Director of Public Prosecutions v Ragindram

[2019] VCC 574

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01747

DIRECTOR OF PUBLIC PROSECUTIONS

v

MANINALA RAGINDRAM

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2019
DATE OF SENTENCE:	30 April 2019
CASE MAY BE CITED AS:	DPP v Ragindram
MEDIUM NEUTRAL CITATION:	[2019] VCC 574

REASONS FOR SENTENCE
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Subject: Import commercial quantity of border controlled drug – 1.608 kg – guilty
plea

Catchwords:   early plea of guilty – foreign national – 21 years old – 1^st offender – naïve – acting under the direction of her sister – good prospects of rehabilitation

Legislation Cited:

Cases Cited: R v Nguyen; R v Pham [2010] 205 A Crim R 106; Yip v The Queen
[2017] VSCA 2017; Legault v R [2014] NSWCCA 271; R v Agboti [2014] QCA 280; Kao v R [019] VSCA 84

Sentence:                  7 years imprisonment with a minimum non-parole period of 4 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Monagle	Ms G. James
For the Accused	Ms L. Papadinas	Mr A. Lewin Emma Turnbull Lawyers

HIS HONOUR:

1Maninala Ragindram, you have pleaded guilty to one count of importing a commercial quantity of a border controlled drug. The maximum penalty for this offence is life imprisonment.

2On 22 May 2018, you arrived at Melbourne Airport on a flight from Kuala Lumpur.  You brought with you a suitcase which contained two cardboard boxes which were labelled as portable electronic cooktops.  Concealed within the boxes was 1.608 kilograms of pure methamphetamine.  A commercial quantity of methamphetamine is three quarters of a kilogram.

3You were then 21 years old and living in Kuala Lumpur.  You were born in Malaysia and are a Malaysian citizen.  Your father had died in 2002. Your mother is still alive; you have five stepsisters.

4One of them offered you a trip to Australia.  She booked your return flight and four days accommodation.  She asked you to deliver the cooktops to a friend.

5When police arrested you, you said you did not really know there were drugs inside the packages. However, there were a number of suspicious circumstances surrounding your trip.  Your travel was arranged for you only four days earlier.  Your visit was for only four days.  You were told to deliver the packages to your stepsister's friends.  You were given a scanned image of the serial number of an Australian $10 note and shortly before you left Kuala Lumpur, your stepsister left a message on your phone which said in part,

"If we do the thing correctly, he will definitely send next round time.  If you finish the job quickly, they will keep on sending us continuously."

6By your guilty plea, you accept you were aware of the substantial risk the packages would contain a border controlled drug and it was unjustifiable to take the risk.  That is, you were reckless as to whether or not the luggage you were carrying contained a border controlled drug.

7For your part, you acted at the direction of your stepsister who booked your flights and accommodation for you and, on her instructions, you were to check in the suitcase containing the packages of the methamphetamine and board the flight to deliver them to people in Melbourne.

8You were to message her on your arrival in Melbourne with the intention that you meet her friends who would identify you by the image of the Australian $10 note your sister had given you.

9You were not involved in the planning and preparation of the importation.  There is no evidence before me of what you were to gain for your role other than an expenses-paid short visit to Melbourne.

10Your counsel, Ms Papadinas, relied on a number of documents to support her oral submissions.  They were written submissions on the plea, seven references from family and friends, a letter from your sister, Lila, 32 prison vocation and program certificates, three negative prison drug screen tests, your Malaysian secondary school certificate and results, your flight attendant preparatory course certificate, your birth certificate, your father's death certificate, your letter of apology to the court and the Dame Phyllis Frost prisoner education summary report.

11You are a single woman.  In your letter to the court, you wrote your life in Malaysia was "very straightforward".  After you finished your secondary schooling and you completed a flight attendant's preparatory course, for the next two years, while studying and working part-time, you looked after your elderly mother who had become unwell.

12At the time you offended, you were working for your sister, Lila, as an administration clerk for her transport company.  She confirmed your work and confirmed that you were also taking care of your sick mother.

13She wrote that you had applied for leave from work to take this trip for a short vacation.  When she heard you had been arrested for a drug charge, she could not believe it.  She knows you as,

"very attentive, helpful, intelligent and honest."

14She will reemploy you when you return to Malaysia after your release from prison.

15Other family members and friends regard you highly for your commitment to your family and your hard work. 

16You speak to your mother daily via telephone and in August last year, two of your sisters travelled to Australia to visit you in prison.  Otherwise, you are isolated from family members who, on the material before me, are the most significant part of your life.

17Following your arrest on 22 May 2018, you were held in remand custody at Dame Phyllis Frost Centre.  Prison records demonstrate you have kept busy working as a kitchen billet and engaging in all programs offered to you.  You have done all you can to use your time in custody productively.

