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District Court 25 September 2008

R v Hong Phong LE

[2008] NSWDC 320

Drugs
CRIMINAL LAW SENTENCE CONSPIRACY TO IMPORT PROHIBITED IMPORTS TRAFFICABLE QUANTITY OF HEROIN METHYLAMPHETAMINE COMMERCIAL QUANTITY

Citation: R v Hong Phong LE [2008] NSWDC 320
Court: District Court of New South Wales
Date: 25 September 2008
Judge(s): Berman SC DCJ

Background

The offender was a member of a large drug importation and trafficking syndicate operating between Sydney and Melbourne. The syndicate, led by a figure referred to throughout the judgment as "Kenny," imported heroin and methylamphetamine into Australia and couriered drugs to buyers in Melbourne, with proceeds remitted back to Sydney through money remittance businesses. The offender served as Kenny's close lieutenant, coordinating couriers, arranging drug supplies, and facilitating money laundering.

The offender had been born in a refugee camp after his family fled Vietnam. His family relocated to Canada, where he developed a cocaine habit, and then to Australia in an attempt to break those associations. In Australia, he came under Kenny's influence and, attracted by the displays of wealth, sought involvement in the drug business.

The offender pleaded guilty to three offences: conspiracy to import heroin (not less than a trafficable quantity), conspiracy to traffic in heroin and methylamphetamine (a commercial quantity), and conspiracy to deal with the proceeds of crime totalling more than $4.7 million.

  • What sentence was appropriate for three serious drug conspiracy offences, taking into account their substantial factual overlap?
  • Whether sentences on the three counts should be accumulated or served concurrently, having regard to the principles in Pearce v The Queen
  • What weight should be given to the offender's guilty plea, substantial assistance to authorities, rehabilitation, contrition and remorse in reducing an otherwise very heavy sentence?
  • Whether a 50 per cent discount on the primary sentence adequately reflected the combination of the plea of guilty and assistance provided

Decision

The sentencing judge described the offender as "Mr Big Enough" within the syndicate: not the organiser, but a highly active and knowing participant who coordinated the practical operations of a well-run criminal enterprise. His Honour noted that the syndicate operated with the efficiency of a legitimate business, and that the offender had paid no regard to the devastating human consequences of heroin and methamphetamine trafficking.

The court found that counts one (importation conspiracy) and three (money laundering conspiracy) were subsets of the broader trafficking conspiracy charged in count two. Applying Pearce v The Queen, the court declined to accumulate the sentences, instead imposing a lengthy sentence on count two that captured the full criminality, with fixed terms on counts one and three.

The court acknowledged that, absent the guilty plea and substantial assistance to authorities, the offender's conduct might well have warranted life imprisonment. However, his Honour took into account not only the plea and assistance but also what was described as genuine rehabilitation, contrition and remorse. A 50 per cent discount was applied to the sentence that would otherwise have been imposed on count two.

The court indicated, as required by the relevant provision of the Crimes Act, that without the offender's undertaking to provide future assistance, the sentence on count two would have been 20 years imprisonment with a non-parole period of 13 years.

Orders Made

  • Count two: imprisonment for 13 years and 6 months, commencing 14 December 2006, with a non-parole period of 9 years (expiring 13 December 2015)
  • Counts one and three: fixed terms of 7 years imprisonment each
  • Sentences on counts one and three not accumulated on count two
  • Notional sentence (absent assistance undertaking) indicated as 20 years with a non-parole period of 13 years on count two

Key Takeaways

  • The District Court confirmed that where multiple conspiracy counts arise from substantially overlapping conduct, the sentencing court may decline to accumulate sentences and instead impose one principal term that reflects the totality of the criminality, consistent with Pearce v The Queen.
  • A 50 per cent reduction from an otherwise applicable sentence was applied where the offender both pleaded guilty and provided substantial assistance to authorities, with genuine rehabilitation and remorse also weighing in mitigation.
  • Life imprisonment is not reserved exclusively for the principal organisers of major drug trafficking operations. The court found that a sufficiently significant operational role can, objectively, place an offender in the range where life imprisonment is appropriate.
  • Under the applicable provision of the Crimes Act, the sentencing court was required to state, on the record, the sentence that would have been imposed but for the offender's undertaking to provide future assistance to authorities.
  • Where co-offenders have been sentenced for individual acts rather than the ongoing conspiracy, parity considerations have limited application to a principal participant sentenced for the conspiracy itself.

Legislation and Cases Referenced

Legislation
- Commonwealth Crimes Act (including s 21E, requiring disclosure of the notional sentence absent an assistance undertaking)

Cases
- Pearce v The Queen [1998] HCA 57; 194 CLR 610; 156 ALR 684 (principles governing the imposition of cumulative versus concurrent sentences for multiple offences)