Director of Public Prosecutions (Cth) v Le, Tuyet Bach

[2015] VCC 541

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR 15-00129

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

TUYET BACH LE

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2015
DATE OF SENTENCE:	13 May 2015
CASE MAY BE CITED AS:	DPP (Cth) v LE, Tuyet Bach
MEDIUM NEUTRAL CITATION:	[2015] VCC 541

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - PLEA

Catchwords:              Import of pseudoephedrine

Legislation Cited:     Customs Act 1901 (Cth), s233BAA(4); Crimes Act 1914 (Cth), s16A, s16A(1)

Sentence:                  Convicted and sentenced to a term of imprisonment of 15 months. Offender to be released after serving a period of 8 months’ imprisonment upon the offender entering an undertaking to be of good behaviour in the sum of $500.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Payteu	Solicitor to the Commonwealth Office of Public Prosecutions
For the Offender	Mr R. Lawson	Winstan Lawyers

HIS HONOUR: 

1Tuyet Bach Le. You have pleaded guilty to one charge of importing goods contrary to s.233BAA(4) of the Customs Act Commonwealth.  The maximum penalty is five years' imprisonment or a fine of $110,000 or both. 

Circumstances of offending:

2The facts surrounding your offending are set out in the summary of prosecution opening.  I adopt those facts. 

3On 28 August 2012, you were intercepted by customs officers at the Melbourne Airport and five packets of cake mix were found amongst various other grocery items inside your suitcase.  You had earlier completed an incoming passenger card, denying you were bringing any illicit drugs into Australia.  When intercepted, you said you had travelled to Germany for a relative's wedding and had bought the packages of food to bring into Australia as gifts.  You denied any knowledge that the packages contained drugs.  Subsequent assessment revealed that the substance in the packages contained pseudoephedrine with a pure weight of 740 grams. 

4You did not at that time provide, nor have you since provided, any explanation as to how you came to be in possession of the drugs. 

5You were subsequently charged by a summons returnable on 12 September 2013.  You failed to appear and a warrant was issued for your arrest.  The matter came on for committal mention in January of this year when you entered a plea of guilty. 

Your personal circumstances:

6You are now 57 and were born in rural Vietnam.  Both of your parents have died.  You came to Australia in 1994 involving a perilous journey via a Malaysian refugee camp.  You were married at age 20 and have five children.  Your husband was to follow you to Malaysia but failed to do so and you have not seen him since.

7All of your children are now living in Melbourne and you have ten grandchildren.  You live with your eldest daughter who has four young children.  I accept you provide considerable assistance to her in the management of the family. 

8You have worked on and off as a factory/process worker.  I accept you help keep the family going with your wages, which is important to your daughter, as she does not work and her husband has abandoned her. 

9You have no prior convictions and have come to the attention of the authorities on only one subsequent occasion in 2013 relating to a relatively minor theft at Crown Casino. 

10I was provided with a reference from Father Minh Tran, a priest of your parish at St Albans South.  He said you regularly attend Sunday mass and he described you as a kind and honest person. 

Sentencing matters: 

11The matters to be taken into account in passing a sentence for this offence are set out in s16A of the Crimes Act 1914 (Cth). Relevantly, they include:

·        The nature and circumstance of the offence;

·        Your personal circumstances;

·        The degree of contrition shown for your offending;

·        Your plea of guilty;

·        The extent to which you have co-operated with law enforcement agencies in the investigation of the offence;

·        The deterrent effect of any sentence upon you;

·        Adequate punishment;

·        Your prospects of rehabilitation;

·        The effect of any sentence upon your family.

12On many occasions, our Court of Appeal has said that those involved in the drug trade, including those, like you, acting as couriers, face severe penalties when caught.  Pseudoephedrine is well known as a precursor to a range of drugs, in particular, amphetamines and methamphetamines.  Involvement in the drug trade is an involvement in the trafficking of human misery. 

13Although I accept that you are at a relatively low level in the scheme in which you were involved, nonetheless, without the participation of you and others like you, the illicit importation of drugs into this country would be much more difficult. While you have not contested the charges against you, you have provided no explanation as to how and in what circumstances you came to possess and transport the pseudoephedrine and have provided no assistance to the police as to the others involved with you.  It is, of course, your right to remain silent in these matters.  The issue is of some relevance in considering whether you are remorseful for your actions. 

14You have pleaded guilty at a relatively early time and that fact should be taken into account in your favour.  A plea of guilty will always attract sentencing discount.  I accept your plea of guilty is some evidence of remorse.  You have avoided the cost of a trial and spared witnesses the inconvenience and ordeal of giving evidence. 

15Your background and current circumstances are relevant.  I accept that coming from a war-torn country as a refugee and attempting to establish life in another country has not been easy.  You have done all this without the assistance of your husband, your children's father. I accept you provide significant help to your daughter and her children.  However, this assistance does not achieve the level of exceptional circumstances of family hardship such as to warrant the grant of special mercy.  Your counsel has emphasised the delay in bringing the charge against you and its hearing. 

16The offending occurred in August 2012.  You were not charged until August 2013, presumably because of investigation by the Customs officers and the time taken to analyse the substance involved.  After that time, the delay in bringing the matter to committal in January of this year and the plea last week was largely as a result of your failure to appear in September 2013 which required a warrant to be issued for your arrest.

17All in all, I do not consider the delay in bringing the charge against you to be significant.  In any event, save for the minor theft charge in 2013, you have not come to the attention of the authorities to the present time, and that is an issue in your favour in relation to rehabilitation. 

