R v Meksavanh

[2022] NSWDC 374

District Court

New South Wales

Medium Neutral Citation:

R v Meksavanh [2022] NSWDC 374

Hearing dates:

5 August 2022

Date of orders:

5 August 2022

Decision date:

05 August 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   The offender is convicted.

2   The offender is sentenced to imprisonment for 6 years to date from 9 September 2020 and expiring on 8 September 2026. I fix a non-parole period of 3 years to date from 9 September 2020 and expiring on 8 September 2023.

Catchwords:

CRIME — Drug offences — Commonwealth offences

SENTENCING - objective seriousness - deterrence - appropriate penalty

Legislation Cited:

Crimes Act 1914

Cases Cited:

Cameron v The Queen (2002) 209 CLR 339

Danial v R [2008] NSWCCA 15

Johnson v The Queen (2004) 78 ALJR 616

R v El Karhani (1990) 21 NSWLR 370

R v Nguyen (2010) 205 A Crim R 106

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions Souknelane Meksavanh (Offender)

Representation:

Counsel:
D Berents (CDPP)
J Clarke (Offender)

File Number(s):

2020/262841

Publication restriction:

None

Judgment

1. Souknelane Meksavanh appears for sentence after pleading guilty in the District Court to one count of aid and abet in an attempt to possess a commercial quantity of a border controlled drug, being 288.44 kgs of methamphetamine contrary to ss 11.1(1) and 307.5(1) and 11.2(1) of the Criminal Code (Cth).

2. The maximum penalty for the offence is life imprisonment and/or a fine of 7,500 penalty units.

Approach to Sentencing

3. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

4. A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].

5. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

6. The offender has entered a plea of guilty. For Commonwealth offences the Court must consider the offender’s willingness to facilitate the course of justice and can consider the utilitarian value of the plea: Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]–[28]. The Crown case was a strong one. The offender’s plea has saved the need for witnesses to be called at trial, The plea was entered at a time when the trial had been substantially prepared: Cameron at [79]. I am satisfied that the offender’s plea indicates an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 15%.

7. I have had regard to the principles relevant to sentencing serious federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J).

Facts

8. The parties presented an Agreed Statement of Facts, which by reference to the need to set out the involvement of all the participants is very lengthy. I have taken the entirety of that document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to this offender to permit an understanding of the sentence imposed and to allow the sentence to be interpreted in open Court.

9. On 11 August 2020, DHL Express air cargo consignment containing 86 boxes of coconut milk cans arrived in Sydney from Thailand. During transit a number of the cans in different boxes had leaked, causing damage to the boxes. The transport company had repacked a number of boxes from their original cardboard packaging.

10. Between 16 August 2020 and 17 August 2020 Australian Border Force members examined the consignment. One box was opened and found to contain 24 coconut milk cans of a particular brand. A number of the cans were opened and the liquid substance gave a positive reaction to the presence of methamphetamine.

11. The consignment was seized by the Australian Federal Police and an investigation was launched to identify the intended recipients of the consignment. On 19 August 2020, the offender exchanged messages with a female believed to be residing in Laos who was referred to as “Mommy”.

12. A number of text messages were exchanged on that day indicating that there were other people involved in the operation. The offender was sent photographs of the merchandise packed in boxes and it was indicated that Mommy was awaiting an address for delivery.

13. On 23 August 2020, further messages were exchanged about the use of email addresses in connection with the consignment. The offender was instructed to set up an email address for a person known as “Johnny” to be used in connection with the delivery of the consignment. Instructions were given to the offender as to the information to be provided to Johnny amongst other topics.

14. On 23 August 2020, an Australian Federal Police controlled operation authority was issued in respect of the importation of the consignment. An AFP member purporting to be an Australian Border Force (ABF) officer sent an email to the consignment email address stating that the consignment had been transferred to ABF because it was damaged and leaking in transit and now required a quarantine clearance.

15. On 25 August 2020, the offender participated in text messages with Mommy indicating that she had sent him a SIM card via the post.

