Director of Public Prosecutions (Cth) v Pham (a pseudonym)
[2017] VCC 1931
•12 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DUNG QUI PHAM (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2017 | |
DATE OF SENTENCE: | 12 October 2017 | |
CASE MAY BE CITED AS: | DPP (Cth) v Pham (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1931 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence
Catchwords: Criminal Law – Sentence – Commonwealth offence – Importing a commercial quantity of a border controller drug – heroin – 1.35 times the threshold amount for commercial quantity – wholesale value $1.98 mil. – potential street value $4.66 mil. – 53 year old female Australian citizen born in Vietnam – travelled to Vietnam for three weeks and returned to Australia with drugs – recklessness – role above ‘bare’ courier – motive pure financial gain ($50,000) – no prior convictions – late plea of guilty – remorseful – significant assistance to authorities after initial non-cooperation – undertaking to give evidence against co-accused organisers
Legislation Cited: Criminal Code1995 (Cth) ss 307.1(1), 307.1(2) – Criminal Code Regulations 2002 (Cth) Schedule 4, Item 95 – Crimes Act 1914 (Cth) ss 16A, 16AC, 16E, 16F, 17A, 19AB – Sentencing Act 1991 (Vic) s 6AAA, Judiciary Act 1903 (Cth) ss 68 & 79
Cases Cited:DPP (Cth) v Afford [2017] VSCA 201, Nguyen v R (2011) 31 VR 673, Adams v R (2008) 234 CLR 143, R v Muanchukingkan (1990) 52 A Crim R 354, R v Le Cerf (1975) 13 SASR 237, DPP (Cth) v De La Rosa (2010) 79 NSW LR 1, R v Olbrich (1999) 199 CLR 270, R v Otto (2005) 157 A Crim R 525, DPP (Cth) v Thomas (2016) 315 FLR 31, DPP (Vic) v Frewstal Pty Ltd Pty Ltd (2015) 47 VR 660, R v Kilic (2016) 339 ALR 229, Munda v Western Australia (2013) 249 CLR 600, R v O’Connor, unreported, Victorian Court of Appeal, 26 May 1997, R v Togias (2001) 127 A Crim R 23, R v Nguyen & Pham (2010) 205 A Crim R 106, DPP (Cth) v Thomas (2016) 315 FLR 31, R v Toumo’ua (2017) 12 ACTLR 103, Johnston v R (2009) 186 A Crim R 345, Nguyen and Phommalysack v R (2011) 31 VR 673, R v Jain [2004] VSCA 30
Sentence: Six years’ imprisonment – Non-parole period 4 years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N T Sheridan-Smith | Solicitor for the Director of Public Prosecutions (Cth) |
| For the Accused | Mr R W Backwell | Valos Black & Associates |
HIS HONOUR:
1 Dung Qui Pham[1], you have pleaded guilty to one charge of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code 1995 (Cth) (“the Criminal Code”). The maximum penalty for this offence is life imprisonment and/or a fine of 7,500 penalty units ($1,350,000).[2]
[1]Dung Qui Pham is a pseudonym
[2]Pursuant to Crimes Act 1914 (Cth) s 4AA(1) one penalty unit was equivalent to $180 at the time of the offending.
The facts
2 At about 8.40am on 27 August 2015, you arrived at Melbourne Airport from Vietnam with your daughter. On arrival, you both were selected for baggage checks by members of the Australian Border Force (“ABF”). You had in your possession three large cardboard boxes labelled with your details among other luggage. The three large boxes were searched by ABF officers and among other items 12 pink cardboard boxes sealed in plastic wrappings were located. Each of the pink cardboard boxes contained a fragrant dark blue bar. In total there were 36 dark blue bars located in your luggage. When one of these bars was cut open, a white substance was exposed beneath the waxy exterior. An analysis of this substance returned a presumptive positive result for heroin.
3 At about 11.15am, Australian Federal Police (“AFP”) officers attended at the baggage search area and you were spoken to with the assistance of an officer fluent in the Vietnamese language. During this conversation you advised that you were catching a taxi from the airport and that someone would be coming to your house at an unknown time to pick up the soap. You were then informed that you were under arrest in relation to your possession of the dark blue bars. You were given your rights and then later that day participated in a record of interview, which was conducted through a qualified Vietnamese interpreter.
