Director of Public Prosecutions v Ramli
[2012] VCC 908
•29 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00705
| DIRECTOR OF PUBLIC PROSECUTIONS (CWTH) |
| v |
| NORAZLINDA BINTI MOHAMAD RAMLI |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June 2012 | |
DATE OF SENTENCE: | 29 June 2012 | |
CASE MAY BE CITED AS: | DPP v Ramli | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 908 | |
REASONS FOR SENTENCE
SUBJECT: CRIMINAL LAW
CATCHWORDS: Sentence – plea of guilty - import a marketable quantity of a border controlled drug – no criminal record – whether exceptional hardship made out
LEGISLATION CITED Criminal Code (Cth)
CASES CITED: (R v Nguyen & Ors (2005) 157 A Crim R 80 at [110]; Wong v R; Leung v R (2001) 207 CLR 584 at [607-608]; R v Lee [2007] NSWCCA 234 at [23]; DPP v Bui [2011] VSCA 61; R v Phan [2009] VCC 790; R v Diep [2010] VCC 347; R v Vo [2011] VCC 1682; R v Verdins (2007) 16 VR 269
SENTENCE:Convicted and sentence to 3 years’ imprisonment to be released after 14 months’ imprisonment having entered into a recognisance of $2,000 to be of good behaviour for 3 years – 140 days pre-sentence detention declared as having already been served – s.6AAA Sentencing Act 1991 declared
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G Schubert | Director of Public Prosecutions (Cth) |
| For the Accused | Ms M O’Brien | Lethbridges |
HER HONOUR:
1 Norazlinda Ramli, you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, namely heroin, contrary to sub-s.307.2(1) of the Criminal Code (Cth).
2 The maximum penalty for this offence is twenty-five years' imprisonment and/or a fine of $550,000. Mr Schubert, who appeared on behalf of the Commonwealth Director of Public Prosecutions opened the matter as follows:
3 You are a thirty-five year old woman who ordinarily resides in Malaysia, having been born there, and lived there all your life. You were employed as a telemarketer in that country before committing this offence.
4 On 10 February 2012, you arrived at Melbourne airport on a Malaysian Airlines flight from Kuala Lumpur. You had stated on your incoming passenger card that you were in Australia for a holiday and an exhibition. You stated that you were not carrying any goods that might be prohibited or subject to restriction, such as illicit drugs. You were booked to return to Malaysia three days later, on 13 February 2012.
5 At about 9.30am, you were approached by Customs in the baggage inspection hall. You were taken to an examination bench and asked several standard questions. When asked if you had any cash with you, you said you were carrying about USD $2,400. When asked the purpose of your trip to Australia, you said you were intending to attend an arts festival at Federation Square in Melbourne. You produced a schedule concerning this festival and showed it to Customs officers.
6 You also said that you were to travel to Sydney and would collect a ticket for that flight from the Malaysian Airlines counter, as your boss had booked the flight. Inside a small red handbag which was carried by you, Customs found a Samsung mobile phone and a blackberry mobile phone; you said that both of these belonged to you. Also inside your bag was USD $2,300.
7 At about 10.16am, you were escorted to a Customs interview room where Customs officials began to explain to you that you would be detained for the purpose of an internal search.
8 At about 10.26am, Customs asked you if you were carrying narcotics inside your body. At this point, you admitted that you were carrying a substance internally. You also said that you were twelve weeks pregnant. You were cautioned by Customs officers and advised that the Australian Federal Police were being notified of the admissions you had made. When asked whether you were aware of the nature of the substances that you were carrying, you said you did not know. You did say that you were carrying 30 pellets.
9 At about 10.43am, you signed an internal search consent form. At about 11.00 am, Australian Federal Police attended and met with you. Police commenced an interview with you but stopped this when it became clear that you needed an interpreter. A short time later, you were examined by ambulance officers and taken to The Royal Melbourne Hospital, arriving at about 12.14 pm. You were examined by medical staff at the hospital who confirmed that you were pregnant.
10 Between about 8.25pm and 10.10 pm that day while at hospital, you were observed by Australian Federal Police to pass in your bowel movements 34 plastic pellets which were approximately 3 to 4 centimetres in length, each containing an off-white powder. Presumptive testing of the powder gave a positive indication that the substance was heroin. A further analysis established that the total weight of powder was 207.4 grams, containing 83.1 grams of pure heroin.
