R v Bun, Soeun
[2008] NSWDC 138
•1 February 2008
CITATION: R v Bun, Soeun [2008] NSWDC 138
JUDGMENT DATE:
1 February 2008JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted - sentenced five and a half years imprisonment - non parole period of 3 years. CATCHWORDS: Criminal Law - Sentence - Unlawfully import marketable quantity of border controlled drug - heoin - concealed internally - wholesale value $35K+ - claimed gambling debt $!0K forgiven - courier of low level - 42year old Cambodian female refugee - pensioner. CASES CITED: R v Huynh [2008] NSWCCA 16
R v Pham [2005] NSWCCA 314
R v Dang [2004] NSWCCA
R v Hendricks (2001) 125 A Crim R 303
R v Le [2006] NSWCCA 136
R v Nhut Thi Hong Ho, unreported District Court of NSW; Berman DCJ
R v Phong Linh Nguyen, unreported District Court of NSW, Hock DCJ
R v Trung Ta Pham, unreported District Court of NSW; Nicholson DCJPARTIES: Regina
Soeun BunFILE NUMBER(S): 07/11/0854
JUDGMENT
HIS HONOUR:
1. Soeun Bun, a forty-two year old Cambodian national has permanent residency in Australia. At the time she was given permanent residency she was a refugee. There is an ignoble poignancy in that she has taken advantage of her permanent residency status to import 120.1 grams of pure heroin on her return from Cambodia, the country she fled into the country that offered her sanctuary.
2. She returned to Sydney Kingsford-Smith Airport on 30 July 2007 with 166 grams of admixture concealed internally within her body. Ten and a half hours after her arrival, a packet of heroin admixture was recovered from her body.
3. Today she is to be held accountable for her criminal conduct in importing a marketable quantity of border controlled drugs contrary to the Commonwealth Criminal Code of 1995. As the sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court, committed by this offender in this community.
4. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to her, that is subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and to the offender.
5. The offender’s rehabilitation prospects will have to be assessed as best I can even though the material is not much before me. This is an offence against the laws of the Commonwealth. S 16A of the Crimes Act 1914 requires a sentencing judge to take into account a number of specific matters mentioned in both ss (2) and (3). Ss (3)is often ignored.
6. Where a term of imprisonment greater than three years is to be imposed, as indeed one must be in this case, the length of the non parole period is to be determined. Before any sentence can be made there are likely to be technical questions relating to the length of the non parole period and finally, of course, the ultimate length of term of imprisonment to be imposed.
FACTS
7. Miss Bun arrived in Australia in 1988. On 9 May 2007 she purchased a ticket to Phnom Penh via Bangkok. She left on 13 May 2007. The ticket was open for return on 12 August 2007. On 20 July 2007 the booking was changed, the departure from Phnom Penh commenced also via Bangkok on 29 July.
8. Miss Bun came to the attention of the Customs Services Officer Clarke. He selected her for a baggage examination. It would appear Clarke’s curiosity was aroused by a confluence of factors. The trip was the offender’s fourth within a twelve month period. Her incoming passenger card indicated she was unemployed. As events turned out she had been on government benefits since 1988. The plane ticket disclosed a price for the return journey of $1,405.
9. Miss Bun consented to a frisk search. It revealed nothing. She was detained for an internal examination. She denied concealing drugs internally but consented to the examination. She was taken to the St George Hospital. The Australian Federal Police now became involved.
10. Again she denied, this time to the AFP agent, the presence of any foreign object within her body. A CT scan revealed that falsehood. A packet of heroin admixture was concealed in her vagina. When challenged by AFP agents she conceded the packet contained drugs, but claimed not to know the nature of those drugs. Once the packet of heroin admixture was recovered the offender was taken to AFP headquarters.
11. The account she gave was that she had a boyfriend. Her children had been taken from her. She had gone to Cambodia to visit her relatives including her aged mother. She had stayed in Cambodia for two months staying at different places. She had received money from her boyfriend in Australia and her children (she has one seventeen year old daughter living with her).
