R v Nguyen, Tran & Nguyen No. DCCRM-00-820

[2001] SADC 33

R v HUYEN THI THU HUYEN, TUNG QUANG TRAN & DUNG HOANH HUYEN
[2001] SADC 33

Judge Lunn
Criminal

REASONS FOR SENTENCE

1. Huyen Thi Thu Nguyen (“Huyen”) and Dung Hoanh Nguyen (“Dung”) are sister and brother. At the relevant times Tung Quang Tran (“Tung”) was the defacto husband of Huyen. On 26 February 2001 Huyen pleaded guilty to three counts of taking part in the sale of heroin, contrary to s32(1)(d) of the Controlled Substances Act 1984, Tung to two counts of that offence and Dung to one count of that offence.

2. In early 2000 the police had reason to suspect that Huyen was involved in the sale or supply of heroin. An undercover operation was set up under the Criminal Law (Undercover Operations) Act 1995 in relation to her suspected activities.

3. On 28 April 2000 an undercover police officer posing as a drug addict rang Huyen on her mobile phone and arranged to purchase heroin from her.  Shortly afterwards the undercover police officer went to a supermarket car park.  A car pulled up alongside his car which was driven by Tung and in which Huyen was a passenger.  Huyen got out of her car and into the car of the undercover police officer.  She handed him two balls which contained 0.97 gms of powder of which 0.47 gms was heroin and he handed her $380 in cash.  Huyen then got back into the car in which she had come and it drove off.

4. On 4 May 2000 the undercover police officer again rang Huyen on her mobile phone and made an arrangement to buy a greater quantity of heroin.  Shortly afterwards the undercover police officer went to the same supermarket car park.  Huyen did not attend there but Tung did.  He spoke to the undercover police officer and handed him two balls containing 1.9 gms of powder of which 1.05 gms was heroin in exchange for $700 in cash.  After Tung had left the car park the police officer rang Huyen who confirmed that Tung was her boyfriend and her driver and they discussed a bigger purchase in the following week.

5. On 12 May 2000 the undercover police officer again rang Huyen and arranged to buy more heroin from her, but a different meeting place was arranged.  Shortly afterwards the undercover police officer again rang Huyen concerning the location of the meeting place and she said that her brother would see him there.  The undercover police officer drove to the meeting place where Dung waved him down and got into his car.  Huyen was not there.  Dung then handed the police officer a small ball containing 3.96 gms of powder of which 2.17 gms was heroin in exchange for $1,400 in cash.  Each of Huyen, Tung and Dung were arrested by police later on 12 May, but each on legal advice declined to answer questions about the heroin transactions.

6. Huyen is 26 years of age. She was born in Saigon and came to Australia as a refugee when she was 14 years of age. She is quite intelligent, learnt to speak good English and completed year 11 at high school. Since leaving school at age 19 she has been regularly employed. When she was 22 she had a son who is now 5 years of age. However, she later separated from her husband because he had a heroin addiction. She has continued to look after her son, although with support from her husband’s parents. Her parents also have separated and her mother has remarried. In 1999 her younger brother died of a heroin overdose and she assumed the responsibility for the cost of his funeral which was $9,000. Her older sister also developed a heroin addiction. Huyen assisted her to enter a detoxification programme in Victoria which appears to have been successful. However, in the stresses of her family problems she became depressed, began to use heroin herself and became addicted to it. She became a street dealer in heroin on the basis that her supplier gave her heroin for her own use but all of the money obtained went to the supplier. She declines to identify, or assist in the prosecution of, the supplier. She has been in a defacto relationship with Tung and she is now 6 months pregnant by him. Since her arrest she says that she has ceased to use heroin and says she will not use it again. She is very ashamed of her offences. She does not want her mother’s new husband to find out about them and her father has refused to let her live with him since her arrest. She has a minor criminal record of no real significance. As a result of these offences the police have seized her car which will be forfeited under the Crimes Confiscation of Profits Act. She accepts that she is responsible for Tung and Dung being involved in these offences.

7. Tung is 26 years of age and was also born in Vietnam.  He came to South Australia in 1980 as a refugee.  He attended school in Australia until he was aged 16 and has since done casual farming work.  He does not speak good English.  His only criminal record is for two drink driving offences and traffic offences.  He is not, and has not been, a user of heroin.  At the time of the two offences in which he was involved he was in a defacto relationship with Huyen and acted at her request and to assist her.  He received no benefit for his involvement in the heroin dealing.  He is deeply remorseful for what has occurred and is very conscious that he has thereby brought shame upon his family.

8. Dung is 29 years of age and came to Australia as a refugee at the age of 18.  His English is very rudimentary and he has had little education.  He has a substantial criminal record, but all of the offences attracted only fines or bonds except for 12 months imprisonment for burglary in 1996.  Initially he disputed his Antecedent Report, but his counsel has since conceded that it is correct.  He has an 8 year old daughter in Western Australia for whom he provides some financial assistance.  He is currently in a defacto relationship.  His partner has a 3 year old child by a previous relationship but he supports that child.  His partner is now pregnant by him.  He is also remorseful for what has occurred and is conscious of the deep shame which he has brought upon his family.  At the time of the offence in which he was involved he was a user of heroin and expected to get a free taste of heroin for himself from his involvement in it.  He says that since his arrest he has ceased to use heroin.

