R v Nhu Thi Hong HO, R v Thanh Nhu HO

[2007] NSWDC 27

CITATION:	R v Nhu Thi Hong HO, R v Thanh Nhu HO [2007] NSWDC 27
HEARING DATE(S):	22/02/2007
JUDGMENT DATE:	22 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [18]
CATCHWORDS:	Criminal Law - Sentence - Border controlled drug - Heroin - Marketable quantity - Birth in custody
PARTIES:	Crown Nhu Thi Hong Ho Thanh Nhu Ho
FILE NUMBER(S):	06/11/0966
SOLICITORS:	Commonwealth DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: I have for sentence before me to day two sisters, Nhu Thi Hong Ho and Thanh Nhu Ho, both of whom attempted to import into Australia a quantity of heroin in identical ways. They were on the same flight from Vietnam landing at Sydney Kingsford Smith International Airport. Both were wearing shoes which contained within them substantial quantities of heroin. Fortunately the drugs were discovered before they could be distributed. I say fortunately because the harm that such drugs cause is notorious, extending beyond the harm caused to users of the drugs, to all members of the community who are affected by crimes committed by those addicted to drugs such as heroin. The offenders both knew that they were bringing some form of drug into Australia. They decided to commit these offences knowing how serious their conduct was and knowing the harm that drugs cause in Australian society.

2 The quantity of drug found in the shoes worn by Nhu Thi Hong Ho was 556 grams of heroin. It had a purity of 64.4 percent to 77.7 percent giving a net weight of heroin as 393 grams. In Thanh Nhu Ho’s case the quantity of drug was 596.5 grams with a purity of between 38.6 percent and 43.3 percent giving a net weight of 236 grams. Ms Cook who appeared for both offenders relied on the difference in purity and the slight differences in concealment techniques to indicate that I should accept her clients’ position which was that they did not know what their co-offender and sister was doing until each of them was arrested in Sydney. Upon reflection it is not really a matter I need to determine although it would be a remarkable situation if the version of events that is pressed upon me by Ms Cook were to be the case.

3 In both cases the offenders say that they became involved in these offences because of a debt that they owed to a friend of theirs or I should more accurately say, an acquaintance. In one case the debt was $7,000 and in the other case it $7,900.

4 Nhu Thinh Hong Ho says that she went to Vietnam to visit her father and once there got a telephone call from the person to whom she owed the debt telling her that the money had to be paid upon her return to Australia. When she said she could not meet that she was then asked to bring in the shoes. When she asked what was hidden in the shoes she was told it was none of her business. She says that she was in a difficult situation because she was pregnant with her child and she had received some threats as to what would happen if she did not bring the shoes back and that these persuaded her that she should do what was asked of her.

5 Thanh Nhu Ho gave a slightly different version as to how she got involved. She said she had a gambling debt and when she was asked to repay it she was told that she should, in order to repay the debt, go to Vietnam and bring the shoes back. She did this knowing that there was something like drugs in them.

6 Although the evidence is that one of the offenders knew before leaving Australia that she was going to bring heroin back and the other only discovered when she was in Vietnam that she was going to be asked to bring heroin back I do not consider that is a significant factor affecting their criminality. Ms Cook has submitted and the Crown seems to accept that the offenders were mere couriers. There is evidence that they had no ability to obtain supplies of heroin on their own initiative in Vietnam or had a means of distributing it when they got back to Australia.

7 Both offenders declined an invitation to assist the authorities. I want to make it quite clear that they are not to be punished for that attitude. In some senses it might be inconsistent with their expressions of remorse at what they have done but they will not receive a longer sentence because they failed to identify the names of those who asked them to become drug importers.

8 Both offenders were born in Vietnam and came to Australia some time ago. They were both married and both now have two children. As I indicated Nhu Thinh Hong Ho was pregnant at the time she brought the drugs into Australia. She has now given birth to that child, he is now three months of age. She gave birth to him whilst in custody, was able to spend but twenty-four hours with him before she was returned to custody and Eric was taken away and placed in the care of his father. Both offenders have two children and in both cases the children are in the care of their fathers. Quite understandably both offenders are significantly distressed at being separated from their children.

9 Indeed in this afternoon’s hearing a great deal of emotion has been displayed. Diana Nguyen, Thanh Nhu Ho’s twelve year old daughter, gave evidence about her close relationship with her mother and the consequences upon her and her younger brother of being separated from her. Nhu Thinh Hong Ho’s husband gave evidence too about the effect on his children of being separated from their mother. Clearly both offenders will do their time in custody much harder because of the knowledge that through their wrong doing they have been separated from their children. They know their children will suffer, ultimately because they recognise that that is solely due to their misconduct.

