Director of Public Prosecutions v Le
[2018] VCC 708
•17 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01520
| THE QUEEN |
| v |
| THI BICH LE |
---
JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Pre-trial: 13, 14, 15, 16, 17, 20, 21, 22, 23, 27, 28, 29, 30 November and 1 December 2017 | |
DATE OF SENTENCE: | 17 May 2018 | |
CASE MAY BE CITED AS: | DPP v Le | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 708 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr Y. Hardjadibrata Ms H. Rountos (for sentence) | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr A. Imrie Ms A. Liang (for sentence) | Giorgianni & Liang Lawyers |
HER HONOUR:
1 On 9 November 2016, heroin was detected in a consignment of machinery parts which had arrived by ship in Melbourne on 29 October.
2 On 18 November 2016, a controlled delivery occurred. The heroin had by then been removed from the machinery parts and replaced with an inert substance.
3 Three men, Tung Nguyen, Anh Tran and Van Nguyen, who played parts in taking delivery, were all arrested within hours. By the time they were arrested, the machinery parts and the inert substance were no longer in their possession, and their whereabouts remain unknown until this day.
4 The accused Tran’s phone had messages linked to the arrangements for delivery of the shipment passing between him and you, Thi Bich Le.
5 On 18 January 2017, you were arrested as you were leaving Australia on a flight to Vietnam. You were questioned and released without charge. You went to Vietnam the next day.
6 Inquiries continued, and after your return to Australia you were re-arrested on 27 February 2017, charged with importation of a commercial quantity of heroin, and remanded in custody, where you have remained ever since.
7 You indicated, along with your three co-accused, your intention to plead not guilty. You were charged with importation of a commercial quantity of heroin, the three co-accused with attempted possession of a commercial quantity of heroin. (Attempted possession, as the heroin was replaced with an inert substance before the consignment was delivered to them.)
8 Your trial was listed to commence on 13 November 2017 and estimated to run, as a trial for four accused, for 15 days. Pre-trial argument did not, in fact, commence until 15 November.
9 Pre-trial argument, mainly on behalf of Le, took 12 sitting days. Your counsel argued, amongst other things, for the exclusion of the record of interview in its entirety on the basis that there were so many inaccurate translations in it that it would be unfair to use it against you. That application was successful, and as a result, the prosecution could no longer rely on a considerable number of answers in it which it alleged were lies, and in respect of which it had had given notice it intended to rely on as incriminating conduct. Despite that, the prosecution against you was not weakened as a result.
10 By the end of pre-trial argument, other evidence had been revealed as a result of last minute requests by the defence for additional materials, which, it was apparently thought, could provide exculpatory evidence. It should be noted some of the additional material sought had previously been provided to the defence. The existence of the rest had been disclosed, but no defence requests to obtain it, or inspect it, had been made until the commencement of the trial. This in turn led to the prosecution reassessing the additional material, and ultimately, it gave notice it intended to recast its case against you. An amended summary of prosecution opening was filed to reflect the proposed changes.
11 Originally the charge of importation against you had been put on the basis you had dealt with the heroin in relation to its importation by involvement in the recovery of the consignment after its arrival in Australia. In its recast form, the prosecution alleged you imported the heroin - that is, brought it into Australia, as well as dealt with it in relation to its importation by arranging for others to recover it after its arrival in Australia.
12 Leave was granted to amend the prosecution opening in the terms set out in the amended opening, under s.184 of the Criminal ProcedureAct, and it was this which led you, Ms Le, following those 12 days of pre-trial hearings, and despite the exclusion of the interview, to enter your plea of guilty to the charge.
13
On 4 December 2017, on the 13th sitting day, you pleaded guilty. There was no indication at that stage that there was any contest to the prosecution case against you, as recast following the exclusion of the interview and the
re-analysis of the additional telephone intercepts.
14 The plea hearing was adjourned to the end of the trial of the co-accused. Their trial then ran, and all were acquitted. Your plea was unable to be presented before the end of last year, due to the time estimated by the defence that it would need to obtain, and where necessary, translate, materials to be relied on in your plea. It was estimated the plea would take less than a day.
15 The prosecution filed a plea opening which by and large replicated the amended trial opening.
16 The defence plea submissions put in issue the prosecution contentions in the plea opening:
(a) that you were the principal person behind the importation;
(b) that you were the real consignee or importer of the consignment, and;
(c) that you intended to do further business with the Vietnamese suppliers of the heroin.
