Director of Public Prosecutions v Heun

[2021] VCC 1879

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

AT MELBOURNE

CRIMINAL DIVISION

CR-21-00924

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB HEUN

---

JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2021
DATE OF SENTENCE:	19 November 2021
CASE MAY BE CITED AS:	DPP v Heun
MEDIUM NEUTRAL CITATION:	[2021] VCC 1879

REASONS FOR SENTENCE

---

Catchwords: Traffick in controlled drug (cocaine) between dates – import commercial quantity of border controlled drug (methamphetamine) – no priors – 34 years old at sentence – early guilty plea – Worboyes – COVID-19

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Saunders (at Plea) Mr P. Russell (at Sentence)	Office of Public Prosecutions
For the Accused	Ms Z. Garde-Wilson	Garde Wilson Lawyers

HIS HONOUR:

1Jacob Heun, you have pleaded guilty to one between-dates charge of trafficking in a controlled drug, being cocaine, and one charge of importing a commercial quantity of a border controlled drug, being methylamphetamine. 

2You were born in August 1987 and are 34 years of age and you have no criminal history at all. 

3The summary correctly sets out the maximum penalties.  The commercial quantity importation charge carries a maximum of life imprisonment.  The trafficking charge has a 10-year maximum prison term. 

Facts

4Mr Saunders appeared to prosecute on the plea and he relied upon a detailed written summary of prosecution opening that was dated 11 November 2021, together with a number of appendices that set out some of the communications between you and others.  Your solicitor Ms Garde-Wilson told me it was an agreed factual statement and that none of that material was in dispute.  The agreed summary and the appendices were marked as Exhibit A on the plea.  It is a lengthy document. 

5I see no need to set out the full sentencing facts in these, my reasons, as I will sentence pursuant to that agreed material, as well as any material I discussed on the plea.  You will probably recall that I raised on the plea a number of other matters that had been referred to in the depositional material, including various communications from you and I did that really so that the parties could address me on those matters if they chose. 

6

Turning then briefly to the facts,  on 10 September 2020, Australian Border Force officers examined a parcel which had come into Australia from France.  It purported to contain bath gel and cologne.  It was addressed to Jake Bear of

601/70 Stanley Street in Collingwood.  At that time, that was your address.  I interpose you were then a mixed martial arts (MMA) fighter and your ring name was The Honey Bear.  Your first name is Jacob, though, you are known as Jake. 

7

The five containers within that parcel contained methylamphetamine with a gross weight of over one and a half kilograms.  There were 801 grams of pure methylamphetamine.  The commercial quantity threshold is a quantity above

750 grams pure. 

8Police attended at that consignment address in Collingwood on 23 September and executed a warrant there.  By then you had vacated the unit but you were found walking in the vicinity.  It is clear from your police interview and from the communications recovered from your phone, that you were going from time to time to check to see if the parcel you expected to arrive had arrived.  Your phone was seized and it contained material relevant to each of these charges.  You went with the police and you were cooperative in that regard. There is no question about that.  You were interviewed and you made some detailed admissions (see paragraph 11 of the Opening). 

9You told the police that you were being paid to allow your address to be used to send packages which you believed were likely to contain anabolic steroids or diazepam.  You said that the delivery had been arranged by a Thai-based friend of yours, a person who is in fact a UK national.  You claimed to be ignorant of the true nature of the drug.  You told the police that you had made assumptions about the nature of the drug.  In the course of the plea, your counsel told me that you did not ask what was being sent.  You were to provide the address and then facilitate the collection of the parcels by communicating with your friend in Thailand so that he could organise the collection of the parcels at the Melbourne end and you would then be paid.  You said you were to be paid $1000.  You were released at the end of that interview but were arrested a few days later and then charged.  You have been in custody ever since. 

10The trafficking of cocaine is based on materials found on your phone, showing you had been trafficking domestically for a sizeable period.  There were images, as well as audio, video and text messages.  It is impossible for me to know with any precision the quantity of drugs trafficked in the between dates period, but it is plain enough that it was no mere sideline or hobby. You were running a business and that was conceded by your lawyer. She used that word.  Between 35-40 grams were trafficked in the month of September 2020 alone.  The trafficking charge commences from May 2019 and runs through to 17 September 2020, so demonstrably, the decision to commence that activity could not have been driven by COVID-19. 

11Appendix 2 and 3 give the flavour of your conduct.  I am not dealing with you for trafficking in a marketable or a commercial quantity of that drug.  They are different provisions with much higher maximum penalties.  So much then for what really is only a short summary of the summary.  That is all it is.  I will sentence pursuant to the more detailed agreed statement, which is marked as Exhibit A on the plea, together with those appendices 1 - 3. 

In Mitigation

12Your solicitor Ms Garde-Wilson conducted the plea on your behalf and she relied upon a five-page written outline marked as Exhibit 1.  She had filed a report from a psychologist, a number of personal references and finally, a letter from you.  That material, including her written plea submissions, set out the details of your personal and family background, including your educational and employment history.  She made some submissions as to the relative gravity of the offending, the absence of any criminal history at all, your rehabilitative prospects, as well as the relevant sentencing principles at play in this case.  She placed before me a single case from the Court of Appeal as evidencing sentencing practice; in a case that she said was more serious than yours (Lau v The Queen [2021] VSCA 162).