11 In the course of that day, the Australian Federal Police noted that the Samsung mobile phone which they had seized from you earlier that day, was receiving SMS text messages from a contact who was recorded in the phone as “Aidil”. The phone number associated with those messages had a prefix which is assigned to Malaysian telephone numbers. A controlled operation was then undertaken in a bid to identify the intended recipients of the heroin which had been brought here by you. Australian Federal Police responded to the text messages in consultation with you. You provided assistance with the wording of the messages. Messages were sent to Aidil, advising that you were ill and could not travel to Sydney and instructing Aidil to have the intended recipients attend Melbourne to collect the heroin.
12 The mobile phone contained several messages received from Aidil including the following:
(a)“Take taxi to Terminal 1 for Qantas domestic flights go to counter and ask for one o’clock or next available Sydney flight, you will get a flight immediately. Sydney terminal and Quest Mascot Hotel are next door to each other, booking number 29394731. Hotel add .. 108-114 Robey Street, Mascot .. use money with you and buy ticket to Sydney he will bal u ok.”
(This message was sent on 10 February 2012 at 9:18 AM. (So, this was about 12 minutes before you were intercepted by Customs)
(b)“But ure in hotel .. then discharge them there .. we will find a way to send to Sydney .. affin bank credit ur accnt with 25K USD .. they still need you here.”
(This message was sent on that same day at 13:10:27, (which was at a time after your apprehension).
(c)The third message was:
“Mummy am the father n I tell u my baby will be fine now all is out .. pls u just have to complet this my lov u hv to .. u promis to do anything for our lov remb .. put all in ur pants and just relax in bus to sdy pls .. they said they cant com cos they blacks cant enter plane there and the guy no passport .. some1 he beggd said 1000 USD and 600 for ticket .. pls my lov .. I checked the road for u also .. it is very ok trust me .. once u gv u start comin home pls dear”
(This message was sent on 11 February 2012 at 8:58 AM. ( That is, it was sent in the morning of the following day)
(d)The fourth message relied on by the Crown read:
“Considered all I hv done for u .. ur hapness ur home and family.. ur peace and security even to be a father for ur kids and my baby .. I cant blv u do this to me”
(This message was sent on 11 February 2012 at 9:37am.)
I was not told whether any of these messages were received by way of apparent response to messages sent by you. It would appear that all but the first text to which I have just referred is responding to the messages sent by you in conjunction with AFP about not being able to get to Sydney. I will return to this matter in a moment.
13 The operation to establish the intended recipient of the heroin was unsuccessful and no further suspects were identified.
14 On Saturday, 11 February 2012, you took part in a record of interview with Australian Federal Police. You said the following things:
(a)You did not know the substance that you were carrying was drugs. You said that you were told it was some sort of medication and that you were told to swallow it and someone would be waiting within Australia;
(b)You said you swallowed the pellets at the Sun Inn Hotel in Subang, Malaysia;
(c)You were asked to swallow the pellets by a man named Mohamad Aidil, who you had met two weeks earlier in a shopping centre;
(d)You were promised 9,000 Ringgit upon your return to Malaysia. The money would be a share of the profit obtained by selling the medication to a doctor in Australia. (I just pause here to observe that 9000 Ringgit would be the equivalent of about $2,380);
(e)You also told police that you were asked to swallow eighty pellets but you could only swallow thirty-four;
(f)You were told to then catch a taxi to the airport, travel to Australia and in Melbourne someone would pick you up. Aidil had booked an airline ticket for you which he gave you at the hotel;
(g)You told police you did not know who you were supposed to meet. Aidil had booked a stay for you at the “Melbourne hotel” and you were to await his call. You were to stay in Australia for four days;
(h)You said that the US $2,300 found in your handbag was your own money;
(i)The father of your unborn child was your fiancé Abdul Rahman. You said he did not know about your trip to Australia;
(j)You denied that Mohamad Aidil was in fact the father of your child and maintained that you had known him for only two weeks; and
(k) Subsequently, you advised investigators that of the $2,300 in cash which had been found on your person, $1,500 was cash given to you for the purpose of paying for expenses incurred in the course of the importation.
