R v Thai
[2005] VSCA 283
•29 November 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No. 192 of 2005 |
| v. | |
| THI LOANG THAI | |
| THE QUEEN | No. 84 of 2005 |
| v. | |
| PHENNY THAI |
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JUDGES: | CHARLES, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 November 2005 | |
DATE OF JUDGMENT: | 29 November 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 283 | |
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CRIMINAL LAW - SENTENCE - Importation of heroin - Hardship on family members - Both parents imprisoned - Young children suffering psychological stress - Whether exceptional circumstances - Impact on children taken into account in exercise of mercy upon re-sentencing - Customs Act 1901 (C'th) s.233B(i)(b) - Criminal Code (C'th) s.11.1(1) - Crimes Act 1914 (C'th) s.16A(2)(p).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.J. Croucher | Solicitor to Commonwealth DPP |
| For the Applicant Thi Loang Thai | Mr D.A. Glynn | Slades & Parsons |
| For the Applicant Phenny Thai | Mr O.P. Holdenson, Q.C. | Lewenberg & Lewenberg |
CHARLES, J.A.:
I will invite Eames, J.A. to give the first judgment.
EAMES, J.A.:
The applicant Phenny Thai pleaded guilty in the County Court to one count of importing a traffickable quantity of a prohibited import, namely heroin, contrary to s.233B(i)(b) of the Customs Act 1901 (Cth). On 18 March 2005 he was sentenced to five years and six months’ imprisonment and he was ordered to serve a period of four years before being eligible for parole.
Thi Loang Thai was found guilty by verdict of the jury on one count of attempting to possess a traffickable quantity of a prohibited import, namely heroin, contrary to ss.11.1(1) of the Criminal Code (Cth). On 10 June 2005 she was sentenced to three years and one day imprisonment and was ordered to serve one year of imprisonment before being eligible for parole.
The maximum penalty for both attempting to import a traffickable quantity of heroin and importing a traffickable quantity is 25 years’ imprisonment and/or a fine of $550,000.
The applicant Phenny Thai applied for leave to appeal against sentence on five grounds but it has become unnecessary to deal with those grounds save for grounds 2 and 3, which read as follows:
“Ground 2: the learned sentencing judge erred in the exercise of his discretion in that he imposed sentence on the basis that ‘should the opportunity arise … (the applicant) would in all probability reoffend in like manner’. (See reasons for sentence paragraph [30].)
Ground 3: the learned sentencing judge erred in the exercise of his discretion in that he imposed sentence on the basis that the applicant was more likely than not to reoffend in the same manner as that for which the applicant fell to be sentenced.” (See reasons for sentence at paragraph [31].)
The respondent, through counsel, conceded that the complaints made under those grounds ought be upheld. The Court agreed that that concession was appropriate, and there being error which vitiates the sentence in the case of Phenny Thai, it was agreed that he should be re-sentenced. It is accordingly unnecessary to deal with the other grounds of appeal with respect to that applicant.
Thi Loang Thai made application for leave to appeal on nine grounds, of which two only need to be dealt with, having regard to a concession made by the respondent, through counsel. Grounds 5 and 6 read as follows:
“Ground 5: the learned sentencing judge erred by finding that the applicant’s prospects of rehabilitation were diminished by the fact that she expressed the intention to resume married life with her husband.
Ground 6: the learned sentencing judge erred by taking into account the fact that he considered the applicant to have been untruthful in the evidence she gave on her trial.”
The respondent conceded that the complaint made under ground 5 was justified, and that the sentence having been vitiated by error this applicant ought also be re-sentenced. The Court agreed that that concession was appropriately made with respect to ground 5. It is not necessary that we therefore consider the complaint under ground 6, but since it was the subject of argument I will briefly discuss it.
As to ground 6, Mr Croucher, counsel for the respondent, submitted that the relevant remarks made by the sentencing judge should not be regarded as an indication that his Honour treated as an aggravating sentencing factor the fact that the applicant gave sworn evidence which was disbelieved by the jury. Counsel acknowledged that were that the case then that ground would also be made out, but submitted that we ought conclude that his Honour did not fall into that error but was merely endeavouring to make an overall assessment of the applicant’s character. Mr Croucher pointed to a passage in his Honour’s sentencing remarks in which he said:
“ . . . it may well be that you gave your evidence in the manner that you did in an effort to see if you could stay out of prison, and thereby look after your two young children. I have no doubt that you are a good and responsible mother towards your two children.”