10 I mentioned that there was a great deal of emotion displayed this afternoon. One has to be careful not to be overwhelmed by it because one thing is undeniable, both offenders knew of the consequences which would befall them if they were detected as being drug importers. They must have known when they agreed to import drugs into Australia that separation from their children was a necessary consequence if they were detected. They nevertheless went ahead and took the risk that they would get away with it. Fortunately for the community they were not successful. The offenders pleaded guilty at an early stage. That indicates a willingness to facilitate the course of justice which will be reflected in a lower sentence than would otherwise be the case.

11 Both offenders were of prior good character. Neither of them has any criminal history either in Vietnam or Australia. There are cases which say that less weight should be given to good character where drug couriers are involved because drug couriers are often chosen precisely because they have no prior convictions and are thus more likely to be successful in their endeavours. I interpret those decisions as meaning that one has to be careful when considering the sentences imposed on drug couriers because most of those will be sentences imposed on those with prior good character. I do not interpret those decision as suggesting that little weight should be given to a person’s absence of criminal history.

12 Both offenders expressed remorse for what they had done. They both said that they were pleased that the drugs did not get distributed in the community, although it is not surprising that their remorse was almost overwhelmingly concerned with the consequences for their children and themselves at the enforced separation which must continue for some time.

13 Both offenders said that they agreed to do what was asked of them because they owed debts. The monies involved were comparatively small although evidence concerning the attitude of those to whom the money was owed suggested that the offenders believed that a refusal to assist them in their importing endeavours would not be looked upon kindly. There were thus pressures on the offenders which may have reduced in probably a small way their ability to resist the requests that were made of them. Often people will get into financial difficulty to people who will ask them to do things to pay off the debt. Often that will involve criminal behaviour. Sentences need to thus contain a considerable deterrent aspect to reinforce the idea that people should not simply succumb to the easy way out when they get into debt because if they do so they will end up with a substantial and sometimes even harsh sentence being imposed upon them.

14 Neither offender has any problems with drugs. This is not a case of an offender who needed to support his or her own habit. It is a case where what was sought was the forgiveness of a debt. In a sense therefore these were offences committed by both offenders which were done for money.

15 Ms Cook properly and quite fairly submitted that she could not say that the hardship to either offender’s family was exceptional. This means according to the Court of Criminal Appeal that there cannot be a substantial reduction in sentence because of such hardship. However I am able to take it into account as part of the general subjective facts. I think that that means that I can make an adjustment in the offenders’ favour but not a substantial one.

16 I might be forgiven for digressing to say that this is a change in the law, but one which the Court of Criminal Appeal does not appear to have recognised as a change. Nevertheless as the Court of Criminal Appeal decisions currently stand the offender is entitled to a reduction, just not a substantial one because of the hardship to their family members. One of the ways which I will give effect to that is by varying the usual ratio of non-parole period to head sentence in federal matters from the sixty to the sixty-six percent range. The sentence I will impose in each case has a non-parole period which is half that of that of the head sentence. It seems to me that is a permissible way of approaching the idea of giving some leniency to an offender because of hardship while at the same time imposing a sentence which has a substantial head sentence. Ms Cook did not suggest that I should differentiate between either of her clients on sentence, accepting that overall when considering the objective and subjective circumstances of each offender, identical sentences were required.

17 Both offenders have difficulties with English. That is another matter which will make their time in custody harder. They will have difficulty communicating with the prison authorities and with other prisoners. Mitigating that fact of course is the fact that they do have the support of each other. There are not too many offenders who have their sisters or a close relative with them in custody but nevertheless because of the language difficulties I accept that their time in custody will be harder and so will impose a lower sentence to reflect that circumstance.

18 One matter that I must refer to concerns the prospects of rehabilitation of the offenders. I am satisfied that they are unlikely to commit further offences. Their time in custody will be a salutary lesson for them. They have, as I have mentioned before, no prior offences and I am satisfied that their prospects of rehabilitation are thus good. Both offenders were arrested on 29 September 2006 and so I will impose sentences to commence on that day. In each case I impose a head sentence of six years with a non-parole period of three years. The sentence will commence as I have said on 29 September 2006 and the non-parole period to expire on 28 September 2009.

19 I need to explain to you both the sentence that I have just imposed. You will both be kept in custody until at least 28 September 2009. On that day you will be released to parole. When 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 your parole. You will then continue to serve your sentence until it expires on 28 September 2012.

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