16. On 26 August 2020, there were further text messages relating to the delivery of the consignment. Reference was made on that day to Mommy working with Chinese people in the operation.

17. At 5:15pm on 26 August, an unknown person purporting to be David Tan sent an email from the consignment email address to the ABF officer stating that the consignment had been resold and the new owner would be responsible for collection. Details were provided of a person by the name of Johnny Meksavanh with the email address that had been created by the offender.

18. On 27 August 2020, further text messages were exchanged between the offender and Mommy. The offender stated that he had recruited another person to open the warehouse for him. Further instructions were given to him about expediting the delivery of the consignment.

19. On 28 August 2020, there were further text messages in which Mommy suggested the content of a text message that the offender should send to DHL. On 28 August 2020, the ABF officer sent an email to the email address created by the offender asking him to confirm his contact details. The offender sent a text message to the ABF officer indicating it was Johnny from the warehouse and providing an alternate telephone number and enquiring when the consignment would be delivered.

20. Later that day the ABF officer made a telephone call to the mobile telephone number provided in which he spoke to the offender purporting to be the person known as Johnny. The offender asked when the consignment was going to be delivered to the warehouse.

21. On 1 September 2020, further conversations took place between the offender and Mommy discussing the state of the broken cans and when the consignment would be delivered. References were made to a female referred to as “Honey” which was a reference to a person named Melissa Phommahaxay.

22. On 2 September 2020, Mommy told the offender to keep an eye and ear on the job. On 3 September 2020, Mommy instructed the offender to ask Honey to contact DHL as to when the delivery would be made. On 4 September 2020, Mommy asked the offender to get Honey to call and ask when the consignment would be delivered stating that they could pay any extra charges to expedite the delivery. Similar messages were sent on 6 and 7 September 2020.

23. On 9 September 2020, an AFP member purporting to be a DHL driver called Honey to arrange the delivery of the consignment to a warehouse in Girraween which was signed for by the person arranged by the offender. At 10:57am the consignment was unloaded to the warehouse.

24. On 9 September 2020, the offender told Mommy that 86 boxes had been delivered to which she replied, “Excellent, I will send you money later”. They then discussed the cost of repackaging the consignment and Uber.

25. The offender was given instructions to open one of the boxes and take out a can of coconut milk and empty it into a container. He took a video of himself doing this to send to Mommy. Later that day he entered the warehouse in Girraween in the company of Phommahaxay.

26. While in the warehouse the offender received a video from Mommy demonstrating how to decant the cans of coconut milk. He then sent a video of himself decanting a can of coconut milk. The offender and Phommahaxay then left the warehouse. Later that day there were further text messages with Mommy for payment for his services.

27. On 9 September 2020, the offender was arrested in Green Valley. His mobile telephone and passport were seized. He participated in an electronically recorded interview with the assistance of an interpreter. He told the police that he received instructions from a female in Laos. He admitted to being involved in and arranging for delivery of the consignment to the warehouse with Phommahaxay. He admitted to attending the warehouse with her to assess the consignment. He told the police he was instructed to video record himself opening a can and decanting it into a clear container.

28. Each of the 264 coconut milk cans were opened and tested to determine the total pure weight of the drug. The purity of the methamphetamine ranged between 40 to 43%. The pure weight of methamphetamine in the consignment was 288.44 kilograms, being more than the commercial quantity of 750 grams.

29. There was no evidence that the offender was told about the amount of the drug contained in the shipment. There was no evidence that the offender was told about the purity of the drugs contained in the shipment. The offender’s understanding of the shipment and the drugs that it contained was limited to the communications he had with Mommy as well as his interaction with the shipment when it arrived in the warehouse and reflected by the messages and videos taken at that time.

30. The offender received one payment for costs incurred of $1,000. The offender is a citizen of Laos and at the time of the offences was an international student on a student visa. He has been in custody since 9 September 2020.

The Offender’s Case on Sentence

31. The offender tendered a report of Kris North, psychologist, dated 7 June 2022. The psychologist met with the offender once for the purpose of preparing the report by AVL. The content of the report can be summarised as follows.

