Nguyen v The Queen

[2020] NSWCCA 45

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nguyen v R [2020] NSWCCA 45

Hearing dates:

21 August 2019

Date of orders:

25 March 2020

Decision date:

25 March 2020

Before:

Hoeben CJ at CL [1]
Price J [2]
Lonergan J [3]

Decision:

(1) Allow the appeal and set aside the sentence imposed on 18 September 2018.

 

(2) Resentence the applicant to a non-parole period of 3 years from 31 August 2018 with a further term of 3 years, a total sentence of 6 years imprisonment.

 (3) The applicant will become eligible for parole on 30 August 2021. The sentence will expire on 30 August 2024.

Catchwords:

CRIME — drug offences — Commonwealth offences — import border controlled precursor — pseudoephedrine

  SENTENCING — appeal against sentence — sentence contrary to law — whether sentencing judge mistook facts by finding the applicant imported a larger amount of precursor — ground made out — applicant resentenced
SENTENCING — relevant factors on sentence — factual basis for sentence — amount of precursor drug imported — finding inconsistent with agreed facts on sentence

Legislation Cited:

Criminal Code (Cth)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)

Cases Cited:

Clinch v The Queen (1994) 72 A Crim R 301
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Le [2018] NSWDC 86
R v Lee [2007] NSWCCA 234
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Principal judgment

Parties:

Thi Xet Nguyen (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr Wilson (Applicant)
Mr R Ranken (Respondent)

  Solicitors:
Legal Aid Commission of New South Wales (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s):

2016/179699

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

18 September 2018

Before:

Girdham SC DCJ

File Number(s):

2016/179699

Judgment

1. HOEBEN CJ at CL: I agree with Lonergan J and the orders which she proposes.

2. PRICE J: I agree with Lonergan J.

3. LONERGAN J: The applicant seeks leave to appeal against a sentence imposed in the District Court by Girdham SC DCJ on 18 September 2018.

4. The applicant was sentenced after her trial which took place in August 2018. She was convicted of a single charge of importing a border-controlled precursor contrary to s 307.11(1) of the Criminal Code (Cth).

5. The maximum penalty for this offence is 25 years imprisonment and/or 5000 penalty units ($900,000).

6. The sentencing hearing took place on 7 September 2018 and the sentencing judge reserved her decision to 18 September 2018. The sentence was backdated to commence on 31 August 2018 to reflect a short period of time that the applicant spent on remand after her arrest.

7. The applicant was sentenced to a period of imprisonment of 7 years expiring on 30 August 2025, with a non-parole period of 3 years and 6 months expiring on 28 February 2022.

8. Given that the Crown conceded error in respect of the first ground of the appeal, it was accepted that this Court should grant leave to appeal and undertake the resentencing exercise: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

9. Other than the identified error, and possibly an error of minor relevance in respect of Ground 2, both the Crown and the applicant stated that they were content with her Honour’s findings on sentence. The applicant submitted that those findings meant that the applicant should be subjected to a significantly lesser sentence. The Crown submitted that the sentence should not be disturbed.

Grounds of appeal

10. The applicant relied upon three grounds of appeal:

1. The judge mistook the facts by finding that the applicant imported 7.8 kg of the border-controlled precursor pseudoephedrine when it was an agreed fact that she imported 3.996595 kg;

2. The judge mistook the facts by finding that the value of pure pseudoephedrine at the relevant time was approximately $100,000 per kilogram when the only evidence was that the value was $80,000 to $90,000 per kilogram; and

3. The sentence is manifestly excessive.

11. Because of the Crown concession in respect of Ground 1, which was properly made, there is no requirement to deal with Grounds 2 or 3 of the appeal. For the reasons that follow, I have formed the view that a lesser sentence is warranted of 6 years with a 3 year non-parole period.

The offence

12. As provided in s 307.11 of the Criminal Code:

Subdivision D – Importing and exporting border controlled precursors

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(c) the substance is a border controlled precursor; and

(d) the quantity imported or exported is a commercial quantity.

Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.

(2) The fault element for paragraph (1)(c) is recklessness.

(3) Absolute liability applies to paragraph (1)(d).

13. The applicant was sentenced after trial where, as observed by the sentencing judge, “the issue at trial was the offender’s knowledge or belief when she undoubtedly imported the substance”. [1]

    1. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 2.

