as less culpable than Hoa. I acknowledge the potential for injustice that arose from the circumstance that in sentencing Hoa his Honour could only act on the prosecutor's opinion of the offenders' relative positions if satisfied beyond reasonable doubt. Nevertheless, I do not think that potential was realised. At the end of the day, there was little to choose between the offenders. They both trafficked in heroin at street level. If Hoa was higher in the hierarchy, his superiority was not marked. Hoa appears to have acquired drugs sold by Duc. On the other hand, Duc admitted trafficking in a greater quantity of heroin over a shorter period of time. Their personal circumstances were similar. In my opinion the sentences imposed upon the offenders were not such as to engender in Duc a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice had not been done.

18 Duc's personal circumstances are relevant to the complaint that the sentence imposed upon him was manifestly excessive. The appellant was born in Vietnam and came to Australia from a refugee camp in Hong Kong at the age of 23 years. The**

appellant married and worked with his wife from their house in the clothing industry as outworkers. There were three children born of the marriage, who are all now employed. From about 1999 the appellant developed an addiction to heroin, which he has attempted to combat with varying degrees of success since then. A community development worker reported to the sentencing judge that he had formed the view that the appellant was heroin free and was hopeful of his rehabilitation. The sentencing judge found, correctly in my view that, while the trafficking conducted by the appellant was in part to subsidise his addiction, the scale of trafficking went far beyond what was necessary for that purpose.

**19 The maximum sentence for the crime to which the appellant pleaded guilty was 25 years' imprisonment. There can be no doubting the seriousness of the offence committed by the appellant. In my view the circumstances of the appellant's offending conduct and his personal circumstances do not demonstrate that the sentence imposed upon him was not one which a reasonable sentencing judge could impose. In my view the complaint that the sentence was manifestly excessive has not been made out.

20 Accordingly, I would dismiss Duc's appeal. It follows that Hoa's appeal against sentence should also be dismissed.**

21 For the reasons given by Buchanan JA, I agree that the application by Hoa Trong Vu for leave to appeal against conviction should be refused, and that the appeals by Hoa Trong Vu and Tien Duc Vu against sentence should be dismissed.

22 For the reasons given by Buchanan JA, I also agree that the application by Hoa Trong Vu for leave to appeal against conviction should be refused, and that the appeals by Hoa Trong Vu and Tien Duc Vu against sentence should be dismissed.

[1] Sections 70 and 71AA and Schedule Eleven of the Drugs, Poisons and Controlled Substances Act 1981 ('the Act').

[2] See s 71 of the Act.

[3] Compare R v Coner [2007] VSCA 13.

[4] For example, facts which could not amount to, say, an indecent assault or culpable driving.

[5] See R v Murphy [1965] VicRp 26; [1965] VR 187, 188 (Herring CJ and Adam J).

[6] [1923] 2 KB 400.

[7] R v KCH (2001) A Crim R 233, [32]; R v El-Kotob [2002] VSCA 109; (2002) 4 VR 546, [78]-[89]; R v Coffey (2003) VR 543, [6].