4 At the commencement of that record of interview you requested the presence of a solicitor, as was your right, and the interview was suspended. However, since no Vietnamese speaking solicitor could be located at that time, you were released from custody and agreed to return for an interview on a later date.
5 On 2 September 2015, you participated in a record of interview with AFP officers during which you made a number of admissions. However, it is clear from the answers you gave in that record of interview and the fact that they differ considerably from what you subsequently told the police in your signed police statement, that you did not tell the police the true circumstances of how you came to be in possession of the heroin at the airport. At the conclusion of the record of interview, you were charged and bailed.
6 On 30 September 2015, an AFP forensic officer conducted a deconstruction of the 36 pink cardboard boxes each containing what was described to be a fragrant dark blue bar. Concealed within each bar was a compressed block of white powder. The total gross weight of the white powder was 2.79 kilograms. The weight of the dark blue bars would have been some amount greater than this. Subsequent forensic analysis by the National Measurement Institute revealed the white powder to be heroin, with a purity of 72.2 per cent. The net weight of the pure heroin was 2.02 kilograms, or 1.35 times the threshold amount for a commercial quantity of heroin under the Criminal Code.[3] I was told that the potential wholesale value of the heroin imported by you is $1,981,100 and the potential street value is $4,660,180.[4]
[3]A commercial quantity of heroin is 1.5 kilograms pursuant to Item 95 of Schedule 4, Criminal Code Regulations2002 (Cth).
[4]See statement of Detective Sergeant Keith John Randall, acknowledged on 2 December 2015, depositions p 255
7 This matter was originally listed for trial commencing 6 March 2017. On 2 March 2017, you indicated that you wished to plead guilty to the charge and you entered a plea of guilty when you were arraigned on 6 March 2017.
8 On 16 May 2017, you provided a signed statement to police in which you stated, inter alia, as follows:
(a)You occasionally visited the Crown Casino in Melbourne and would meet up with a female friend, whom I shall call Nguyen.[5] You had known her for six or seven years.
[5]A pseudonym
(b)In about July 2015, Nguyen arrived uninvited at your house. Nguyen told you how a friend of hers had asked Nguyen to travel to Vietnam. I shall refer to this friend of Nguyen’s in these reasons as Ng.[6] Nguyen had tried to trick Ng by asking for $2,000 for a plane ticket to Vietnam, without intending to buy the ticket. However, Ng told Nguyen that she would buy the plane ticket for Nguyen.
[6]A pseudonym
(c)Nguyen told you that the purpose of the trip to Vietnam was to bring back to Australia chemicals in return for a payment of $50,000. Nguyen asked you if you would go to Vietnam for her, as she was not successful in duping Ng out of the cash for the plane ticket. You told police that you agreed to travel to Vietnam on behalf of Nguyen in return for this payment.
(d)Nguyen informed you that if you successfully returned to Australia with the chemicals, you would get $50,000 and Nguyen would get $5,000 from Ng. You believed that the chemicals were illegal and would be used to make illegal drugs, but you did not think that it would be “pure drugs” like heroin. On the plea, I was told that the Commonwealth Director accepts this was your state of mind at the time you brought the prohibited imports into this country. I note that pursuant to s 307.1(2) of the Criminal Code the fault element for this offence is recklessness.[7] This state of mind is not mitigatory.
[7]This state of mind is not a mitigatory. See DPP (Cth) v Afford [2017] VSCA 201, [31] (Maxwell P, Beach JA)
(e)Two weeks before the scheduled trip to Vietnam, you were introduced to Ng at a meeting arranged by Nguyen. Ng told you that Nguyen had told her that you wanted to go on the trip to Vietnam. Ng told you that the trip involved bringing to Australia six packs of soap. Within each pack would be 12 bars of soap and in each of the bars would be concealed “chemicals”. You did not ask Ng what the chemicals were, and assumed them to be chemicals for use in the manufacture of illegal drugs, as Nguyen had previously told you.