14. The facts of the offending as found by her Honour are as follows:

“On 12 June [Ms Nguyen] was travelling alone on an incoming Vietnam airlines flight which originated in Saigon. She had in her possession several suitcases; I think two, and a large cardboard box. ABF officers located within the cardboard box numerous packets of commercially packaged foodstuffs from Vietnam. They were all removed from the cardboard box. The net weight of the cardboard box was found to be approximately 7 kilograms. X-ray images of the empty cardboard box revealed anomalies consistent with the concealment within the structure of the box. An examination of the cardboard box revealed walls built into the sides and bottom of the box and packages of a white substance therein returned presumptive positive test result for pseudoephedrine and pseudoephedrine. The estimated weight of the concealed chemical precursor drug was believed to be six kilograms.

ABF officers searched the commercially packaged foodstuffs and therein located four packets labelled “coconut candy”. Each of the packets were found to contain a block of white powdery substance which again returned presumptive positive test results for the chemical precursor drug pseudoephedrine. Each block was found to weigh approximately 450 grams, the estimated concealment of chemical precursor drugs in the full packets of foodstuffs amounted to 1.8 kg.

The total chemical precursor drug imported into Australia is approximately 7.8 kg.

Pseudoephedrine is used in the manufacture of amphetamine type substances such as methylamphetamine and ice. The current street value for the pure ephedrine and pseudoephedrine in Australia is estimated at about $100,000 per kilogram.

Clearly the chemical precursor drugs were not declared on Ms Nguyen’s incoming passenger card and she has stated “no” to the question:

“Are you bringing into Australia goods that may be prohibited or subject to restrictions such as medicines, steroids, firearms, weapons or any kind of illicit drugs”.

She listed therein her occupation as “stay home” and gave her address. Australian Border Force investigators were contacted and subsequently attended the airport, they cautioned the offender and purported to make her aware of her right with the assistance of a Vietnamese interpreter. Whilst under caution she stated the candy was given to her by friends to bring to Australia, she also stated that someone would pick them up and that she had been in trouble with the police before. She was placed under arrest and taken to Mascot Police Station where she was charged”. [2]

2. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 3 to 4.

The sentencing judgment

15. In the sentencing judgment her Honour noted a quantity of more than 1.2 kg of pseudoephedrine is a “commercial quantity” and that here the offender had “nearly three times that quantity”. [3] This is potentially close to a correct account of the amount imported but her Honour later twice in her Remarks on Sentence mistakenly referred to the total imported as 7.8 kg.

    3. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 1.

16. Her Honour noted the applicant’s prior conviction in September 2007 after pleading guilty to an offence of “import marketable quantity of a border-controlled drug (cocaine)”. The drug imported was in fact heroin, although nothing turns on this in the context of this appeal. The applicant was sentenced to 6 years imprisonment with a non-parole period of 3 years for that offence which involved arriving in Australia from Vietnam with heroin concealed in her shoes.

17. Reference is made to the sentencing remarks of Morgan DCJ and the medical reports tendered in those earlier sentencing proceedings. Those medical reports identified the applicant as suffering intellectual impairment.

18. In the 2018 proceedings, an affidavit of Ms Tran, the offender’s disability caseworker, was tendered as well as reports from a clinical neuropsychologist, Lisa Zaporro, (mistakenly referred to in the Remarks on Sentence as “Lisa Cepero”) and Dr Ellis, Forensic Psychiatrist, as well as written submissions which referred to comparative cases.

19. Her Honour referred to the requirements of Part 1B of the Crimes Act1914 (Cth) that the Court impose a sentence “that is of a severity appropriate to all the circumstances of the offence”. She also referred to the need to take into account the matters listed in s 16A of the Crimes Act and the need to determine a sentence consistent with the jury verdict.

20. Reports from 2008 by Mr Taylor and Professor Susan Hayes, both psychologists, indicated that the offender had an intellectual handicap described by Mr Taylor as “a level of functioning probably in the lower end of the mild intellectually handicapped range” with “her ability level less than that for about 99% of people her own age”, and by Professor Hayes as “moderately intellectually disabled in that she functioned at between 2% and the lowest point of 1% in the population”. [4]

    4. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 5.