15 Between 17 February 2012 and 6 March 2012, scientific analysis of the narcotic found in the 34 plastic pellets was conducted. The gross weight of the substance, being 207.4 grams, contained an approximate purity of 40.1 per cent heroin. When calculated, this provided a total net weight of 83.1 grams of heroin.
16 A marketable quantity of heroin is a quantity which is in excess of 2 grams, whilst a commercial quantity of heroin is a quantity in excess of 1.5 kilograms.
17 Federal Agent Keith Randall provided an expert valuation of the heroin seized from you. If sold at wholesale value at the median level of 40 per cent purity, the potential value of the heroin was $88,800. If sold at street level value per “cap” at the median level of 15 per cent purity, the potential value of the heroin was $92,200.
18 On 7 May 2012, you were committed to the County Court in respect of the charge for which I now sentence you, and also in relation to another charge, being dealing with property reasonably suspected of being proceeds of crime. However, the Crown did not seek to indict you on the second charge. The matter proceeded by way of a straight hand-up brief and at that time, you entered a plea of guilty to both charges.
19 You have been in custody since your arrest on 10 February 2012. At the time of the plea hearing, you had spent 133 days in gaol, and you have now spent 140 days in gaol.
20 You have no prior convictions in Malaysia or in Australia.
21 Ms Ramli, as the maximum penalty for this offence shows, the offence which you have committed is regarded as a most serious one.
22 The Crown submits that in your case, your conduct constitutes a less serious but by no means a minor breach of the relevant provision for this offence. The Crown asserts that in fact Aidil is the father of your child and the supplier of the drugs which you were carrying. They rely on the text messages sent by Aidil in support of this contention. You have given sworn evidence that Aidil is not the father of your child and the text messages sent by Aidil to you, where he referred to himself as being the father of your child, was a shock to you. You also said that some of the terms of endearment which he used in those messages were not terms which he ordinarily used when speaking to you. The Crown submitted that while they accept that you co-operated to a degree with the Australian Federal Police, insofar as assisting them with the use of your mobile phone to attempt to locate the recipients of the heroin within Australia, the Crown submitted that you have not told the truth about the nature of your relationship with Aidil who you have said supplied you the drugs.
23 A letter was tendered on the plea which was written by the police informant, who gave an appraisal as to the quality of your cooperation. Mr Fraser said that, “Several contradictions became evident in relation to the information being provided to police by (you) and the information provided in the SMS messages from Aidil. As a result of this, police had concerns as to the veracity of certain aspects of the information that was provided by (you).”
24 If it were the case that you had a closer relationship to the drug supplier than that which you have admitted, then this would tend to undermine some of the matters put on your behalf as to your impoverished circumstances and your lack of knowledge about Aidil, who you said you met two weeks before you imported the heroin. It might well suggest that you were more intimately involved in the drug importation than what you have said. I must say, Ms Ramli, that the text messages do give me cause for concern and I am somewhat suspicious about the nature of your relationship with this person called Aidil.
25 However, on the basis of your evidence, and submissions put by Ms O’Brien in respect of your situation and the meagre sum which was sent to you by your intended fiancé whilst you have been in gaol, I am not satisfied that your relationship with Aidil was a closer one than what you have said. In my view, to so find would require me to be satisfied of this beyond reasonable doubt, as I would regard such a matter as a finding which was adverse to you.
26 I also factor in that you did nothing and said nothing which indicated that you adopted or somehow understood the messages which were being sent to you, insofar as any alleged relationship with Aidil was concerned; although, presumably he would only communicate in a fashion where he could be assured that you did understand him. But I have also factored in that conversations in the context of drug importations and the like are not usually clearly spelt out for all the world to understand them. It may well be that Aidil was speaking in code and speaking to you in such a fashion that might conceal his true identity if others were to view these messages. Taking all these matters into account, I put my suspicions to one side in terms of your relationship with Aidil and accept that it is another man who is the father of your child.
27 A psychologist’s report was tendered on your behalf. Simon Candlish, psychologist, interviewed you on 6 June 2012. In that report, you explained that a woman had approached you at a clothing stall where you worked. This woman was a regular customer of yours. She asked you what you earned and you told her $800 per month. She asked you if you wished to earn more money and told you that you could do so working for her.