(f)Ng told you that she would arrange and pay for the air tickets for you and your daughter to travel to Vietnam. You were told that when you arrived back in Australia, Ng would be at your home to receive the soap. You would then be paid the remainder of the $50,000, less any money you had received to that time including in respect of your expenses.
(g)Ng decided that you should travel to Vietnam for a period of three weeks. You were allowed to plan your own itinerary and it was intended that you would collect the “chemicals” on the morning of your departure from Vietnam.
(h)Ng told you to collect the plane tickets from a booking office in a Melbourne suburb. She also told you to buy a Vietnamese SIM card from another location in Melbourne’s western suburbs. Ng said she would give the phone number of your Vietnamese SIM card and the flight details of your flights to Vietnam to “her people” in Vietnam, and they would contact you upon your arrival to arrange the return of the soap to Australia.
(i)You did not know the contact number of the Vietnamese SIM card. Whilst Ng telephoned you on this number, you did not have her contact details. You disposed of the SIM card when you returned to Australia, as “it was no good any more”.
(j)You could not recall the exact date you left Australia, but you did travel to Vietnam with your daughter. Ng met you at the Melbourne Airport on the day of departure and told you that if you needed spending money in Vietnam you could have AUD 5,000, less the cost of the air tickets to Vietnam. You were told by Ng that you could get this money from “her people” in Vietnam.
(k)On the afternoon of your arrival in Vietnam, Ng contacted you on your Vietnamese mobile phone number and asked where you were staying. Ng told you to wait at the hotel and that her people would come to see you there.
(l)The next day at about 11.00am, a Vietnamese man and woman contacted you on your Vietnamese mobile phone and you met them outside the hotel. The male told you that Ng had asked him to give you money. He gave you 40 million Vietnamese dong, equivalent to approximately AUD 2,368. The male asked you to produce your air ticket and passport, which he took possession of and told you that you would get them back, along with the soap, on the day you were due to return to Australia.
(m)Two weeks into your trip, you received a phone call from the male you had met at the hotel. He told you that you could not fly to Australia on the original date that had been booked and that you would have to cancel the tickets. He did not provide a reason for this, but said that he would contact you once he had a new return date.
(n)The next day, Ng contacted you and asked if you needed more money. You said that you needed AUD 1,000 for dentures and 21 million Vietnamese dong was paid into a bank account and ultimately received by you. Ng also transferred a further 21 million Vietnamese dong on a later date after you told her that you needed a further AUD 1,000 for shopping and excess baggage charges.
(o)You were subsequently contacted by the male you met at your hotel and given a new travel date for your return to Australia.
(p)During part of your stay in Vietnam, you were staying at a pagoda in a district of Ho Chi Minh City. On the day you were due to fly back to Australia, being 26 August 2015 at about 11.00am, the man and woman, who you originally met at the hotel, came to the pagoda. The male had a small red backpack with him, which he opened and showed you that it contained the soap. You picked one of the soap packs and smelled the soap. The male told you to give the soap to Ng. You were not told what was in the soap, but you believed the soap to be “mixed with chemicals”.
(q)You unpacked the backpack containing six packs of soap. You left the packs in their plastic wrappings and with some assistance from people at the pagoda you packed the soap into your bags. You spread the soap through six or seven cardboard boxes that you had with you as you had been instructed to do by Ng.
(r)At the Ho Chi Minh City Airport, you paid 11 million Vietnamese dong, or approximately AUD 500 to AUD 600, for excess baggage.
(s)On 27 August 2015, you arrived at Melbourne Airport with your daughter at which point the soap was detected and you were arrested. Your daughter made her way home by herself. When you left the Australian Federal Police Station and arrived at your home, your daughter told you that when she got home from the airport there was a woman waiting for you. The woman asked your daughter where you were. Your daughter told the woman that you had been arrested at the airport and upon hearing this, the woman left the house and drove off in a white vehicle. On 4 September 2015, you were at the Crown Casino when you received a call from your daughter. Your daughter told you that two Indian and four Vietnamese men had forced their way into your house and asked where “the goods were”. They searched your house but did not find anything. Your daughter called the police who attended and took a report.