17 The defence submitted, or contended, for an alternative basis on which you should be sentenced, namely that you:
(a) had no involvement in bringing the drugs into Australia;
(b) had no specific knowledge of the drugs - the quantity or value - and were reckless only as to your knowledge of the contents of the consignment, and;
(c) did no more than facilitate a delivery address in Melbourne under instruction from others for limited reward.
18 It was clear from the time the prosecution amended its trial opening that it was putting its case on the basis that you were the importer. In the amended opening, it had identified the specific pieces of evidence, and circumstances on which it relied to make good that contention. The plea of guilty was entered after the prosecution had identified that additional evidence on which it relied in order to make out its spelt-out contention that you imported the heroin. There had been no suggestion until the filing of the defence submissions on plea that issue was taken with that.
19 The only new matter in the prosecution opening for the plea was its assertion that not only did you import the heroin, but that you were the principal person behind it. The evidence relied on by the prosecution to make good that contention was exactly the same as the evidence relied on to support its contention that you imported the heroin. That is, it was a straight case of whether additional inferences could properly be drawn from what had been thought to be admitted on the identified evidence.
20 As a result, the oral hearing of the plea ran for four days. You gave extensive sworn evidence about your involvement in the consignment, and your personal circumstances. The parties were given leave, once they had had an opportunity to review the transcript of the plea hearing, to file written submissions on the disputed facts, and further plea submissions. This too took time, because in this court plea hearings are not generally transcribed, and if a court request for transcription is made and approved, the transcript is unable to be provided with the speed with which we are accustomed to receiving a trial running transcript.
21 This then necessitated, long after the extensive pre-trial argument, the trial of the co-accused, the four-day plea hearing, the receipt of the further written submissions, and, by the time all materials were filed, a return to matters which were no longer fresh in the memory, and the memory space which had held the matters relating to your trial had been filled with the content of successive trials and pleas. And that explains why it has taken me so long to sentence you, so long after the entry of your guilty plea.
22 It is necessary, in the circumstances, to set out the prosecution case in some detail.
23 On 29 October 2016, a crate arrived in Australia on board a ship from Bangkok. It was transported to a warehouse and examined. It contained 10 hydraulic arms. Two of them had heroin concealed inside them. There was just under 10 kilograms of bulk powder, yielding a total pure weight of 3.689 kg of heroin.
24 The wholesale value of the heroin, if sold in blocks of 350 grams, was between $1.26 and $1.82 million.
25 AV United Pty Ltd is a Melbourne based company which from time to time engaged the services of Dung Anh Le, a Vietnamese based freight forwarder, for the purposes of its import/export business. Early in October, Dung approached AV United and asked if they would assist him by taking delivery of a consignment from Thailand on behalf of another client, who did not have the relevant capacity or expertise to deal with an importation. They agreed to do so. AV United discovered another Melbourne-based company, SH Plastic Recycling Pty Ltd, was the named consignee of the crate. They asked Dung why he had enlisted their assistance, if SH was named as the consignee, and Dung told AV United that SH Plastic Recycling had refused to assist.
26 Dung gave AV United instructions to deliver the consignment, once it had cleared customs, to a Sydney address. He gave them a contact name, "Malisa", and a contact number to make the necessary arrangements for delivery. AV United told Dung that the cost of delivery of the consignment to Sydney would be high, given its weight and size.
27 Some days later, Dung directed AV United to deliver the crate to an address in Melbourne. He gave them a different contact name, "Jessica Wong", but the contact telephone number was the same.
28 The heroin in the hydraulic arms was removed and replaced with an inert substance for the purposes of a controlled delivery. The crate was delivered to the address in Melbourne which Dung had provided to AV United. That was the home address of the co accused Tung Nguyen. When the crate was delivered, Tung identified himself as the person who was to take delivery of the consignment. He opened the crate with the assistance of the other two co-accused, Anh Tran and Van Nguyen, who had been sitting off the address in a rented van, and had returned there as soon as the delivery vehicle had left. The three men unloaded the hydraulic arms from the crate into the rear of the van and drove off, with Anh Tran and Van Nguyen on board. Tung remained at the delivery address. The van was followed for some time, but ultimately the police lost sight of it. Some hours later it was returned to the rental company, empty. It is not known who took delivery of the hydraulic arms from Anh Tran and Van Nguyen, including those repacked with the inert substance, or what happened to them after that.
