Director of Public Prosecutions v Luu

[2024] VCC 48

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-22-02145

DIRECTOR OF PUBLIC PROSECUTIONS

v

SON LUU

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2024
DATE OF SENTENCE:	2 February 2024
CASE MAY BE CITED AS:	DPP v LUU
MEDIUM NEUTRAL CITATION:	[2024] VCC 48

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Guilty plea – importing a commercial quantity of a border controlled drug – 15.9 times the commercial quantity

Legislation Cited:      

Cases Cited:DPP (Cth) v Peng [2014] VSCA 128; Yip v The Queen [2017] VSCA 231; R v Agboti [2014] QCA 280; Legault v R [2014] NSWCCA 271; Green (a pseudonym) v R [2020] NSWCCA 358 and R v Zalapa [2018] NSWCCA 191

Sentence:                  12 years imprisonment, non parole period 8 years

S6AAA: 16 years imprisonment, non parole period 12 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E. Addams Ms C. Hill (sentence)	Commonwealth Director of Public Prosecutions
For the Accused	Mr J. Miller	Valos Black

HER HONOUR:

Summary of Offending

1Son LUU, you have pleaded guilty to a single charge of importing a commercial quantity of a border controlled drug. The maximum penalty for this offence is life imprisonment.

2At just before 9:00 am on 8 June 2022, you and Amy Mai Nguyen arrived at Melbourne via Qantas Airlines flight 94, from Los Angeles in the USA. Once in the airport, Ms Nguyen removed a suitcase from the baggage carousel and handed it to you. A short time later you approached the Department of Agriculture, Fisheries and Forestry (DAFF) gate marshal at the passenger processing area. When the gate marshal asked you if you had anything to declare you did not answer. Instead you followed Ms Nguyen who had been directed to the quarantine screening lane.

3In the examination area, you handed the biosecurity officers your incoming passenger card. That card indicated that your intended length of stay in Australia was 10 days, for a holiday. The form stated that your address in Australia would be “874 Hume Hwy Bass Hill, Bankstown 2197 Vic”. Also on the incoming passenger card you had said that you were not bringing any potentially prohibited goods into the country including illicit drugs. You did declare that you were bringing food and plant items into the country. I note that you were booked to leave this country on 2 July 2022 which was more than 10 days after your arrival date.

4Your suitcase was examined by an X-ray machine. It appeared to contain several packages of organic material. A biosecurity officer opened the suitcase and found that it contained 7 cardboard boxes, similar in size and shape to a shoe box. Each box was wrapped in a clear plastic film. Within each box was a black plastic bag containing a white crystalline substance.

5Ms Nguyen stated, in English, that the contents of the boxes were makeup and then you said “shoes”. After observing the crystalline substance inside the black plastic you said “Muoi” which is the Vietnamese word for salt. You then put your index finger into the white crystalline substance and licked it off your finger. Footage shows that you were then visibly uncomfortable and gesticulated vigorously with your hand in front of your mouth after having tasted the substance.

6The substance in the suitcase was tested and returned a presumptive result for methylamphetamine.

7You were then interviewed by Australian Border Force officers. You made the following admissions:

(a)   You said you were carrying it for a friend, and that it was some kind of cosmetic.

(b)   You did not open the package to check what it was before carrying it.

(c)   You stated that the address on your incoming passenger card was correct, and you said you did intend to stay in Australia for 10 days and you were planning to depart on 18 June rather than the date on your itinerary that is 2 July 2022.

(d)   You said you had been travelling with a friend who helped you complete your incoming passenger card and that you had not understood all the questions on it.

(e)   You had not packed the bag yourself and you did not know who had packed the bags, you were simply asked to take this along. It was supposed to contain some beauty products but you did not know exactly what was in there.

(f)    You said that an elderly friend with whom you had coffee with had asked you to bring this item along and that it was supposed to be for a nail salon.

8You were arrested and remanded in custody. When you were further interviewed by the AFP you said:

“the suitcase is not mine. I carried it for a friend. I only have a backpack so I don’t know what is in the suitcase for my friend. I just help him by taking to the airport and give it to a person that he told me to.”[1]

[1]Forensic procedure recording

9The substance in your suitcase was analysed and found to be comprised of 14 portions of a crystalline substance, concealed in 13 vacuum sealed bags and one plastic shopping bag. All of the substance was located in the seven cardboard boxes. The gross weight of the white crystalline substance was 18.55 kilograms. It was a mixed substance, of which 64.3 per cent was a methylamphetamine.  Thus, the weight of pure methylamphetamine which you brought into the country was 11.9 kilograms. That amounts to 15.9 times the commercial quantity threshold for that drug, which is 0.75 kilograms.

10Prior to your arrival in the country, a booking had been made in your name and in the name of Amy Nguyen. This booking was for both of you to depart Los Angeles, on 4 June 2022 and then arrive in Australia on 6 June 2022. That booking had been made on 28 May 2022. On that same day you took a screenshot of a Viber message which had been sent to your mobile phone from a contact recorded as “Chanel”. That message read “874 Hume Hwy, Bass Hill, Bankstown, 2197”.