(t)About a week or 10 days after this incident, a man came to speak to you at your house. He asked you “Where have the goods gone?” You told him that you had been arrested and that the police had the soap. The man made a phone call and he spoke to someone in a foreign language. After the call the man said he did not believe you and asked for the court papers which he then took from you. The man told you that “the boss” would investigate to see whether you had taken the goods, and that if he found out you did, he would kill you.
(u)A few days later, the man returned to your house and told you that your court papers were “fake”. He told you not to “try to bluff him as he knew the law”.
(v)A few months after you were arrested, in either late 2015 or early 2016, you saw Nguyen at the Casino. You told Nguyen about your arrest and how the soap had contained approximately 3 kilograms or so of drugs. Nguyen told you that she thought the soap would contain “chemicals”.
(w)You had seen Ng a few times at Crown Casino since your arrest. Ng had never tried to contact you. On Melbourne Cup Day 2015, Ng came up to you at Crown Casino and asked how you were. You replied that you were fine and left the Casino to contact the police. The police asked you to take a photograph of Ng, but when you returned to the place you had last seen her, she was no longer there.
(x)You again saw Ng at Crown Casino on a later date, but you were too fearful to take a photograph of her at that time. However, your friend took a photograph of Ng and you took a photograph of that photograph. You cannot remember when this incident occurred, but noted that the photographs are date stamped “17 September 2016”.
(y)In December 2016, you saw Ng gambling at Crown Casino. You took a photograph of Ng and produced that photograph to police. You gave a note to Ng with words to the effect of: “You are known by so many names. I will report you to the police. You know I was arrested, but you paid no attention. Don’t think you can run away from the law.” You left the Casino before waiting to see if Ng read the note. You do not know where Ng resides.
(z)In relation to the money you were going to receive from bringing the drugs into Australia, you told police that you were planning to give this money to your twin sister in Vietnam. In total, you received about $7,000, including the cost of your air fares to Vietnam. You did not receive the remainder of the $50,000 as promised. You said in your police statement that you were not initially truthful with police in your record of interview because you were scared that if you told the truth, you would be killed.
Nature and gravity of the offence
9 The maximum penalty for this offence is life imprisonment, the highest penalty in the criminal calendar. This indicates the seriousness with which the Federal Parliament views offences of this nature. As the Victorian Court of Appeal has said on numerous occasions, the offence of importing a border controlled drug is one of “the utmost seriousness”.[8]
[8]See Nguyen v The Queen (2011) 31 VR 673, 676 [2] (Maxwell P); DPP (Cth) v Afford [2017] VSCA 201 [36] (Maxwell P & Beach JA)
10 Yours was a serious enough example of the offence. While the sentencing regime for Commonwealth importation offences is to some extent quantity-based,[9] the amount you imported is not determinative of my assessment of the objective gravity of this offence. Nonetheless, the weight of drug you imported being 2.02 kilograms of pure heroin, or 1.35 times the commercial quantity threshold, falling as it does towards the lower end of the spectrum, remains a relevant factor in assessing the objective gravity of your offending conduct.
[9]Adams v The Queen (2008) 234 CLR 143
11 I was told the AFP estimate that the potential wholesale value of the heroin you imported is nearly $2 million and the street value is over $4.6 million.
12 Also of significance is the role you played in importing these drugs into this country. This was a crucial role. You were intimately involved in the steps taken to import the heroin into Australia. The fact that your role was that of a courier does not of itself entitle you to any particular degree of leniency. “Couriers and intermediaries must expect substantial sentences, because without them the trade in narcotics would collapse.”[10] Whether you are characterised as a “courier” or “principal” must not obscure my assessment of what you actually did.[11]
[10]R v Muanchukingkan (1990) 52 A Crim R 354, 356 (Wood J). See also R v Le Cerf (1975) 13 SASR 237, 239 (Wells CJ); DPP (Cth) v De La Rosa (2010) 79 NSW LR 1, 62 [256] (McClellan CJ at CL)
[11]See R v Olbrich (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ)
13 Moreover, the fact that Ng recruited you to travel to Vietnam and bring back the heroin does not mean that your responsibility for managing the actual physical importation into Australia is diminished. But for your extensive efforts, this crime would not have been committed. I assess you as having a high level of responsibility for this importation.
