Director of Public Prosecutions (Cth) v Pham
[2025] VCC 487
•1 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01287
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| JOANNE PHAM |
---
JUDGE: | Her Honour Judge Brimer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2025 | |
DATE OF SENTENCE: | 1 April 2025 | |
CASE MAY BE CITED AS: | DPP (Cth) v Pham | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 487 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of importing a commercial quantity of a border controlled drug – 2.49 times the commercial quantity – high moral culpability – specific deterrence – criminal history with prior convictions for importing commercial quantities of border controlled substances.
Legislation Cited: Criminal Code Act1995 (Cth), Schedule 1; Crimes Act1914 (Cth); Sentencing Act 1991 (Vic).
Cases Cited:Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288; Bugmy v R (2013) 249 CLR 57; DPP (Cth) v Afford [2017] VSCA 201; DPP (Cth) v Aqbal Omar [2019] VSCA 188; DPP (Cth) v Thomas (2016) 53 VR 546; DPP v Dalgleish (a pseudonym) [2017] HCA 41; DPP v Terrick; DPP v Marks; DPP v Stewart (2009) 24 VR 457; Lau v The Queen [2011] VSCA 324; Le v The Queen [2019] VSCA 80; Lieu v The Queen [2016] VSCA 277; Luu v R [2024] VSCA 267; Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; Pham v The Queen [2016] VSCA 259; Phillips v The Queen (2012) 37 VR 594; Qui v The Queen; Ng v The Queen [2019] VSCA 147; R v Banker [2016] QCA 74; R v Chen and Ors [2002] NSWCCA 174; R v Ly [2004] VSCA 45; R v Nguyen; R v Pham (2010) 205 A Crim R 106; R v Pang [1999] NSWCCA 4; R v Pham (2015) 325 ALR 400; Tran v The Queen [2017] VSCA 346; Van Zwam v R [2017] NSWCCA 127; Wong v R (2001) 207 CLR 584.
Sentence: Total effective sentence of 12 years’ imprisonment. Non-parole period of 8 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Sprague | Commonwealth Director of Public Prosecutions |
| For the Offender | Ms E Allan | Giorgianni & Liang Lawyers |
HER HONOUR:
The charge
1Joanne Pham, you have pleaded guilty to one charge of importing a commercial quantity of a border controlled drug, namely heroin, contrary to section 307.1(1) of the Criminal Code (Cth) (Criminal Code).[1]
[1] Criminal Code Act 1995 (Cth), Schedule 1.
2The maximum penalty for the offence is life imprisonment.[2]
[2] Or 7,500 penalty units or both.
3At the time of offending on 26 January 2024, you were aged 74 years and lived in Canley Vale, New South Wales.
Circumstances of the offending[3]
[3]The circumstances of the offending are set out in more detail in the Commonwealth Director of Public Prosecutions’ Summary of Prosecution Opening for Plea dated 10 February 2025 (SOPO) (Exhibit 1). I have also read and taken into consideration: Prosecution Submissions on Sentence dated 11 March 2025 and Comparative Sentencing Schedule (Exhibit 2); Sentencing Remarks and Summaries of Facts in relation to the two prior matters involving Joanne PHAM (Exhibit 3); Criminal Record; Bundle of Certificates and Buddhist Council of Victoria Letter dated 17 January 2025 (Exhibit A); Defence Outline of Plea Submissions dated 7 March 2025 (Exhibit B); and Addendum Defence Submissions on Record of Interview Evidence dated 13 March 2025.
4On 12 January 2024, you left Australia from Sydney Airport on a Thai Airways flight with a brief stopover in Bangkok, Thailand. You arrived in Vientiane, Laos, later that day.[4]
[4]SOPO at [3].
5On 25 January 2024, you left Vientiane, Laos, on a Thai Airways flight to Melbourne with a brief stopover in Bangkok, Thailand.[5]
[5]SOPO at [4].
6At about 11.57am[6] on 26 January 2024, you arrived at Melbourne International Airport, Terminal 2.[7]
[6]While [5] of the SOPO states ‘11.57pm’, the Prosecution sought leave during the plea hearing to amend their SOPO at [5] to reflect the accurate timing of ‘11.56am’ and to amend the last line of [18(d)] to read ‘gave it to her before the offender left Australia’. Leave was granted to make those amendments.
