R v Ngo

[2013] NSWDC 180

District Court

New South Wales

Medium Neutral Citation:	R v Ngo [2013] NSWDC 180
Hearing dates:	16 August 2013
Decision date:	16 August 2013
Before:	Berman SC DCJ
Decision:	Sentenced to a term of imprisonment consisting of a non-parole period of 4.5 years and a head sentence of 9 years.
Catchwords:	CRIME - Sentence - Import commercial quantity of border controlled drug
Cases Cited:	Lowe v The Queen [1984] HCA 46
Category:	Sentence
Parties:	The Crown Thanh Ngo
Representation:	Director of Public Prosecutions- Crown Legal Aid NSW - Defence
File Number(s):	2013/12323

Judgment

1. HIS HONOUR: On 14 January 2013 Thanh Ngo returned to Australia on a flight from Vietnam. He was stopped by a customs officer who searched his bag. Concealed very poorly within that bag were five packages. Upon further analysis those packages proved to have within them heroin. The total net weight of the powder was 1.6 kilograms and the total weight of the pure heroin was effectively 1.2 kilograms.

1. The packages were barely concealed; this was not some sophisticated arrangement at all. Under the lining of the suitcase, accessible merely by opening a zip in the lining, someone had placed those five packages. Anyone packaging the bag would have realised that the packages were there. Anyone lifting up the empty bag would probably have realised it weighed much more than it should have. Although it is suggested that Mr Ngo should be sentenced on the basis that he was reckless as to whether his suitcase contained drugs, in the circumstances of this case there is little difference between him being aware of a chance that the suitcase contained drugs and him knowing definitely that they did.

1. Mr Ngo is fortyfour years of age. He was born in Vietnam but left in his early twenties. He was in Malaysia for a couple of years in a refugee camp before coming to Australia in 1991. He has been living in a de facto relationship since 1995 and has two children. He has family back in Vietnam although some of them have died. He left school at a very young age whilst in Vietnam in order to earn money for his family. Since he came to Australia he has worked from time to time vegetable picking, in a bakery, and in a factory. At the time of this offence he was working as a handyman. At times he had received Centrelink benefits but gave that up because for two reasons, one was there was not much money offered by Centrelink and the second was that they wanted him to study English. His de facto wife does not work and she receives a pension. He retains the support of his wife and family who visit him in gaol every week.

1. I mentioned that Centrelink wanted Mr Ngo to study English. His English skills are very poor. He is not terribly literate in Vietnamese either. These matters are relied on together with a finding by a forensic psychologist of a mild cognitive impairment by Miss Way who appears for Mr Ngo today.

1. Mr Ngo has prior convictions for drugs, in particular some time ago he served a prison sentence for cultivating and supplying cannabis. At the time of this offence according to what he told a psychologist he was not using drugs. He had smoked heroin in his early thirties but told the psychologist he had not used that drug since then.

1. This puts Mr Ngo into a category of an importer of drugs which is quite serious. Although there is no evidence to this effect, he was clearly motivated by financial gain. That he was prepared to bring in such dangerous amount of drugs merely for his own financial reward indicates significant things about Mr Ngo's moral culpability. In this regard let me return to the issue of what was described as a mild cognitive impairment. One of the ways the Crown challenged that finding was to tender a statement of facts relating to Mr Ngo's earlier convictions for supplying and cultivating cannabis. On analysis that evidence said nothing about Mr Ngo's present cognitive capacity. They are merely allegations made at one stage by the police in relation to that matter. The remarks on sentence were not apparently available. In any case those facts say nothing about what Mr Ngo actually did and even someone with mildly cognitively impaired would have no trouble watering plants for example. There is no suggestion of the facts that Mr Ngo was involved in the setting up of any operation bypassing electricity and the like.

1. So I will accept that the psychologist's finding is accurate, that he was mildly cognitively impaired which does, but only to a small extent, reduce his moral culpability. It also reduces the extent to which he is an appropriate vehicle for general deterrence.

1. One matter that is raised in the psychologist's report is this, the suggestion seems to be made that because of his mental state his ability to "engage in consequential thinking is limited". If that means that the mild cognitive impairment is relevant to the issue of personal deterrence, then it may well be possible to argue that in order to personally deter Mr Ngo his mild cognitive impairment requires a longer sentence than would usually be the case. However, I say it once that I know of no legal principle to that effect and so it is not an approach I will take. I will not impose a longer sentence on Mr Ngo because of his mild cognitive impairment. I will to the small extent that I have indicated impose a lesser sentence for that reason.

1. Mr Ngo pleaded guilty at an early stage and so in order to reflect his willingness to facilitate the course of justice the sentence I impose upon him will be twenty-five per cent less than it would otherwise have been.

