Director of Public Prosecutions v Le
[2017] VCC 1365
•22 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01768
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAI NGOC THI LE |
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JUDGE: | HIS HONOUR JUDGE C.J. RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 September 2017 | |
DATE OF SENTENCE: | 22 September 2017 | |
CASE MAY BE CITED AS: | DPP v Le | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1365 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Import a commercial quantity of a border-controlled drug – Heroin – Plea of guilty
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: 8 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months’ imprisonment; 504 days pre-sentence detention. Section 6AAA declaration: 12 years imprisonment with a non-parole period of 8 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albore | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Miller | Wilson Tighe Haines and Polites Legal Practitioners |
HIS HONOUR:
1
Ms Le, on 19 September 2017, you came before me to conduct your plea in mitigation in respect to one charge of importing a commercial quantity of
a border-controlled drug; namely, heroin.
2 The maximum penalty for this offence is life imprisonment.
3 You are a 53 year old woman without prior conviction.
4 Tendered as Exhibit A on the plea and read aloud in court, was the summary of prosecution opening for plea. In summary, on 7 April 2016, you travelled to Cambodia. You returned to Australia on 7 May 2016 and when your baggage was searched by Australian Border Force officers, you were found in possession of a hammock that had, as part of its construction, a number of metal poles. Contained within the poles was 4,743 grams of 67 per cent pure heroin. The pure weight of heroin that you imported into Australia was 3,178 grams. A commercial quantity of heroin is 1.5 kilograms. Accordingly, you imported over two times the commercial quantity of heroin into Australia.
5 It was put by the Crown that the potential value of the heroin seizure, wholesale, is between $1.35m and $1.755m and the street value is in the order of $6.9m. This valuation was not gainsaid by your counsel, Mr Miller.
6 You were interviewed under caution and told investigating officials that you did not know that there was heroin concealed in your luggage. You told the police that you went to Cambodia for a holiday. You said that whilst there, you went past a shop and saw a hammock, bought it, and brought it back to Australia for your own use. You said you paid cash for your airline ticket and that you were in receipt of Centrelink payments, although you worked 20 hours per fortnight in Sunshine, arranging vegetables and fruit, although you could not remember the name of the shop in which you worked. You said you were paid in cash at the rate of $17.60 per hour. At one stage, you told investigators that you took $5,000 in Australian currency to Cambodia and later that you took about $1,000 with you to Cambodia.
7 In essence, you lied to investigators and denied any knowledge of the importation of the heroin found in your possession.
8 As part of the investigation into your offending, investigators searched records of the Crown Casino for any gambling that you may have conducted there. The search revealed that in 2016, you had lost $36,772 to Crown Casino.
9 A contested committal hearing was conducted on 11 October 2016 and your matter was listed for trial on 27 March 2017. However, the trial was not reached and was adjourned to 5 June 2017. On 23 May 2017, you were arraigned on the trial indictment and pleaded guilty. As at the date of your plea before me, you had spent 501 days in custody by way of pre-sentence detention.
10 Mr Miller of counsel, who appeared on your behalf, submitted that you should be sentenced as a courier and the Crown were not heard to disagree with this submission. Mr Miller emphasised that your conduct would have withstood only a cursory examination by authorities. Whilst he did not use this word, the nub of his submission was that your conduct could generally be described as amateurish. Even if this were so, it does not detract from the seriousness of your offending.
11 Mr Miller also placed emphasis on your plea of guilty. Your plea is a late plea, but has utilitarian benefit and is some evidence of remorse.
12 As to your personal circumstances, you were born in Vietnam in 1964. You are one of ten siblings and grew up in Da Nang in central coastal Vietnam. You are the sixth child of your parents’ union. You came to Australia as a refugee in 1996, aged about 33 years. Your husband preceded you to Australia and established his, your and your daughter’s bona fides as refugees. You settled in Melbourne. In Australia, your husband worked in the main as a farm labourer. He died in 2003 as a result of a stroke. About five years later, you remarried, and this marriage lasted approximately five years and you were divorced some five years ago. At the time of your offending, you were living with your daughter and her husband in Maidstone. Your daughter is your only relative in Australia and she has visited you regularly while you have been in custody and you are in regular phone contact with her.