12. She had the drugs in her when she caught the plane in Phnom Penh. Although she did not know the type of drugs she did know how the drugs had been wrapped. She had at least some idea of the quantity of drugs she was carrying. She was asked how much she had paid for the drugs. Her response was not to deny she had purchased the drugs but rather simply to say, “I don't know”. Nor did she know how much she was to be paid for bringing the drugs in. Nor was she prepared to reveal what she was going to do with the drugs.
13. This interview does not reveal a great desire to cooperate with the AFP. The admixture of heroin had a purity of seventy-two per cent. The AFP estimated its street value as falling somewhere between $100,000 to $420,000 depending upon the purity of the deals made from the imported product. The seizure equated to 2,000 to 6,000 street deals. If sold wholesale it would sell for somewhere between $6,000 and $9,000 per ounce. Sold at these prices its full value fell between $35,000 and $52,000 on the wholesale market.
14. The offender’s seventeen year old daughter resides with her. There are six other children aged thirteen to twenty-five years, all of whom live in Australia. Four of them live in foster care. She has little or no contact with these children.
15. In her evidence the offender’s account was she had a gambling problem, she was a poker machine addict. A Vietnamese man whom she did not identify lent her $500 to $1,000 on several occasions. She ended up $10,000 in debt over a three month period. Two weeks before she went to Cambodia a man arrived at her house at night. She claimed he hid his face. Her evidence was he forced her do “it”, saying he would do something to her children because she owed money.
16. She gave this man her mobile phone number and her picture. Her evidence was that she had saved $10,000 and her boyfriend gave her money. She was asked to buy her own ticket. The contraband was to be picked up from her house after delivery. While she was in Cambodia her boyfriend sent her $200 per week.
17. While in Cambodia she was contacted by the drug merchants. The rendezvous point was a taxi stand. The drug packet was inserted while she was concealed in a taxi. She caught another taxi to the Phnom Penh airport. It would appear her debt of $10,000 was to be forgiven. She was unsure whether she would be given any other monetary reward.
18. There was a significant inconsistency in her account. I am satisfied she was not frank with the Court. She has been deliberately vague as to not noticing anything about the Vietnamese man who came to her house, assuming such a person did arrive. Likewise, she has been deliberately vague about the Vietnamese man who lent her money, assuming there is such a man, to play the poker machines.
19. Her claim of saving $10,000 to pay her fare was not explored and makes little sense. I am satisfied this unwillingness to be forthright is motivated by a fearfulness she has of the principal or principals who sent her to Cambodia. I am also satisfied she knew she was to bring contraband into Australia on her return and undertook the trip for that purpose primarily.
20. Her visit and stay in Cambodia was part of the reward she was offered and accepted.
OBJECTIVE CRIMINALITY
21. From the facts as he finds them to be, the sentencing Judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the incident offences with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence can be evaluated.
22. The objective criminality has a very important impact upon the overall sentencing outcome.
23. The offence of importing heroin is an offence early in the drug trafficking phenomena. Heroin is not grown or manufactured in this country. Of necessity it must be imported. Those who import it illegally must necessarily be seeking to advance the criminal activity of either themselves or of some other person or persons.
24. The importation is inevitably designed for on-supply of heroin to other people. It is not difficult to understand why drug supplying is a criminal activity. The courts have long recognised that in assessing the objective seriousness of drug offence, it is necessary to have regard to a drug’s potential for harm.
25. Drug dealing is harmful to the community by its direct impact upon those who purchase drugs and by its indirect impact upon the community at large. Heroin is an addictive drug. It contributes to the disenabling of human beings. It creates or sustains drug addicts in varying degrees of addiction. Drug addicts are human beings whose capacity to function and to feel human is smothered to a greater or lesser extent by their addiction to a drug.
26. Heroin is a drug of strong addiction. It is the disenabling of other human beings that is the real essence of the criminal harm done by those who supply drugs. In the case of heroin there can be no supplier of heroin unless there is an importer. Those who import drugs are one step away from those disenabling human beings who supply drugs.
