Citation: R v Thomas Ty Phu LEE [2011] NSWSC 89
Court: Supreme Court of New South Wales
Date: 25 February 2011
Judge(s): Latham J
Background
The offender pleaded guilty, on the eleventh day of trial, to three serious Commonwealth drug and money laundering conspiracies. The charges related to his participation in an organised criminal syndicate that imported heroin from Vietnam, trafficked heroin and methamphetamine between Sydney and Melbourne, and laundered over one million dollars in drug proceeds through money remittance businesses.
The offender was a Melbourne-based member of the syndicate and the uncle of a principal Sydney organiser. His roles included collecting and remitting drug money, liaising with couriers, warehousing rejected drugs, and, critically, introducing the syndicate to its Vietnamese drug supplier. On occasions he travelled to Vietnam to deal directly with suppliers and couriers, and he personally financed at least one importation.
The syndicate operated continuously between November 2005 and July 2006 and was the subject of an Australian Crime Commission investigation. The Crown relied on extensive telephone intercept material, some of which the offender disputed. The court resolved those factual disputes applying the criminal standard of proof.
Legal Issues
- What sentence was appropriate across three serious conspiracies, each carrying a maximum of 25 years imprisonment, taking account of the totality principle and warranted accumulation?
- What weight should be given to the timing of the guilty plea, given it came on day eleven of a trial after the Crown's principal witness had given evidence?
- How should the offender's sentence be calibrated for parity with co-offenders sentenced earlier, particularly where their roles differed in scope?
- What factual findings should be made regarding disputed aspects of the Crown's case, including the offender's personal financial contribution to an importation?
Decision
Latham J resolved the factual disputes in the Crown's favour. On the question of whether the offender had purchased a courier's ticket and contributed his own funds to the December 2005 heroin importation, her Honour was satisfied beyond reasonable doubt on that point, drawing on intercepted text messages and telephone calls in which a co-offender referred to the offender's conduct and the offender himself referred to "losing paper."
The guilty plea attracted limited discount. It was entered on the eleventh day of trial, after the Crown's principal witness had already given evidence and was mid-way through cross-examination. The court treated this timing as substantially diminishing the utilitarian value of the plea.
On parity, the court considered sentences imposed on other syndicate members, including couriers who had been sentenced to terms the Court of Criminal Appeal described as lenient but not manifestly so, and Ngoc Nguyen, a co-offender of comparable seniority who received five years and three months for the money laundering conspiracy alone. The offender's involvement in all three conspiracies, including the importation limb in which Ngoc Nguyen played no part, distinguished his overall criminality.
Latham J structured the sentences with partial accumulation to reflect the totality of the offender's conduct across three separate conspiracies. Her Honour determined that an aggregate of twelve years with a non-parole period of eight years was warranted, observing that anything less would fail to adequately reflect general deterrence and would risk being unreasonably disproportionate to the gravity of the offences.
Orders Made
- Count 1 (conspiracy to deal with money as an instrument of crime): sentenced to 5 years and 6 months imprisonment, dating from 12 June 2010, expiring 11 December 2015.
- Count 2 (conspiracy to import not less than a traffickable quantity of heroin): sentenced to 7 years imprisonment, dating from 12 June 2010, expiring 11 June 2017.
- Count 3 (conspiracy to traffic in a marketable quantity of heroin and methamphetamine): sentenced to 6 years imprisonment, dating from 12 June 2016, expiring 11 June 2022.
- Aggregate term: 12 years imprisonment.
- Non-parole period: 8 years from 12 June 2010; eligible for release 12 June 2018.
- Sentences backdated to account for 65 days served in custody prior to bail revocation on 16 August 2010.
Key Takeaways
- Where a guilty plea is entered well into a trial, after the Crown's primary witness has given evidence, the sentencing court will apply a significantly reduced utilitarian discount compared to an early plea.
- Under The Queen v Olbrich [1999] HCA 54, disputed facts on sentence are resolved by the court applying the criminal standard of proof, and the Crown may rely on the full brief of evidence including intercepted communications.
- Parity between co-offenders does not require identical sentences; differences in role, seniority, and the range of conspiracies engaged in can justify materially higher penalties even where the co-offenders occupy comparable positions within a syndicate hierarchy.
- Partial accumulation of individual sentences is appropriate where an offender has participated in multiple distinct conspiracies, so that the aggregate term reflects the full scope of the criminality rather than allowing separate serious offences to be absorbed into each other.
- A late guilty plea to multiple Commonwealth drug conspiracies involving importation, trafficking, and money laundering at an organiser level, with a personal financial stake in at least one importation, warranted an aggregate of 12 years with an 8-year non-parole period.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 302.3, 400.3(1)
- Customs Act 1901 (Cth), s 233B(1)(a)(iii)
- Evidence Act 1995 (NSW), s 184
Cases
- The Queen v Olbrich [1999] HCA 54
- Le v R [2010] NSWCCA 285
- R v Nguyen [2010] NSWCCA 331