29 Tung Nguyen, Anh Tran and Van Nguyen were all arrested later that day and remanded in custody.
30 Examination of Tung Nguyen’s telephone records revealed contact between his phone and yours, two days before instructions were given by Dung to AV United to deliver the crate to Tung Nguyen’s address in Melbourne instead of the Sydney address initially provided by him. AV United had passed on the contact details and delivery address to their delivery agents after they had been advised the crate had cleared customs and was ready for delivery. The phone records also showed text messages and voice calls passing between you and Tung the day before the delivery took place, within a very short time of the delivery agents using the contact details which had been provided by Dung to advise delivery would occur the following day.
31 One of those messages was a text message sent by Tung to you, in which he confirmed his address in Melbourne. Within an hour of sending that text, the co-accused Tran had rented the van which was used the following day for collecting the goods, and less than an hour after Tran had rented the van, you had sent a text message to Tung with a description of the van, and its registration.
32 The crate was delivered on 18 November to Tung’s address at 10.45 am. By 11 am, the arms had been transferred from it into the rental van, and it had driven off. At midday, call charge records show Tung called you. Meanwhile, surveillance of the van was maintained until shortly after 1.45 pm, when police lost sight of it. By 2.20 pm, the van had been returned to the rental agency with the arms no longer in it. Tung was arrested at 3.10 pm, and Anh Tran and Van Nguyen shortly after, at 5 pm. Just after 9 pm, there were two unanswered calls from you to Tung’s phone.
33 By 9 December, a telephone intercept warrant had been placed on your phone. That revealed a number of conversations which the prosecution relied on to support the inference you were not only involved in dealing with the heroin, once imported, by arranging for others to recover it once the crate was cleared by customs, but were the principal behind the importation, and were proposing to do further business with the Vietnamese suppliers of the heroin.
34 The intercepted conversations reveal that you were aware the three co-accused had been arrested, and were seeking the court documents which would reveal the evidence relied on by the police to implicate them. At one stage, in a conversation on 16 December, you explained your purpose in seeking the documentation as:
"so I can send it to the mob over there and advise them, otherwise they keep saying that I am faking it, you know."
35 In further calls on 4 January, you variously said:
"so I can work, because those over the other end, once they start confirming I will not be able to do anything at all."
"so I can confirm and do a new one, because it is already the end of the year - it has just finished"
"tell her to get it [meaning the court documents] and send it to me. I need to do the summing up and go to Vietnam", and;
"tell her to send me … today tomorrow … or the next day please. So I can confirm and do a new one because it's already the end of the year, it’s just finished.”
36 The Prosecution contends that these passages refer to you, Ms Le, seeking to establish to the suppliers that you were not responsible for the disappearance of the heroin from the hydraulic arms. The prosecution contends these statements amount to admissions by you that you were the importer of the heroin, and that you were seeking proof from court documents as to what happened to it so that your contact in Vietnam would not think you had stolen the heroin, and so that you could continue to do business with the suppliers in Vietnam.
37 Further SMS and telephone intercepts reveal that on 11 January 2017, you were sent a PDF document entitled "Statement of Facts Remand App.pdf". The remand summary contains details of the discovery of the heroin in the hydraulic arms and its replacement, the discovery of your phone number stored in Tung’s phone, and Tung's assertions when interviewed that it was you who had asked him to take delivery of the consignment on your behalf.
38 Shortly after the PDF file was sent to you, you telephoned a man by the name of Hai, the person you had been in contact with seeking the court documents. You told him, appearing to express shock that there were “even” references to you in the court documents. You instructed him to erase all messages, and not to call you on the phone number you had been using anymore. You told him you would advise a different number on which you could be contacted.
39 As already noted, you were interviewed on 18 January and denied any involvement in, or knowledge of, the importation.
40 In order to support the defence contention that you should be sentenced on the basis you had no involvement in bringing the heroin into Australia, that your role was limited to agreeing, on request, to facilitate a delivery address in Melbourne, that you had no specific knowledge of the drugs, or the quantity, and received limited reward, you gave sworn evidence on the plea.