27. Associated with drug addiction are other forms of crime such as armed robbery, breaking and entering and stealing. Putting to one side the emotional harm of such crime, the economic impact of such crime is also significant. It is a transference of wealth or of property from those with a legitimate right to that wealth or property to those with no right to it. And all for no corresponding economic benefit to the community.
28. Similarly, the spending of money on drugs by addicts amounts to a monumental transference of wealth. Again without any corresponding economic gain.
29. As I have just mentioned, the economic wealth capable of being transferred in this case is measurable and at the high end could be as much as nearly half a million dollars.
30. When assessing the potential for harm, the Court should keep firmly in mind the quantity of heroin imported. In this case the quantity of heroin imported is a low trafficable or merchantable quantity. Nonetheless, it could still be on-supplied to one or more than one suppliers. Its potential for street harm can be measured in at least two thousand street deals.
31. In this case the drugs were intercepted. No harm has been done to the community. Indeed, a drug courier has been arrested and the effectiveness of the Australian Customs Service demonstrated because the importation was thwarted. As events turned out this is a victimless crime. However, there was a potential for many users to become more disenabled as functioning human beings had this importation succeeded.
32. There is no suggestion of any dependency by this offender on drugs as motivating her criminal conduct. Neither is there any direct link between the offender’s gambling problem and her criminal behaviour. Her evidence is inconsistent. She speaks of saving $10,000. She also speaks of a visit from a shadowy figure forcing her to travel because she owed $10,000.
33. The account given by this offender so closely mirrors the account given to the court in Truong The Pham, a case before me on 21 September 2007 that I have wondered whether the account is part of some pre-arranged provided explanation instructed by the principals who dispatched her to be given to the court in the event she should be captured (see also R v Huynh [2008] NSWCCA 16).
34. However, the Crown accepts the gambling problem and the indebtedness to the Vietnamese lender. In light of that concession by the Crown it would be unfair if the Court did not act upon this account. I intend to do so.
35. As said above, the offender’s involvement was not a direct response to her gambling problem. The debt was the direct response, however, the existence of the debt gave the Vietnamese man leverage over her. I am satisfied his intent when advancing money to her was to put her into a position where he had such leverage over her. I am satisfied her response to the leverage was to obtain a financial benefit, namely forgiveness of the debt. That puts her benefit at $10,000.
36. I am satisfied when she provided her photo and mobile phone number she knew she was to return with contraband and then recognised it was probably drugs. In leaving the country to bring contraband she was reckless as to whether it was drugs or not. By the time she had inserted the package into her vagina, I have inferred she must have recognised the contraband was some form of powder substance and must have recognised it as a prohibited drug although the species of the drug may have been unknown to her. She is to be sentenced as a courier of a low level importation, that is 120 grams.
37. This offender who claims to have a gambling problem has been to Cambodia four times in the last year. Her income stream is a NewStart allowance. She is also a renter of premises. In those circumstances I am not prepared to find this was an isolated incident. There has been no attempt in the evidence to establish that it was. The onus is on the defence to prove this incident was isolated if it wanted to take advantage of that fact.
38. On the other hand, the Crown has not established it was part of a series of imports. The Crown would need to have established that if it wanted to rely upon that proposition. In fairness it did not seek to do so. In other words, her four previous trips are neutral but for the proposition that I just advanced. I do not regard her having established it is an isolated incident.
SUBJECTIVE MATTERS
39. I turn now to the subjective matters. I am both entitled and required to do that, not only am I sentencing for this criminal offence but I am also sentencing this particular offender for it. Each offender coming before the Court will vary from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation or insight into the commission of this offence by this offender or some reason why a more or a less sentencing outcome is appropriate.
40. This offender is a forty-two year old Cambodian woman, she claims to be single living with her seventeen year old daughter. She told police she had a boyfriend. My memory was, there was no one in Court supporting her on the hearing but it may well be that there is someone here now. She has six other children but little contact with them. She apparently has friends and relatives in Cambodia.