In my opinion, rather than demonstrating that his Honour was not making impermissible use of the fact that the applicant falsely denied guilt and gave sworn evidence, that passage supports the opposite conclusion, although it suggests that his Honour placed less weight on that aggravating factor because of the motive he attributed to the applicant for giving a false account to the jury. Thus, in my view ground 6 was also made out.
For the purpose of re-sentencing I briefly summarise the relevant circumstances of the offences.
Between 14 August 2003 and 22 August 2003 Phenny Thai posted a package to an address in Keysborough where his wife, Thi Loang Thai, resided, but the addressee on the package was "Ng Hin". The package contained two photo albums, and secreted into the front and rear covers of each was heroin. From 14 August 2003 Australian Crime Commission investigators monitored telephone conversations between the two applicants during which, as the jury found, it was clear that Thi Loang Thai was a party to the proposed importation of heroin. The package was intercepted by Australian Crime Commission investigators who substituted an inert substance for the heroin. On 22 August 2003 an investigator posing as a courier with Australian Air Express delivered the package to the Keysborough address, where it was accepted and signed for by Thi Loang Thai, who signed for it under the name of Ng Hin. Ng Hin was a male student who knew nothing about the package.
On the same day, 22 August 2003, investigators executed a search warrant at the home of Thi Loang Thai and there found the two photo albums, still with the substituted powder within them. Also found on the premises was 9,395 Australian dollars, 2,508 US dollars, 21,560 baht, and, in addition, in a black carry bag was a further 18,000 Australian dollars and 400 US dollars. Five mobile telephones were located.
On that day Thi Loang Thai was charged with attempting to possess heroin, it not being a completed offence solely because the inert substance had been substituted for the heroin.
On 2 May 2004, more than eight months after his wife’s arrest, Phenny Thai returned to Australia from Cambodia. He returned in order to give evidence in committal proceedings with respect to a serious stabbing injury that he had suffered in Australia. Having completed his evidence on 12 May 2004 he was promptly arrested for the present offence, an unexpected event since he had been unaware that his phone calls to his wife concerning the heroin shipment had been intercepted. In an interview he denied all knowledge of the importation of heroin into Australia.
The total net weight of the heroin was 316.7 grams. The heroin was between 68.7 per cent and 70.7 per cent pure, thus the total quantity of pure heroin was 221.7 grams. The traffickable quantity of heroin under Commonwealth law is 15 grams. The heroin would have been sold in its mixed form of 316.7 grams which, given its purity, would be regarded as high grade heroin. If the 316.7 grams had been sold in ounce amounts (that is, 28 gram amounts) it would realize a value of $158,340. Given the high purity of the heroin it could be turned into 633.4 grams before being sold and if then sold in quarter ounce amounts (that is seven grams) it would realize a value of $190,020. If the heroin was sold in one gram amounts it would realize a value of $253,360.
Although the heroin could have been sold on the streets for such returns, the telephone intercepts prior to the offence disclosed that the applicants were anxious to sell the heroin quickly once it got to Australia, because they needed money urgently so that Thi Loang Thai could travel to Cambodia, as she was intending to do on the day of her arrest. In the telephone calls they discussed selling the heroin for $85,000 from which the profit would be $30,000.
Both applicants, and in particular Phenny Thai, had travelled overseas from Australia on many occasions since 13 January 2000. They were both Australian citizens having emigrated from Cambodia as refugees.
Phenny Thai had left Melbourne for Cambodia on 12 April 2003, that is, some four months before the offence. He did not return to Australia until 2 May 2004. Between 14 August and 22 August 2003 he had phoned his wife using six different mobile telephone numbers, thereby suggesting a degree of organisation and cunning on his part. I would adopt and agree with the findings of the judge that Phenny Thai was the principal, and the organiser of the drug importation, and that his motive was purely commercial, a factor of general importance on sentencing[1].
[1]See R. v. Perrier No. 2 (1992) 59 A.Crim.R. 164 at 167, 168.
On the plea before the judge it was submitted that the urgent need for funds related to the business activities of the applicant Phenny Thai in both Cambodia and Vietnam. His business activities involved trading cars between Thailand and Cambodia and also real estate development in Cambodia.