13This morning, she also placed before me a letter under the hand of Jenny Hosking, the assistant commissioner Sentence Management Division, that dealt with some aspects of your custodial experience since you have been held on remand.  That letter was dated 18 November and has been marked as a defence exhibit in this proceedings (Exhibit 4).  She has also, this morning, called you to give brief evidence as to the circumstances in which you have been held predominantly at Ravenhall. 

14She raised the following matters in mitigation: 

·Your cooperation with the police and early guilty plea in the midst of the global pandemic;

·the presence of remorse in this case;and

·the impacts of COVID-19 upon your custodial experience, as well as isolation from your family in adding to that custodial burden. 

15Though she mentioned the issue of your likely to deportation, she made it clear she was not relying on the two ways in which deportation might sometimes be mitigatory, as spelt out in the Guden[1] line of authority.  It was just one of the circumstances at play here, she said.  She conceded the inevitability of a prison sentence and one of a dimension requiring the fixing of a non-parole period but argued there should be some measure of concurrency as between the two sentences.

[1]Guden v The Queen [2010] VSCA 196

16The written submissions read “Both charges occurred during the same time period and concern the same conduct.”  Might I say, that is plainly not correct, as she ultimately acknowledged.  There were different crimes with different elements, different drugs, acts, and importantly, quite different timeframes.  The trafficking spanned a period of 16 months and related to cocaine being trafficked domestically, as you well know.  The importation had no relationship to that crime at all. 

Prosecution

17Mr Saunders on behalf of the Commonwealth Director of Public Prosecutions, had prepared some written submissions, which were marked as part of Exhibit A.  They were quite uncontroversial and went to matters of sentencing principle generally and then applied those well-established principles to the instant case.  I do not intend to descend to the detail of those submissions. 

18The prosecution conceded that it would be appropriate to treat your plea as one entered at the earliest opportunity.  They had some understandable issues about the submission made as to the relationship between the two offences. 

19The prosecution was calling for a prison term and one with a non-parole period, but that was a matter directly conceded by your own counsel in the sensible plea conducted by her.

Background

20I turn now to your background but I really see no need to set out all of your personal family background in fine detail in my reasons, which will be long enough as is.  I have no reason to doubt the details of your personal and family background that have been placed before me.  Those details are contained in the written submissions, as well as in the expert report of Mr Armstrong and, to some extent, in some of the written references and the oral submissions made to me.  I accept that background. 

21We quite often, as judges in this court, see offenders with backgrounds of great disadvantage and significant deprivation.  People who have been dealt very poor hands indeed in life and who have never really had much of a chance.  That is certainly not the position in your case. 

22Your family background was a very decent one and it has nothing at all to do with this decision that you have taken as a mature man to seriously offend.  There was just no suggestion of any reduced culpability in this case arising from the circumstances of your background. 

23By way then of a brief thumbnail sketch, you are 34 years of age, born in August 1987, in America.  Your parents separated when you were young.  Your father repartnered.  I understand there are a number of siblings or stepsiblilngs.  I understand that you were brought up with your father who was a military man and then a police officer later in life and a pretty strict figure in your life. 

24You spent your childhood growing up in Alaska and were a gifted sportsman.  It was a pretty unremarkable educational background.  You completed high school and went on to a college in San Francisco.  You secured a scholarship to the University of Hawaii playing gridiron.  You had also been a keen wrestler, and in fact, you moved in that direction once you had sustained injuries playing football which ruled that out.  You ultimately did not graduate.  You commenced a professional career as a mixed martial arts fighter from about 2011 and you fought in a number of states in America and then in a number of countries, including Thailand and Russia, to name but a few.  It was a nomadic or transient type of existence, in the sense that you went where the contracts took you and they took you to Australia.

25You were sponsored to Australia in 2018 and fought here as well.  The theme in some of the material, including to a degree in your own letter, is that the offending arose in the context of COVID-19. Well, as a matter of certainty, that was not the position in relation to the trafficking.  You had already headed in that direction well and truly before COVID-19 even struck.  It is true though that COVID-19, when it struck in 2020, interrupted your plans to fight and that was the state of play as at the date of Charge 2.  In fact, the various state of emergency restrictions in this State would have had impact on you for a large part of 2020, as they did to so many.  You were, after all, in the gym industry and a mixed martial arts fighter and each string to your bow would have been severely affected.

26It is plain, reading the report of the expert, that drugs and alcohol have been very problematic for over a decade. 

27You are an American citizen; you will almost certainly be deported at the end of the service of your sentence. 

28I am told that you have been clean of drugs in prison.  There is nothing really to support that submission but I have no reason to doubt it and I also have the letter tendered today that comments on the absence of any incidents.  So I act on that submission. 

29

You have been in custody since September 2020 and it follows you have been there amidst many of the disruptions to prison life that have arisen in the

 

COVID-19 setting.  I will say more about that later.  You have no prior criminal record at all.  Whilst in custody, I am told you have done a number of courses and programs. 