41 You said you had met a man, Hoang, when working at a massage parlour. He offered you more money than you could earn working in the parlour if you lived with him. You agreed, because you wanted to send more money home to Vietnam. You said that was because your children were in the care of a distant relative in Vietnam, and you had recently discovered the carer had been diagnosed with a tumour and needed treatment. You said that after you had been living with Hoang for some months, he asked you if you knew anyone in Melbourne who could provide an address to receive goods – prohibited goods. He offered you a return ticket to Vietnam and $2,000 to spend. You said you agreed because you wanted to go to Vietnam to see your children and could not afford the airfare.
42 You said that you had met Tung once, when you visited Melbourne with a friend, Hai. You obtained Tung’s phone number from Hai, and asked if he would accept delivery of prohibited goods for payment. He agreed, and sent you his address which you passed onto Hoang. You said Hoang told you you didn’t have to do anything else until the goods arrived. You said you were at Hoang’s place when he received the registration details of the hire van, and at his request, passed those details onto Tung. You said the following day, Hoang asked you to call Tung to see if the goods had arrived, but there was no answer when you called.
43 You said Hoang told you there was a possibility that Tung had been arrested, so you asked Hai to make inquiries, and he told you Tung had been arrested. You were upset, because Tung was your friend and you had approached him to receive the goods. You said you asked Hoang what he would do to help Tung. Hoang told you to get the court papers and he would arrange for someone to support Tung. You said you chased Hai for the court papers in order for Hoang to help Tung. At another stage in your evidence, you said Hoang did not believe that Tung had been arrested and wanted the papers to prove it. You said Hoang went to Vietnam in late December, and you were to provide him with the court papers when you went there in January. You said you took the papers to Vietnam, but Hoang did not meet you as promised, so you could not give him the papers and he never paid you the promised $2,000. When reminded in cross examination the papers were not in your luggage when you were arrested and searched on your way to Vietnam, you said they were on your phone. When reminded the papers were not on your phone when it was searched on arrest, you had no explanation.
44 You said you told Hai to delete the messages after you read the court papers because you were not aware until then that the goods contained heroin, and you were afraid.
45 You were asked by Mr Imrie about your police interview. You said you had given a false version. That you had lied when you denied knowing Tung and communicating with him. You said you invented a person called Hoa who you falsely said had used your phone, and must have been the person communicating with Tung. When asked in your evidence why you had not told the police when interviewed about Hoang’s existence or role, you said it was because you were frightened.
46 On you own account on oath at the plea, you are a self-confessed liar, prepared to, and adept at making up elaborate stories to suit your own ends. In your evidence, you said you had deliberately given a false account to the police when interviewed, deliberately denying you knew Tung, deliberately omitting any reference to Hoang, and inventing the person called Hoa in an attempt to explain the telephone calls and texts from your phone, to Tung and Hai.
47 Even without your acknowledgement in your evidence that the Hoa story was a lie, the other evidence relied on by the prosecution in the trial which I have recounted demonstrated it was patently false. In my view, the Hoang story is equally implausible. It does not sit comfortably with the evidence of the nature of your contacts with Tung and Hai as revealed by the captured texts, the intercepted conversations, and the timing of the telephone calls from your phone (now acknowledged to be made by you) and Tung’s. There is no independent support for it. You came across, in the intercepted telephone calls, as a much more sophisticated, intelligent and aware person than the timid and dependent person you portrayed yourself as when telling the Hoang story.
48 It also became clear as your evidence progressed you had actively and deliberately engaged in a series of deceptions in order to concoct and support a false story which, if accepted by Immigration, would give you the right to Australian residency. Although what you said at times was rambling and internally inconsistent, this much can be stated with some confidence. You came to Australia in January 2014, aged 29, on a student visa. Your husband and two young children remained in Vietnam. You enrolled in a business course, but repeatedly failed your English assessments, because you were working, and not studying. From May 2015, you knew your student visa would be cancelled for non-compliance with your Visa conditions which required you to attend your course and pass English.
49 In August 2015, you married an Australian citizen. You said your first marriage had broken down in mid-2013, before you came to Australia, and that you divorced in March 2015. The second marriage does not appear to have been a love match. When interviewed, you could not remember your husband’s name. In evidence on the plea, you were able to recall his first name, but not his last. You gave various estimates of how long you and your husband had lived together, before and after the marriage. At best, it was a few months. In the course of your evidence on the plea, you were shown a document which appeared to be a contract signed and dated 1 September 2015, which required you to pay him $65,000 in four instalments over 12 months between 10/9/15 and 10/9/16.