28 I understand that you then obtained work as a telemarketer and that this woman paid for two different trips for you to travel to Sydney to show you what to do in terms of importing drugs. You had not travelled on an aeroplane before these trips. The occasion on which you committed this offence was your third trip to Australia. Before embarking on the flight, you went to a hotel room in Kuala Lumpur with this woman who asked you to swallow more pellets; however, you said that you could not swallow any more. You were given USD $2,300 and you understood that this was for your food and accommodation, and you did not have any money of your own. On the plea, it was accepted by you that you had lied to the Customs officials when you told them that at least some of the money which they found was from your own savings.
29 Ms O’Brien said that the woman had introduced you to her partner, Aidil, and that you had visited the woman’s house on two occasions, which is when you first came into contact with him. You told him that you were pregnant. For your role, you were offered 9,000 Ringgit ($2785 AUD) and you were given about half of this before you left, to cover your expenses. You understood that when you returned you were to receive the remaining amount.
30 In sentencing you, one of the matters to which I have regard is your role in the drug importation offence. You were prepared to bring illicit substances into Australia, having received two lessons as to what was involved. While your role in the importation was at a lower level than those prepared to use you for the delivery of drugs, your input was nonetheless essential in order to have the drugs delivered to Australia. As the learned prosecutor pointed out in his submissions, superior Courts in Australia have repeatedly said that organisations who are wanting to distribute drugs, are only able to prosper because people are ready, willing and able to undertake these types of roles. It is well established that people who are willing to participate in the illicit drug trade at any level should expect to receive heavy penalties. A number of authorities were cited in support of that proposition. Although I have read out the full citations presently, but I will include those full citations in my sentencing remarks. They were R v Nguyen & Ors (2005) 157 A Crim R 80 at [110]; Wong v R; Leung v R (2001) 207 CLR 584 at [607-608]; R v Lee [2007] NSWCCA 234 at [23].
31 In sentencing you, Ms Ramli, I also must have regard to the weight of the drug which you imported. You brought in 83.1 grams of pure heroin which is significantly in excess of the threshold for marketable quantity, which is two grams. The quantity of heroin is 41.5 times the marketable quantity threshold and, while you may not have known you were carrying heroin specifically, you did know that you were carrying an illicit substance. As you had swallowed 34 capsules, you were aware of the quantity of the illicit substance to be imported, which goes to the seriousness of your offending. However, bearing in mind other quantities of drugs which have been sought to be imported into this country, although you have sought to bring in a substantial amount for a marketable quantity, I agree that the weight sits lower to mid-level in terms of quantities of drugs imported, after having regard to the upper limit for the marketable quantity, which is up to 1.5 kilograms.
32 It also appears that you committed the offence for financial gain in circumstances where you yourself were not addicted to any drug. This means that you were prepared to bring an illicit substance into Australia to be distributed to others who would, in all probability, be drug addicts or at risk of becoming drug addicts. As I said in discussion with your Counsel, while you might have performed this task in order to make life better for your children, you were certainly not too concerned about how other people’s children might be affected by the drugs that you brought here. However, I do take into account that your motivation was not to fund a lavish lifestyle or to pay for gambling debts, or the like. The financial gain that you were after was to provide for your family in circumstances where you were a sole parent and struggling financially.
33 I take into account your background. At the insistence of your step father, you entered into an arranged marriage when you were a teenager and had your first child when you were sixteen years old. From that marriage, you had five children, four of whom are still living. Their ages are eight, eleven, sixteen and nineteen years. The fifth child of the marriage, Razik, died suddenly when he was only three years old. Had he survived, he would now be six years old. Ms O’Brien described the tragic circumstances in which your little boy died. You were cooking in the kitchen when another of your children ran in to say something was wrong. You ran outside and attempted to perform CPR on Razik, then took him to the local clinic. Unfortunately, he had died by the time that you arrived. Ms O’Brien said that contrary to what was contained in Mr Candlish’s report, Razik had not died of cancer, but appears to have died from a lung condition. Understandably, Razik’s death was a terrible shock for you, and a sadness for you, especially in circumstances where he appeared to be well nourished, happy and healthy.
