Director of Public Prosecutions v Pham
[2013] VCC 1808
•1 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01179
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| VAN SAU PHAM | Accused |
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JUDGE: | His Honour Judge Stuart | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2013 | |
DATE OF SENTENCE: | 1 October 2013 | |
CASE MAY BE CITED AS: | DPP v. Pham | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1808 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – CONVICTION AND SENTENCE - one charge of importing a marketable quantity of a border controlled drug, heroin, no prior criminal record, general deterrence primary sentencing consideration, prospects of rehabilitation good, total effective sentence 7 and a half years with a non parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kerlin | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms H. Spowart | Victoria Legal Aid |
HIS HONOUR:
Van Sau Pham, you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, heroin. You have pleaded guilty which was first proffered at your committal hearing on the 21st of June 2013. Your pleas of guilty, therefore, are to be taken into account as having been made at the earliest possible opportunity. By pleading guilty you have saved the community the expense and the inconvenience not only of a committal hearing, but also of a trial. These are matters of considerable importance.
You are a 53 year old man, born in Vietnam. Your family, work, domestic and education background have been thoroughly dealt with by your counsel, Ms Spowart, and in the psychological report of Carla Lechner, which I have read carefully during the course of the plea.
Your offending occurred in the following circumstances. You had a gambling addiction, and through that gambling addiction over a period of years, your life disintegrated to a point at which prior to you leaving for Vietnam you were living out of your van, and were essentially homeless. You had remarried in 2010, and your wife remained in Vietnam.
Unsurprisingly, as a result of your gambling addiction, you incurred debts to a number of persons, loan sharks, to the tune of something in the order of $50,000. To one individual in particular, you owed $20,000 of that $50,000. You were approached in Melbourne, and offered forgiveness of that $20,000 debt, together with assistance in sponsoring your wife to Australia by that individual.
Insofar as that individual was concerned, you were easily identifiable as a potential courier. You are a presentable man of middle age, you had no prior criminal history, and so with those attributes, the chances of your successful importation of the heroin were greater than might otherwise be.
As you said to the police, you knew the packages were illegal. You knew what you were doing was wrong, and you thought that the packages contained drugs but did not know what type.
In discussing the matter with your psychologist, you gave a history which included the following:
They help me get to Vietnam, when I'm in Vietnam I don't want to do it. I stay three months, they give me two packets and then extra for wife and sponsorship. I felt the die is cast. If caught in Vietnam, I'm dead. I knew what it was in general terms, but not how much.
Thus it is plain that you, as a mature aged man, knew what you were getting yourself into. You knew the risks, and you were prepared to take them. This was not a case of someone being approached shortly prior to their departure from a foreign country to come to Australia. Here, you had to have at least three contacts of substance with varying persons. First of all, those who approached you here in Australia, and to whom you accepted their request that you import packages in return for the forgiveness of the debt, and for their assistance in bringing your wife to Australia on sponsorship.
Second, it was a necessary part of the enterprise for you to make contact, or to be contacted, by those who would provide you with the heroin in Vietnam, and third, upon your return to Australia, assuming you were not intercepted, to make further contact with whoever it was who would recover the heroin that you had just imported.
And so it was on Saturday the 30th of March 2013 you were an inbound passenger on an international flight from Vietnam to Melbourne, Australia. You indicated on your incoming passenger card that you had no prohibited substances or illicit drugs with you. You were initially subject to screening by customs officials and later on searched. As a result of that search, the customs officers found that you were wearing three pairs of underpants. Contained within the underpants were four packages containing white powder. That white powder was subsequently analysed and was established that the gross weight was 1048.2 grams, having a pure heroin content on average of 68 per cent, giving a net weight of 708.3 grams pure heroin.