11Two days later, on 30 May 2022, a photograph of you was sent to Amy Nguyen’s mobile phone.

12The following day, 31 May 2022, a booking was made at a different travel agent in California in the USA in your name and in the name of Amy Nguyen. You were both to depart the Los Angeles International Airport on 6 June 2022 on a Qantas Airways flight 94 which was to arrive at Melbourne International Airport on 8 June 2022. The return flight was booked for 2 July 2022.

13On that same day a sub-class 601 Electronic Travel Authority visa was issued for you.

14On 3 June 2022 you sent the person with the contact name Chanel a message. It was in Vietnamese and has been translated into English as “send 500 no more money to spend”.

15On 6 June 2022 at least six phone calls were recorded as incoming or outcoming between you and Chanel. Later on 6 June 2022 you and Ms Nguyen checked in for the Qantas flight at Los Angeles International airport. You had both been allocated seats in the same row. At the airport in Los Angeles, you checked in one suitcase which weighed 25 kilograms and you carried a backpack with you that contained your personal items. It was that suitcase which contained the methylamphetamine.  It did not contain any of your personal items.

16On 7 June 2022 at least six phone calls were recorded as incoming or outcoming between you and Chanel.

Gravity of Offending

17A significant factor in assessing the gravity of the offending is the weight of the drug.  You imported 11.9 kilograms of methylamphetamine.  As I have noted earlier this was 15.9 times the commercial quantity set by Parliament.  This was a very large amount of that drug.  The gravity of this type of offending, generally, is demonstrated by the maximum penalty, which is life imprisonment.

18Another significant matter to consider is your role.  The evidence before me is only that you were the person carrying the drugs into the country. As to Amy Nguyen's role, this is unclear. She was not detained by the authorities and as I understand it she has left the country. It is apparent that you had contact with somebody who was involved in arranging your trip, before you left the United States and arrived in Australia, and that the contact described as Chanel in your phone was a source of money for you. Otherwise there is no reliable evidence about how you came to be involved in the importation of these drugs, nor any reward which you were to receive.

19Whilst acting as a courier as you did is a low level role, in a drug importation, and one most liable to detection, bringing border controlled drugs into the country is a crucial step to that substance then being disseminated in the community. 

20It was suggested during the plea that your age was a factor in you being selected to carry out this role, on the belief or expectation that a man of your years would be less likely to be stopped by the customs authorities. Whether this is the case or not, I cannot tell, but what is clear from the authorities is that even people who carry out the role which is most likely to be detected, that is as a courier or mule, even such people are important players in the distribution of drugs around the world and into the community.

21The prosecution put the case on the basis that you were aware that there was a substantial risk that the suitcase contained a border controlled drug. The prosecution do not allege that you were aware that the total weight of pure drugs was at the high level which you in fact imported, this was discussed on the plea. However, I consider it unreasonable to conclude that you did not appreciate at any level that whatever was in the suitcase was of a substantial volume or weight. Beyond that, I can make no finding as to your level of awareness of the weight of the substance you imported.

Personal Circumstances

22You were assessed by psychologist Laura Fleming and a neuropsychologist Dr Rachel O’Meara who each provided a report. You proved to be an inaccurate historian about your personal background. Dr O’Meara highlighted this in her report and your counsel noted it in his submissions. Your counsel clarified several ambiguities in a conference with you. 

23You were born in Ho Chi Minh City, Vietnam in 1946 and you are now 78 years old. Your father passed when you were young and your mother passed around 5 years ago. You are the youngest of 3 siblings. You were married in Vietnam and lived there until around 1979. In 1979, you fled to Indonesia on a boat with your wife and daughter. You stayed in Indonesia in an immigration detention facility before moving to Canada as a refugee. You lived in Canada for around 5 years, however, you found it too cold there, so you decided to move to California where it was warmer. You are still a Canadian citizen.

24You did not give a clear history of your work history, however you said that you had ran a takeaway business, owned a video rental store and more recently worked as a kitchenhand in restaurants. You said that you were unable to access the pension in the United States.

25You have not had any contact with your family since being in custody in Australia and your counsel told the court that they had been unable to contact your family overseas on your behalf.

26You did not report any issues with gambling, drugs or alcohol. You said that you did not drink until you arrived in the United States but alcohol has never been a problem for you.

Matters raised in mitigation

27The following matters were raised on your behalf on the plea.

1. Guilty Plea

28You pleaded guilty to the charges before me at an early stage. Whist there was a contested committal, I was told that the issue at that hearing was as to the admissibility of the record of interview, rather than you disputing precisely what you did.

29You indicated you would plead guilty in April 2023. This was some months before it had become apparent that the court lists had regularised following the pandemic, and so the utilitarian value of your plea is somewhat increased by reason of the impact of the pandemic on the operations of the court.

2. Remorse

30The only evidence of remorse before me is your plea. Your plea of guilty has facilitated the administration of justice and insofar as it is an indication by you of wrongdoing, I take that into account in your favour.