50 You acknowledged that you had signed document and agreed to pay him in order for him to marry you, or remain married to you, to sponsor you for a spouse visa, and then sponsor your children to join you in Australia. You said you had not paid him the amounts in the agreement, because you did not have the money, but had eventually agreed to his demand to pay him $300 per week, from April 2016, in order to maintain the façade of marriage until you obtained your spouse visa and your children could be sponsored to come to Australia. When asked why you had given his address when interviewed by the police, and not your actual address, you said you did so “for immigration purposes”. That is, so immigration would not find out you were not cohabiting, and that you were paying him to maintain a facade of marriage until you secured a spouse visa, giving you Australian residency rights not only for yourself but for your children.
51 This acknowledged systematic dishonesty in relation to your attempts to obtain a spouse visa to stay in Australia, in combination with the acknowledged lies in your police interview, is sufficient for me to view with scepticism anything you said in evidence, unless it was independently supported.
52 I am satisfied beyond reasonable doubt that the combination of the provision of Tung’s address for delivery of the crate, so soon after the telephone call between you and him, the timing and content of the text messages and phone calls on the day before the delivery of the crate, the timing of the phone calls made by you to Tung on the day of delivery, and the content of the intercepted telephone conversations following his arrest in relation to obtaining the court documents establish that you were intimately involved in the importation of the heroin. I am not satisfied that your role was confined to facilitating a delivery address in Melbourne.
53 I am satisfied that the intercepted telephone conversations with Hai that I have quoted reveal not only that you were involved in the importation - that is, the bringing of the heroin into Australia - but that you had to account to those in Vietnam with whom you had been dealing for what had happened to that heroin, and that you are at least saying that you were in a continuing business relationship, and desirous of arranging further importations.
54 Whether you were the only person behind the importation, or the principal person behind it, or the real consignee as the prosecution puts it, I am unable to determine. I am satisfied however you were directly involved in the arranging of the importation, and the accounting to the suppliers in Vietnam for what happened to it.
55 Whilst satisfied that the other people who I have mentioned - the freight agency, the freight forwarding agency, AV United and SH Plastics - all appear to have been innocent agents, the elimination of those people as knowingly implicated in the importation simply means that you are the only other person who is identified as being involved in the importation and the only one who has been identified as a person who is criminally complicit in it. It does not mean that there were not others involved who have not been able to be detected. That does not, however, derogate from the seriousness or significance of your role. Your was a significant role, and clearly at a high level in the importation.
56 There is in my view no meaningful distinction in the circumstances to be drawn between a finding that you knew or believed the substance in the hydraulic arms was heroin, or whether you were aware that there was a substantial risk the arms contained heroin. Parliament draws no distinction in the maximum penalty available for this offence in relation to state of mind. Having regard to the conversations with Hai to which I have referred, I am in any event satisfied beyond reasonable doubt that you believed the substance in the hydraulic arms was heroin. That, in my view, is the only explanation for your statements that you needed to obtain the court documents in order to satisfy the people in Vietnam that you were not faking it. That is, that the heroin had in fact been removed and replaced with an inert substance by the authorities and not by you.
57 If you participate in a venture of importing of heroin concealed in heavy machinery items, it stands to reason that the quantity of drugs to be imported must be of sufficient weight and value to justify the expense of the means used to bring them in. It is not necessary, in my view, to be satisfied that you are aware of any particular weight, once that is accepted.
58
Finally, although I accept that on the evidence you appeared to be living a relatively modest life here, and there was no evidence of unexplained wealth,
I am not affirmatively satisfied on the balance of probabilities that you were promised no more than a return ticket to Vietnam and $2,000 to spend, and in fact, did not even get the $2,000.
59 In my view, the inescapable inference is that you were involved in this importation for gain. Although I can make no affirmative finding as to how much you stood to gain, my rejection of the Hoang story, and my affirmative satisfaction as to your role and involvement in arranging the importation of the heroin and involvement in it leads me to infer that you stood to derive substantial benefit from this.
60 This was a significant operation, and the means by which it was sought to be carried out were sophisticated and complex. It involved considerable planning and organisation, and no doubt significant cost in customising the hydraulic arms and concealing the heroin in them before they were packed with heroin in the container and the shipping organised. It involved the use of both innocent agents and co-offenders, and it is clear that steps were taken to fragment the operation in order to distance those most directly interested in the outcome from conduct which might implicate them.