30You still have support from a range of people, including your father, stepmother and your mother.  That, of course, is a positive.  As is usually the position, you are far more than just the person who has committed these serious crimes.  There are many other qualities spoken of in those various references, though, your lawyer concedes that, at least in one aspect of your life - that is, your issues with drugs - many, if not all, of these referees were quite ignorant.

31I turn then to consider the matters raised on your behalf by Ms Garde-Wilson. 

Guilty Plea

32The first of those matters is your early guilty plea.  It was entered at what I will treat as the earliest stage.  As a result, there have been considerable savings.  By pleading guilty, you have taken this early responsibility for your offending.  You had indicated that acceptance earlier still in the formal interview where you made detailed admissions to the importation. 

33As a result of your early guilty plea, the time, the cost and the effort of a committal hearing in the lower court or a trial up in this court, have been avoided.  No witnesses have been required to give evidence at all.  The matter in fact settled the day before the ‘informant only’ committal was listed and in a setting where there were some other charges which did not ultimately proceed.  It was entered then at what I will treat as the first practicable opportunity, which is why I will treat it as the earliest of pleas. 

34You have, in these ways then, facilitated the course of justice. 

35Your guilty plea is also worthy of some extra weight for the many reasons set out in the relatively recent decision of Worboyes[2], a decision of our Court of Appeal.  There is a mountainous backlog of cases waiting for a hearing in this court as a result of the pandemic and the suspension of the normal operations of this court.  Well, your case is not one of them.  As I have said already, you made a number of admissions to the police and you were cooperative with them, so I take that into account as well in your favour. 

[2]Worboyes v The Queen [2021] VSCA 169

36I take these various matters into account in mitigation.  They must be given real weight.

Remorse

37Your counsel argues that you are remorseful and points to the early plea, as well as references to remorse in some of the letters, the police interview, the expert report and your own letter.  Some of the opinions are from people who have had no contact with you and they are merely assuming or presuming the existence of remorse from their earlier dealings with you.  That does not assist me at all.  Your letter is an interesting one, indicating strenuously that you would not be knowingly involved in a drug such as methylamphetamine, whilst mentioning virtually nothing as to the fact of and extent of your trafficking in cocaine.  There is something of a contradiction there. 

38However, having examined afresh all of the materials, as I have since the date of the plea, including your letter of apology and reflection, I am prepared to find that there is some remorse in this case and I do take that into account in your favour. 

Rehabilitation

39I turn then to your prospects of rehabilitation.  You have had the ability to reflect on your criminality whilst being in custody for upwards of 400 days.  Your letter speaks of that.  You have cooperated with police and pleaded guilty at the earliest of stages and you have some remorse.  You have no prior criminal convictions.  You call in aid your past good behaviour.  I do not ignore the absence of any prior criminal history, however, regrettably, you have jumped in down at the very deep end of offending here.  Secondly, it is clear enough that this was not some momentary aberration.  Some of the referees speak of the out of character nature of the offending and one describes it as a “lapse of judgement”.  They speak, some of them, of the role of COVID-19 in your decision to offend.  Your own letter speaks of the shortcut that you had taken in relation to this parcel. 

40Charge 1 though relates to your trafficking in cocaine and, as I have said, it spans from May 2019 to September 2020, and it is as clear as day from the communications set out in Appendix 2 and 3 that you were in it up to your neck.  You were conducting a business as a trafficker in cocaine.  In so far as it was said to be out of character, it is also plain that you had sold drugs before.  See, for instance, p96 where you speak of your conduct whilst at university in Hawaii.  Now, of course I am only dealing with these two charges before me and I must sentence you for them and not for any other conduct. 

41The fact is though, your lack of prior convictions, though of obvious relevance to my task, cannot permit me to ignore the reality of the between dates nature of Charge 1 or your preparedness to receive a parcel you believed to contain illegal drugs, the subject of Charge 2.  This was serious criminal conduct and it was committed for money.  COVID-19 was plainly not the driver of the commencement of trafficking, the subject of Charge 1.  Your conduct spanned a sizeable period and the communications in Appendix 2 and 3 really speak for themselves.  For whatever reason, it was part of your character in that sizeable period to actually seriously offend. 

42This was not spontaneous offending. 

43I do accept though that, by early 2020, you would have started to feel the impact of COVID-19.  Many people were seriously affected. Probably most people were seriously effected actually.  No doubt you were.  It does not excuse your offending.

44You were 31 to 33 years of age during the offending I am dealing with, so you cannot point to youth and the reduced culpability that arises from youth.  You were a mature man and committing what you knew was serious enough offending.  I am satisfied of that beyond reasonable doubt.  You were joking with your partner about gaol not being in either of your plans.  Well no doubt it was not but you knew the risks. 

45Further, you have a long-term significant issue with drugs of dependence.  That always casts something of a shadow over the future prospects of an offender. 

46You are in custody now and you have been already for a large enough time and it is plain from the material before me, including the evidence that you have given recently, that it has not been easy being in custody in this timeframe.  No doubt the fact of apprehension and police interview, being charged and being brought before the court and being on remand to this point, will serve to deter you to a degree.  So too of course, the sentence which I will soon impose upon you which will significantly extend your custodial liability.