21. Her Honour referred to the 2018 assessment of Dr Ellis who concluded that the applicant met the criteria for an intellectual disability in the mild range. Dr Ellis did not consider her to be exaggerating her deficits. There was no evidence to suggest her intellectual functioning had changed since he evaluated it in 2008. He concluded that there was “poor intellectual performance that could be attributed to the structural damage in the brain noted in the MRI scans from 2009”, but that “there is no clear evidence of significant structural brain pathology present. Equally she may have had an underlying general anxiety disorder partially treated”. Dr Ellis concluded that “effectively she is someone with intellectual disabilities who are often more suggestible than the general community and may be more easily tricked or persuaded into criminal activity by those who seek to take advantage of them”. [5]

    5. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 8.

22. As observed by her Honour, Dr Ellis agreed with the proposition that in June 2016 the applicant “had reduced capacity to critically evaluate situations and problem solving but she did not lack the capacity to understand good decisions. She could identify that the drugs were illegal and harmful and she had, of course, prior experience with the conviction for drug importation. The offending did not indicate an impulsive or rapid choice or action. If it were established that Ms Nguyen was persuaded, cajoled, or duped into carrying materials in her luggage by others then it is likely that her ability to resist the suggestion was impaired by her intellectual and resultant social deficits”. [6]

    6. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 8.

23. Reference was then made by her Honour to the report of Lisa Zipporo that included reference to the applicant suffering from dizzy spells, incidents of falling and hitting her head damaging her teeth, as well as depression, asthma and poor memory. Neuropsychological testing revealed a performance in the extremely low range, suggesting intellectual abilities were most likely in the mild range of intellectual disability, with difficulties in planning, problem-solving and analysing the situation on a concrete level.

24. Her Honour concluded that the applicant’s intellectual disability, together with her significant cognitive deficits over and above her limited intellectual function would affect her ability to critically evaluate situations, problem solve and make good decisions. That being so, Ms Nguyen would have had a reduced capacity to weigh up the risks of the situation and adjust her behaviour accordingly. [7]

    7. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 9.

25. Her Honour noted:

“It is clear that the offender’s mental deficit is such that insofar as the planning for the importation of the border-controlled precursor she would not have had the capacity to undertake the organisation and doubtless she could be easily manipulated and cajoled into carrying the box”. [8]

8. Ibid.

26. Her Honour concluded:

“Consistent with the jury verdict and on the basis of the opinions before me I proceed on the basis that the offender knew or believed that there was a real or significant chance that the substance in the box was a border-controlled precursor and that in the circumstances known to her it was not justifiable to her to take that risk. Her role in the organisation to my mind is that as stated by the Crown Prosecutor to the Jury, that of a courier, I am of the view that she did not set out from Australia with a view to further participating in the offence but rather her involvement occurred when she was in Vietnam and due to return. I am not satisfied that she had participated in the hierarchy that involved sourcing the drug, any planning on her behalf was haphazard and dependent on the actions of others. She was, as Mr Crown stated at trial, a bare courier”. [9]

9. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 9 to 10.

27. There was no discrete formal finding made as to objective seriousness. Submissions were made by the Crown at the sentencing hearing that the offending was “at the lower end of seriousness”. Counsel for the applicant at the sentencing hearing submitted that there was evidence that would lead to the conclusion that the applicant was a “low level, albeit, essential person in a sophisticated hierarchy”, and that the psychological testing was more consistent with her being a person with limitations in terms of capacity and far more consistent with a person susceptible to influence who would exercise naive judgment.

28. In this Court, the Crown submitted that whilst the offending was “at the lower end” and the Crown did not wish to go behind or retract that submission made by the Crown at the sentencing hearing, this Court should not find that the applicant “was at the lowest end of seriousness” of offending of this type.

29. Her Honour has given careful consideration to subjective matters. No complaint is made about these findings. The findings indicate that appropriate consideration was given to the competing demands of general deterrence and retribution, when viewed against the requirements of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178] in light of the applicant’s undeniable intellectual disability.

30. There was careful analysis of the relevance of that intellectual disability to considerations of personal deterrence, against the background of this being her second importation offence:

“The offender’s subjective case was put before the Court by the tender of the reports. I have summarised the reports above. Ms Tran, employed by the Australian Foundation of the Disability, has been the offender’s caseworker since 2015 and she states she found it difficult to understand the offender until she knew her fairly well, that at first the offender had difficulty with employment, she would turn up late or leave inappropriately early and she needed to be “travel trained”. She had problems with public transport and the types of work that she could do were limited. Progress was slow but that she is now comfortable with her work in a bakery and has progressed well, a significant achievement for her.

