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Court of Criminal Appeal 15 July 2003

R v Vinh Khang LE

[2003] NSWCCA 197

Drugs
SENTENCE SUPPLY PROHIBITED DRUG WHETHER SENTENCE EXCESSIVE

Citation: Vinh Khang LE v R [2003] NSWCCA 197
Court: New South Wales Court of Criminal Appeal
Date: 15 July 2003
Judge(s): Sheller JA; James J; O'Keefe J

Background

The appellant was convicted by jury of supplying not less than a large commercial quantity of heroin, an offence under s 25 of the Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of life imprisonment. The conviction arose from events on 24 January 2000 in Glebe, where police intercepted coded telephone calls, observed the appellant carrying a satchel into and out of a house, and then witnessed him hand the satchel (containing $160,000) to occupants of a nearby vehicle. Heroin weighing 28 grams was later seized from the kitchen sink of the house, with drain samples also testing positive for heroin.

The sentencing judge in the District Court, Shadbolt DCJ, assessed the quantity of heroin involved at 1.4 kilograms based on expert interpretation of the coded telephone calls. The appellant was sentenced on 12 September 2001 to 12 years imprisonment with a non-parole period of nine years, commencing from the date of his arrest. A separate goods-in-custody charge, relating to the $4,000 found on him at arrest, was taken into account on a Form 1.

The appellant sought leave to appeal, contending the sentence was excessive. He had a prior conviction from 1993 for aiding and abetting supply of a large commercial quantity of heroin, had not pleaded guilty, had shown no contrition, and denied any involvement in the offence.

  • Whether the sentence of 12 years imprisonment with a nine-year non-parole period was excessive in all the circumstances
  • Whether the sentencing judge properly applied relevant sentencing principles and comparable cases when fixing the penalty

Decision

Sheller JA (with whom James J and O'Keefe J agreed) reviewed the sentencing judge's reasoning in detail. The sentencing judge had identified the appellant as a "sales and delivery man" rather than a senior figure in the drug hierarchy, noting that the recipients of the satchel were likely higher in the criminal hierarchy. The offence was not assessed as the most serious of its type by quantity alone, and there were no aggravating features in its execution beyond the transaction itself.

The sentencing judge had grappled with limited comparable sentencing data. He concluded that the appellant's prior conviction for a similar offence meant the range suggested in R v Wong & Leung (which related to Commonwealth offences and to offenders without comparable priors) was not directly applicable, and that the appellant had to be treated as a repeat offender. The appellant had also not attended drug counselling in custody and had made no promise to reform.

The Court of Criminal Appeal examined decisions including R v Pauna, R v Pham, R v Cheng, and Hameed, comparing their facts and outcomes with the present case. The Court noted that Hameed, for instance, involved a guilty plea, substantial assistance to authorities, a significant sentencing discount (estimated at around 50 per cent), and no prior convictions for a similar offence. Those circumstances distinguished it markedly from the appellant's position.

Sheller JA concluded that, while the sentence was a severe one sitting at the top end of the appropriate scale, it did not fall outside the range of a proper exercise of the sentencing discretion. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence at the upper end of the appropriate range does not, without more, constitute an error warranting appellate intervention; the Court of Criminal Appeal will only intervene where the sentence falls outside the proper exercise of sentencing discretion.
  • Prior conviction for a relevantly similar offence (here, aiding and abetting supply of a large commercial quantity of heroin) materially affects the applicable sentencing range and removes the benefit of benchmarks designed for first-time offenders.
  • Sentencing comparisons drawn from cases involving guilty pleas and substantial assistance to authorities carry limited weight when applied to an offender who was convicted after trial, showed no contrition, and provided no cooperation.
  • The absence of a guilty plea, failure to seek drug rehabilitation in custody, and continued denial of involvement are all factors that reduce the mitigating considerations available at sentence.
  • In dismissing the appeal, the Court affirmed the significant weight attached to general deterrence in sentencing for large commercial drug supply, given the legislature's prescription of life imprisonment as the maximum penalty.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 33
- Crimes Act 1900 (NSW), s 527C(1)(a)

Cases
- R v Wong & Leung (1999) 48 NSWLR 340
- R v Pauna (unreported, CCA, 2 December 1997)
- R v Pham [2001] NSWCCA 307
- Hameed (2001) 123 A Crim R 213
- R v Cheng [2002] NSWCCA 225