47You still have those who will support you upon your return to the States.  That is as it should be and, of course, that is a positive. 

48Your counsel argued that you have good prospects of rehabilitation.  She relied upon a number of matters, including some I have already mentioned.  She pointed to your letter and to the other references.  She also relied upon the risk assessment in the report of Mr Armstrong. 

49I do accept that your prospects of rehabilitation are relatively good.  They will likely take shape back in your homeland. 

50I have not really mentioned Mr Armstrong's report in any great detail and I do not see the need to.  It is not relied upon by Ms Garde-Wilson as enlivening any of the principles from the cases of Verdins[3] or the case of Brown[4].  She was explicit in that regard and I accept that she was right to make that concession.  You are believed to have a narcissistic personality disorder.  There was some scepticism expressed by the eminent experts in the case of Brown to which I referred as to narcissistic personality disorders and antisocial personality disorders (see paragraph 69).  Though the case of Brown did extend these Verdins principles to embrace some personality disorders, that would only be so in cases of some severity (see paragraph 68). 

[3]R v Verdins [2007] VSCA 102; 16 VR 240

[4]Brown v The Queen [2020] VSCA 212

51So, you have a narcissistic personality disorder.  I do not sense that it has any role at all in your offending.  It does not seem to be a severe condition. Nor, in my view, is there any realistic connection.  It would be impossible to disentangle other contributions, such as the obvious one of drug use.  There is no reduced culpability here, no increased burden from that condition and no basis to moderate general or specific deterrence.  That is all conceded by your counsel who, as I say, was explicit in disavowing any reliance on any of the principles from those two cases I have mentioned a moment ago.  That is not to say that I ignore the report; of course I do not.  It is useful.  It has a useful description of your personality, of your makeup, of your family and social background, of your level of risk, and of your response to the offences and your prospects of rehabilitation. 

COVID-19

52I deal now with the submissions that have been made as to the impact of the COVID-19 restrictions on your custodial experience.  They are referred to in paragraph 19 of the written submissions that have been made to me.  It is clear
- and was the other day when I heard the plea - that COVID-19 has had a significant impact upon the service of your sentence.  It has on most prisoners actually.  As a general proposition, prison has been a more stressful environment in the time since COVID-19 swept into this land and it has been a more stressful environment in the time that you have been there to this point, and that is for a period exceeding 400 days. 

53Social distancing, at some points, no doubt, has not been easy.  No doubt there has been worry about catching the virus in such a setting, where unlike someone in the community, there is just no level of autonomy.  There have been, as you have described in your evidence to me, a number of lockdowns.  I knew about those things as a general proposition, but not as to the specifics of your case.  It has been, it is clear from your evidence before me and the letter marked as Exhibit 4, a particularly tough time at Ravenhall.  Tougher in the recent past, no doubt as a result of the 24-hour lockdowns that you have described, but tough enough prior to that and over and above the normal burdens experienced by prisoners.  That much is clear from the materials. 

54As I say, Exhibit 4 sets out the fact that in a decent portion of your remand, virtual visits have been extended to you, which may be one of the advantages of being a serving remand prisoner in the course of the pandemic.  I am not sure what access you might have had to virtual visits to your family who live overseas pre-pandemic, but you have at least had that sort of access.  But there have been significant limitations in play for a very sizeable period of your remand.  As you have described in your evidence, you have had one contact visit in the period since you were at Ravenhall. There was only a very limited window of opportunity for contact visits, you had one, and none since.  You had periods where you had access to the gym and library but, really, that is the exception to the rule given the extent of the lockdowns in your case, and no access since June of this year, as I understand it. 

55You had periods - it has not been throughout  your period of remand - you had, by your reckoning, you make it 55 days of 24-hour lockdown, in circumstances where you do not leave your cell. That has been particularly bad in the recent timeframe since September of this year where there were some active cases in Ravenhall.  So that sort of lockdown is extremely severe.  It extends to having no calls, no access to phones or virtual visits.  Really, it is a ‘zero movement’ setting and that has been the position for a significant enough period over the last month and a half or two.  I think you might have suggested to me, that it has come to an end today.  But there is no question in my mind that it has been a significant thing for you to be a remand prisoner in this sort of setting.  And as I say, it has been particularly tough in the prison that you have been at, on remand. 

56

So there have been these limitations to visiting, there have been limitations to the full range of courses in the period in which you have been held.  Not just limitations, sometimes a blanket suspension of them, as is again spoken of I think in the letter from Corrections where there have been restrictions of access to what are described as high risk activities, such as group-based programs and services,

non-critical service providers attending the prison, and personal and professional visits.  You will not be eligible for emergency management days, as seems clear from the document.  Not that I would be in a position to even take that into account in any event.  So that is the setting that you have found yourself in on remand. 