[7]SOPO at [5].
7At about 12.26pm, you picked up a long item wrapped in bubble wrap from the oversize baggage area and placed it on a trolley with your other luggage.[8]
[8]SOPO at [6].
8You had a small black suitcase, a large black suitcase, a black Prada handbag, and the long item wrapped in bubble wrap.[9] The long package contained two green bags with metal hammock frames, with a total weight of approximately 16.8kg.[10] The Australian Border Force (ABF) conducted an X-ray of all the baggage in your possession, which revealed an anomaly in the hammock frames.[11]
[9]SOPO at [8].
[10]SOPO at [8].
[11]SOPO at [8].
9At about 12.37pm, the ABF searched and examined your baggage.[12] Using a Vietnamese translation card, ABF officers asked you about your incoming passenger card and baggage. When you were asked whether you had packed your bags yourself, you said “yes”.[13]
[12]SOPO at [7].
[13]SOPO at [7].
10Following the baggage examination, the ABF officers took copies of:[14]
(a) your boarding passes, passport and Incoming Passenger Card;
(b) a flight itinerary showing your outbound travel on 12 January 2024, and return travel originally booked for 21 January 2024;
(c) a MoneyGram Receiver receipt for USD$638.59, paid by Cindy Do to you on 22 January 2024; and
(d) a receipt for the SengTawan Riverside Hotel in Vientiane, Laos, for four nights from 21 to 24 January 2024 with a total cost of $140.
[14]SOPO at [9].
11At 1.05pm, you were cautioned and read your rights through a Vietnamese phone interpreter.[15] A full recorded baggage examination was then conducted.[16] Further examination of the hammock frames revealed packages concealed inside, and presumptive testing by ABF officers revealed the presence of heroin.[17]
[15]SOPO at [10].
[16]SOPO at [10].
[17]SOPO at [11].
12During this time, ABF officers also took possession of your other luggage and belongings, and two mobile phones.[18]
[18]SOPO at [12].
13At 4.54pm, you were arrested by the Australian Federal Police (AFP) at Melbourne Airport and transported to the AFP Melbourne Airport Operations Centre.[19]
[19]SOPO at [13].
Forensic examination
14Subsequent forensic examination and analysis of the green bags with the hammock frames revealed a total of 54 plastic-wrapped packages, each containing a quantity of white powder. Forensic analysis determined that the white powder contained heroin with a purity of 73.6%. The pure net weight of heroin concealed within the hammock frames was 3,747.2 grams or 3.7472 kilograms.[20]
[20]SOPO at [15].
Arrest and interview
15After you were arrested, you participated in a recorded interview with the AFP with the assistance of a Vietnamese interpreter.[21]
[21]SOPO at [18].
Subsequent investigations
16A number of relevant messages and images were located on one of your Samsung mobile phones:[22]
[22]SOPO at [20].
(a) One image showed a handwritten note, sent on 20 January 2024 by you to a contact called “Mam”, asking for USD$1,300 to buy a new ticket back to Australia from Laos and to reschedule the return date to 25 January 2024. The note stated:
“Mam. I wish we can reschedule the date – the 25th – there’s no seat. Have to buy ticket 1,300 $USD
Let me know soon
Regarding the money where to get don’t know either”.[23]
[23]SOPO at [21].
(b) A screenshot of a handwritten note taken on 20 January 2024 was found in the photos section of the Samsung mobile phone. The note included your request to ‘Sister Mam’ to book the return flight for USD$1,300 on 25 January 2024:
“Sister Mam.
I’ve gone on holiday, working out departure date and return date, but Lan wants to reschedule my return date, I have run out of money.
Lan said would send to me but did not see. Regarding the ticket, send to me, I’ve gone to airport confirming the booking. Having organized for me to return on the 25th but no pay, They said over there that rescheduling the date must pay ticket money - $ 1,300USD
How come you say so, I do not want that to happen. I did not change my mind back and forth, Hope you understand.”[24]
(c) On 20 January 2024, a contact named “Mam” sent messages to your phone, including a screenshot of a flight itinerary booked in your name. The flight itinerary included the return flight which you took from Laos to Melbourne (via Bangkok) with Thai Airways on 25 January 2025. The itinerary showed the booking was made through a travel agent located in Bankstown, New South Wales.[25]
[24]SOPO at [22].