34 Your marriage broke down in 2010 after your husband’s mental health deteriorated significantly. He had been a truck driver and you and the children endured his long absences from the family home. However, during the final years of your marriage, his mental health suffered to the point where he was violent towards you and he spent some time in a mental health facility. He now lives at home in his family’s village and has no contact with you or his children. He has not provided financial support for some time. The final years of your marriage were most stressful because of your husband’s behaviour and due to the fact that your mother was gravely ill with cancer from 2007 until she died in 2009. During this period, you looked after her as well as attending to the many tasks which were involved in taking care of your children and the household.
35 In 2010, you were looking after the four children, living in a three bedroom flat with your step-father. You were required to pay him 300 Ringgit a month to share the flat, which involved you sharing one room with your daughter, and your boys sharing the other room. You were also required to pay for the water and electricity. You were forced back into the workforce in order to support your family, having applied for government benefits as a single mother, but none were forthcoming. Also, your nineteen year old son, Mohamad, graduated in 2010 and had been attending a private college where he was studying information technology. You were required to pay tuition fees for him. Your step-father, who lived with you in that flat, or apartment, is in his late sixties and works as a security guard, doing night shift work. He has had some health problems but I was told by Ms O'Brien these did not presently impact upon him.
36 At some stage in 2011, when working at the clothing stall, you met an Abdul Rahman, who you refer to as “Ayke”. Mr Rahman ran a grocery stall next to the stall at which you were working. Ms O’Brien said that you engaged in a traditional courtship and that you became most enamoured of each other. However, because Mr Rahman is a Christian and you are a practising Muslim, your father was not supportive of your relationship and would not give his consent to your marriage.
37 Your relationship with Mr Rahman resulted in you becoming pregnant with your sixth child. Hence, you were in fact pregnant at the time that you were apprehended, and I have been advised that you are shortly to give birth.
38 Although I was told that you were making $800 per month at the clothing stall, I am not aware as to your wage at the telemarketing company. This was a company that sold membership to a private hospital which amounted to a form of private health insurance. I was told that this was a job you took on at the insistence of the female acquaintance who introduced you to Aidil. In any event, it would appear that your financial position was most difficult at the time that you took the decision to import heroin. I accept that you entered into the arrangement to import the drugs in order to support yourself and your family in circumstances where there was little else in the way of financial support. It would appear that since your incarceration, Mr Rahman has contributed some modest sums to your family and it would appear that your step father contributes to the household, although this was not specifically addressed. Your 19 year old son has had to give up his College course and obtain a job in order to financially support your family.
39 Ms O’Brien submitted that you led an unsophisticated and unworldly life, but she accepted that you knew you were bringing into Australia something illicit and that this was wrong. Your preparedness to do so goes to your moral culpability. Moreover, you were prepared to put your unborn child at risk by swallowing such illicit substances, which does you no credit. Ms O’Brien submitted that you were terribly frightened for the welfare of your baby. She said however, your desperation for the financial reward motivated your actions. I accept that while you were motivated by financial gain, it was in circumstances where you were struggling financially, doing your best to support your family.
40 I accept that you were to derive relatively modest pay from the drug importation, especially in view of the significant risk that you were taking. As was discussed at the plea hearing, you would be facing far harsher consequences if you had been apprehended in your homeland. But on any view of things, you engaged in an illegal activity which involved a high risk to you being apprehended for not a great deal of payment. This perhaps highlights the desperate state you were in in terms of your need for money.
41 However, in all of the circumstances I must impose a punishment which is adequate. In cases such as these, strong punishment is usually warranted, so as to send a clear message to others who might be tempted to offend as you have, that such conduct will be met with a significant sentence. I must place significant weight on the principle of general deterrence to discourage others from tempted to behave as you have.
42 In your favour, I take into account your guilty plea which was entered at an early stage. While it may be true that the Crown case against you was strong, you are still entitled to substantial discount in the sentence that you would otherwise receive, as you have saved the witnesses the time and trouble of giving evidence and you have saved the community the considerable expense and time which is associated with contested proceedings. In this regard, I accept Ms O’Brien’s submission that you were most co-operative with the authorities at an early stage, admitting to carrying the illicit substances very soon after apprehension, and doing what you could to assist the authorities in seeking to flush out the intended recipients of the drugs you were carrying. As I have said, I am unable to be satisfied beyond reasonable doubt that you were doing anything other than your best to assist the authorities and in those circumstances, I allow for a further discount in respect of such co-operation.