57It has not been a good time to be locked up and it is, of course, your first experience of prison.  Overlaid upon that is the isolation in your case brought about by your family and many of your friends and acquaintances living overseas.  I can pay only quite limited regard to that isolation from family members and from friends who live overseas and that is because you are a foreign national choosing to commit a serious crime in this country.  It was inescapable that, if you were caught, you would be so isolated, but I do not ignore the point.  There is a matter of isolation in your existence quite aside from COVID-19.  But COVID-19 and the impact of it on prison life is quite different.  You really have no control over that and it undoubtably does significantly increase your burden.

58What lies ahead on the pandemic front in the future is really impossible for me to determine.  I am not free to guess about that.  I cannot speculate, for instance, about how long restrictions on prisoner visits will persist.  We are starting to open up in the community with further easing of restrictions overnight in fact, as we approach the 90 per cent vaccination rate in this State.  Prisons seem to have lagged perhaps a little bit behind the community in terms of restrictions being lifted.  Presumably though, restrictions in a prison setting will lift in the not too distant future.  I cannot say when.

59I do take into account though that it seems likely that these current restrictions will continue in the future, at least in the short-term and, no doubt, that would produce some ongoing worry, uncertainty and increased burden.  I take into account then the increased burden posed by the response to COVID-19 in the ways contemplated by your counsel in her submissions to me. 

Deportation

60I was told that your visa had been cancelled.  You must be here on some style of visa obviously.  I will work on the theory though that you will be deported, even though there are options open for you to explore in terms of challenging the cancellation of any visa.  I was told by Ms Garde-Wilson that you do not intend to challenge the cancellation of your visa or the fact of deportation which will follow.  Your likely deportation is not a matter of any great importance to my task.  Your counsel made that crystal clear in her submissions to the court.  I needed to understand how, if at all, she was relying on this issue.  The fact is, she was not.  She told me that she was not relying on the case law headed up by the case of Guden[5] and the two principles associated with that line of authority being, increased custodial burden and loss of opportunity to settle permanently in the country.  She said it was just a fact, that was all, that you would be deported and your partner would hope to join you in America some time down the track. 

[5]Guden v The Queen [2010] VSCA 196

61

I could probably say no more on this topic and go to the next.  The fact is though, this is not one of those cases where there is actually the loss of any realistic expectation of permanently settling in this country.  That was not why you came here.  It was not even your intent, as is made clear in some of the communications alluded to in the depositional materials.  I raised these communications on the plea where you were making your views pretty clear as to the desire to leave Australia whenever you could.  Your plans lay elsewhere.  You had, by then, separated from your partner who was living up in Sydney.  You were moving to the Gold Coast.  I understand that you have resumed that relationship since and that seems to be confirmed by the number of virtual visits that have been conducted with

Ms Barwick, who is on the top of the list in terms of numbers. 

62You have been a bit of nomad over the last decade, moving to where there is a mixed martial arts contract for you.  You were here on a one year special skills visa.  There really is no loss of opportunity to settle permanently here. It is just an illusory thing. 

63Nor does the first limb of the Guden line of authority have any role to play terms of increasing your burden.  You look forward to the day you will leave prison and return to the States.  Probably the sooner the better, is the way you would be thinking.  You hope that you will be joined by your partner.  She hopes to join you, I am told, and I am not aware of any impediment to that occurring. 

64But all that really can be said is there might be some uncertainty in your mind as to the mechanism at the end of your sentence and any hiatus in immigration detention with might be occasioned. I take that into account.  But as I say, deportation is not a matter of any real mitigatory weight here.  Your lawyer was explicit in that regard. 

65I turn then to the offences and some of the general principles at play here.

The Offences

66I must pay regard to the nature and the gravity of the offences before the court.  It is accepted by your counsel that this was serious offending. Of course it was.  You were holding yourself out as ready, willing and able to receive a parcel from overseas, likely to contain drugs of some description.  Maybe you hoped it was a less serious drug but you were sure prepared to take a sizeable risk and assume things.  You must have had some sense of it being valuable enough and illegal, given the reward on offer, and the use of the Wickr encrypted messaging application.  There had been the two previous packages. I am not dealing with them. 

67Precise knowledge of the actual drug is not required here.  The faut element for this offence is recklessness and it is well and truly made out here.  You were aware of a substantial risk that the substance was a controlled drug of some description.  You were yourself a trafficker in cocaine at the time.  You were prepared to involve yourself in serious illegality and you pushed the risks to the back of your mind.  At the end of the day, you were committing a serious crime and knew you were and that is not dependent on knowledge of the precise drug within the parcel.  It was a drug of some description coming into this country.  You believed that and you were a critical player.  An address was needed.  A person at this end was needed, a conduit.  Well, you were that person.  You were then the Australian agent, someone who was absolutely critical to this importation. You were doing it for money.  Not a king's ransom, on your account, and in circumstances where you were not in great financial shape.  I take that into account. 

68There is no suggestion you were living the high life.  The banking records in the depositional material suggest otherwise.  But you were being paid money because you were a critical cog in the machine. 

69There is no suggestion that you had any role in arranging or financing the importation, or in the ongoing distribution of the drugs at this end or the profits from that exercise.  So you were a relatively low-level player but critical nonetheless.  You trafficked cocaine for a sizeable enough period.  That was a business, as we can see from the communications, with a number of connected players.  You had networks and connections, including at bars.  You were sending drugs interstate.  It was not some isolated or spontaneous act. 