14 I find that you were not aware you were importing heroin, as opposed to illegal chemicals to be used in the manufacture of drugs, into Australia. Nor were you aware of the exact purity or quantity of the drugs you imported. However, I find that you must have been aware that you were importing a commercial quantity into Australia. You knowingly and willingly transported three large cardboard boxes containing among other items 36 sealed pink “LUX soft touch” cardboard boxes, each containing a dark blue fragrant bar of soap, a total of 36 bars of soap in all.[12] This was a large consignment, weighing a little under 3 kilograms gross weight of soap. You paid the equivalent of AUD$500 to AUD$600 in excess baggage fees before boarding the aircraft in Vietnam.
[12]See Statement of Justin Edward Buttigieg, dated 4 October 2015, deps pp 3–7A; Statement of Cong Nguyen, dated11 November 2015, deps pp 188–191 and photographs deps pp 193 &194
15 You spent about 22 days in Vietnam during which time you arranged the importation of the heroin to Australia. You provided yourself with a Vietnamese SIM card so that the Australian organisers could contact you while you were in Vietnam. You were to be paid $50,000 (including expenses) for your part in this operation, which is a significant sum of money.
16 You had a number of meetings with the male who was organising the Vietnam end of the drug importation. You were paid 82 million dong (equivalent to about AUD$5,000) while you were in Vietnam.
17 Your motive for committing this crime was purely financial gain. You were not a drug user, nor were you in financially straitened circumstances at the relevant time. I assess your moral culpability for this offending conduct as being very high.
18 You played a significant and essential role in this importation. You came into this country deliberately and with some awareness of what you were doing, with just over 2 kilograms of pure heroin, which is a scourge on our society and causes serious damage to the abusers themselves and to the society of which they are part. You are not to be sentenced as a “bare courier”. You took an active part in the organisation of the importation, albeit a much lesser role than Nguyen or Ng.
19 To borrow the words of Hall J in R v Otto,[13] your contravention of the Crimes Act 1914 (Cth) (“the Crimes Act”) “represents yet another strand in the evil and pernicious activity inherent in the importation of drugs into this country”.
[13](2005) 157 A Crim R 525, 537 [54]
20 His Honour continued:
The individual and social devastation that results from the trade and consumption of narcotics, including, in particular, the prohibited drug [heroin], is so well established as not to require further emphasis … In sentencing [a person] to [this offence], the need for both personal and general deterrence looms large.
21 Section 16A of the Crimes Act requires me to impose a sentence that is of a severity appropriate in all the circumstances of the offence. In doing so I must, in addition to any other matters, take into account such of the 16 matters set out in s16A(2) of the Act as are relevant and known to me. In the present case, these are sub-paragraphs (a), (f), (g), (h), (j), (ja), (k), (m), (n) and (p).
Current sentencing practice
22 I have considered a large number of more or less comparable cases in an effort to determine the applicable sentencing range in this case. Some material was provided by the CDPP at the plea hearing. I have not confined myself to these cases.[14] Following the plea, my Associate advised the parties of a number of recent decisions, which appeared to me to be relevant comparators. She invited submissions from the parties, however the parties declined this invitation.
[14]See DPP (Cth) v Thomas (2016) 315 FLR 31, 91 [183] (Redlich, Santamaria and McLeish JJA)
23 I have considered cases which may properly be described as “relevant comparators (whether because they are materially the same or because they are instructively different)”.[15] As well as low level commercial quantity cases, I have considered both upper level marketable quantity cases and commercial quantity cases where the ratio of drugs imported to the commercial quantity threshold is greater than it is here. The so-called “comparable cases” are not easy to reconcile, but they do provide a general yardstick,[16] which has informed my instinctive synthesis of relevant sentencing considerations. The cases I have considered are listed in an appendix to these sentencing reasons.