The offender’s daughter, Mia [sic], has a serious liver condition that has seen her hospitalised on occasions and she has not recently replied to Ms Tran’s calls or messages and the offender has advised Ms Tran that her daughter is not interested to know about her mother anymore.

Ms Tran advises that the offender and the daughter are both socially isolated, having no other family and that they keep to themselves. The offender makes all of the meals and attends to all household tasks. During the two weeks her mother was in custody upon her arrest Mia [sic] had difficulties and Ms Tran was very worried about her.

As to contrition Ms Tran speaks of the offender’s distress and regrets.

The affidavit material has a bearing on the requirement that the Court have regard to the probable effect that any sentence will have on the offender’s family or dependents. Whilst not amounting to exceptional such as to auger against a custodial term it is contended that regard be had of the offenders daughters condition. The Crown’s emphasis in this regard is that Mia [sic] has previously been looked after during her mother’s confinement when the offender was subject to a previous conviction; that she is now 18, studying at University and has indicated she wants nothing to do with her mother.

That may well be how she sees the issue at present but doubtless their separation from each other will be heartfelt and difficult and that will make the sentence to be served all the more difficult for the offender and that is a matter deserving of weight in mitigation of sentence. It is of course significant concern to me that her daughter may be substantially disadvantaged by her conduct.

Emphasis in the plea on behalf of the offender is the impact of the offender’s intellectual disability; that condition requires that principles of general deterrence and retribution be tempered, and that her intellectual disability does not mean that she is more prone to criminal activity. I accept that to be so. That she has previously offended is troubling to say the least, but this would appear somewhat of a unique situation, given the undoubted intellectual disability and the impressionability and vulnerability from which the offender suffers. The support she received on her release was adequate in the short term but insufficient to arm the offender from approaches when in Vietnam and away from that support. Clearly she requires more interventions in the form of day to day support to reduce her risk of reoffending, without which if she were to travel she is at high risk of being manipulated by others and of re-offending.

The Crown submission is that there is a need for adequate punishment and that a substantial period of full time imprisonment is the only appropriate sentence in the circumstances. It was submitted that punishment and general deterrence remain of significance in a sentencing exercise. As to the offender’s undeniable intellectual disability I have had regard to those matters set out by McClellan CJ at CL [in] the Director of Public Prosecutions [v] De La Rosa (2010) 79 NSWLR 1 at [177] to [178]. It is to be accepted that the offender’s intellectual disability serves to lessen her moral culpability for it contributed to the commission of the offence and did so in a material way, furthermore it lessens the role of retribution and denunciation in the sentencing exercise. Clearly she is not an appropriate vehicle for the full force of general deterrence.

As to personal deterrence the necessity for that too must be tempered by the fact of intellectual disability. It is apparent from the matters before me that the offender deeply regrets her involvement in the offending and it is hoped that the sentence to be imposed will have a deterrent effect despite the fact that this is the second time she has committed an importation offence. On her release all efforts must be made to ensure that she receives the support that Ms Karina Tran can provide. Both she and her daughter should be assessed for services under the National Disability Insurance Scheme to ensure that she receives ongoing counselling and support. For without it, I fear the future for the offender is bleak.

I have had regard to s 17A(1) of the Crimes Act and I am satisfied that imprisonment is the only appropriate sentence and it has not been submitted otherwise. I have had regard to those cases to which I have been referred by the Crown and on behalf of the offender. The offender does not have the advantage of someone who has entered a plea of guilty. Many of the cases involve matters for which pleas of guilty were entered, having said that, it is fair to acknowledge that here the trial was run most economically and that is a matter which should be reflected in the sentence. By noting that the offender did not plead guilty I wish to make clear that I am not suggesting that fact bears on the sentencing exercise, other than to recognise that as a result of pleading guilty other offenders’ sentences have been discounted”. [10]

10. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 10 to 13.

31. In my view her Honour dealt with these issues without fault until her Honour made erroneous reference to the amount of the drug imported:

“The amount of the drug is an important consideration and here the offender had 7.8 kg, two and a half kilograms more than that involved in the matter of Li and double that involved in any other case to which I was referred. Of course there is no evidence that the offender knew the weight or appreciated the value of the drug. However in this matter where punishment and retribution are not so significant matters because of the offender’s limited moral culpability to the offences the role of specific deterrence is somewhat muted and general deterrence has a limited role to play – any comparative exercise is clearly difficult”. [11]

11. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 13 to 14.