70As to the importation charge, there have been numerous occasions where higher courts, in this State and throughout the country for that matter, have emphasised that those who engage in the importation of drugs into this country must, if caught, expect to suffer significant punishment.  There are references in the prosecution written sentencing submissions to some of the cases (see for instance the case of Maxwell[6] and also the case of Nguyen and Pham[7] and also paragraphs 15(a)-(k) in the sentencing submissions).  I am not going to descend to a review of the case law or the principles at play here.  They are not in dispute at all.  There have been enough similar statements made abut trafficking and the impact of trafficking and the need to deter would-be traffickers. 

[6]DPP (Cth) v Maxwell [2013] VSCA 50

[7]R v Nguyen; R v Pham [2010] NSWCCA 238

71There are many statements in the case law as to the difficulty of detecting importation offences and also the great social consequences that flow from such crimes.  Of the vital role of deterrence in cases such as this. The cases suggest stern punishment is to be expected and that the sentences imposed by the courts must signal to would be future offenders that the potential financial rewards on offer are neutralised by the risk of severe punishment if apprehended. 

72It is an inherently serious offence to import drugs into this country at any level.  You were prepared to take a risk for financial gain. 

73As I have said, this importation was not spontaneous.  It was obviously a premeditated crime.  You had time to think about the ramifications of what you were doing.  There had, after all, been those two earlier deliveries.  I am not dealing with those but they had taken place.  It is certainly not the most sophisticated example of this offence and, as I have said, it is not suggested that you were a principal. You were not.  But you were certainly not some innocent dupe.  Your description in the answer to Question 622 to the police of being ‘hoodwinked’ and ‘bent over a barrel’, was really not apt.  You really cannot claim to be hoodwinked and hence, some innocent dupe, when you have attained the reckless fault element required, as you have here.  You were not innocent.  You chose not to ask any questions.  There were some pretty obvious ones.  What drug?  How much?  Without asking them, you assumed that there was some illegal drug coming into the country in the parcel.  As I say, you were a critical player in this country.  One who was prepared to wave away the risks and the suspicions.  Why would anyone be paying you a thousand dollars to send a package to you, using your address but a false name?  Why would they insist on using Wickr?  You were no innocent dupe but I fall short of finding that you knew the true identity of the drugs.  I am just not satisfied of that beyond reasonable doubt.  But you believed they were illegal drugs and of high enough value to justify your role and reward.  Of that I have no doubt at all. 

74It is impossible to stop drug importation into this country.  Many of them are not sophisticated.  It is offending that is very hard to detect.  Not every importation is detected.  Not every importation can be stopped.  It is obvious enough that some of them get through undetected. Some by mail, some in person, some via container or vessel.  However these drugs arrive, there must be someone at this end to ultimately receive them.  Well, you were the eyes and the ears of the person who appears to be the, or a, principal in Thailand.  You were his agent and facilitated movement of the package to those engaged in the next step by reporting back to your principal about its arrival. 

75Any person importing into this country drugs of this quantity or having a role in such a venture, must expect to receive a substantial immediate term of imprisonment.  It has a life imprisonment maximum term in play here and I must have regard to that maximum term. 

76The trafficking is less serious in that it has a lesser maximum penalty, but it is not some slight or minor example of that offence. Far from it actually.  We are dealing with multiple transactions over more than a year.  I cannot ascertain the weight of the cocaine trafficked and I am not sentencing you for marketable or commercial quantity trafficking. 

77However, it is clear that this is a serious example of trafficking. 

78The code sets up various thresholds by way of quantity.  I am not to concern myself with the relative harmfulness of a given drug. 

79As to the methylamphetamine, Ms Garde-Wilson pointed to the quantity being just over the commercial quantity.  That is not a matter in mitigation.  It is not mitigatory that you have imported what is, as a matter of law and fact is a commercial quantity of a drug.  That gets you into the highest maximum penalty provision known to our law; life imprisonment.  The amount imported is 400 times the marketable quantity.  Importation of a marketable quantity is itself a serious offence indeed. 

80I will not be dealing with you having multiples of the commercial quantity, because you did not.  If you did, no doubt, you would receive a larger or even a far larger sentence.  This quantity in relation to the importation charge, in this case is just over the commercial quantity.  Though by no means the only matter, quantity is always a matter of real importance.  Often it is the only point of distinction between different examples of commercial quantity importation.  Your offending falls nowhere near the top of the tree in terms of commercial quantity importation for the reasons raised by your counsel.  It is a relatively low level example of what is, however, an inherently serious offence.  Had you imported just below the commercial quantity and fell to be sentenced as an importer of a marketable quantity, the quantity would be at the highest reaches of that lesser offence which carries with it a 25 year maximum term. 

81I must punish you.  I have to do that justly and proportionately.  Punishment is obviously important here. 

82I must also denounce your conduct. 

83I must also deter you.  That concept known by us lawyers as specific deterrence, well, it can be moderated to a degree here, owing to my relatively favourable views as to your future prospects.  It is still relevant. I cannot just ignore it.  Plainly though, if you had relevant prior criminal history or you had been given chances by a court in the past which you had not taken, it would be a weightier purpose.  The same can be said for community protection.  It must not be ignored but the weight given to that purpose can also be moderated, owing to my relatively favourable views as to your prospects into the future. 