61 All of that required coordination, planning and organisation. This is why I say it was a highly professional operation, and why I am satisfied that you were actively involved in this business of importing the heroin in the hydraulic arms.
62 What I have said about the inferences I draw from your discussions with Hai as to your future plans, I rely on solely to show that that was at least what you were saying to Hai in order to impress on him the importance of providing you with the court documents so you could account to your suppliers for the lost heroin. You were holding yourself out as a person engaged in a continuing business relationship relating to the supply to you and the importation of heroin into Australia. However, I want to make it clear I am sentencing you for your participation in this importation, and not on the basis that you intended, or even that you were saying you intended to engage in future importations. The sentence imposed on you relates to your involvement in this importation only, and is not increased by reason of a suspicion that you might have intended to involve yourself in other importations.
63 The drug trade, the heroin trade, is pernicious. It ruins countless lives. Not just those of the users and addicts, but their families, the victims of the crimes they commit to feed their habits, and the victims of the corrupting conduct that accompanies an illegal trade where the profits are so high. It is clear that condemnation, punishment of a severity commensurate with the seriousness of the offending, and deterrence, all weigh heavily in the sentencing mix.
64 It is an offence that is often hard to detect. Australia is an island nation, and the cost, in terms of personal freedom, as well as time and money, of screening every item that comes into the country is simply unacceptable. Freedom of movement, ease of commerce, privacy and a reasonable cost of doing business would be sacrificed if everything that came into this country had to be screened. People like you gamble on their shipments escaping detection. It is abundantly clear that the sentence imposed on you must serve as a warning to those who wish to take the gamble that it is simply not worth it if they are caught.
65 I take into account, as I must, the quantity of heroin involved. It was 3.689 kilograms pure. That is just under 2 ½ times the commercial quantity of 1.5 kilograms pure. Whilst quantity is not and cannot be the sole determinant of the sentence, or relied on to assess the relative gravity of the offence, I also accept that significantly larger quantities, carrying a significantly higher multiplier of the threshold for a commercial quantity, are likely to attract higher sentences.
66 I must also take into account your personal circumstances, your antecedents, character, and the hardship on you or others.
67 You pleaded guilty. Your plea of guilty, although very late, after 12 days of pre-trial argument and immediately before the empanelment of the jury, nonetheless attract a reduction in the sentence otherwise appropriate. It has utilitarian value. It was not necessary to empanel a jury and conduct a trial in order for your guilt to be determined. Had a trial run, it would have taken some weeks. You have saved that time and cost to the community.
68 I am not satisfied that the guilty plea of itself is evidence of remorse. In coming to that conclusion, I take into account the time at which the plea was entered, following the conclusion of extended pre-trial argument to which I have referred. Although your record of interview had been excluded, thus removing the possibility a jury might find that you had given a lying account, or made admissions, by the end of the pre-trial argument, as I have already noted, the prosecution case against you, specifically in relation to the findings I have now made of your role as importer, was stronger. Your plea of guilty was clearly a pragmatic acceptance of the strength of the prosecution case. I am not satisfied, having regard to the manner in which the pre-trial argument and then the plea ran, that your plea indicates a preparedness to accept moral as well as legal responsibility for your role.
69 Having heard and seen you give evidence on the plea, it is clear that you are deeply distressed by the circumstances in which you now find yourself.
70 You are facing a substantial sentence. You will serve it in this country, isolated from family and friends. Although you have been in Australia since 2014, your English is still poor, and your isolation will be compounded even if your English improves, because it is not your first language, and Australia is culturally in many ways very different from your country of origin.
71 The seriousness of your plight clearly has now been brought home to you, and it is clear that you are suffering under the realisation of the consequences of the conduct.
72 You are the mother of two children, now aged ten and five. They were only seven and two respectively when you came to Australia. Although they had not lived with you since you came to Australia, I accept that you had maintained regular contact with them, by Skype and other means, as well as making two visits back to Vietnam to see them. I accept that you clearly love them. I accept that in your case, your children’s present circumstances will make imprisonment more burdensome, even than for other mothers of young children who, like you, find themselves imprisoned in a country far away from home and their children.
