R v Le; R v Chanthavong

[2020] NSWDC 625

District Court

New South Wales

Medium Neutral Citation:

R v Le; R v Chanthavong [2020] NSWDC 625

Hearing dates:

24 July and 25 August 2020

Decision date:

25 August 2020

Jurisdiction:

Criminal

Before:

Colefax SC DCJ

Decision:

Offender LE: term of imprisonment of 3 years, to be partially suspended after 1 year 7 months.

Offender CHANTHAVONG: term of imprisonment of 2 years 7 months, to be partially suspended after 1 year 2 months.

Catchwords:

CRIME - SENTENCE - aiding and abetting the importation of a commercial quantity of a border controlled drug.

Legislation Cited:

Commonwealth Criminal Code, s307.1(1)

Category:

Sentence

Parties:

Regina (Commonwealth Crown)

Son Le (Offender)

Adam Chanthavong (Offender)

Representation:

Mr Kanagasabapathy (Solicitor C'th DPP)

Offender LE: Ms Khalilizadeh (Counsel)

Offender CHANTHAVONG: Mr Goold (Solicitor)

File Number(s):

2019/10145; 2019/190423

Publication restriction:

Nil

judgment

1. Son Le and Adam Chanthavong, you both appear for sentence today in relation to one offence, that is, aiding and abetting the importation of a commercial quantity of a border controlled drug.

2. This involves the contravention by each of you of s 307.1(1) of the Commonwealth Criminal Code.  The maximum penalty for that offence is life imprisonment and/or a fine of approximately $1.5 million.

3. The facts surrounding your offending are contained in an amended agreed statement of facts, which was tendered in the Court today.  To an extent, those facts have been supplemented by the sentencing assessment report obtained for you Mr Chanthavong, and by the various references which came before the Court, and expert material in your case Mr Le.

4. Briefly put, for my purposes this afternoon, I can summarise the facts as follows. 

5. As at late December 2018, you Mr Le were about 23 years of age and you Mr Chanthavong were about 26 years of age. 

6. Mr Le, you had managed to acquire $10,000 in debt, not in any criminal sense, but you were living a lifestyle which was beyond your means: you ran up debts on credit cards; you owed rent to your landlord; and your life was, you thought, a bit challenging for that reason. 

7. One of the persons to whom you owed money was your friend, Mr Chanthavong.

8. Somehow Mr Le, you became involved with a person (or persons) who was keen to see imported into this country, a very significant quantity of methylamphetamine.  And, in circumstances not entirely clear to me, you arranged or agreed to receive a package from overseas.  The package was to be delivered to your house, addressed to you -  not a very sophisticated form of arrangement, Mr Le. 

9. When the package arrived, what you were supposed to do was to take possession of it, change the shipping documents, and then leave it at your front door step, where something else was supposed to happen to it, by whom I do not know.

10.  In relation to this package, Mr Chanthavong was asked by you to, in some way, help you.  It is said that this involved making some form of communications or passing messages. But whatever it was that you Mr Chanthavong were supposed to do, is extremely vague in the material before me. 

11. From this $5,000 that you Mr Le were going to receive, you were going to repay some of your $10,000 debts, including repaying whatever amount it was that you owed Mr Chanthavong.  I do not know how much that was, but clearly it was less than $5,000.

12. So that, in summary, for each of your participation in this activity, you Mr Le were to receive $5,000 and you Mr Chanthavong were to receive an amount less than that.

13. It came about that on 20 December 2018, a package was sent by registered air mail from the United States to your residence, Mr Le, in Cabramatta West. 

14. I am not satisfied beyond reasonable doubt that you knew what was in that package, indeed the Crown does not allege that you actually did know.  However, you believed there was something "bad" in it. You, Mr Chanthavong, must have been of a similar belief. 

15. The Crown’s case against each of you is that you were each reckless as to whether or not the "bad" something was a border controlled drug.  As it turned out, what was in the package was 1,235.24 grams of methamphetamine.

16. You did not have possession of that package for very long Mr Le. In fact, the whole thing seems to have been under police surveillance from the very beginning. The package was delivered to your home in your name, on 10 January 2019 and at ten minutes to 3 on the afternoon of that day, the police came knocking. 