84There is however no basis to moderate the weight to give to general deterrence here.  General deterrence, which is the need to deter others, has a vital role to play in this sort of case and the case law is so clear on this point.  This court must send a very clear message to any like-minded person engaged in or thinking of being engaged in this sort of activity into the future.  People must think long and hard before becoming involved in any way in importing drugs into this country.  They must understand that, if detected, the consequences might well be life altering. 

85Consistency of sentencing is an important consideration and I do pay regard to it.  I have looked at the other cases involving sentencing for this type of offence, to which I was referred, and for that matter, many others that are set out in the Judicial College of Victoria Sentencing Manual at 7.1. 

86I have looked also at the online statistics held by the Sentencing Advisory Council of this State for Federal importation offences, presumably relating only to Victorian sentences.  I have looked also at the Commonwealth Sentencing Database Statistics for commercial quantity importation, for marketable quantity importation and trafficking in a controlled drug. 

87The table of cases prepared by the prosecution, which was marked as part of Exhibit A, was only of very limited use to me.  None of the cases was on all fours, no-one ever suggested they were.  There are many differences in each direction, some in your favour but some not.  There are differing quantities of drugs, there are differing ages.  Some of the offenders had youth on their side, you do not. 

88

I have looked also at the case to which your own counsel referred, the case of

Lau v The Queen[8]

.  The outcome there was driven to some extent by the need to pay regard to parity of sentence and the restoration of reasonable relativity of sentences as between the two offenders in that case (see paragraph 8). 

89Your counsel was taking me to matters within that case said to be of greater seriousness, such as a greater pure drug weight, actual knowledge and two transactions.  Why was I being taken to that single case?   Well, she was taking me to that sentencing outcome in a case that she said was more serious and really, the unspoken submission in that style of advocacy was that you must then do better by way of sentence than that other person.  The approach is quite flawed.  Lau is not your co-accused.  What happened in Lau's case does not dictate what should happen in your case.  It is not a precedent.  What happened in his case was dictated, to a degree, by what happened to his co-accused who was dealt with, the court thought, pretty leniently. 

90That case does not establish a sentencing practice.  Statements of principle are far more important than individual sentencing outcomes. 

91As I have said, I have looked at sentences imposed for the offence of importation of a commercial quantity. 

92It seems to me though that there can be some guidance to be had from sentences imposed for the lesser offence, and so I have looked at those cases, including the Court of Appeal's coverage of the marketable quantity sentences in the cases of Pham.  I say 'cases', Pham[9] from 2014 and the remitted case from the High Court, Pham[10] from 2016. 

[9] [2014] VSCA 204

[10] [2016] VSCA 259

93Very sizeable sentences are imposed for that lesser offence.  That is borne out by the Commonwealth Sentencing Database.  That is hardly surprising, given the offence maximum being 25 years. 

94Well, I am dealing with you for importing a commercial quantity, not a marketable quantity.  You have tipped into that more serious offence and I must consider the actual maximum penalty applying in this case and your conduct in this case.  Life imprisonment is the maximum penalty for Charge 2, but it is an offence which can cover enormous importations indeed and sometimes importations with massive sophistication.  This one does not. 

95I have mentioned looking at the statistics.  Well, they have inherent limitations and so do other cases actually. 

96Other sentences imposed on other offenders for other crimes, as I have said, they are not precedents.  They do not dictate how I must deal with you.  Every case is very different and so too is every offender.  Nor, for that matter, is there any such thing as one correct sentence. 

97All I can say though is that the lion's share of cases previously dealt with that I have looked at, can have had no regard to what has been described as the  Worboyes factors that I must pay regard to in this case.  That decision is a pretty recent development relating to the heightened benefits for a guilty plea in the course of the COVID-19 pandemic and I must apply that decision to my task.  What I have got to do at the end of the day is pass an appropriate sentence for your crimes. 

98The commercial quantity importation offence is unmistakably serious.  The trafficking is less serious in that it has a less significant maximum penalty but it is no minor example of trafficking at all;. Far from it. 

99I take into account all of Ms Garde-Wilson's submissions, as well as all of the materials placed before, including the evidence that you have given earlier this morning.  I have not set out portions of the references or your letter.  I do not see the need to.  As I said earlier, it is obvious to me, from reading that material, that you are a person with some real qualities.  That is obvious from those references.  Those qualities do not just disappear because you happened to have offended seriously.  Hopefully, you can find your way in the future.  It is clear from the references that you will have some very decent people to assist and to support you and that of course is a positive. 

100I have regard to the relevant matters that are set out in s16A(2) of the Commonwealth Crimes Act.  In these reasons, I have used language perhaps more consistent with the language that might ordinarily be used in a State sentencing exercise.  That is purely by force of habit.  Very much the same concepts apply, whether applying the State or the Federal Sentencing Scheme. 

