R v Le

[2018] NSWDC 86

District Court

New South Wales

Medium Neutral Citation:	R v Le [2018] NSWDC 86
Hearing dates:	8 March 2018
Date of orders:	08 March 2018
Decision date:	08 March 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 6 years.
Catchwords:	CRIMINAL LAW – Sentence – Import the commercial quantity of pseudoephedrine – Explanation for serious offence by man of otherwise good character – Addiction to gambling – Gambling was path to gaol – Ready availability of outlets for gambling.
Category:	Sentence
Parties:	The Crown Van No Le
Representation:	Counsel: Ms M Fernando – the offender   Solicitors: Commonwealth Director of Public Prosecutions
File Number(s):	2017/55763

SENTENCE

1. HIS HONOUR: How does a man in his late 50s, a man with no inherently antisocial attitudes or lifestyle find himself importing more than four times the commercial quantity of pseudoephedrine into Australia in a way which was always going to be detected?

2. There is but one explanation in the case before me today and that is that it flowed from his addiction to gambling. Gambling is promoted, seemingly incessantly these days, as a harmless form of activity where the decision to bet is one which is undertaken with an expectation of winning. In truth, gambling is not like that at all. Very few judges would have anything good to say about the gambling industry and about various governments’ apparent addiction to it. What to many people is a harmless form of entertainment is to many in this community the path to gaol. The offender Van No Le would not be where he is today in custody facing a significant period of further time in gaol were it not for gambling.

3. Mr Le turned up at Sydney Airport on 27 February 2017, having arrived from Vietnam. He was a resident of Australia who had been in Vietnam temporarily. When he presented his incoming passenger card it was noted that he had declared that he was bringing food into Australia. Accordingly, his bag was searched, as it was always going to be once he had ticked ‘Yes’ to the appropriate question. When his bag was opened, officers found 13 packages of food or at least what appeared to be food. But concealed within each of them was pseudoephedrine of a pure weight of 5.379 kilograms.

4. We see many unsophisticated offences in these courts but this would have to be an offence so unsophisticated that the chances of it succeeding were minimal. Perhaps this reflects Mr Le’s underlying character; he is not a sophisticated criminal by any means. He is an otherwise relatively ordinary man who has done something seriously wrong because of the circumstances he found himself in.

5. Mr Le is now 59 years of age. He was raised in a stable and supportive family in Vietnam. He was not abused or neglected and his parents were good role models. After he left school he worked well and came to Australia where he continued to work well. Unfortunately, Mr Le has suffered some setbacks. His first marriage broke down and so did his second. He also suffered a workplace injury about ten years ago and has not worked since.

6. When his second marriage broke down, he began to spend more time at the local club. He began to gamble and abuse alcohol. At the club were antisocial types with whom he began to associate. This exposed him to illicit drug use.

7. As can easily be predicted, Mr Le lost money while gambling and as is almost inevitably the case once his money had run out he did not stop gambling but he continued, in this case, borrowing a large sum of money from his antisocial peers.

8. Quite properly the Crown has investigated Mr Le’s gambling activities. Between 1 January 2016 and 12 November 2016, he was gambling on a near daily basis turning over in that time about $640,000 with a total loss of close to $30,000. When it came time for the money to be repaid, of course, he did not have it. It was in this context that Mr Le took up the offer to travel to Vietnam and to bring back something. Mr Le freely admits that he knew that what he was being asked to do was illegal. And that is the answer to the question I posed at the beginning of these remarks on sentence, it is the answer to the question of how Mr Le ended up where he is today.

9. A lot of what I have said is based on the contents of a psychological report tendered on his behalf today by Ms Fernando, who appears for him. The Crown quite properly asks me to exercise circumspection before I accept the contents of that psychological report in circumstances where Mr Le did not, himself, give evidence. I have little trouble accepting that an unemployed man on Centrelink, with a gambling addiction, is easy prey for more serious criminals who need to find drug couriers who will bring in pseudoephedrine to the country. Sadly, Mr Le’s story is not unusual. Many people like him fall victim to serious drug importers in need of foot soldiers to do their dirty work. But nothing I have said so far is to underestimate the seriousness of Mr Le’s conduct. He knew what he was doing when he entered Australia on the day he was arrested. He knew that he was bringing in something which was illegal. His behaviour was seriously criminal.

10. General deterrence is, of course, of prime importance in cases of this kind. When people like Mr Le weigh up the pros and cons of offers made to them by lenders of last resort they should take into account that if they are detected the downside is that they will spend a significant period of time in gaol. In Mr Le’s case personal deterrence is less of a need given the age at which Mr Le committed his first offence, (I am ignoring some PCA matters on his criminal history). I think it highly likely that upon release from custody, he will not offend again. The one qualification to that, of course, is his gambling addiction and he will need some assistance whilst on parole in order to overcome that problem.

11. He is doing his time in custody harder than most, firstly, there is his age; secondly there is his language. Although he speaks some English it is very much his second language and he has difficulty communicating in it. There is the risk of violence in gaol which is ever present, Mr Le feels that risk on a daily basis.

12. Mr Le pleaded guilty at the earliest opportunity in order to reflect his willingness to assist the authorities in that regard, and the ultimate benefit of his plea, the sentence I will impose upon him is about 25% less than what it would otherwise have been.

13. There were other aspects of the psychological report apart from those to which I have already referred upon which Ms Fernando relied. It would have been a simple matter for Mr Le to get into the witness box and say that what he had told the psychologist was true. And so I have given those other matters lesser weight than I would have had there been sworn evidence to establish the factual basis on which the psychologist’s conclusions were reached.

14. I return to where I started. Were it not for Mr Le’s gambling addiction, he would not be where he is today and only a person with a vested interest would say that Mr Le’s gambling addiction was unconnected with the ready availability of outlets for his gambling. But ultimately, Mr Le’s decision to do what he did, knowing that what he was doing was illegal, was his and his alone. For that reason, he has to be punished in a significant way.

15. Both the Crown and Ms Fernando relied on what was said to be comparative cases. It is no fault of theirs that there were substantial differences between such cases and the one before me at the moment. Nevertheless, the cases have been of assistance, I have been able to take note of the differences between the facts in those cases and the facts before me at the moment in coming to what I consider to be the appropriate sentence.

16. The offender is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 21 February 2017 with a head sentence of six years. The non-parole period will thus expire on 20 August 2019 on which day Mr Le is eligible to be released to parole.

17. I will just explain that sentence to Mr Le as I am required to do.

18. Mr Le, I am required to explain what I have just done. Your sentence started from the day you were arrested, 21 February 2017. From that day the minimum period you spend in gaol is two and a half years and that expires on 20 August 2019. That is probably the most important date for you because you cannot be released from gaol before then, but you are eligible to be released to parole on that day. Whether you are released or not depends on the Parole Authorities. If you are released to parole, your sentence continues for another three and a half years and if you commit any other offence in that time you can be sent back to gaol. Mr Le, do you understand that? Do you want to ask me any question?

19. OFFENDER: I do understand.

20. HIS HONOUR: Thank you, Mr Le, and thank you, Mr Interpreter.

21. And thank you, Madam Crown and Ms Fernando.

22. ADJOURNED

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Decision last updated: 11 April 2018