[25]SOPO at [23].
Pre-sentence detention
17You were remanded on 26 January 2024. Up to the date of the plea on 13 March 2025, but not including that date, you had been in custody for 412 days.
Commonwealth sentencing principles[26]
[26]s 16A of the Crimes Act.
18Section 16A(1) of the Crimes Act 1914 (Cth) (the Crimes Act) provides that in determining the sentence to be passed in such a case, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
19I must take into account the factors set out in section 16A(2) of the Crimes Act as well as any other relevant and known factors.
20I have also had regard to the principles applicable to sentencing Commonwealth drug offenders, which were summarised by the New South Wales Court of Criminal Appeal in R v Nguyen; R v Pham.[27]
[27](2010) 205 A Crim R 106 (R v Nguyen; R v Pham) referred to in Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32 at [34].
21I address these factors below.
General deterrence and denunciation[28]
[28] s 16A(2)(ja) of the Crimes Act.
22Detecting drug importation offences is difficult. Significant adverse social consequences flow from the movement of drugs into and distribution within Australia. For these reasons, principles of general deterrence and denunciation are prime considerations. Such considerations will generally outweigh subjective circumstances, and stern punishment will be warranted in almost every case.[29]
[29]Wong v R (2001) 207 CLR 584 at [64]; DPP (Cth) v Thomas (2016) 53 VR 546.
23The sentence to be imposed must signal to “would-be drug traffickers” that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.[30]
[30] R v Chen and Ors [2002] NSWCCA 174.
Nature and circumstances of the offence[31]
[31] s 16A(2)(a) of the Crimes Act.
Objective seriousness
24Importation of a commercial quantity of a border controlled drug is a very serious offence as is evidenced by the maximum penalty of life imprisonment.
25You imported 2.49 times the commercial quantity of heroin.
26As a matter of common sense, it should be inferred that you were importing the drugs for profit. There is no evidence to the contrary. The text messages that were found on your phone support this common sense inference, albeit the amount you were to receive or whether you received any amount is unclear.
27There is no issue between the parties that you were a courier acting under direction, communicating with a person or persons called “Mam” and/or “Lam”.
28I accept that there is no evidence that you were involved in the planning or recruitment of others. However, the role of a courier in a drug-trafficking operation is a crucial step in effecting the importation of border controlled substances and the substances then being disseminated in the community. Involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.[32]
[32] R v Pang [1999] NSWCCA 4.
Knowledge
29You have pleaded guilty to an offence against section 307.1(1) of the Criminal Code. It is an element of that offence that the substance imported was a border controlled drug[33] (drugs). The corresponding fault element is recklessness. The prosecution contended, however, that I should find that you intended or had knowledge that you were importing drugs. The presence of intention or knowledge is an aggravating factor, but recklessness is not a mitigating factor.[34]
[33] s 307.1(1)(b) of the Criminal Code.
[34] Lau v The Queen [2011] VSCA 324 at [25]. In that case, the Court of Appeal referred to Crown counsel’s
submission that “(a) the fact that an offender’s state of mind is reckless as to the nature of the substance being imported, did not bear significantly, if at all, on the court’s assessment of the objective seriousness of the offending; or (b) if it is a relevant factor, it is not a mitigating factor; rather the presence of intention or knowledge is an aggravating factor.” At [26], the Court of Appeal stated, “In our opinion, the proposition in (b) should be accepted. The legislative scheme makes it clear that offenders who are reckless as to the nature of the substance imported, rather than having a specific intention to import a border controlled drug, are to be treated in the same way as offenders who do so intentionally.”
30I am satisfied beyond reasonable doubt that, contrary to what you told the police when you were interviewed, you knew that you were importing drugs. The circumstances of this offence, together with and in the light of your two prior convictions for drug importation offences and the consequences of that offending, compel the inference beyond reasonable doubt that you knew you were importing drugs into Australia:
(a) As to the circumstances of your importation offences:
(i)In relation to your 2004 offending, a woman you met in a hospital cafeteria in Vietnam later phoned you. You met for lunch. She asked you to bring “goods” into Australia and gave you an advance of $2,000. You were given the name of a man who would contact you to pick up the “goods”. You were told the goods were heroin. On that occasion, the heroin was concealed in jars of fish and inside your body.