73
It is unclear to me on the evidence whether the children were in the care of their father, your first husband when you first came to Australia, or whether they had been in the care of your relative ever since you left the country. In any event,
I accept that what had apparently been a satisfactory arrangement for the care of the children with your relative is now uncertain. It would appear that, by the time you contacted Tung in October 2016 to accept delivery of the heroin, you were aware that your relative was undergoing treatment for a tumour, and that was said to be a reason why you wanted to send more money back to Vietnam and to go back and visit her and the children. Since your arrest she has continued to look after the children, but also to receive cancer treatment. You are, understandably, distressed about whether she will be able to continue to care for the children, and what will happen if she is not.
74 I also accept the evidence that your daughter has recently been showing signs of depression and has been referred for psychiatric assessment. That is a heavy worry for any mother, and I accept all the more so because you are serving a term of imprisonment and so far away.
75 It is not clear on the evidence before me what role the children’s father has played in their life since you left Vietnam. I have noted the evidence was contradictory in relation to whether he was caring for the children, and had any contact with them at the time you left for Australia, or at any time since then. Although I was told at one stage he had no contact with them, it became clear that at most there was a period when he may not have had any contact with them, but that seemed to have changed by the time of your arrest.
76 Not only did you ask police to contact your ex-husband when it became clear that you would not be able to board the flight that you had attended Sydney Airport for on 18 January 2017, you said that he was going to meet you with the children. Inspection of your iPhone on arrest showed what were clearly recent photos of your husband and the children together.
77 That said, and regardless of any role the children’s father is currently playing in their lives or may play in the future, I accept that that the combination of the appreciation of the sentence imposed on you will mean you will be absent from your children for a considerable time, unable to communicate with them in the ways that you did before you were remanded, that your daughter’s mental state, the anxiety of whether your relative will remain well enough to look after the children, and what will happen to them if she cannot continue to care for them, has caused you deep distress, makes and will continue to make imprisonment more onerous for you than for those not similarly circumstanced.
78 I therefore consider they impose a burden of imprisonment on you that I must take into account and use to mitigate the sentence otherwise appropriate.
79 It is clear on the evidence that you came to Australia hoping to obtain residence and citizenship, and to bring the children here in the hope of a better life for the three of you. Those dreams clearly have been dashed. It is accepted you will be deported upon your release, and that although that will bring you back into physical contact with your children, family, and friends in Vietnam, that you will live with the fact that, by your own conduct, you dashed your hopes of a better life for yourself and them in this country.
80
But I am not satisfied that your expressions of sorrow and remorse go any further than distress at the plight you now find yourself in. You gave a patently, and now admittedly false account to the police when arrested. I have already found that your sworn account of your involvement that you gave in evidence before me, the different version you then gave, was also false and deliberately so. You have not, apart from your guilty plea, co-operated with the authorities, provided any assistance or information about your co-offenders in Vietnam,
or done anything to indicate contrition in the sense that term is used in Barbaro and Zirilli.[1]
[1]Barbaro; Zirilli [2012] VSCA 288.
81 Thus, neither the guilty plea, nor the expressions of distress and regret, in my view evidence remorse in that sense. You are not to be punished for that. It is only relevant to assessing your prospects for rehabilitation, and the weight to be given to specific deterrence.
82 There is no evidence you suffer from any mental illness, psychological condition, personality disorder, or problem with substance abuse or other addictive behaviour which might explain your offending, or adversely affect your prospects for rehabilitation.
83 You have applied yourself since remand to improving your English, doing such courses in custody as are available and, given your language difficulties, accessible to you, and to working.
84 You appear to be a person of reasonable intelligence and capacity. In Vietnam, you had completed your secondary schooling, qualified as a nurse, and had worked in the health sector for approximately eight years before coming to Australia. You were engaged in paid work after your arrival in Australia, although, given the occupations you gave - working in a take away food shop, as a nail technician, and in a massage parlour - that is clearly not work at a level commensurate with your ability and achievements. You have no criminal record in this country, and I assume, as it is unlikely if you had one you would have obtained a Visa, that you do not have one in Vietnam either.
85 At 33, you are a mature adult. You cannot call in aid the folly of youth to explain, or reduce your sentence, but you are of an age where you have the capacity, if you choose to do so, to make more of your life. I do not consider having regard to the consequences already visited upon you, and that which will be visited on you by this sentence, that there is a need to add any particular weight to specific deterrence. If you have not learnt by the appreciation of the consequences of this not to engage in such trade, then no added sentence will do so. I have structured the sentence so as to encourage you to use your time in custody usefully, and to satisfy the sentencing authorities that you have earned the right to be released upon parole at the earliest possible opportunity.