32. Her Honour then went on to observe that the offender’s subjective case is compelling, but for the complicating matter of the previous conviction. She made observations regarding the applicant’s age and her prospects of reoffending, “which cannot be said to be good”, and that the help she did receive after release from her last offence was “not sufficient to prevent her falling prey to serious criminals” when she went to Vietnam. [12]

    12. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 14.

33. In fixing the sentence that she did, her Honour made reference to what she considered to be the minimum period of imprisonment that justice requires the offender to serve having regard to all the circumstances, including the fact that she will experience a custodial term more harshly because of her very limited knowledge of English or even Vietnamese, her isolation and the isolation from her daughter, as well as the need for intensive and lengthy supervision in the community. [13]

    13. Ibid.

Ground 1 of the appeal is correctly conceded; the Court must resentence

34. It is necessary to deal briefly with the appropriateness of the Crown’s concession on Ground 1, lest it be thought that her Honour proceeded to sentence on the basis of the agreed quantity of 3.996.595 grams, given the reference to a calculation reaching something similar to that quantity in the third paragraph of the Remarks on Sentence. There her Honour referred to the quantity of pseudoephedrine found in the packages and the false walls of the cardboard box as “nearly 3 times” the quantity that corresponds to the commercial quantity of 1.2 kg.

35. However, later in her Remarks, when referring to the activities of the ABF Officers, her Honour stated “The total chemical precursor drug imported into Australia is approximately 7.8 kg”. [14] This conclusion is made after stating that the estimated weight of the concealed chemical precursor drug in the false bottoms and sides of the box was believed to be 6 kg and that additionally, there were 4 packets containing approximately 450 g each of concealed precursor drugs.

    14. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 3.

36. As submitted on behalf of the applicant, the erroneous figure may well have been taken from an ABF Statement of Facts tendered on a voir dire. This document was not before the Court on sentence, and erroneously referred to a total amount of 7.8 kg, contrary to the amount in the Agreed Facts. The written submissions of the Crown and the applicant on sentence made reference to the correct amount.

37. As submitted by the applicant, there are other indicators that the amount of 7.8 kg was a deliberate expression of the sentencing judge’s finding. When her Honour discussed a comparable case of R v Le [2018] NSWDC 86, (incorrectly transcribed as Li), [15] her Honour referred to the applicant having imported 7.8 kg which was “two and a half kilograms more than that involved in the Li matter”. (The amount involved in Le was 5.379 kg).

    15. R v Thi Xet Nguyen, Remarks on Sentence of Girdham SC DCJ, 18 September 2018, p. 13.

38. Her Honour also observed that the amount involved was “double that involved in any of the other comparable cases” to which she had been referred. As explained in the written submissions of counsel for the applicant, four of the five other cases provided to her Honour involved the importation of amounts that were less than half of 7.8 kg.

39. This makes it clear that the sentencing judge found as a fact in sentencing the applicant, that she had imported 7.8 kg of pseudoephedrine. This is a finding which was plainly wrong and not open to her on the evidence.

40. This erroneous finding, being nearly twice the amount imported, must have had an impact, not only on her Honour’s assessment of the objective seriousness of the offence but also upon the manner in which she drew guidance from comparable cases.

41. Ground 1 is made out. The Crown’s concession was properly made. It follows that this Court must resentence the applicant. In those circumstances Grounds 2 and 3 of the appeal do not need to be dealt with.

Re-sentencing

42. Given that I have found that error has been established, the provisions of s 6(3) of the Criminal Appeal Act 1912 (NSW) are enlivened and the applicant is to be resentenced.

43. I have set out in detail the sentencing judge’s findings relevant to the applicant’s criminality and the nature and circumstances of the offence because those findings are not challenged.

44. The applicant is 51 years old and was born in Vietnam. She came to Australia in 1990. Her affidavit affirmed on 21 August 2019 demonstrated that the matters the sentencing judge adverted to, that is the interference with the applicant’s relationship with her daughter and her likely isolation and sadness in custody, have in fact come to pass. The applicant continues to be worried about her daughter’s health and is upset about not being able to see her. The applicant confirms that she HAS had one visit only between the time she was sentenced in September 2018 and the time the affidavit was sworn, a period of almost 1 year.

45. The applicant contends that a sentence of 7 years imprisonment with a non-parole period of 3½ years is a very substantial sentence. As recognised by various appellate courts, the severity of a sentence is not a linear proposition; the severity increases exponentially as it increases in length: Clinch v The Queen (1994) 72 A Crim R 301 at 306.