[15]DPP (Vic) v Frewstal Pty Ltd Pty Ltd (2015) 47 VR 660, 671 [49] (Maxwell P)
[16]See R v Kilic (2016) 339 ALR 229, 235–6 [22] (Bell, Gageler, Keane, Nettle and Gordon JJ)
Personal circumstances
24 You are currently 53 years of age[17] and were aged 51 years at the time of committing this offence.
[17]Date of birth is 2 April 1964
25 You were born in Quinon in central Vietnam. You were the first born of triplets and your mother died in childbirth, as did one of your siblings. You never knew your father. You were raised in a Buddhist temple where you lived a fairly hard life. When you reached an age where you were old enough to do so, you cared for other orphaned children in the temple. You left Vietnam in 1989 and travelled to the Philippines where you lived in a refugee camp. You were free to come and go as you pleased. You describe your existence in the Philippines as largely living hand-to-mouth, but you did manage to have two children whilst there. Your late husband, and the father of your children, was half American and half Vietnamese and had served in the Vietnam War. Your husband committed suicide. You will receive some mitigation by reason of your disadvantaged upbringing.[18]
[18]Munda v Western Australia (2013) 249 CLR 600, 618 [50] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); R v O’Connor, unreported, Victorian Court of Appeal, 26 May 1997, 9 (Winneke P, Brooking JA & Ashley AJA agreeing)
26 You came to Australia with your two children in 2003. They are now aged 23 and 24 respectively. Your daughter was present in court during the plea hearing. Prior to your being remanded in custody, you lived with her and your granddaughter, who is eight years old. You are the registered carer of your daughter, who unfortunately had a stroke approximately two years ago. Your daughter studies hairdressing and is also involved in the full time care of her daughter, your granddaughter. Your son is married and lives nearby your previous residence and works in a chicken factory. It was not suggested by your counsel on the plea that your family circumstances called for any particular mitigating considerations.[19] The hardship to your family by reason of your incarceration is not exceptional so as to constitute a mitigating circumstance in and of itself.[20]
[19]See Crimes Act 1914 (Cth) s 16A(2)(p);
[20]See R v Togias (2001) 127 A Crim R 23, 25–6 [13]–[17] (Spigelman CJ)
27 You have spent your time since coming to Australia performing casual farm labouring work and raising your children. As noted earlier, it was conceded by your counsel that you became involved in this offending for purely financial gain. You have very basic English skills and as your counsel put it: “although it can’t be said that there will not be other Vietnamese women in prison, [you] will find it difficult on a day to day basis.” You will receive some limited mitigation of penalty by reason of custodial hardship arising from your language and cultural circumstances. However, you are not socially isolated. I was told by your counsel that it was expected that your daughter, granddaughter and son and his family will visit you whilst in custody.
28 You have no criminal record. I take your prior good character into account. However, this factor is to be given less weight as a mitigating consideration in sentencing you than it might receive in a different case, because good character is not an unusual circumstance of persons involved in drug importation.[21] Indeed, it is by reason of your prior good character that the likelihood of your detection on entering this country with illicit drugs in your possession may be made more difficult for the authorities.
[21]R v Nguyen & Pham (2010) 205 A Crim R 106, 127 [72] (j) (Johnson J, Macfarlan JA and R A Hulme J agreeing)
29 You have no alcohol or drug-related issues and you enjoy good mental and physical health.
30 You pleaded guilty to this charge at a relatively late stage in these proceedings. You conducted a contested committal hearing and pleaded not guilty (as was your right) and you were committed for trial on 2 June 2016. At the initial directions hearing in this Court on 3 June 2016, the matter was booked in for a five day trial to commence on 6 March 2017. At the final directions hearing on 7 February 2017, the five day estimate and trial date were confirmed.