(ii)In relation to your 2014 offending, you gave evidence that you were in debt to two people in Australia and at the time they lent you money so you could gamble it. They said they would require you to bring some things back from Vietnam on a trip. You went on the trip. You met with a person who provided you with the items concealing the illicit drugs. You brought back a photo album which was perceived by a customs officer to be unusually heavy and was found to contain heroin, as did packets labelled as various food items and cardboard boxes labelled as soap.
(iii)In relation to this offence, you met a woman whom you had met only 1 to 2 months before the offending. You agreed to travel to Laos and bring items back in exchange for payment. This woman paid for your flights, accommodation and gave you spending money. A package was delivered to your hotel by someone you didn’t know. When you asked about the item when it was delivered to your hotel, you were told not to ask too many questions.[35] You had the package wrapped at the airport in the way instructed.
(b) In those circumstances and having regard to the consequences of your two prior convictions for importing drugs into Australia, there could have been no doubt in your mind as to what you were being asked to do on this occasion:
(i)On 29 October 2004, in the District Court of New South Wales, you were convicted of importing a prohibited import, namely a trafficable quantity of heroin, and sentenced to 6 years’ imprisonment with a non-parole period of 3 years and 6 months.[36]
(ii)On 30 October 2014, in the District Court of New South Wales, you were convicted of importing a marketable quantity of a border controlled drug, namely heroin, and sentenced to 7 years’ imprisonment, to be released on recognizance after serving 3 years and 6 months. Two offences of importing prohibited tier 1 goods, namely pseudoephedrine and ephedrine, were also taken into account.[37]
[35] SOPO at [18(k)]. AFP ROI, Q&A 213.
[36]Criminal Record of Joanne PHAM dated 6 March 2025. SOPO at [28].
[37]Criminal Record of Joanne PHAM dated 6 March 2025. SOPO at [27].
31Upon sentence following your 2014 offending, the sentencing judge recorded that you gave evidence you were not exactly aware of what you would be bringing into Australia. You accepted that you knew, at least when you were in Vietnam, that there was a significant risk the items contained drugs. Although the sentencing judge considered that one might have expected that you would be something more than suspicious on that occasion (in light of the first occasion), her Honour was not satisfied beyond reasonable doubt that you knew that you were bringing drugs back into Australia, although you would have had some suspicion. This finding was based on two affidavits sworn by your sons setting out details of your extremely serious gambling addiction at that time and a psychologist report that you were suffering from a severe persistent gambling disorder. On that basis, her Honour found that you put your “head in the sand” before the trip.
32It defies reality that, having felt the full consequences of having put your “head in the sand” on the last occasion, you were not aware that you were importing drugs on this occasion.
33Further, having regard to the following factors, I do not accept your counsel’s submission that your trusting nature, “that you don’t like to think suspiciously of people”, supports an inference of recklessness (not knowledge) particularly in the broader context of your vulnerability and personal history and the circumstances in which you met “Lam”:[38]
(a) Ms Allan submitted that you are of normal intelligence;
(b) There is no evidence that you suffer from any intellectual or cognitive impairment; and
(c) You disavow any ongoing gambling addiction.
[38] and/or “Mam” Including as set out in the Addendum Defence Submissions on Record of Interview
Evidence dated 13 March 2025.
34Ms Allan submitted that the Court ought to accept your response to the AFP that you “didn’t know what was inside” and that if you had known, you wouldn’t have done it.[39] Ms Allan relied on the concealment of the drugs inside the item such that the drugs had to be drilled out, and the absence of any forensic evidence linking you to the drugs themselves. She also relied on a number of responses in your record of interview to that effect, including you asking “What that?” upon extraction of the packages within the poles.[40] The ABF officer responded, “We don’t know. We have to test it.”[41] You asked, “So what is, ah, the drug’s name?”[42]
[39]Addendum Defence Submissions on Record of Interview Evidence dated 13 March 2025 at [6].
[40]Addendum Defence Submissions on Record of Interview Evidence dated 13 March 2025 at [6].
