R v Nguyen

[2006] NSWDC 1

CITATION:	R v Nguyen [2006] NSWDC 1
HEARING DATE(S):	4 August 2006
JUDGMENT DATE:	4 August 2006
EX TEMPORE JUDGMENT DATE:	08/04/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	The sentence of imprisonment will commence on 16 May 2006. I impose a head sentence of four years and set a non-parole period of two years. The non-parole period will expire on 15 May 2008.
CATCHWORDS:	Criminal Law - Import - Methylamphetamine - Hardship to Third Parties - Sentence
LEGISLATION CITED:	Crimes Act 1914 (Cwth) Customs Act 1901
CASES CITED:	R v Sarca, unreported, CCA(NSW) 11 May 1993 R v T (1990) 47 A Crim R 29 R v Byrne (1998) 104 A Crim R 456 R v Bednarz [2000] NSWCCA 533 R v Girard [2004] NSWCCA 170 R v X [2004] NSWCCA 193
PARTIES:	Crown Nhu Mai Huynh Nguyen (offender)
FILE NUMBER(S):	05/11/0905
COUNSEL:	N Steel (offender)
SOLICITORS:	Commonwealth DPP (Crown) Legal Aid Commission (Offender)

Sentence

1 HIS HONOUR: On Friday 29 April 2005 the offender arrived back at Sydney Kingsford Smith Airport from Vietnam. Her bags were searched. A customs officer discovered some towels in a plastic bag. The towels appeared to be heavy and stiff. Suspicions were aroused. Presumptive tests proved positive for the presence of methylamphetamine. The offender was arrested and a further analysis of the towels was conducted. It was discovered that the towels had been laced with methylamphetamine. The total weight of pure methylamphetamine contained in the towels was 537.2 grams. There is evidence to suggest that the wholesale value of that quantity of pure methylamphetamine was about $90,000 with a street value of $160,000. Thus the offender had in her possession when she returned to Australia from Vietnam a significant quantity of methylamphetamine.

2 She faced trial for importing that substance. Her defence was that she had taken towels to be cleaned and picked them up whilst overseas and that she had no knowledge that the towels she was bringing back into the country contained methylamphetamine. The jury rejected that explanation finding her guilty on 16 May this year. She has been in custody since that date.

3 I was not the trial Judge. The trial was conducted before another Judge who has now retired. In order to avoid any problems which would follow if the current challenge to the powers of Acting Judges in the High Court had any success I have been asked, with the offender’s consent, to sentence her. I do not have the transcript of what occurred before the trial Judge, but there is an agreed summary of the Crown case which has been tendered before me as well as extracts of various parts of the evidence in the trial.

4 Assessing the offender’s criminality is made difficult because of her false claims of innocence. There is no explanation before me as to why it was that the offender, a person who has no problems with drugs, would import drugs into Australia knowing what she was doing. Although she was acting as a courier that does not mean that she was a mere courier. There is no evidence one way or the other to establish the offender’s role in the drug supply hierarchy beyond a suggestion that the offender was not a wealthy woman. Rather than sentencing her according to labels, I will sentence her for what she did, which is to bring into Australia a significant quantity of a dangerous drug.

5 This is a serious matter as is indicated by the maximum penalty for the offence of 25 years. As well as the sentences imposed in other cases for similar conduct, the Crown provided me with a small number of cases where people imported methylamphetamine or MDMA, but pointed out that most of those cases involved pleas of guilty where the offender would have received a discount for his or her willingness to assist the course of justice and also that most of them involved discounts under the now repealed s16G. The Crown also pointed out that there is a different commercial quantity for MDMA to that for methylamphetamine, the drug that the offender imported. With those qualifications I was able to look at the cases to which the Crown referred me and it is clear that the Courts treat offences such as this very seriously indeed, with significant periods of imprisonment imposed.