31 You first indicated an intention to plead guilty to the present charge on 2 March 2017; the Thursday before the trial was due to commence on the Monday. You indicated at that time that you wished to make a statement implicating your co-accused and give an undertaking to give evidence in any trial involving your co-accused. You will receive a discount for your plea of guilty, although not as great a discount as you would have received for an early plea of guilty. I also accept that your plea of guilty reflects a measure of remorse in addition to the utilitarian benefit of the plea and (if there be any difference between the two concepts) your willingness to facilitate the course of justice.[22]
[22]Crimes Act 1914 (Cth) s16A(2)(g); DPP (Cth) v Thomas (2016) 315 FLR 31, 37 [2]–[3], 38–9 [7(b)]–[(7)(d)], [(7)(f)], 42–3 [16], 52 [44], 61–64 [75]–[81], 75–78 [116]–[129], 78–9 [130]–[131], 80 [135]–[136]; R v Toumo’ua (2017) 12 ACTLR 103, 113 [52] (Murrell CJ, Rangiah J, Walmsley AJ)
Cooperation with law enforcement agencies
32 As previously noted, on 16 May 2017, you provided a statement to police implicating yourself as well as your co‑offenders, Nguyen and Ng, in these offences[23]. You also took active steps to assist law enforcement officers in attempting to identify Ng by taking photographs of her at Crown Casino. At the plea hearing before me on 12 July 2017, you gave an undertaking to cooperate with law enforcement agencies pursuant to s16AC of the Crimes Act and, inter alia, you agreed to give full and frank evidence for the Crown in accordance with your statement in relation to any proceedings against a person nominated in the undertaking and to provide any further assistance and further statements as required by the AFP.
[23]Exhibit P3
33 I was provided with an AFP Letter of Assistance dated 30 June 2017. In it is outlined your efforts at providing assistance to investigating authorities. This has led to the identification of two persons of interest who are believed to be the organisers of the importation. The letter states that to date no person has been arrested, but there is an ongoing investigation into the two persons you identified. The AFP have assessed your assistance to date as being of “low value”, but this may change to being of “high value” if the organisers are brought to trial and you give evidence against them or either of them. It is accepted by the AFP that this will place you at some level of personal risk.
34 I have taken these matters into account under s16A(h) of the Crimes Act and will announce the discount you have received from both the sentence on Charge 1 and the non-parole period later in these proceedings. That discount will include an allowance for the burden of custody, given you will in all probability serve your sentence in protection.[24]
[24]See Johnston v R (2009) 186 A Crim R 345, 350 [18] (Nettle JA, Buchanan and Ashley JJA agreeing)
35 Your cooperation with authorities after your initial reluctance is to your credit and is a mitigating circumstance that I will take into account.
Application of sentencing principles
36 General deterrence must be given significant weight in sentencing you.
The difficulty of detecting importation offences, and the great social consequences that follow is to be given chief weight on sentence and stern punishment will be warranted in almost every case.[25]
[25]R v Nguyen (2010) 205 A Crim R 106, 127 [72(g)]; approved and adopted in Nguyen and Phommalysack v R (2011) 31 VR 673, 681–3 [34] (Maxwell P), cf 699 [106] (Redlich JA)
37 Moreover, the sentence I impose on you for this offence must signal to other would-be importers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.[26]
[26]Ibid; R v Jain [2004] VSCA 30 [7]–[8] (Vincent JA)
38 I find that specific deterrence is not a significant sentencing consideration in your case. You have no prior or subsequent criminal matters and I accept that your involvement in this offence and its sequelae has taught you a salutary lesson, so that your future involvement in the illicit drug trade seems, to me, unlikely.
39 I further find that your prospects of rehabilitation are good.
40 Ultimately in this case, my task, in accordance with s16A(1) of the Crimes Act is to “impose a sentence … that is of a severity appropriate in all the circumstances of the offence.” In doing so, I have to take into account a number of factors including: the seriousness of the offence, which carries a maximum penalty of life imprisonment; the quantity of heroin you imported; your role; the financial reward offered to you; mitigating factors; and your personal circumstances, particularly your plea of guilty and assistance to law enforcement agencies. I must balance a number of sentencing considerations including the need to deter others who might be minded to import illicit drugs into this country. After having considered all other available sentences, I am satisfied that no sentence other than a sentence of immediate imprisonment is appropriate in all the circumstances of this case.[27] Your counsel did not submit otherwise.
[27]See Crimes Act 1914 (Cth) s17A
41 In fixing the non-parole period I will impose on you I have had regard to the matters contained in Division 4 of Part 1B of the Crimes Act.