43 Although your efforts did not result in the intended recipients being found, you did what you could to help in this regard. As I do not accept that Mr Aidil is your partner, I allow for a discount on the basis that you did what you could to assist, notwithstanding that your assistance bore no fruit. But I must also bear in mind that, having done what you could, there was no benefit derived from this aspect of your co-operation. This does not mean that you are deprived of any discount but I make an appropriate allowance in view of this circumstance.
44 Although you have expressed regret in respect of yourself and your family situation, I am not entirely convinced that you have expressed wholehearted contrition for the seriousness of your actions and how they may have affected other people. However, I do accept that you are remorseful for your actions, insofar as you have been able to express this. I view your cooperation with the authorities and willingness to plead guilty as manifestations of your contrition.
45 You have no prior convictions, although that fact is generally given less weight in cases such as this, than in other cases. However, I still take this matter into account in your favour, as it goes to your prospects of rehabilitation and the weight that I need to place on specific deterrence.
46 Whilst you have been on remand, you told Mr Rahman about your predicament. You have been corresponding with your intended fiancé and you have also had some phone contact with him and with your oldest son. As I have previously said, as a result of your arrest, your son has had to leave college and go to work in order to assist the family financially. Also, your intended fiancé has been doing what he can to assist the family by providing modest amounts of money from time to time. A sign of your otherwise good character is the fact that whilst in gaol, you received some money from Mr Rahman and, concerned about how this might be viewed by the authorities, you brought the matter to the attention of Ms Baldwin, who is a remand worker with Prison Network Ministries. Mr Rahman had sent you AUD $60, which was concealed in some magazines. In a letter provided to the Court, dated 15 June 2012, Ms Baldwin was praiseworthy of you in terms of your honesty over this issue and in terms of your conduct whilst on remand. She said that you have no friends or family in the country and were in need of financial support as you were about to give birth. Because you are a foreign national, you may not receive government payments, but because of your honesty in this matter, you were allowed to retain the money which had been sent to you.
47 Ms Baldwin also said that you were a quiet and gentle person who complied with all that was required of you by the prison authorities. She said that you worked hard at your job in the prison kitchen and have been known to work longer hours than required. She said that you presented as a caring and committed mother whose first priority is her family and that you have expressed deep remorse for your crime. Ms Baldwin said that you are a respectful person who appreciates the supports that she has given you.
48 As your baby is due on 15 July 2012, you are most anxious to know your fate in terms of the sentence you receive, as the authorities will not say whether your baby can remain with you until they have been advised of the sentence that I impose. I take into account your anxiety in this regard, as you are most intent on having your baby remain with you whilst in custody. The authorities will decide the matter on the basis of what is best for the child in all of the circumstances and in the knowledge of the sentence that you will receive. I take this aspect of your circumstances into account insofar as I can, as there is a good deal of speculation associated with the position at this stage.
49 Although you are devoted to Mr Rahman, you are most concerned as to whether your relationship with him will continue in view of deceiving him about the commission of this offence.
50 It was submitted by Ms O’Brien that exceptional circumstances are made out in your case in terms of family hardship, so as to warrant a reduction in sentence for this aspect. Ms O’Brien told me that your nineteen year old son is not coping well with looking after the children and of course he has had to forego his studies at least for the time being. He has said that no one is at home to cook for him and the other children in the way that you have done so. He is also finding it very hard to cope with looking after three children whilst also working to support them. In this regard, your step-father is not a great deal of help as he has some health issues, notwithstanding as I understand it they are under control for the time being; but he is also not available at night time due to the nature of his work.