6 The offender was born in 1976 in Vietnam. At the age of fourteen she left Vietnam in order to flee the political and social unrest to which she was exposed. She went to the Philippines for a while before, at the age of eighteen, gaining passage to Australia. Her sisters with whom she had also fled to the Philippines were not successful in their applications to come to Australia, and so at a relatively young age the offender found herself in Australia without her family. The offender, said, according to the author of the pre-sentence report, that this caused her a great deal of grief. One can easily understand that to be the case.

7 The offender has three children. A great deal of the submissions made on behalf of the offender related to the circumstances of those three children. She has two older children, A who is eight and H who is ten. Those children were born to the offender when she was in a de facto relationship, although that is not precisely correct because her de facto partner left her when he was pregnant with her second child. She does not know where he is. About two years ago she met her current de facto partner. He is 59 years of age with four grown up daughters. He and the offender also had a child, M, who is now seven months of age. The offender’s de facto partner is the primary carer of M and indeed when he gave evidence during the sentencing proceedings, M was with him in the witness box. The offender went into custody on 16 May 2006. I will shortly return to what has happened to her three children since then.

8 The offender does have a work history in Australia. She has been cooking in a restaurant, performed laundry and dry cleaning work, made shoes, and worked in a packaging company. She does have some minor matters on her criminal history, but they can effectively be ignored given the gravity of her current offence compared with the minor nature of her earlier matters and their age.

9 A and H are being cared for by friends. However the offender’s de facto partner Michael Louitsi sees them regularly, if not on a daily basis. There are some contradictory aspects of Mr Louitsi’s relationship with the two older boys in the written material tendered before me, which may be explained by difficulties in communication or by the fact that some material was prepared after other material. What I do have of some considerable significance in evidence before me is a report of Associate Professor Quadrio who spent a great deal of time examining the family circumstances of the offender and her children. It is highly significant in my view that not one of the opinions expressed by Dr Quadrio were challenged by the Crown. In those circumstances I have no hesitation in accepting what she says. Dealing with the older two boys Dr Quadrio said this:

“In my opinion there would have to be very grave concerns about the psychological and emotional development of the older two boys if they continue to be separated from their mother for a significant period of time, because they have been in her primary care since birth. The older boys are highly at risk of developing serious mental health issues as a result of the effective loss of their mother. Loss of a parent before the age of eleven is strongly correlated with subsequent psychiatric problems and is the biggest risk factor for adult depression and suicide. By being separated from their mother at this stage of life, especially where there is no significant extended family, these two boys are being placed in a position where they will be in extremely high risk of long term mental health disturbance as well as possible delinquency. The long term prospects for children raised without a stable attachment relationship with an ordinary devoted mother or father are quite poor. They prone to psychological and psychiatric disturbances of all sorts, including anti-social personality and are at much greater risk for school failure, employment difficulties, delinquency and ultimately criminal adjustment.”

10 The issue concerning the youngest child M is different. He is obviously well cared for by his father who clearly loves him. Those who see the baby and his father interacting together are impressed by the care which he provides. He is however a man who, without wishing to offend anyone, is quite old to be a father of a young child, especially a father who is bringing up a baby by himself. He has had a heart attack, suffers from back pain, an ulcer and finds the experience of being a father to a young child alone stressful. In addition he suffers from depression which came about after his divorce from his former wife some twelve years ago.

11 The evidence, again unchallenged, concerning the relationship of the baby with the offender, is that unless he is able to effectively bond with his mother whilst he is still young, the difficulties of establishing an ideal mother son relationship may well be permanent. The offender sees the baby regularly and will, depending upon the sentence which is imposed upon her, give consideration to applying to have the baby with her in custody.

12 On thing which has hardly been mentioned in the sentencing proceedings is the circumstances that the offender will do her time in custody very much harder because of the knowledge that her children need and miss her. As well of course, she needs and misses them. Dr Quadrio’s report illustrates graphically how upset the offender was when she talked about and thought about her children and the effect of her incarceration upon them. There has been some dispute between the parties as to the relevance of the hardship to third parties and its appropriate application to this case. But there has been no dispute about my ability to take into account as a mitigating factor in the offender’s favour, the fact that her time in custody will be much harder than would be the case of a person who is not the mother of young children. Of course balancing that consideration is the fact that the offender went into this, with one exception, with her eyes open. At the time she imported those drugs into Australia she knew she was the mother of two children. She knew that if detected she would go to gaol, but nevertheless she went ahead. I mention that there was a qualification to that consideration, the offender did not know she was pregnant with M until after she arrived back in Australia.