[41]Transcript of ABF interview on 26 January 2024, p 42.
[42]Transcript of ABF interview on 26 January 2024, Q&A 332.
35I accept that that the packages were tightly concealed inside the hammock frames and not visible from the outside and that there is no forensic evidence connecting you to the packages. However, you told the AFP officers that you did not unpack the item after its delivery, stating “the item was heavy and I didn’t want to unpack it”.[43] You didn’t even attempt to inspect or check the item. In the context of your prior offending and the consequences of that offending, one would have expected you to be concerned to check if, as you said, you wouldn’t have done it if you had known.
[43] Addendum Defence Submissions on Record of Interview Evidence dated 13 March 2025 at [6].
36For the reasons set out above, I am satisfied beyond reasonable doubt that you knew you were importing drugs.
Specific deterrence[44]
[44] s 16A(2)(j) of the Crimes Act.
37Specific deterrence is a significant sentencing factor in these circumstances as you continued offending despite two prior convictions and lengthy sentences, which included terms of imprisonment. Further, the quantity of drugs imported has increased on each occasion you imported drugs into Australia.
38Ms Allan submitted that the context behind this offending is distinguishable from your prior offending in that your previous convictions occurred in the context of financial stress and difficulties with gambling addiction. In 2014, psychological evidence of your problematic gambling and diagnosis with a major depressive disorder and severe gambling disorder was before the District Court of New South Wales when you were sentenced in relation to your 2014 offending.
39As stated above, however, you now disavow any ongoing gambling addiction. Despite having apparently dealt with your gambling addiction, you were not deterred from further offending. There is no evidence that you suffer from any intellectual or cognitive impairment. No psychological report was tendered.
40Ms Allan further submitted that given your age, you are unlikely to undertake any further international travel after serving a custodial sentence. Whilst that might be so as a matter of practical or physical reality, on the previous occasion that you were sentenced in 2014, the sentencing judge observed that you would be in your late 60s when released from custody and that that might slow you down to some extent. It did not stop you from re-offending
41I am, however, mindful that your prior convictions do not permit the imposition of a sentence that offends the principles of proportionality and parsimony.[45]
Personal circumstances[46]
[45]s 17A(1) of the Crimes Act.
[46]s 16A(2)(m) of the Crimes Act.
42Your personal circumstances are set out in relatively short compass in the Defence Outline of Plea Submissions. Some insight is also available from the sentencing remarks made on the occasions of your two previous sentences from 2004 and 2014.
43In summary:
(a) You were born in a small rural village in South Vietnam in October 1949, at the height of the Vietnam War. Your house was bombed and your family forced to move frequently. You were exposed to death from a young age. You still have nightmares and flashbacks.
(b) When you were just two years old, your father, a teacher, was killed by the Viet Cong. Your mother was pregnant with your two younger siblings at the time. She also had her own health conditions (namely, epilepsy) to deal with. You attended primary school until Year 5 before leaving to look after your younger siblings.
(c) Later in your childhood, your mother re-married and your brother was sent to live with your paternal grandparents and your sister was raised by an aunt. You were the only child to live with your mother and stepfather as you were considered good with housework. You instructed your counsel that if you were slow with housework, your stepfather would verbally and physically abuse you. Your mother and stepfather subsequently had seven more children together.
(d) Your two biological siblings have passed away but you maintain some contact with your half-siblings.
(e) Your first relationship was with a South Vietnamese army man, whom you married at age 17. You had six children together. He was arrested by the Viet Cong and sent to a re-education camp for five years. You were left to support your family in the meantime.
(f) You made plans to escape the country with others by building a boat. The plan failed and as your children were not close by during the period you wanted to escape, they were left behind with your sister-in-law.
(g) You survived a life-threatening boat trip from Vietnam to Malaysia. You spent a brief period in a refugee camp in Malaysia before being accepted for immigration to Australia. You are now an Australian citizen.
(h) You arrived in Australia by boat in 1980, aged 31 years. You married the co-captain of the boat that brought you to Australia. Once settled in Australia, you worked in a sewing business and a bag factory.
(i) Your former husband re-married and in 1985, he took four of your six children to the United States of America. The other two children were married but eventually one of them joined the others in the USA. You have maintained contact with the children of your first marriage.