The applicant had strong connections with powerful people in Cambodia which facilitated his business enterprises, but it also appears that the serious stabbing injury that he suffered in Melbourne in April 2002 arose out of his Cambodian business connections. He owns property in Cambodia and his counsel told the sentencing judge that he was actively involved in the Cambodian community and had been planning to relocate there in the future. At one time he had gained a rank of major in the Cambodian army, having paid for that appointment in order to protect himself, given the lawlessness of the country. He was well known as a singer of traditional Cambodian songs. He had also been involved in fund raising events after a serious flood in Cambodia and thus, so it was said, had demonstrated public spiritedness and a potential for good works. It was submitted on his behalf that his prospects of rehabilitation were high and his prospects of re-offending low.
Both Phenny Thai’s family and that of his wife Thi Loang Thai were victims of the Pol Pot regime between 1975 and 1979. The applicant’s father was a chemist, and therefore regarded as a professional person, thereby being at risk from the Pol Pot regime, which caused him to flee to Vietnam. The applicant’s father then returned to locate his wife but was murdered in the presence of the applicant, Phenny Thai, who was then a very young child. His Honour found that that would have had a devastating effect on the applicant.
Phenny Thai was educated to mid-secondary school level. He arrived in Sydney in 1994 as a sponsored refugee, where he met Thi Loang Thai and they went through a Chinese marriage ceremony. Their two children were born in September 2000 and June 2002. He became an Australian citizen in 1996 and lived and worked in both Sydney and Melbourne but spent increasing periods of time in Cambodia, a not unusual circumstance in Cambodian culture, where the husband might reside away from his wife in order to earn more money to support the family. Thi Loang Thai is a first cousin of Phenny Thai, a matter which caused resentment and disapproval from the family of Thi Loang Thai. concerning their relationship.
Mr Holdenson relied on the submissions made to the judge but also emphasised the fact that the applicant had pleaded guilty at an early stage once the proceedings got to the County Court. He had no prior convictions and was relatively youthful, being aged 29 years at the time of the offence. He submitted that his prospects of rehabilitation were good and that emphasis did not need to be placed on specific deterrence.
Mr Holdenson submitted that one significant impact of Phenny Thai’s offending has been the separation of the applicant from his children and the effect upon him while undergoing sentence of the realisation that his conduct has placed the children’s wellbeing in jeopardy. As against that, it must be observed that there had been significant separation from his children prior to this offence, in any event, and that the deliberate involvement of his wife in his offending meant, as he well knew, that the children were at risk of losing both parents to prison if the parents were caught offending. Insofar as there is hardship which he suffers in consequence of taking that risk, then it has very limited mitigating value. Although Mr Holdenson referred to the welfare of the children as a factor to be taken into account in sentencing under s.16A (2)(p) of the Commonwealth Crimes Act, I understood him not to contend that exceptional circumstances thereby arose as it affected his client’s sentence. It was however, a factor heavily relied upon by Thi Loang Thai.
Mr Holdenson contended that specific deterrence was not called for in sentencing his client, as he was unlikely to re-offend. He acknowledged, however, that general deterrence was a primary consideration.
Counsel submitted that the sentence imposed in the court below was outside the range of sentences appropriate to the case when regard was had to the lack of prior convictions and the plea of guilty. Furthermore, upon his return to Australia Phenny Thai co-operated with authorities in the prosecution concerning his own stabbing. The prosecutor conceded before his Honour, and his Honour accepted, that there ought be some discount given the level of co-operation in respect of the assault matter, which the prosecutor said would not have proceeded had the applicant not returned to Australia. I note in passing that there were no long-term consequences of the stabbing, save for scarring.
Finally, Mr Holdenson submitted that the sentence imposed below had been inappropriately inflated by virtue of the judge’s erroneous finding that the applicant was likely to re-offend.
In my opinion, in the case of Phenny Thai the factors of both general and specific deterrence are of particular importance. This was a calculated offence conducted for no reason other than commercial gain by an entrepreneur seeking to shore up his other business activities by the injection of profit from the importing of heroin to Australia. Although it is said that the offence is not sophisticated, it did not require to be, but it was certainly calculated. In my view there was very little by way of mitigation that could be found in the conduct or antecedents of the applicant and both general and specific deterrence must loom large in the sentence imposed.
In my opinion the sentence imposed below was not outside the range, but nonetheless, in exercising my own discretion the weight that I would give to the relevant mitigating factors discussed above would lead me to impose a sentence which is slightly less than that ordered by the judge. In my opinion, Phenny Thai should be re-sentenced to five years’ imprisonment. I would order that he serve three years and six months’ imprisonment before being eligible for parole.