51 The exceptional circumstances relied upon are that your sixth child (“Grace”) will be born in a custodial setting, away from her siblings and her siblings will be away from her. Your children are all in Malaysia and suffer the hardship of not having their mother to care for them in circumstances where their father has not been a presence in their lives for some time. Ms O’Brien said that when you have telephone conversations with your oldest son, your younger children are too upset to speak with you. In a bid to shield them from the truth of your situation, they have been told that you have gone to another country in order to obtain work. The baby that you are to have will be deprived of contact with other family members and with her father and your other children will be deprived of seeing their baby sister when she is born and as she grows. The children will be deprived of your presence whilst you are gaol and will not have the opportunity to visit you because they are living in Malaysia. Accordingly, your children will be suffering the impact of the lack of your presence as a mother and someone who would give them financial support. Also, they will be deprived of being present when their sister is born and their sister will be deprived of their company. Having considered the matter, in all of the circumstances, I am satisfied that your position is exceptional so as to allow a reduction in sentence for family hardship and I will sentence you on the basis of making this finding.
52 When I say that your position is exceptional, what I mean by that is your family's position is exceptional, so as to make an allowance for family hardship. To be clear, I find that the hardship which your incarceration has caused to your family members is sufficiently extreme to warrant an appropriate allowance, but I do not regard it as sufficiently extreme to warrant a non-custodial sentence or to sentence you on the basis of ‘time already served’. Ms O’Brien sensibly conceded that further time in gaol was justified in your case, on any view of matters. However, I am prepared to substantially reduce the sentence that I would otherwise impose because of this finding.
53 Further, I take into account the fact that this is your first time in custody and that you have a limited command of the English language. There is only one other prisoner who speaks your language, which means that time in gaol for you will be more isolating and much harder than for someone without these difficulties. Also, I take into account the fact that you are a long way from home and you do not receive the comfort of visits that other prisoners might receive. I accept that you are missing your children immensely, which adds to the hardship that you suffer whilst incarcerated. Unfortunately, the birth of Grace will not take place with your partner or children being present, which will also be hard for you. Ms Baldwin has agreed to be a support person through the birth, which will be of some comfort for you. Whilst this is so, having a baby in gaol with no partner, friends or family to look to at such a time is something which will be most difficult for you.
54 You have found your time in gaol thus far to be onerous and it has had a salient effect on you. Your one wish is to return home to look after your family and to continue your relationship with Mr Rahman.
55 I now go to Mr Candlish’s report, which, apart from the matters I have previously canvassed, in terms of your background and matters leading to the offending, was not particularly relied upon by Ms O’Brien. It did not seem to disclose any mental health issues other than that in the past, you reported feeling depressed in relation to your relationship with your ex-husband. Mr Candlish refers to you having cognitive distortions at the time that you offended, which led you to condone illegal behaviour as legitimate in order to achieve your goal for your family. However, I did not understand that such distortions to amount to any psychological condition as such, and it was not put that your moral culpability ought to be reduced because of any impairment of mental function.
56 In all of the circumstances, I place minimal weight upon specific deterrence and I find that you have very good prospects of rehabilitation.
57 I have been helpfully provided with a number of decisions which give me some guidance as to current sentencing practice and the approach that Courts take in matters such as this.
58 Ms O’Brien took me to the case of DPP v Bui [2011] VSCA 61, which concerned an importation of 197.3 grams of pure heroin. Initially, the learned sentencing judge had allowed for family hardship, finding exceptional circumstances and released the defendant on a recognisance release order without requiring any time to be served immediately. In that case, the defendant was an Australian citizen, she had co-operated with the authorities, and she had given sworn evidence to co-operate with law enforcement agencies. She had agreed to give evidence against others implicated in the importation. This step had already caused her to be harassed. Whilst on bail, the defendant gave birth to premature twins who were four months at the time of sentence. On appeal, the Court of Appeal found that the sentence was manifestly inadequate, resentencing the offender to four years with a non-parole period of two years. The matter went to the High Court on a different issue. In re-sentencing, the Court of Appeal did so on the basis that double jeopardy did not apply.
59 Of course, no two cases are alike, but Ms O’Brien pointed to the Court of Appeal sentence in Bui and submitted that you had imported a quantity of heroin which was half the amount in Bui. She submitted that unlike Bui, you could make out exceptional circumstances amounting to an allowance for family hardship. As I understand their decision, they also found that the learned sentencing judge had wrongfully found exceptional circumstances as she had combined hardship with other matters which were not relevant to that particular issue.