32. The psychologist opined that the offender met the criteria for adjustment disorder with mixed anxiety and depressed mood, both at the time of the offence and at the time of the assessment. His psychological symptoms have increased after being taken into custody but he was managing relatively well at the time of the assessment.

33. The psychologist expressed concern about the impact of an extended custodial sentence on the offender’s mental health, recommending that his mental health be monitored. The offender told the psychologist that he had been contacted by a female acquaintance in the last few weeks prior to his arrest asking for assistance.

34. He told the psychologist he was initially unaware that the shipment would contain drugs but admitted to opening cans of coconut milk and realising that something was “not right” at that time. He was offered $1,000 for his assistance. He said he was thinking about the money and did not consider the potential contents of the shipment.

35. At the time he was financially dependent on his parents and had been unable to obtain employment during the COVID-19 lockdowns. This placed financial pressure on himself and his family. He did not want to ask his parents for more money. The offender stated he was very sorry for his behaviour and co-operated with the authorities on his arrest. He understood that drugs could have a very bad impact on the community.
    The offender was born in Laos as the second born of three sons. He has two older female cousins who he considers to be sisters. He was residing with one of these cousins in Sydney at the time of his arrest.

36. He said his childhood was difficult having been exposed to harsh physical punishment by his father from a young age. He described being caned and slapped for indiscretions, especially when his father consumed alcohol. There was some history of domestic violence between his mother and father related to financial pressure.

37. The offender was close to his family. His mother passed away in 2021 after a long illness. He was in custody and regrets not being able to say goodbye or be at her funeral.

38. He completed high school in Laos at the age of 17 and found school difficult in the later years because he experienced bullying. Older students also attempted to extort money from him. After completing high school he went to China where he studied Chinese for a year at university.

39. He returned to Laos before coming to Australia in February 2020 on a student visa. He had enrolled in an English language course and resided in Liverpool with his cousin. He had tried to obtain employment but the COVID‑19 restrictions prevented that. His studies were transferred online about a week into his course.

40. Since being in custody he has worked as a sweeper, a cleaner, in the kitchen and in the cabinet shop. He has completed a course in workplace safety and applied to a hairdressing course. He has competed the Salvation Army Positive Lifestyle Program and has been involved in the prison chaplain service.

41. The offender has a recreational drug use history in Laos including the use of amphetamines and Ecstasy on a weekly basis for about four months. He has not used drugs since being in Australia and is only a social user of alcohol. The defendant does not have a history of mental illness. He had a decline in mood when he went into custody. He suffered from difficulty sleeping and reduced appetite for the first few months of being in gaol. He had thoughts of self-harm and feelings of hopelessness. His anxiety increased, stating he was worried about his father’s reaction when he returned to Laos. He was worried about the shame he had caused to his family’s reputation and because his father had refused to speak to him.

42. His symptoms of depression and anxiety continued in custody and were exacerbated by other inmates. He has been bullied and intimidated by other inmates including being psychically hit, threatened and having things stolen from him. He has difficulty in communicating with other inmates due to his limited English. He has been trying to improve his English whilst in custody.

43. Mr North opined that the offender had a difficult childhood associated with his family’s finances, his father’s alcohol use and aggression. He experienced some bullying at school before proceeding on to tertiary study. He suffered difficulties in Australia due to the COVID-19 restrictions, experiencing some symptoms of depression and anxiety before the offence.

44. In particular, his financial stress exacerbated his anxiety and contributed to his involvement in the offence. He has experienced increased symptoms in custody although they seem to have been controlled to some extent. Mr North recommended that the offender seek treatment in custody for his symptoms.

Consideration

Objective seriousness of the offences

45. The offender’s involvement in the offence took place over a period of about four weeks.

46. The offender exchanged text messages with a female in Laos referred to as “Mommy” discussing the status of the consignment and providing updates as to its delivery.

47. The offender was asked to and set up an email address to be used to receive the consignment.

48. The offender recruited another person referred to as “Johnny” to open the warehouse and sign for the consignment, in the knowledge that Mommy would provide those details for the delivery of the consignment.