46. In the applicant’s case, reduced moral culpability must be taken into account in assessing objective seriousness and it must have significant bearing upon the question of appropriate sentence. Counsel for the applicant submitted that her role was an example of offending of relatively low criminality for this kind of offence.

47. Once there is a conclusion that the applicant is not an appropriate vehicle for the full force of general deterrence, a conclusion that is in my view unarguably correct, the need for a salutary custodial sentence reduces.

48. The Crown contended on the other hand that the considerations raised in R v Nguyen; R v Pham [16] should inform the decision of this Court. There, Johnson J at [72] extracted from the authorities a number of general propositions relating to drug importation offences.

    16. (2010) 205 A Crim R 106; [2010] NSWCCA 238 per Johnson J (with whom Mcfarlan JA and RA Hulme J agreed).

49. These propositions are unassailable, but their direct applicability to the circumstances of the applicant is tempered by the significance of the applicant’s significant intellectual disability. The important principles collated in Nguyen, addressing the primacy of general deterrence and denunciation in drug importation offending have a more marginal significance to determining an appropriate term of imprisonment for an offender like the applicant.

50. Whilst the weight of the drug is not the most important factor in sentencing, it will have an increased significance where the offender is aware of the amount of drug imported: R v Lee [2007] NSWCCA 234 at [23]. There is no evidence here that the applicant knew the amount of the drug imported and the finding that she participated for modest financial gain was not challenged.

51. The Crown submitted that evidence of contrition was limited to a recount via her disability caseworker and that this meant genuine contrition or remorse was not demonstrated. It seems to me the position on contrition and remorse is complicated by the demonstrated lack of intellectual ability and apparent communication difficulties the applicant has, both in English and even in her own native Vietnamese. Her statements to Ms Tran that she regrets trusting the people who got her involved and that she had been extremely distressed when discussing the offence and the court case, should not be put to one side as matters that do not demonstrate contrition or remorse. In my view they do, although in an unsophisticated way.

52. What is adequate punishment in all the circumstances is a difficult question as there are a number of competing considerations. There is the previous offending of a very similar nature in 2007 for which the applicant was sentenced to 6 years imprisonment with a non-parole period of 3 years. Given her release in 2010, there was an almost 6 year hiatus before she engaged in the subject offending. I note her Honour’s finding, which was unchallenged, that contrary to the submission made by the Crown on sentence, the applicant did not plan her travel to Vietnam with a view to partaking in this criminal activity, but rather was cajoled or encouraged to do so once there.

53. The Crown argued that the applicant is an offender with a past relevant conviction and so should receive a heavier sentence than an offender who has led an otherwise blameless life: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [32]. The rationale for this approach is obvious however there is an important rider stated in that passage of Weininger that is relevant here:

“Secondly, there is no reason to doubt the conclusion of the Court of Criminal Appeal that the primary judge had not sentenced the appellant for crimes with which he was not charged. Of course it would have been wrong to do so. A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration”. (Emphasis added).

54. The applicant’s antecedents and character of necessity relevantly include her intellectual deficits.

55. There clearly has been and will continue to be hardship suffered by the applicant and her daughter and these are matters to be considered in the overall subjective case.

56. The sentencing judge’s observation that given the applicant’s prior conviction her prospects of rehabilitation cannot be assessed as good, is a reasonable conclusion. It is clear from the psychologist’s reports and the affidavit of Ms Tran that the applicant needs substantial support and direction in the community. This has been proven again by the subject offending and so a lengthy period of supervision in the community upon release is essential.

57. Bearing in mind that there is clearly no one correct sentence, particularly in the unusual circumstances of this applicant, in my view the criminality of the offending can be adequately addressed and punished by a minimum sentence of 3 years and a total sentence of 6 years. The applicant should be resentenced to a non-parole period of 3 years with a further term of 3 years. The sentence commenced on 31 August 2018 and so the applicant will become eligible for parole on 30 August 2021. The sentence will expire on 30 August 2024.

Proposed orders

58. I propose the following orders:

1. Allow the appeal and set aside the sentence imposed on 18 September 2018.

2. Resentence the applicant to a non-parole period of 3 years to commence from 31 August 2018 with a further term of 3 years, a total sentence of 6 years imprisonment.

3. The applicant will become eligible for parole on 30 August 2021. The sentence will expire on 30 August 2024.

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Endnotes

Decision last updated: 25 March 2020