42 On Charge 1, importing a commercial quantity of a border controlled drug, you are convicted and sentenced to be imprisoned for a period of 6 years to commence from today and expire on 11 October 2023. I fix a non-parole period of 4 years to commence from today and expire on 11 October 2021, on which date you will become eligible for parole.
43 Pursuant to s 18 of the Sentencing Act1991 (Vic), as applied by s 16E of the Crimes Act, I declare that you have spent 92 days in pre‑sentence detention, not including this day, and that is to be reckoned as a period of imprisonment already served under this sentence and I direct that that declaration be entered in the records of the Court.
44 Pursuant to s 6AAA of the Sentencing Act1991 (Vic), as applied by s 68 and s 79 of the Judiciary Act1903 (Cth), I state that but for your plea of guilty, I would have sentenced you to be imprisoned for 12 years with a non-parole period of 9 years.
45 Pursuant to s 16AC of the Crimes Act, I state that the sentence and the non-parole period I am imposing on you is being reduced by reason of your undertaking to cooperate with law enforcement agencies in proceedings relating to offences committed by others in relation to this importation. I specify that the sentence I would have imposed on Charge 1 but for that reduction is 10 years’ imprisonment. I would have directed that you serve a minimum of 7 years’ imprisonment before becoming eligible for parole.
46 I am required by s 16F of the Crimes Act 1914 (Cth) to explain, or caused to be explained to you in a language likely to be readily understood by you, the purpose and consequences of fixing that non-parole period.
47 In particular, an explanation:
(a) That service of the sentence will entail a period of imprisonment of not less than the non-parole period, and if a parole order is made, a period of service in the community, called the parle period, to complete service of the sentence;
(b) That if a parole order is made, the order will be subject to conditions;
(c) That the parole order may be amended or revoked;
(d) Of the consequences that may follow if you fail without reasonable excuse to fulfil those conditions. Those consequences are that you may be required to serve the full term of 6 years’ imprisonment from today.
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ANNEXURE
| Vi v R [2017] VSCA 254 Lim v R [2017] VSCA 246 Yip v R [2017] VSCA 231 DPP (Cth) v Masange & Kachunga [2017] VSCA 204 DPP (Cth) v Afford [2017] VSCA 201 DPP (Cth) v Brown [2017] VSCA 162 R v Pham, Tran & Dang [2017] QCA 46 Vo v R [2016] VSCA 277 Lieu v R [2016] VSCA 277 Nguyen v R [2016] VSCA 276 Pham v R [2016] VSCA 259 DPP (Cth) v Thomas (2016) 315 FLR 31 R v Onyebuchi [2016] QCA 143 R v Harrington (2016) 11 ACTLR 215 Banker v R [2016] QCA 74 R v UE [2016] QCA 58 R v Pham (2015) 256 CLR 550 Kev & Sok v R [2015] VSCA 232 Lam v R [2015] NSWCCA 143 Bae v R [2015] NSWCCA 133 Legault v R [2014] NSWCCA 271 R v Agboti (2014) 246 A Crim R 72 Webber v R [2014] NSWCCA 111 Luong & Nguyen v DPP (Cth) (2013) 46 VR 780 R v Calis [2013] QCA 165 R v Thathiah [2012] QCA 195 Nguyen v R [2012] NSWCCA 184 Nguyen v R [2012] VSCA 119 Lau v R [2011] VSCA 324 R v Holland (2011) 205 A Crim R 429 Zhang v R [2011] NSWCCA 233 Nguyen & Phommalysack v R (2011) 31 VR 673 Ng v R (Cth) [2010] NSWCCA 232 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 R v Oprea [2009] QCA 184 R v SC [2008] NSWCCA 29 R v Ong (2007) 176 A Crim R 366 R v Nguyen (2007) 176 A Crim R 366 R v Tran (2007) 172 A Crim R 436 R v Jain [2004] VSCA 30 R v Otto (2005) 157 A Crim R 525 Speer v R [2004] NSWCCA 118 R v Wong & Leung [2002] 127 A Crim169 Wong v R (2001) 207 CLR 584 R v Jiminez [1999] NSWCCA 7 R v Wong & Leung (1999) 48 NSWLR 340 R v Banthithadawit Unreported CCA NSW, 8 April 1994 |
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