13 Mr Steel says that the hardship to third parties is such that the circumstances are truly exceptional. He refers to four people who suffer from the offender’s incarceration. Firstly her de facto husband who has found himself quite un-expectantly being the fulltime carer of a seven month child. Then there are the two older children who are now cared for by friends and the offender’s de facto husband, whom the children did not even know until quite recently. Then there is of course the position of the baby M.

14 Are those circumstances exceptional? I do not consider that they are. The Courts often find themselves in a position where they have to sentence the parents of young children. Often enough there is no de facto partner around to care for the children. That is not to say that these circumstances are not distressing. They clearly are. They clearly raise highly emotional matters. The children are entirely innocent and yet the incarceration of their mother will have a profound impact upon them. That, however, does not mean that the circumstances are exceptional. They are unfortunately all too common.

15 For some years the law was that that would be the end of the relevance of the hardship to third parties. The authorities for many years required that hardship to third parties should be exceptional before it could be taken into account by a sentencing Judge. In R v Sarca unreported CCA 11 May 1993, Justice Wood as he then was said:

“As was pointed out in R v T[1990] 47 ACRIMR, it is only in circumstances of exceptional hardship to the applicant’s family that a Court will take into account that hardship in mitigation of sentence.”

16 Later on in R v Byrne (1998) 104 A Crim R 456 Justice Dunford reviewed the authorities and said:

“The general rule is that hardship to members of an offender’s family is generally irrelevant and can only be taken into account mitigation of sentence in highly exceptional circumstances.”

17 A consideration of the facts of that case reveal just how grave the hardship to third parties has to be before it was considered exceptional. And finally in R v Bednarz [2000] NSWCCA 533, Justice Simpson spoke of a general rule that ordinarily hardship to relatives or dependents will not affect the sentencing decision. I have referred to only a few of the very many cases which consistently applied this rule: Unless hardship to third parties was exceptional it played no part in the sentencing process. That principle applied to Commonwealth offenders too. Although 16A(1)(p) Crimes Act (Cwth) refers to the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents, for many years it was acknowledged that that provision was merely intended to adopt the common law, such that the subsection should be read as if it was proceeded by the words ‘in an exceptional case’.

18 As I said that was the state of the law for many years. But then in 2004 there were two decisions of the Court of Criminal Appeal, which it was argued by Mr Steel had brought about a change, not only in State sentencing law, but also Federal sentencing law. Those cases were R v Girard [2004] NSWCCA 170 and R v X [2004] NSWCCA 193. Those cases introduced the concept that even if hardship was not exceptional, it could still be taken into account as, “part of the general mix of subjective matters”. This is a subtle but important difference between the authorities which came before. This subtle change appears to have passed most of the profession by, but not Mr Steel.

19 I can find no subsequent case where Girard and X are disapproved of or criticised. There is nothing in the decisions themselves or the principle for which they stand which causes me to reject them. The underlying principle which guided cases before Girard was that if Judges gave effect to non-exceptional hardship then the law would be applied unfairly. Those who were not in the fortunate position of being parents when they were sentenced might justifiably complain if they were treated more harshly than people who were parents, especially those who committed offences in the full knowledge that their incarceration would have an affect upon their children. But the philosophy which seems to underline cases of Girard and X is that Judges are quite capable of giving appropriate weight to all manner of subjective features, whether or not they are such to reach a particular level. In other words Girard seems to be based on the idea that even if hardship is not exceptional, a Judge should take into account the affect of a sentence on third parties and give appropriate weight to it.