17. You were then arrested Mr Le on that day and you made full admissions to police. 

18. For reasons not clear to me Mr Chanthavong, you were not arrested for another five or six months later, until 19 June 2019.

19. The contents of the package has been the subject of some evidence from Detective Sergeant Goodheart.  The purity of the methylamphetamine is not in evidence. He tells me something about the commercial value of those drugs, which seems to range from a little over half a million dollars, to a quarter of $1 million, depending on how it was sold. 

20. However the evidence is to be understood, one thing is clear: it was a very significant and valuable quantity of a drug which causes enormous damage in the communities in which you both live.

21. Your roles as aiders and abetters of the importation of what turned out to be a border controlled drug, in terms of the objective seriousness of that offending for an offence of its kind, it is towards the bottom of the range.

22. There are no additional aggravating factors. 

23. Each of you, apart from this naive and misguided enterprise, are young men of good character.  One of you has no prior offences at all; the other one has some driving offences - but I do not regard that as a disqualification from the description of "good character".  You both are entitled to the leniency which, in appropriate circumstances, is extended to such offenders. 

24. Moreover, you are both also entitled to the leniency which young offenders are entitled, in appropriate circumstances, to receive.

25. Neither of you gave direct oral evidence in the sentence hearing. Very frequently, gentlemen, I look with scepticism when an offender says he is remorseful, but says that through the safety of a sentencing assessment report, or a psychologist’s report, or through referees, or by some means by which the person’s assertion of remorse cannot be tested.  But in each of your cases, I do accept that your expressions of remorse are genuine.

26. It is not necessary for me this afternoon to set out in great detail your personal circumstances.  You have each completed schooling. You have each started to work hard.  You each have the support and love of your family and you will be supported by them when you are released.

27. My assessment of your prospects of rehabilitation, for each of you, is that you both have very good prospects of rehabilitation.

28. You entered pleas of guilty at the first available opportunity and you will be given a substantial discount, 25%, for the utilitarian value of the plea, because it has facilitated the course of justice and because it is indicative of genuine and early remorse. 

29. Because each of you has got very good prospects of rehabilitation, the sentence to be imposed upon each of you is not going to be mainly framed so as to discourage you from offending in the future, although that is still a relevant consideration.  The most important consideration, for my purposes this afternoon, is to encourage your rehabilitation - as well as to send a message to others who might be tempted to involve themselves in something as foolish as you did.

30. I am satisfied that no sentence other than a period of imprisonment is appropriate.

31. Parity is a relevant consideration. On the one hand, you Mr Le are younger of the two; but it was Mr Le who has a slightly higher involvement in the activities of the two of you. I have taken that into account in fixing the sentence.  There will, therefore, be a slight difference between the two of you, but not by much.  

32. You have both been in custody continuously since your arrests, and only in relation to these matters, and the relevant sentence will be backdated to the date that you were each arrested.

33. In your case Mr Le, except for your plea of guilty, the relevant term of imprisonment would have been four years.  After applying the discount of 25%, the term of imprisonment is three years.  Pursuant to s 21B of the Commonwealth Crimes Act, execution of the sentence is partially suspended after you have served a period of one year and seven months - which expired on 9 August 2020 - on condition that you then enter into a self‑recognisance without security and agree to forfeit the sum of $500.  That means Mr Le that you are immediately entitled to be released and then there would be a period of supervision of one year and five months.

34. In your case Mr Chanthavong, except for your plea of guilty, I would have sentenced you to a term of imprisonment of three and a half years.  Because of the plea of guilty, the sentence is two years and seven months.  Pursuant to s 21B of the Commonwealth Crimes Act, execution of the sentence is partially suspended after you have served a period of one year and two months - which expired on 18 August 2020 - on condition that you then enter into a self‑recognisance without security and agree to forfeit the sum of $500.  You therefore are also entitled to be immediately released and there will be a period of supervision of one year and five months.

35. Upon your release, each of you is to report to a Community Corrections Office, within 24 hours, the first instance of contact to be via telephone. 

36. In Mr Le’s case, you are is to report within 24 hours of release, to the Liverpool Community Corrections. 

37. In Mr Chanthavong’s case, you are to report within 24 hours of your release to the officer in charge of the Fairfield Community Corrections.

Decision last updated: 21 October 2020