86 Accepting that each case must be decided and each sentence fixed by reference to the circumstances of the particular case, and that other sentences can serve as no more than a yardstick, the cases in the schedule provided by the Commonwealth of Webber v The Queen,[2] and Lam v The Queen,[3] in my view, share some common features with your circumstances.
[2] [2014] NSWCCA 111 (‘Webber’)
[3] [2015] NSWCCA 143 (‘Lam’)
87 Neither Webber nor Lam were couriers. Each was involved in arranging the importation. Both gave accounts which the court found sought to minimise their role or to be deliberately false.
88 As I hope this lengthy analysis has demonstrated, I have sought to follow the guidance provided in Nguyen v The Queen; Phommalysack v The Queen[4] at [33 – 5]. In particular, I have sought to assess your criminality by reference to your involvement in the steps taken to effect the importation, and I have sought to avoid categorisation of your role in a hierarchy. This is one of those cases where the full nature and the extent of the enterprise is not known. That others might also have been involved in Australia as well as overseas does mean that your role should be downplayed to only a middle level of responsibility. If you are not the principal, I am satisfied you were one of the principals in the importation into Australia.
[4] [2011] VSCA 2011
89 This is a commercial quantity importation, and Parliament has made a conscious decision to fix a maximum penalty for a importation in excess of 1.5 kg at a level greater than the maximum penalty for importation of lesser quantities. To say this is “only” 2 ½ times a commercial quantity, or to compare it with cases where the amount imported can be assessed in multiples of tens or hundreds of the threshold for commercial quantity, can serve to distract attention from the real assessment of the objective seriousness of the circumstances of this offence, and the manner in which it was committed.
90 Could you now please stand?
91 Thi Bich Le, on the charge of importation of a commercial quantity of heroin, to which you pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of ten years. I fix a period of six years and six months as the time that you must serve before being eligible for parole. I declare that you have spent 443 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
92 Your sentence is to commence today, and I declare that but for your plea of guilty I would have sentenced you to be imprisoned for a period of 12 years, and to serve a period of eight years before being eligible for parole.
93 Has the sentence I have pronounced correctly reflected the way I should do it according to Commonwealth law, Mr Rountos?
94 MS ROUNTOS: Yes, Your Honour.
95 HER HONOUR: Any further orders that are required to be made?
96 MS ROUNTOS: Your Honour, just one matter; the 443 days of pre-sentence detention. That has been calculated on the basis that the prisoner was not re-arrested until 28 February 2017 rather than 27 February, and that figure is a figure that has been agreed to with my learned friend. So 443 days is the correct figure, Your Honour - - -
97 HER HONOUR: Is correct. Thank you.
98 MS ROUNTOS: - - - on the basis of her re-arrest on 28 February.
99 HER HONOUR: Thank you. And you agree with that, Ms Liang?
100 MS LIANG: I do, Your Honour.
101 HER HONOUR: All right, thank you. Any further order from your perspective that I am required to make?
102 MS LIANG: No, Your Honour.
103 HER HONOUR: All right, thank you. You are a Vietnamese speaker, are you not?
104 MS LIANG: I am, Your Honour.
105 HER HONOUR: In that case, what I will do is direct that Ms Le be removed now and you can speak to her downstairs.
106 MS LIANG: Yes, Your Honour.
107 HER HONOUR: Had you not, I would have sat on the bench so you could have spoken to her briefly with the assistance of the interpreter.
108 MS LIANG: Thank you, Your Honour.
109 HER HONOUR: Thank you for your attendance and your assistance.
110 MS ROUNTOS: Thank you, Your Honour.
111 HER HONOUR: Could you please remove Ms Le. I am about to go on leave, so I will not be able to revise my reasons for sentence. I will make arrangements for VGRS to release the unrevised reasons to both parties as soon as they are available, and if you wish to obtain a recording of the reasons so that you have got something to assess in a more timely fashion, then you need only ask and my tipstaff will make arrangements to release that for you.
112 MS LIANG: As Your Honour pleases.
113 HER HONOUR: All right, thank you.
- - -
0
3
0