41. She used a translator in Court as is her right. But I am left wondering as to her level of proficiency in English. Associated with that issue is her level of isolation in custody. I cannot form a view as to whether she is likely to be completely isolated in custody but I have come to a view she is likely to be substantially isolated in custody.
EDUCATION SKILL AND EMPLOYMENT
42. She arrived in Australia aged twenty-two or thereabouts. How long or where she was in refugee camps is not in evidence; nor is her education history. My sense is, she is unsophisticated, uneducated and suspicious. There is no evidence of her possession of any skills. She has had no employment in Australia since her arrival. All of these are areas that will require addressing if she is to have any prospects upon her release from prison.
GENERAL HEALTH
43. She presented in Court as well nourished, small in statue and apparently in reasonable general health. Her affect was flat, her tone of speech quiet and subdued. Gambling problems are frequently associated with depression. From my observation of her, depression at some level could not be ruled out. She claims a gambling problem. Her gambling beyond her means is indicative of a pathological gambling problem, but in the absence of proper forensic evidence dealing with other symptoms, I cannot make that finding ( R v Huynh [2008] NSWCCA 16).
GUILTY PLEA
44. Her plea of guilty was made at an early stage in the Local Court proceedings. It was indicative of her willingness to be held accountable for her actions. The Crown says it was entered in the face of a strong case and that is so. Nonetheless the administration of justice is well served by her plea, she has been willing to facilitate the administration of justice.
45. First and foremost because the interests of administration of justice are served through the public acknowledgement by an offender of her guilt. Pleas of guilty by offenders sustain the community’s confidence in the administration of justice by maintaining the confidence of the community in the investigation of crime and the community’s expectation that those guilty of crime are to be held accountable for it.
46. The administration of criminal justice will also be served because Court time, witnesses’ time, legal expenses and the like are freed so that they can be devoted to other cases. Her plea will reduce considerably the likelihood of any contest in an appeal on the issue of her guilt in respect of this charge. All of these are important factors insofar as the administration of criminal justice is concerned.
ATTITUDE TO OFFENCE
47. The offender said in her evidence that she knows the charge she is answering is serious. She knows that she is very wrong and that she would not do it again. I am prepared to accept that she regrets her present situation and recognises the wrongness of her criminal behaviour. Whether she has any insight into drug trading or the evil of drugs is moot, but given her apparent level of education and lack of sophistication, it is unlikely. This was not an offence calling for reparation or repair of injury, loss or damage.
PERSONAL DETERRENCE
48. When a person is sentenced to a breach of the criminal law, she is exposed to the possible maximum penalty provided by the statute breached. In this case the maximum penalty for this offence is twenty-five years imprisonment. Sentencing for breaches of the criminal law requires the sentencing Judge to keep in mind both general and personal deterrence aims of the criminal law for the community at large, by keeping in mind when sentencing that maximum penalty available and its deterrent purpose.
49. There are also other aspects of personal deterrence which need to be kept in mind. This offender was accosted at the airport by both Australian Customs Officers and Australian Federal Police; was subjected to hospital procedures to discover the heroin mixture hidden within her; was arrested and charged and brought before the Local Court on at least two and possibly more occasions and has been before this Court on two occasions.
50. She is in the process of having, and will have heard her conduct denounced by a judicial officer of this Court. She will indeed endure a period of incarceration. My own view is that she will have experienced all of the personal deterrence that is necessary in this case.
ADEQUATE PUNISHMENT
51. This is an offence calling for fulltime imprisonment as the only means of adequate punishment. Punishment and general deterrence are important drivers of this sentence.