49. At Mommy’s request the offender sent text messages and made telephone calls purporting to be Johnny to expedite delivery of the consignment.

50. The offender requested a female associate on a number of occasions to make calls to enquire about the about the consignment and when it would be delivered.

51. Once the consignment was delivered the offender counted the boxes and sent a photograph of the boxes to Mommy.

52. At Mommy’s request he sent a video to Mommy of him opening one of the boxes, taking out a can of coconut cream and pouring it into an empty container so she could confirm the contents.

53. The offender played an intermediary role acting on instructions. He recruited others and acted dishonestly to distance himself from some transactions.

54. The offender acted for financial gain, but his remuneration was small by comparison to the potential yield of the drugs. Overall I consider him to be relatively low in the hierarchy.

55. The quantity of the drugs was large, being 385 times the commercial quantity. The drugs had a high wholesale and retail value.

56. There was no evidence that the offender was told about the amount or purity of the drug contained in the cans. The offender’s understanding was limited to what he was told or what he could glean for himself.

57. I have taken into account the maximum penalty for the offence.

General deterrence

58. General deterrence is a fundamental consideration to drug importation offences. The sentence must be of such severity to deter others from engaging in activities to smuggle prohibited goods into Australia. The sentence must signal to would be smugglers that the financial rewards will be neutralised by the risk of severe punishment.

Specific deterrence

59. There is some need for specific deterrence although it is reduced. The offender, by his plea and acceptance of responsibility for the offence, has indicated that he is unlikely to re-offend.

Other matters

60. The offender is presently 22 years of age. He does not have any prior convictions. He has no physical health concerns but has been diagnosed with an active mental condition in the course of preparing for these sentence proceedings.

61. The offender has expressed remorse to the psychologist which I accept as genuine.

62. The offender has good prospects of rehabilitation. He is a young man and he has accepted responsibility for his actions. He has worked constructively in custody and undertaken courses available to him to make the best of his situation. I am satisfied that he has acted to put his offending conduct behind him and that he will continue to try to rehabilitate himself.

63. The offender has experienced a difficult time in custody as a result of the COVID-19 pandemic and his limited English. He has found himself isolated, bullied and intimidated. As a result, his mental health has deteriorated. I am satisfied that any further period of incarceration will continue to be more onerous on him.

64. Having regard to the offender’s background, his age, his directed role in the offences and his naivety, I am satisfied that the offender acted partly out of immaturity when he decided to get involved in the offending conduct. This should be reflected in some reduction of the offender’s moral culpability for the offence. I reduce the need for the sentence to reflect general deterrence and retribution and place a greater emphasis on rehabilitation.

60. I have had regard to the comparable cases provided to me by the parties and I have taken them into account, bearing in mind the limitations of that exercise.

Penalty

66. The offender conceded that a sentence of full-time imprisonment was the only appropriate sentence.

67. I have had regard to section 17A(1) of the Act and I am satisfied, having considered all other available sentences, that no sentence other than a sentence of imprisonment is appropriate in all the circumstances of this case.

68. The reasons for this decision are that:

the offence committed is objectively serious;

there is a significant need for general deterrence;

there is some need for specific deterrence;

there is a need for denunciation of the offending conduct; and

the subjective considerations relating to the offender are necessarily subsidiary to the duty of the Court to ensure that he is given a punishment of appropriate severity.

69. The offender is convicted.

70. The offender is sentenced to imprisonment for 6 years to date from 9 September 2020 and expiring on 8 September 2026. I fix a non-parole period of 3 years to date from 9 September 2020 and expiring on 8 September 2023.

Explanation of sentence

71. I am obliged to explain to the offender the effect of the orders I have made.

72. Souknelane Meksavanh, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 3 years. This means that having regard to the time you have already spent in custody, you will be eligible for release to parole on 8 September 2023.

73. It will be a matter for the Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty upon parole after 8 September 2023. If you are released on that day, you will remain on parole for a further period of 3 years. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.

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Decision last updated: 26 August 2022