1. I note also that he expressed his remorse to the psychologist but as Miss Way accepts that is of limited weight as he does not say the same thing in court. Miss Way also relies on the consequences to Mr Ngo's family in the event that he is incarcerated. The Crown tendered a schedule of Mr Ngo's movements showing that he has spent some time including lengthy periods out of Australia as part of a submission that if Mr Ngo can go overseas for that length of time, and as often as he does, then his family will probably get by without him. There are a number of problems with that argument. Firstly, there is no evidence as to whether Mr Ngo's family went with him to Vietnam on any or all of the occasions that are referred to in this schedule. But perhaps more importantly, such absences say nothing about Mr Ngo's financial contribution to the family's income which is one of the matters relied on to demonstrate hardship.

1. On the other hand, the hardship referred to in the evidence is normal to the point of being unremarkable. Fathers, breadwinners and husbands are sent to gaol with depressing regularity and in the vast majority of cases consequences such as will be experienced by Mr Ngo's family result. If hardship of the kind in this case to play any significant part in the sentence to be imposed upon Mr Ngo, than the law would not be achieving its prime purpose, that is to protect society from in the circumstances of this case, the enormous problems that flow from the importation, supply and consumption of illegal drugs.

1. That is not to say that the hardship is to be entirely ignored. Mr Ngo's knowledge that once again he is serving a sentence for his involvement with drugs which results in his family being denied his support and assistance will make his time in custody harder than it would otherwise have been. I take into account also in that regard that Mr Ngo's poor performance in English will also make his time in custody more difficult.

1. In assessing the objective criminality of Mr Ngo's conduct, I take into account what he did. Of course he acted as a courier, but that is not to say that he was a mere courier. The evidence is entirely silent as to the extent of Mr Ngo's role beyond saying that he imported a substantial quantity of drugs into Australia. In those circumstances I will, consistent with the authorities, not ascribe any particular label to Mr Ngo but sentence him for what he did. I take into account also that the quantity of drugs was fairly high as regards the particular charge faced by Mr Ngo. The pure weight of the drug was close to the top of the range of a marketable quantity of heroin.

1. Both the Crown and Miss Way relied on comparative cases: Sentences imposed in this Court; on appeal to the New South Wales Court of Criminal Appeal; and sentences imposed in courts in other jurisdictions within Australia. Of course no two cases are identical and what establishes a proper sentencing range is not necessarily what has been done in the past at least in the District Court of New South Wales but I found those comparative cases very helpful for this reason. Inconsistency in sentencing was described by the High Court in Lowe v The Queen as being a badge of unfairness, although Lowe is a case primarily on parity amongst co-offenders, a proper reading of the judgment shows that the High Court was there speaking also about the unfairness involved in inconsistency in sentencing between offenders who are not co-offenders. No offender should think that the sentence he or she receives depends on the particular identity of a judicial officer doing the sentencing. Comparative cases are extremely important in ensuring that no judge in this Court approaches the process of sentencing with any idiosyncratic attitude. What other judges in this Court have done, what the Court of Criminal Appeal in this State has done and what judges in other jurisdictions in Australia have done, are all helpful in ensuring that I take no idiosyncratic approach. Consistent with criticism that was sometimes being directed to the use of comparative cases in sentencing both Miss Way and Mr Crown did much more than simply tell me the charge and the outcome and so because no two cases are identical I was able to take into account the differences between the comparative cases and the present in formulating the appropriate sentence for me to impose.

1. Of course everyone acknowledges that there is a need for a substantial sentence of imprisonment to be imposed in this case. It is a fundamental rule in sentencing that sentence reflect the objective gravity in the offender's conduct and to import more than a kilo of pure heroin into Australia with knowledge that that heroin is going to be distributed to drug users is serious criminal conduct indeed.

1. Of course I need not only decide the length of the overall sentence, but also to decide a length of the non-parole period which is appropriate. That is the minimum period which Mr Ngo should spend in gaol having regard to all the circumstances of this case. Now that what used to be described as the usual ratio of sixty to sixty-six per cent of the head sentence, it no longer to be afforded the same primacy. For reasons which I have explained in other judgments, generally I would expect ratios in Commonwealth cases to fall.

1. Mr Ngo is sentenced to imprisonment. I set a head sentence of nine years to date from 14 January 2013, the day on which Mr Ngo went into custody. I set a non-parole period of four and a half years which will expire on 13 July 2017. Mr Ngo's total sentence will expire on 13 January 2022. Mr Ngo is eligible to be released to parole on 13 July 2017.

1. Mr Ngo do you understand how long you must spend in prison? Let me repeat just to make sure. The earliest day that you can be released from prison is 13 July 2017. Whether you will be released then or not is up to the Parole Authorities. The latest date on which you will be released is 13 January 2022. If you are to be released on parole earlier than that date you will be still serving your sentence within the community and any breach of your conditions of parole may see you return to custody. Do you have any questions Mr Ngo about anything I have done. Miss Way will also I am sure come down to see you in the cells and go through what has happened today. Thank you both for your assistance, I will now adjourn.

**********

Decision last updated: 25 September 2013