18Significantly you were supported in court by Melisa Burns, who prior to her own release, shared a cell with you for four months.  She described you as likeable and a good friend.

19In mitigation of penalty, Ms Papadinas relied on the following factors: Your early guilty plea, your remorse, your youth, that you have no prior convictions, that you have no pending or subsequent matters.  She also relied on the impressive character evidence, your family support and the fact that this is your first time in imprisonment and indeed you are a first offender.

20In addition, she relied on your exemplary conduct while you have been in custody and that imprisonment is more burdensome for you because you are a foreign national serving a term of imprisonment in a foreign prison.  She also submitted you have good prospects for rehabilitation.

21I accept the force of those submissions.

22Ms Monagle on behalf of the Crown relied on written submissions in support of her oral submissions.  She submitted, in accordance with the authorities, general deterrence is to be given chief weight in sentencing you and stern punishment will be warranted in almost every case. She referred to the relevant sentencing principles set out in the New South Wales Court of Appeal decision of Nguyen and Pham [2010] 205 A Crim R 106 at paragraph 72. I have had regard to those well-established considerations.

23Ms Monagle accepted you made an early plea of guilty, that you are remorseful and that you are of good character, although that is generally to be given less weight as a mitigating factor than it might otherwise be given, given the circumstances and seriousness of this offending.  She also accepted you have demonstrated good prospects of rehabilitation.

24She also provided me with a helpful table of three cases, all luggage concealments of comparable quantities of an imported border controlled drug, each carried by relatively young offender who had pleaded guilty, like you.

25I have used them to provide a yardstick against which to examine the sentence I must impose upon you.

26In Yip [2017] VSCA 231, the Court of Appeal dismissed an appeal against the sentence of seven years, six months' imprisonment with a non-parole period of five years and six months.

27There, the offender flew from Hong Kong to Perth with two bottles of cognac containing 1.346 kilograms of pure methamphetamine and after discarding one damaged bottle in Perth, travelled to Melbourne where he delivered the remaining bottle to someone else.  He had made a significant offer of assistance to authorities in the prosecution of that other person.

28Kyrou and Hansen JJA rejected the submission the sentencing judge had failed to give sufficient weight to the appellant's offer of assistance.  Their Honours agreed with the assessment of Ashley JA who had granted leave to appeal that the sentence was within the range of sentencing discretion.

29In Legault [2014] NSWCCA 271, the New South Wales Court of Criminal Appeal heard the appeal of an applicant who was 29 years old, who had prior convictions for drug and dishonesty offences and a history of drug and substance abuse and who had accepted the opportunity offered to repay his drug debts by transporting luggage containing 2.0339 kilograms of methamphetamine from Vancouver into Sydney.

30The court held that the sentence of nine years and four months' imprisonment with a non-parole period of six years was not manifestly excessive.

31In Agboti [2014] QCA 280, the applicant, a Nigerian woman, represented herself. She was a 23-year old first offender with a background of disadvantage who reward was the cost of travel. She imported 2.3265 kilograms of methamphetamine.

32The Court of Appeal of the Supreme Court of Queensland found her term of imprisonment of 11 years with a non-parole period of five years and six months was manifestly excessive and sentenced her to a term of nine years and six months' imprisonment with a parole release date of four years and six months after the commencement of the term.

33Recently, the Victorian Court of Appeal in Kai Yang Kao [2019] VSCA 84 described a sentence of nine years and eight months' imprisonment for similar offending involving two shipments of 2.34 kilograms of pure methamphetamine for a 22-year old first offender whose involvement was significantly greater than yours as "quite stern" but not manifestly excessive.

34Ultimately, as directed by the Commonwealth Crimes Act, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

35Because of the seriousness of your offending, no other sentence than a sentence of imprisonment is appropriate and your counsel was not heard to argue otherwise.

36As I am required to do, I have taken into account the matters set out in s.16A(2) of the Commonwealth Crimes Act and all other matters insofar as they are relevant and known to the court.

37In your case, family and work have been the major facets of your life, which has been relatively sheltered.  Having regard to your unworldliness and your relative youth, I find you were particular naïve and vulnerable to exploitation.

38I have moderated your head sentence and minimum non-parole release period to take this into account.

39Please stand, Ms Ragindram.

40On the charge of importing a commercial quantity of a border controlled drug, you are sentenced to be imprisoned for seven years and I fix a minimum non-parole release period of four years.

41I declare you have already served 343 days by way of pre-sentence detention.

42I further declare but for your plea of guilty, I would have sentenced you to nine years' imprisonment with a minimum non-parole period of five years and six months.

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