(j) Your second marriage was unhappy and you divorced after 17 years in 1997. Following your divorce, you were forced to vacate the family home and did not receive any money. You rented accommodation and raised your two sons. You have now been estranged from them for the past three to four years. Before this offending, you were living in a share house.
44I accept Ms Allan’s submission that your difficult personal history is relevant to your moral culpability in a general sense. It is well-accepted that the effects of childhood deprivation do not diminish over time,[47] and I have given full weight to your personal history in determining a sentence that is of a severity appropriate in all of the circumstances.
[47]Bugmy v R (2013) 249 CLR 571 at [40] (Bugmy).
Age
45I accept that your age of 75 years is relevant to the exercise of the sentencing discretion. It is undoubtedly the case that you are likely to spend a substantial portion of the remainder of your life in custody and that this is a weighty consideration.
46I accept that custody will be more burdensome for you than it would be for others, given your age, personal background, current isolation, and loneliness. You do not speak English and are distant from any support network in your home state of New South Wales. You have no family in Melbourne and no visitors. Speaking on the phone with your children from your first marriage is the only family support you receive.
47However, having regard to your prior convictions, considerations of specific and general deterrence and community protection are important sentencing factors, and “the significance of personal circumstances correspondingly decreases.”[48] I have, however, taken these factors into account in imposing a sentence that is just in all the circumstances and proportionate to the offending and your personal circumstances.
Plea of guilty[49]
[48]DPP v Terrick; DPP v Marks; DPP v Stewart (2009) 24 VR 457, 468-9 at [46] (citations omitted). See further Bugmy, 595 at [44].
[49] s 16A(2)(f) and (g) of the Crimes Act.
48You entered a plea of guilty on 18 November 2024, having first indicated a willingness to plead guilty on 30 October 2024 following the Case Assessment Hearing.[50]
[50]SOPO at [24].
49Despite your plea not being at the earliest opportunity, both parties accepted that the timing of your plea has resulted in a benefit to the community and has utilitarian value. A trial has been avoided which is of benefit to the criminal justice system. Your plea of guilty is an important factor that I have taken into account.[51]
[51] Lieu v The Queen [2016] VSCA 277 at [56]; Phillips v The Queen (2012) 37 VR 594, 605 at [38]; R v Ly
[2004] VSCA 45 at [22].
50Ms Allan contended that your plea is consistent with your shame, remorse and feelings of having brought disgrace upon yourself and your children. I have had regard to the record of interview and Ms Allan’s submission that your distress is apparent, including by your answer, “If I go to jail, you know, no-one will love me.”[52] The answers referred to by your counsel show at least some regret and shame for your actions as you were concerned about the impact on your children to whom you have not spoken for some years,[53] if the matter was in the news or the newspaper.[54] Although not rising to “genuine penitence and contrition and a desire to atone”[55] such that it could be said to enhance prospects of rehabilitation and reduce the need for specific deterrence significantly, I have taken these indications of shame and regret into account, in determining a sentence that is of a severity appropriate in all of the circumstances.
Prospects of rehabilitation[56]
[52] Transcript of ABF interview on 26 January 2024, Q&A 60.
[53] AFP ROI, Q&A 220.
[54]Transcript of ABF interview on 26 January 2024, pp 46-7.
[55] Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288 at [38].
[56] s 16A(2)(n) of the Crimes Act.
51I accept the Prosecution’s somewhat generous submission that your prospects of rehabilitation are guarded at best. You have twice served lengthy terms of imprisonment for importing drugs and yet you still re-offended.
52In addition to your instructions that you have dealt with your gambling addiction, you instructed your counsel that you have no substance abuse issues, you do not drink, smoke or consume drugs. Whilst these are all positive attributes, given their presence at the time of your offending, it is difficult to accept Ms Allan’s submission that your prospects of rehabilitation remain positive.
53I have, however, had regard to your consistent attendance at all services with the Buddhist Chaplain since your arrival at the Dame Phyllis Frost Centre and your dedicated participation in all ceremonies through the years. I accept that you have been a model prisoner in custody: keeping busy with working, walking daily, and doing courses available to you.