101It is plain that prison is a disposition of last resort. It always is.  It is plain that one can never impose a more onerous sentence than is required to achieve the various purposes of sentencing.  It is clear that I must pass only proportionate sentences upon you. 

102It is plain that the principle of totality of sentence must be taken into account. 

103I have reviewed the overall effect of the sentences to ensure that it is commensurate with your overall criminality.  I have taken a last look to ensure that the outcome is not a crushing one. 

104There must be tangible cumulation in relation to the trafficking sentence.  It is not in any way subsumed by the importation, either in terms of the drug or the period or the act.  It is, as I said earlier, a totally separate crime involving quite separate serious criminal activity and a quite different drug and spanned a period of some 16 months.  You had no doubts as to the drug you were trafficking.  There really is no connection between the two offences. 

105In this case, as your counsel correctly conceded, owing to the seriousness of the offending, there really is no alternative but to impose a term of imprisonment upon you and one of a dimension requiring a non-parole period to be fixed as the possible release mechanism.  So I am sorry to have taken so long to get to this point.  Let me just check with the parties.  It is, by my calculation, 420 days.  Does that sound right?

106MS GARDE-WILSON:  Yes, Your Honour.

107MR RUSSELL:  Yes, Your Honour.

[8] [2021] VSCA 162

HIS HONOUR:

108Yes, all right, thank you.  As I say, I am sorry to have taken so long to get to the point where I tell you the numbers, Mr Heun, but I now pass sentence upon you:

Sentence

·     On Charge 1, which is the trafficking in a controlled drug, being cocaine, I convict and sentence you to 3 ½ years' imprisonment.  That sentence commences today.

·     On Charge 2, the charge of importing a commercial quantity of a border controlled drug into this country, being the methylamphetamine, you are convicted and sentences to 6 ½ years' imprisonment. 

·     That sentence on Charge 2, will commence 15 months after the commencement of the sentence imposed on Charge 1.  That staggered commencement of sentences provides for 15 months cumulation, which is my intended outcome.  You are probably doing the sums in your own head, but that total effective sentence is therefore 7 years and 9 months' imprisonment. 

Non-Parole Period

109I direct then that you serve a non-parole period of 4 years and 9 months. 

110I am required to explain the nature and the effect of this parole order.  Now, I accept it is something of a fiction to be having these discussions about parole in circumstances where I have been told that your visa has been cancelled and you expect to be deported. But I cannot have regard to your likely deportation in making decisions as to whether I fix a non-parole period or the length of that period.  In fact, I must ignore that consideration.  It follows then that I have a statutory obligation to explain the nature of a parole order, as illusory as I am sure it will be here. 

111The purpose of such an order is to permit your possible release from prison, subject to certain conditions, at the expiry of that non-parole period.  It follows then that you would serve a sentence of 4 years 9 months in prison.  A parole order may then be made, but in the Federal domain; that is entirely in the hands of the Commonwealth Attorney General (see s19AL of the Commonwealth Crimes Act).  As I am dealing with a Federal sentence, these considerations of parole would not be vested in the hands of the State Adult Parole Board, but rather, as I understand it, they would be under the control of the Federal Offenders Unit of the Commonwealth Attorney General's Office.

112If and when such an order is made, it envisages a period of service in the community called the ‘parole period’, and that is to complete the service of the sentence.  As I have said, I cannot speculate about whether you will or will not be paroled. 

113If a parole order is made, it would be subject to conditions which you would need to comply with and an order such as that can be amended or revoked.  I could not possibly know in 2021 what those conditions might be.  They would, no doubt, be informed by any of your needs some years from now.  If you fail without excuse to fulfil any conditions on parole, you would then be ordered to serve the balance of the sentence up to the 7 years, 9 months. 

Section 17A

114I am obliged to state the reasons for proceeding to impose a term of imprisonment.  No other sentence was appropriate, given the nature and the gravity of your crimes.  This was explicitly conceded by Ms Garde-Wilson and my reasons to this point will hopefully explain why there was no other option other than to imprison you. 

Pre-Sentence Detention

115I do make a declaration pursuant to s16E of the Crimes Act as to the time that you have already served in custody.  You get the benefit of that time.  I declare that the period of 419 days has already been served pursuant to this sentence.  That amount of pre-sentence detention is to be noted in the records of the court. 

6AAA

116I have also told you that I have reduced your sentence because you have pleaded guilty.  Let me tell you the dimensions of that reduction.  Have you run a trial and been convicted of these matters, I would have sent you to prison for 10 years.  I would have fixed a non-parole period in those circumstances of 7 years.  That statement is also to be entered into the records of the court. 

117

HIS HONOUR:  Let me just see if there's anything else that I need to deal with. 

Mr Russell, any other matters from your perspective?

118MR RUSSELL:  No, Your Honour, nothing from the Crown's perspective.

119HIS HONOUR:  Are you satisfied in terms of - I've fixed those two commencement dates.  Are you satisfied that I've done what I need to do under the Federal regime and that my mathematics is correct?

120MR RUSSELL:  Yes, Your Honour.

121HIS HONOUR:  Ms Garde-Wilson, anything else from your end at all or not?

122MS GARDE-WILSON:  No, Your Honour.

- - -