20 The Crown argued that whether Girard and X really did bring about a change in State law it did not apply Federally. The theory seems to be that subsection P must have been taken to have represented the common law at the time it was introduced, which as I have indicated was that exceptional circumstances were required and that a change in the common law brought about by Judges of the State could not affect what the Commonwealth legislature earlier intended. Of course there are difficult question of legal philosophy involved here. Did the Commonwealth parliament intend that the words ‘in an exceptional case’ necessarily precede section 16A(1)(p), or did the Commonwealth parliament intend that section 16A(1)(p) would be interpreted in the light of the common law as it developed. I am prepared in the offender’s favour to adopt the second view. I am prepared to find that section 16A(1)(p) should be interpreted in the light of what I perceive to be the current law in New South Wales.

21 This means that I will take into account the effect of any sentence of incarceration I impose upon the offender, insofar as it has consequential effects upon her de facto husband and her children. Let me immediately say that I do not consider the effects upon Mr Louitsi to be terribly significant at all. But that is not the case insofar as the other three children are concerned, especially the elder two for the reasons outlined in Dr Quadrio’s report. I have also borne significantly in mind the consideration to which I have earlier referred, that the offender went into this with her eyes open as regards her elder two children.

22 STEEL: Your Honour it might be an appropriate time. It’s conceded that she knew she was pregnant when she left Australia to Vietnam.

HIS HONOUR: She said when she came back to Australia.

STEEL: She said she knew in Australia but I think she probably meant that she knew before she left, and your Honour’s interpreted Australia.

HIS HONOUR: Thank you for that correction.

23 I thank Mr Steel for his most appropriate and honest correction. It was made at an appropriate time. In the light of that correction I will take into account as regards to all three children that the offender was aware that her two older children and her then unborn child would be affected by her incarceration.

24 Mr Steel asks me to find that there are good prospects of rehabilitation and that the offender is unlikely to re-offend. I cannot do that at all. I do not know why she offended in the first place. So I do not know what likelihood there is that similar circumstances will arise in the future. The offender has expressed no remorse and there is nothing to say that if whatever it was that prompted her to commit this offence occurred again, she would not do exactly the same thing. The only way in which I can foresee the offender’s behaviour is likely to change, is that she will experience a significant period of custody and seeing for herself the harm that that custody has occasioned to her children.

25 The offender will also do her time in custody harder for another reason. She speaks little English. She will thus be to a large extent culturally deprived whilst in custody and have a limited range of people with whom she can communicate.

26 This is an unhappy sentencing exercise. The offence was serious. The offender must be punished. She must be personally deterred from doing anything like this in the future, and there needs to be a substantial component of general deterrence in the sentence I impose. Others who may be tempted to bring drugs into Australia, whether it is for their own use or for their own profit or as a favour for someone, need to be made aware that they will go into gaol for a long time when they are detected. On the other hand the three children have done nothing wrong. They are suffering and will continue to suffer from their mother’s incarceration. It is with a sense of mercy, not towards the offender but towards the children that I have decided to impose a sentence which no doubt will be considered lenient and indeed it is lenient in the light of the objective gravity of the offender’s conduct.

27 Mr Steel asks that I impose a sentence of periodic detention. Even giving full weight to the unfortunate position of the offender’s children, I am satisfied that that is not an appropriate way of dealing with this matter. In any case the length of the sentence I will shortly announce exceeds three years, periodic detention is thus not available.

28 Mr Steel also asks that I vary the usual ratio of non-parole period to head sentencing Federal matters in the offender’s favour. I will do that. It seems to me a permissible way of approaching this matter to further mitigate the hardship to the offender’s children, while at the same time imposing a sentence which has a head sentence of some substance.

29 The sentence of imprisonment will commence on 16 May 2006. I impose a head sentence of four years and set a non-parole period of two years. The non-parole period will expire on 15 May 2008.

30 Now Miss Nguyen I will explain to you the effect of the sentence I have imposed upon you. You will be kept in custody for at least two years until 16 May 2008. On that day you will be eligible to be released to parole. If you are released to parole on that day or any day in the future you will still be serving your sentence in the community and you can be returned to custody if you do not comply with the conditions of parole. You will then continuing serving your sentence until it expires on 15 May 2010.

**********