REHABILITATION PROSPECTS
52. There is little in the way of evidence giving insight into Ms Bun’s rehabilitation prospects. She is unlikely to re-offend. If that were the only measure of rehabilitation then the answer on the question of rehabilitation is relatively easy. But she has other problems. Her children are estranged. She is a gambler. She has no working experience or skills. She appears to have little social support. Her legitimate income stream is subsistence level only. She will return to an economically, socially, emotionally and possibly culturally disadvantaged and deprived future. As best I can tell there are no post release plans in place. I have little insight into her psychological profile. Nor do I know anything of her response to custody thus far.
53. Section 16A(2)(p) requires me to consider the probable affect of her sentence on others of importance in her life. At the time of her arrest she claimed a boyfriend and a seventeen year old daughter. So far as one can tell, these two are her closest persons of importance. Her mother and other relatives live in Cambodia and were always likely to be isolated from her. There is no evidence as to what has happened to the boyfriend or seventeen year old daughter, although there are two people in court that fit that description. As the evidence stands I cannot determine what, if any impact, the sentence will have on them. As a matter of common sense there must be some separation; but whether that consequence will cause any serious sense of loss or hardship has not been agitated before the Court.
54. Subsection 3 of 16A of the Crimes Act 1900 requires the Court to have regard to the nature and severity of the conditions that may apply to the offender when determining the appropriate sentencing outcome. For the duration of the non parole period, this offender is likely to be housed in a single sexed prison or a prison where the women are segregated from the men. She will be subject to directions from custodial officers in almost all aspects of her daily life. That will include the location of the prison where she will live. Her capacity to choose will be severely curtailed.
55. She will wear clothing supplied by the prison authorities and distinctive for the purposes of identifying her as prisoner. She will be required to occupy her cell for lengthy periods. Her meals and health needs will be supplied by the government without much regard to her choice. Her fellow prisoners are likely to have personality, health and emotional problems. Some are likely to be dangerous.
SECTION 16(G)
56. In the event it needs to be said so many years after its repeal, I am aware that section 16(G) of the Crimes Act 1914 no longer operates and no longer impacts upon sentence.
SENTENCING RANGE
57. The Crown in her submission has drawn to my attention to four cases, Pham [2005] NSWCCA 314, 244.6 grams, eight years imprisonment, four and a half non parole. Dang [2004] NSWCCA 269, 218 grams, six years six months with four years four months non parole. Hendricks (2001) 125 A Crim R 303 162 grams, six years six months non parole four years three months. Le [2006] NSWCCA 136 seven years six months, non parole five years for 117 grams.
58. To this list can be added sentences imposed by this Court at first instance and not appealed to the Court of Criminal Appeal. Nhut Thi Hong Ho and Thanh Nhuo (sisters) Berman DCJ; 236 grams, six years head sentence, non parole three years. Phong Linh Nguyen Hock DCJ 700 grams, six years- head sentence, non parole three years. There is also a judgment of Sweeney DCJ, which I am not at the moment able to identify; 108 grams, six years-head sentence, non parole three. To this list can be added the case I earlier referred to Trung Ta Pham Nicholson DCJ 110 grams, five years-head sentence, non parole period three years. The sentence I am imposing takes all those cases into account.
FORMAL ORDERS
59. Soeun Bun, you are convicted of the offence that you between 1.00pm and 1.01pm on 30 July 2007 at Mascot did import a substance, the substance being a border control substance, namely heroin and the quantity imported being a marketable quantity, contrary to subs 307.2(1) of the Criminal Code (CTH). For that offence you are sentenced to a period of imprisonment of five and a half years to date from 30 July 2007 and to expire on 29 January 2013. I set a non parole period of three years three months to expire on 29 October 2010.
60. You need to understand that you will be kept in custody because of the orders that I have made. The earliest date that you can be released will be on 29 October 2010.
61. The earliest date that you can be released as I say is 29 October 2010. It will be a matter for the Attorney General of the Commonwealth to determine whether you are to be released on that date. He will take advice from those who have oversighted your custody. If you make progress and rehabilitate during your custody it is most likely he will release you on that day.
62. The Crown prosecutor tells me that the Attorney must release you on 29 October 2010. So it looks like that is the date that is fixed for your release.