60 Ms O'Brien pointed to three cases in a table which had been helpfully provided by Mr Schubert. The sentences referred to were the following: R v Phan, a sentence of Her Honour Judge Rizkalla, which was imposed on 18 March 2009. In that case, a fifty year old courier from Vietnam was found to have carried 95.3 grams of pure heroin and made admissions when intercepted by Customs. The offender was sentenced to eighteen months' imprisonment but ordered to be released after serving six months, upon entering into a recognisance in the sum of $2,000 to be of good behaviour for twelve months. The accused had the sole care of seven children, some of whom had grown to adulthood. She had never learned English and lived an isolated life, surviving on Centrelink payments.
61 Ms O’Brien also pointed to the sentence of R v Diep, a sentence of His Honour Judge Coish of 22 April 2010. where a courier who was found to be carrying 95.54 grams of pure heroin was sentenced to three and a half years' imprisonment with a non-parole period of two years. The offender in that case was born in Cambodia and had emigrated to Australia when she was thirty-two years old. She was suffering anxiety and depression which had been exacerbated by her predicament, but Verdins principles were not relied upon. She pleaded guilty at an early stage, exhibited remorse and was of previous good character with good prospects of rehabilitation and she committed the offences for financial gain. She was sentenced to three and a half years' imprisonment with a non-parole period of two years.
62 The third sentence referred to was that of R v Vo, a sentence of His Honour Judge Howie of 3 November 2011. Ms Vo brought in 102.8 grams of heroin. She travelled to Vietnam on instructions from a person she met at Crown Casino and was arrested at Melbourne airport upon her return. The offender had been in a violent marriage and her husband had suffered a mental illness. She had separated from her husband who had subsequently committed suicide. She had a sixteen year old child, was diagnosed with depression and was a pathological gambler. His Honour Judge Howie found exceptional hardship to the offender’s daughter, as there were no other relatives to take care of her in Australia. His Honour imposed a sentence of three years' imprisonment and ordered the offender to be released after serving fifteen months upon entering a recognisance in the sum of $500 to be of good behaviour for three years.
63 As you will appreciate Ms Ramli, no two cases are alike, and while I have regard to the cases to which I have just referred, I also note that there are many more where higher sentences than these have been imposed. I have had regard to current sentencing practice as one of the matters which assists me in determining an appropriate sentence in your case.
64 Mr Schubert responded to Ms O’Brien’s plea submissions, and upon being invited to do so, provided a sentencing range. He submitted that a total effective sentence of three years six months to five years head sentence, with a minimum term of two years three months to three years to serve was appropriate in your case.
65 Having had regard to all of the submissions in your matter and the weight which I need attach to relevant sentencing considerations, and having found exceptional family hardship, I am of the view that the sentencing range which has been submitted by the Crown is too high. As I understand the Crown’s position, the range was put on the basis that I did not make the finding that I have in relation to exceptional family hardship.
66 Please stand up, Ms Ramli.
67 On the charge of importing a marketable quantity of a border controlled drug, you are convicted and sentenced to three years' imprisonment commencing today, but I order that you be released after serving a period of 14 months upon entering into a recognisance in the sum of $2,000 to be of good behaviour for three years. I declare that you have already served 140 days of this sentence.
68 This means that you will be released from gaol after serving 14 months from today’s date but factoring in that 140 days of your sentence has already been served and will be deducted from that period. If you are of good behaviour and do not commit any other criminal offence within a period of three years then you do not have to pay $2000 or serve any further period in gaol. However, if you do commit further offences, or fail to abide by the recognisance without reasonable excuse within that three year period, then you will be at significant risk of serving a further 22 months gaol.
69 If not for your plea of guilty, I would have sentenced you to five and a half years' imprisonment and ordered you to serve three years four months’ imprisonment before becoming eligible for parole.
70 I have imposed this sentence because after taking all relevant matters into account, and giving what I consider is appropriate weight to all sentencing considerations, allowing for exceptional family hardship, I regard that the sentence is appropriate. I now require you to sign a recognisance in relation to the sentence that I have just imposed, and I will ask Ms O'Brien to explain further the terms of that recognisance before you sign that document. Take a seat, thank you.
71 Are there any matters, counsel?
72 COUNSEL: No, Your Honour.
73 HER HONOUR: All right, thank you Madame Interpreter. You may remove Ms Ramli now, thank you. Thanks Ms Baldwin also for your support and attendance. We'll adjourn.
- - -
0
5
0