13
In the early part of your life in Australia, you remained working in the home until your daughter was old enough to start school, after which you commenced
part-time work. You worked in restaurants and in greengrocer shops.
14 Mr Miller, on your behalf, indicated that as a result of your losses at Crown Casino, you were approached by the ever present Vietnamese intermediary who offered you $20,000 to be involved in the importation of heroin into Australia. Accordingly, you knowingly imported heroin into Australia for profit.
15
Mr Miller did not rely on any of the principles in R v Verdins, however he did rely on what he submitted was your general poor health whilst in custody to found
a submission that your time in custody would be harder for you than for a person who did not suffer from your various ailments.
16 Mr Miller informed me that your English was poor and that whilst you initially undertook English language classes whilst in custody, you stopped doing so. Initially, whilst on remand, you had little contact with Vietnamese-speaking prisoners, but this has changed recently and in addition, your standard of accommodation has improved. You have worked in the prison laundry, although this has been interrupted by your health concerns and court appearances.
17
Tendered as Exhibit 2 on the plea were your prison medical records and
Mr Miller took me through a number of references contained therein. Over the period that you have been in custody, you have complained of headaches and have given prison medical staff a limited history in respect to an earlier suspected stroke. You have presented with elevated cholesterol levels, anxiety, nausea and epigastric pain. You have undergone CT examinations in respect to your spine and brain and the results of those tests have been normal, save that you have some deterioration at the C5-C6 disc space, which is not to be unexpected in a person of your age. Over the period of your incarceration, you have been treated with a number of different medications, but currently you are on a regime of medications directed at controlling your cholesterol and
antihistamine tablets and eye-drops, as well as paracetamol for pain relief. All in all, your medical complaints have been managed conservatively and the prison medical records reveal that you have been treated in a timely manner, save that from time to time, your lack of English has caused delay in your treatment, owing to the unavailability of a Vietnamese interpreter.
18
To my mind, nothing arises out of the medical records that would support
a submission that your health concerns result in your time in custody being harder than those that do not suffer from similar concerns. Your health concerns are both commonplace and minor in nature and of a kind that are experienced by many persons within the broader community.
19 It was put that you feel isolated within the prison system. However, I was informed that there were Vietnamese-speaking prisoners at the Dame Phyllis Frost Centre, with whom you can associate and of course, you have the support from your daughter, who visits you regularly and with whom you have frequent telephone communication.
20 At the age of about 52 years and being without prior conviction, you involved yourself in the importation into Australia of a commercial quantity of heroin. An assessment of your prospects for rehabilitation is difficult, however bearing in mind your age when you will eventually be released from prison, it is unlikely that you will re-offend. General deterrence, denunciation and just punishment must be the primary sentencing considerations when arriving at an appropriate sentence in your circumstances. You involved yourself in this enterprise for profit. Your gambling at the Crown Casino is in no way mitigating of your conduct. As to your prior good character, it is of less weight as a mitigating factor for an offence of this kind than it might otherwise be. You have pleaded guilty and the benefits that accrue to you from that plea must bear upon the sentence that I ultimately impose on you.
21 Would you please stand.
22 By this sentence, I must denounce your conduct. I must punish you and deter others from committing crimes of the same or similar kind. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you to eight years' and six months’ imprisonment and I fix the period of five years and six months as the period of imprisonment that you must serve before you will become eligible for parole.
23 This sentence is to commence today.
24 I declare that you have spent 504 days by way of pre-sentence detention.
25
Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 12 years’ imprisonment, with a
non-parole period of eight years’ imprisonment. Is there anything that arises out of that sentence?
26 MR ALBORE: Nothing that arises, Your Honour.
27 HIS HONOUR: You may remove the prisoner. Madam Interpreter, you may come out of the dock.
28 INTERPRETER: Thank you, Your Honour.
29 HIS HONOUR: Thank you for your services.
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