Cooperation with law enforcement agencies[57]
[57] s 16A(2)(h) of the Crimes Act.
54You answered questions during the ABF and AFP interviews. You provided an account which was relied upon by the Prosecution as part of the combination of factual circumstances supporting knowledge that you were importing drugs. For the reasons set out above, however, I do not accept Ms Allan’s submission that you were forthright in all of your answers, specifically in respect of your knowledge that you were importing drugs.
55It is clear from the record of interview that you told the ABF and AFP that someone would be waiting for you. Ms Allan submitted from the bar table that you instructed her that you were willing to assist authorities with furthering the investigation beyond the airport but you were never specifically asked to cooperate in that way. No assistance eventuated.
56I have taken into account your cooperation to that somewhat limited extent as part of the overall instinctive synthesis.
Comparative sentences
57I have had regard to the comparable cases provided to the Court by both parties.[58] While sentencing statistics offer guidance and promote consistent sentencing practice throughout Australia, they are not determinative of the sentence in any particular case.[59]
[58]Luu v R [2024] VSCA 267: Application for leave for appeal dismissed. Sentenced to 12 years’ imprisonment with a non-parole period (NPP) of 8 years; DPP (Cth) v Aqbal Omar [2019] VSCA 188: Crown appeal against sentence on the basis of manifest inadequacy. Respondent resentenced to 8 years’ imprisonment with a NPP of 5 years; R v Banker [2016] QCA 74: Appeal against conviction refused and leave for appeal against sentence refused. Sentenced to 12 years’ imprisonment with a NPP of 8 years; DPP (Cth) v Afford [2017] VSCA 201: Crown appeal against sentence on the basis of manifest inadequacy. Respondent resentenced to 10 years’ imprisonment with a NPP of 7 years; Van Zwam v R [2017] NSWCCA 127: Appeal against conviction dismissed and appeal against sentence allowed. Applicant resentenced to 8 years and 6 months’ imprisonment with a NPP of 4 years and 6 months; Qui v The Queen; Ng v The Queen [2019] VSCA 147: Both appeals allowed. First Appellant resentenced to 9 years’ imprisonment with a NPP of 6 years. Second Appellant resentenced to 10 years and 6 months’ imprisonment with a NPP of 7 years; Le v The Queen [2019] VSCA 80: Leave to appeal refused. Sentenced to 10 years’ imprisonment with a NPP of 6 years and 4 months; Tran v The Queen [2017] VSCA 346: Leave to appeal refused. Sentenced to 8 years’ imprisonment with a NPP of 5 years.
[59]In Pham v The Queen [2016] VSCA 259, Redlich, Beach and Kaye JJA cited R v Pham (2015) 325 ALR 400 and observed at [23]: “Although the range of sentences disclosed by comparable cases does not determine the upper and lower limits of the sentencing discretion, one ordinarily expects that the sentence fixed will bear an appropriate relativity to comparable cases unless it has been concluded that the existing sentencing range is wrong.”
58While limited assistance can be derived from comparing this case to other cases,[60] I have had regard to their similarities and their differences, and the submissions made about them.
[60] DPP v Dalgleish (a pseudonym) [2017] HCA 41 at [82].
The sentence
59Pursuant to section 17A(1) of the Crimes Act, I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case. For the reasons set out above, I am satisfied that no other sentence is appropriate in these circumstances.
60Pursuant to section 17A(2) of the Crimes Act, I direct that my reasons for so finding be entered in the records of the Court.
61On the single charge of importing a commercial quantity of a border controlled drug, contrary to section 307.1(1) of the Criminal Code, with conviction, I sentence you to 12 years’ imprisonment. The sentence will commence today, 1 April 2025.
62I fix a minimum non-parole period of 8 years. I am obliged to explain to you that part of your sentence may be served in the community on conditional release.
Declaration of pre-sentence detention under s 16E of the Crimes Act
63Pursuant to section 16E of the Crimes Act, I declare that the period of 431 days served by you as pre-sentence detention, be reckoned as time already served under this sentence.
Statement under s 6AAA of the Sentencing Act 1991 (Vic)
64I declare that, but for your guilty plea, I would have sentenced you to 16 years’ imprisonment with conviction and fixed a minimum non-parole period of 12 years.
0
26
0