A marketable quantity of heroin is 2 grams, ranging up to 1.5 kilograms. Thus the quantity of pure heroin that you brought into the country was slightly under the mid range of that marketable quantity. The value of that drug, depending whether it was sold at a wholesale level, assuming a purity of 40 per cent, would be worth between $537 to a little over a million dollars, or approximately, at street or retail level, and assuming a purity of 15 per cent, $1,168,000.
Thus, in terms of the quantity, in terms of its quality, and in terms of its value, both wholesale and retail, this places your offending in the mid to high range of offending, for which the Commonwealth parliament has set a maximum penalty of 25 years' imprisonment. As has been discussed during the course of the plea, general deterrence, that is deterring others from similar offending, is the primary sentencing consideration in this case. It must be brought home to others who may be like minded, that in the event that they engaged in the type of activity you did, they would face immediate and a lengthy period of imprisonment.
In addition, the court must denounce this conduct. It is notorious that the heroin trade, of which you became party in your function as a courier, has had and will have for the future, catastrophic consequences for many of the individuals who become addicted to it, and to those who suffer consequently from their addictions, where those who are addicted steal, rob, and commit other offences to finance their habits. It is a pernicious and despicable trade, and you entered into it for your own perceived advantages of forgiveness of a gambling debt, and to advance your second wife's prospects of coming to Australia.
As I have indicated, this was no spur of the minute decision by you, and was one contemplated over a lengthy period of time, you remaining in Vietnam for some period up towards three months before you came back to Australia.
You have, however, pleaded guilty at the earliest reasonable opportunity, as I have already adverted to. Furthermore, you are a man of 53 years, without prior convictions. That fact is to be given less weight than would otherwise be the case, for, as is well known, and is acknowledged by the courts, couriers depend for the successful importation on their presentation as ordinary citizens of good background. Nonetheless, your background is one of disadvantage, leaving school at an early age, married at the age of 18, being involved in the war, albeit apparently briefly, working hard, both in Vietnam and on your arrival in Australia.
It has been put that your pleas of guilty and statements to Ms Lechner during the course of your consultations with her have evidenced remorse. I am prepared to proceed on the basis that you do have some remorse for your actions, and given your age and your past history of lawful behaviour, and constructive work ethic and family ethic, your prospects of rehabilitation are in my assessment very good.
Nonetheless, specific deterrence, that is, deterring you from reoffending, also must have its role to play in this case, albeit to a lesser extent, because of the reasons I have just articulated. Given your low level of English, and your apparent isolation, having no contact with your family in Victoria whilst you have been imprisoned since your arrest, imprisonment will be more difficult for you that for others in a similar predicament.
Mr Kerlin, on behalf of the Commonwealth Director of Public Prosecutions, has submitted a range of between 7 to 8 and a half years as a head sentence, with a minimum period between four and a half and five and a half years. I have been much assisted by that range. Taking into account all of the matters which I have adverted to in this ex tempore sentence, and discussed during the course of the plea with counsel, I sentence you as follows, please stand.
On the charge of importing a marketable quantity of the border controlled drug heroin, you are sentenced to be imprisoned for a period of seven and a half years, and I set a minimum non‑parole period of five years. That means that the maximum sentence that you may have to serve is 7 and a half years, but you are eligible for release on parole after five years, depending on the assessment of the parole board. Should you be released on parole and commit further offending, you may be returned to custody, at the discretion, again, of the parole board. Pursuant so s.6AAA of the Sentencing Act 1991, I indicate that but for your early plea of guilty, the sentence I would have imposed on you would have been a sentence of 9 and a half years with a minimum of 7 years.
I state that the pre‑sentence detention is 185 days, which will be deducted from that sentence administratively.
MR KERLIN: Your Honour, just one final matter - - -
HIS HONOUR: Yes.
MR KERLIN: - - - Your Honour needs to state that the sentencing commences today. For the purposes of the Commonwealth Crimes Act, Your Honour.
HIS HONOUR: For the purposes of clarity, I direct that the sentence that I have imposed today commences today.
Remove Mr Pham. Thank you both for your assistance.
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