9. Upon their initial arraignments in this Court all three accused pleaded not guilty.  However, after some directions hearings, and before any trial date was set, each indicated their willingness to plead guilty.  A significant discount is to be given to each for their plea, but there was a strong prosecution case against each of them.

10. By virtue of the amount of heroin involved the maximum penalty on counts 1 and 2 is 25 years imprisonment and/or a fine of $200,000 and on count 3 it is life imprisonment and/or a fine of $500,000.

11. As was made clear by the Court of Criminal Appeal in R v Mangelsdorf (1995) 66 SASR 60 the public interest requires that individual and general deterrence must be given great weight in sentencing for heroin offences and that exceptional circumstances are required to provide sufficient good reason to suspend the substantial prison sentence which must be imposed. This approach was confirmed recently by Court of Criminal Appeal in R v Tran, 19/12/2000, Jud No [2000] SASC 431, unreported where it was held that strong personal factors based on rehabilitation could not be allowed in the circumstances of that case to override the deterrent role of the sentence and to provide sufficient good reason for a suspension of it, although it could be recognised in other ways. In R v C (1998) 72 SASR 391 the Court of Criminal Appeal said that the tariff for retail heroin dealing was in the order of 6 years imprisonment, and more for persons higher up the distribution chain. In R v Pham , CCA 22/7/99, Jud No [1999] SASC 308 unreported the Court of Criminal Appeal used a lesser starting point of 4 years imprisonment for an isolated, spontaneous transaction to assist a friend.

12. The prosecutor submitted that immediate custodial sentences should be imposed here for each offender.  While there are mitigating factors in relation to each offender I consider that the combination of such factors for each offender is not sufficiently great to provide sufficient good reason to suspend the sentence of imprisonment when weighed against the need to send a strong message of general deterrence to the community against being involved in heroin distribution.  Each of these persons was well aware that they were involved in the selling of heroin and of the horrific consequences which heroin can have for addicts.

13. Huyen was involved in the systematic retail selling of heroin. While she is not to be punished for any offences other than those charged, it is clear that these offences were committed by her against a background of carrying on a retail business in heroin sales over a significant period of time. Because of her proficiency in English and her intelligence she played an important role in each of the three sales which are the subject of the charges, and including the two where she did not physically attend at the time of the actual sale. In her favour is her previous good record and unfortunate personal circumstances. She has responsibilities to her 5 year old son although it was not submitted that the son could not be properly cared for during any period in which she is imprisoned. Nevertheless, I accept for the purposes of s10(1)(n) of the Sentencing Act that her son will be worse off while his mother is in gaol than when she is not. Huyen has become pregnant between her arrest on these offences and her being sentenced. This situation is commonly encountered in this Court. While it was not a breach of her bail conditions, there is a likelihood that she sought to become pregnant in the hope that her responsibilities to a young child would reduce the period for which she would be imprisoned. While I cannot ignore it this circumstance, it is not one to which I am prepared to have any significant regard as females who are on bail should not be encouraged to believe that their sentences will be lessened through pregnancies occurring while they are on bail.

14. In fixing a single sentence under s18a of the Sentencing Act for Huyen on the 3 counts I consider that the appropriate starting point is imprisonment for 6 years after taking into account the personal factors in her favour. After giving the appropriate discount for her pleas of guilty this will be a sentence of 5 years imprisonment. Because of her responsibilities to her son, and to a lesser extent to her yet to be born child, and the other factors in her favour, I fix the non parole period at 2½ years.

15. In relation to Tung I accept that his involvement in the two offences arose out of his affection for, and loyalty to, Huyen. However, it was not an isolated instance of offending in that he was involved in two sales. There is no evidence before me to conclude that he had any wider involvement in the retail heroin business carried on by Huyen. In his case the starting point is a sentence of 4 years imprisonment which reflects his more minor role and his previous good record. After the appropriate discount for his pleas of guilty that will be a single sentence under s18a of the Sentencing Act on both counts of imprisonment for 3 years and 3 months. A non parole period is fixed at 22 months.

16. In relation to Dung he was only involved in one transaction, although one involving a significantly greater amount of heroin than the other two transactions.  There is no evidence that he was otherwise involved in his sister’s retail heroin business.  His involvement was at least partly to obtain a benefit in heroin for himself.  His prior criminal record is significantly worse than that of the other two.  The starting point in sentencing him is a sentence of 4 years imprisonment.  After the discount for his plea of guilty it will be a sentence of imprisonment for 3 years and 3 months.  A non parole period is fixed of 22 months.

17. Each of the sentences and the non parole periods are to run from today.

18. I order forfeiture of the heroin sold to the police undercover officer and of the $1,400 in cash recovered after the offenders’ arrests.

19. My reasons for publishing written reasons for sentence rather than delivering oral sentencing remarks are set out in my reasons in R v Huggett, 17/01/2001, [2001] SADC 3.