18I further bear in mind that you are now 57 years of age and any time spent in prison would be difficult for you, given you speak little English. 

19Further, you have no prior convictions, have not since come to the attention of the authorities, save in respect of that minor matter in 2013. 

20Given your failure to explain the circumstances of the offending, I accept the prosecution's submissions that there is an inference your involvement was for profit.  Therefore, general deterrence is an important sentencing consideration. 

21The weight of the imported substance is significant.  You imported 740.06 grams of pure pseudoephedrine which is more than 30 times the critical threshold quantity. 

22The prosecution provided a table of comparative sentences for those convicted of the importation of pseudoephedrine.  Each case must be determined on its own particular facts and circumstances, but I have borne in mind those sentences imposed.  They provide some general guide. 

23I accept the plea of your counsel that it is unlikely you will offend again, given your age, your family commitments and the sentence which I am about to impose, together with your plea of guilty, all lead me to the view that the prospects of your rehabilitation are strong and the chances of reoffending limited. 

24Bearing in mind the matters to which I have referred, in particular, the principles of sentencing I am required to consider under s.16A of the Crimes Act, I impose the following sentence: 

25On the charge of importing tier 1 goods contrary to s.233BAA(4) of the Customs Act, you are convicted and sentenced to a term of imprisonment of 15 months.  That term will commence today. 

26Given the factors to which I have referred, in particular, your age, the difficulty you will encounter serving any sentence of imprisonment, the limited prospect of reoffending and your family circumstances, I direct that you be released after serving a period of eight (8)months' imprisonment, upon you entering an undertaking to be of good behaviour in the sum of $500.  This undertaking will continue for the duration of your sentence. 

27But for your plea of guilty, I declare that I would have imposed a sentence of imprisonment of 20 months and directed that you be released after 12 months. 

28Yes, thank you, you may be seated.  Yes, anything further, Ms Payteu? 

29MS PAYTEU:  Your Honour ‑ ‑ ‑ 

30HIS HONOUR:  Have I got that right under the

31Commonwealth legislation?

32MS PAYTEU: You have, Your Honour. I would ask that Your Honour would explain the sentence to the offender, particularly the purpose and consequence of making a recognisance release order under the requirement of s.16F of the Crimes Act.

33HIS HONOUR:  What does that require me to say?

34MS PAYTEU:  If I can just have a moment.  If I could read it to Your Honour.

35HIS HONOUR:  Yes.

36MS PAYTEU:  "Where a court imposes a Federal sentence on a person and makes a recognisance release order in respect of that sentence, it must explain or cause to be explained to the person in language likely to be readily understood by that person the purpose and consequences of making the recognisance release order, including in particular an explanation that the service of the sentence will entail a period of imprisonment equal to the pre-release period specified in the order and a period of service in the community equal to the balance of the sentence and any conditions to which the order is subject and of the consequences that may follow if the person fails without reasonable excuse to fulfil those conditions and that any recognisance given in accordance with the order may be discharged or varied under s.20AA of the Crime Act".

37HIS HONOUR:  Yes.  Stand again, if you would not mind, please, Ms Tuyet.  What that sentence of imprisonment means is that you will be able to be released from imprisonment after you serve eight months but you will remain in the community bound to be of good behaviour.  That means that you must stay out of trouble and not be convicted of any other offending for the remainder of the period of seven months while you are released into the community.

38If you do not remain of good behaviour and are convicted of other offending, then you will be liable to further penalty and to serve the balance of the time under the sentence.  Yes, thank you.  Be seated.  Is that sufficient to fill the obligation?

39MS PAYTEU:  Yes, Your Honour.  If I may, I will hand up the recognisance release order which sets out the penalty Your Honour has just imposed.

40HIS HONOUR:  Thank you.  Just let me hear from Mr Lawson.  Is there anything further, Mr Lawson, from your end?

41MR LAWSON:  I don't believe so, Your Honour.

42MS PAYTEU:  Your Honour, that will need to be signed by you and then also by the offender.

43HIS HONOUR:  Yes.  I pass that back.  The prisoner could come forward to Mr Lawson.  Explain that to her, Mr Lawson, and have her sign it.

44MR LAWSON:  Your Honour, the document calls for the signature to be done in the presence of Your Honour's associate and I wonder if ‑ ‑ ‑

45HIS HONOUR:  Yes.

46MR LAWSON: ‑ ‑ ‑ one of Your Honour's associates should come to the Bar table.

47HIS HONOUR:  Yes, thank you.  If you would just remain there for a moment and pass the document back to me.  Ms Le, do you understand the sentence that I have imposed?

48OFFENDER:  Yes.

49HIS HONOUR:  And do you understand that if you do not comply with the terms of the sentence, in particular to remain of good behaviour after you are released after eight months' imprisonment, that you will be liable to further penalty.  Do you understand all of that?

50OFFENDER:  Yes.

51HIS HONOUR:  And do you understand that the order may be discharged or varied for a range of reasons under the legislation?  Do you understand all of that?

52OFFENDER:  Yes.

53HIS HONOUR:  Thank you.  If you would return to the dock at the back of the court.  Anything further.

54MS PAYTEU:  Nothing further, Your Honour, I would just ask that your associate make copies ‑ ‑ ‑

55HIS HONOUR:  Yes, copies of that will be made and distributed to the parties.  Thank you.  To the prison officer, could you please allow Ms Le some time with her legal counsel and family before being taken to the cells.

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