3. Time in Custody

31You were arrested on the date of your arrival in Australia, that is 8 June 2022. You have been in custody since then. I am aware that prison conditions were continuing to be adversely affected by the pandemic in 2022, and indeed to some extent into 2023.

32It is also apparent that you will have been isolated whilst in custody due to the language barrier, and your age.  You have had no contact with your family or any friends since you were remanded in custody. You have not taken part in courses and you are not working. Through counsel you say that you have found the conditions of custody more difficult partly due to you disliking the food provided by the prison services.  Because you came into Australia in order to commit this offence the hardship you will endure by reason of the separation from your family carries less weight in mitigation.[2]

[2]DPP (Cth) v Peng [2014] VSCA 128 at [26]-[28]

33A further issue impacting your time on remand, and which will most impact your time serving your sentence, is your cognitive decline. There is no evidence that prior to your arrival in Australia you were suffering from any sort of cognitive decline, but since you arrived your memory has suffered.  Dr O’Meara’s report indicates that you are experiencing a decline in a range of cognitive functions.[3]

[3] Neuropsychologist report of Rachel O'Meara dated 21 October 2023, 12.        

34The impact of this is that you are apparently sometimes lost and confused whilst on remand, and this will impact your ability to make friends and it will mean that you are isolated in custody. It was also suggested by the neuropsychologist that your memory issues and reduced executive function make you more vulnerable in prison and make it more difficult for you to understand and abide by the rules.[4]

[4] Neuropsychologist report of Rachel O'Meara dated 21 October 2023, 15.        

4. Age

35The final factor that was raised on your behalf is your age.  You were 76 at the time of the offending and are now 78. You had reached the age of 76 when you came into Australia, without acquiring any prior convictions, and this is a significant factor in your favour. 

36Given your age and the length of sentence required, there is a high likelihood that you will live out the rest of your life in prison, here in Australia, with no contact with family or friends.  Regrettable as that is, given the gravity of your offending and the need for general deterrence, it would not be appropriate to impose a sentence which would make your release significantly sooner.  

Other Sentencing considerations

General and Specific Deterrence

37Whilst experience shows that importers of illicit substances use a range of methods to achieve their end, deterring people from acting as mules means that general deterrence carries significant weight in the sentencing discretion.  Given your age, and circumstances, specific deterrence has no weight, nor does protection of the community, and your rehabilitation is not an issue.

Current Sentencing Practice

38I was referred to a number of cases by the Prosecution, however there were no cases which involved a mule carrying into the country a similarly large quantity as you did.

39The three cases to which I was referred which involved a similar type of conduct each involved a much lower quantity of drug.  Yip involved 1.79 times the commercial quantity threshold, and he had given an undertaking which was a significant factor in mitigation.  Nevertheless, the sentence of 7 and a half years, with a non-parole period of 5 years 6 months was found to be within range.[5]

[5]Yip v The Queen [2017] VSCA 231.

40Agboti concerned 3.1 times the threshold, and she could rely on the unusually and pitiable reasons for her offending.  She received a sentence of 9 years and 6 months, with a non-parole period of 4 years and 6 months.[6]  The case of Legault involved importing 2.71 times the commercial quantity threshold.  Whilst that sentence was described by the appeal court as severe, the sentence of 9 years and 4 months with a non-parole period of 6 years was found not to be manifestly excessive.[7]

[6]R v Agboti [2014] QCA 280.

[7]Legault v R [2014] NSWCCA 271.

41I was also referred to two cases where the offender assisted in the importation of drugs by taking steps to receive the border controlled drug which had been sent via post or courier.  Sentences of 10 years and nine years were not disturbed on appeal.  In the first case the offender had given an undertaking to assist the authorities and in the second a co-accused’s sentence had a real depressing impact on sentence.[8]

[8]Green (a pseudonym) v R [2020] NSWCCA 358 and R v Zalapa [2018] NSWCCA 191.

Sentence

42It is clear that in all the circumstances the only sentence open is a term of imprisonment.  Having regard to all the factors raised on the plea hearing, I sentence you to 12 years’ imprisonment, and I impose a non-parole period of 8 years.

43The sentence commences today.

44I declare that you have already served 604 days as pre-sentence detention and I direct that that declaration be entered into the records of the court.

45Pursuant to s6AAA of the Sentencing Act 1991, I state that if you had not pleaded guilty I would have sentenced you to 16 years imprisonment with a non-parole period of 12 years.

46Ms Hill, is there any matter that I need to address that hasn't been covered?

47MS HILL:  No, Your Honour.

48HER HONOUR:  Mr Miller?

49MR MILLER:  I just missed the non-parole period, Your Honour.

50HER HONOUR:  Eight years.

51MR MILLER:  Thank you.

52HER HONOUR:  Would you like the link to remain open so you can speak to your client with the assistance of the interpreter?

53MR MILLER:  That would be nice, thank you.

54HER HONOUR:  All right, thank you.  Matter is adjourned.

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