In the case of Thi Loang Thai general deterrence is a relevant sentencing consideration notwithstanding that she has good prospects of rehabilitation. Specific deterrence is of less importance, but is not, in my view, eliminated.
Thi Loang Thai was born in Cambodia and came to Australia at the age of three, in 1981. Her mother worked piecework in Sydney and her father did labouring work and as a result of their hard work they purchased a house and business in 1994, but their business premises in Maroubra burnt down in 1998. They moved to Melbourne in 2003. The applicant was an excellent student, achieving consistent A grades throughout primary school and being vice captain of her school. Although she would have liked to pursue tertiary studies her obligations to the family’s business required her to leave secondary school and commence work in the bakery. Relations with her father were strained for many years due to her relationship with her cousin, the co-accused Phenny Thai.
Whilst in custody Thi Loang Thai has undertaken education courses including a course on drug and alcohol issues. She has no prior convictions and no history of drug use.
Mr Glynn placed emphasis on favourable findings made by the judge, informed as they were by him having listened to the tapes of the telephone intercepts. His Honour found that Thi Loang Thai was very much under her husband’s domination and was almost at her wits end by reason of his clandestine activities. He found that it was an aspect of Cambodian culture, to which the applicant adhered, that the husband was the dominant figure in the relationship. He found that the wife’s role was akin to a courier, a mere intermediary, and that it was her husband’s enterprise, not hers, one from which she was to gain no direct profit.
The principal factor put forward in mitigation of sentence for Thi Loang Thai relates to the impact upon her children of the imprisonment of herself and her husband. At common law the impact of the sentence upon family members, in particular children, could be regarded as a mitigating factor only in exceptional circumstances,[2] and although s.16A(2)(p) of the Crimes Act 1914 (Cth.) requires the court in sentencing to take into account the probable effect that a sentence would have on the family or dependants of the offender, that provision has been held, nonetheless, to also require that exceptional circumstances be shown.[3] Mr Glynn submitted that this was such a case, by virtue of the fact that two very young children had lost both parents to prison, and had suffered demonstrable and pronounced hardship. In addition, hardship in having to raise the children had been imposed on the applicant’s sister.
[2]See R. v. Pearce unreported Court of Appeal 19 September 1996 (Callaway, J.A., Southwell and Coldrey, A.JJ.A.).
[3]See R. v. Carmody (1998) 100 A.Crim.R. 41 at 45 per Tadgell, J.A.
The applicant’s sister, Thyly Thai, swore an affidavit in which she deposed that since the applicant Thi Loang Thai was remanded in custody in March 2005 she had cared for the two children, one aged five and the other now aged three years. Thyly Thai said that when she had taken the care and control of the children she had herself only just given birth to a baby, who was then five weeks old. In caring for the children she had noticed that they were showing behavioural difficulties as a result of the absence of their mother, the eldest boy not eating appropriately and bed wetting, and the youngest also having difficulty eating appropriately, and still, at the age of three, wearing a nappy when sleeping. She deposed to the children missing their mother and their anxiety in that regard. The younger child is constantly sick with bronchitis, colds and flu and also breathing problems, which causes health problems for the two other children.
Thyly Thai deposed to the difficulty of caring for her own child by reason of the additional responsibility of the two other children. Her own child was having development problems, with weakness in his legs. She said that she had no-one else to help look after the children and she referred to the difficulties of getting to Tarrengower Prison where the applicant is detained. There have been three day-leave (home visits) for the applicant which have concluded with the children being distressed when the mother was departing yet again.
In the court below counsel for Thi Loang Thai relied on a report by Dr Danny Sullivan, consultant psychiatrist, dated 7 April 2005 and a report dated 4 May 2005, together with oral evidence of forensic psychologist Mr Patrick Newton.
Dr Sullivan concluded that the applicant, who was then 27 years of age, suffered an adjustment disorder with depressed mood. As to her symptoms, he said that they were moderate in severity and there was no need for psychiatric treatment. He recommended that she have greater access to her children.
Mr Newton reported that in his opinion the extended family, being the applicant, her sister and her children, and in particular the applicant’s children, were suffering significant anxiety as a result of the imprisonment of Thi Loang Thai. He reported that both children were showing signs of significant anxiety and distress and that from their long-term psychological point of view their well-being would be compromised by the separation. They required an ongoing connection to be maintained with their mother and a stable home environment. He reported that the applicant and her family were considering having the children placed with their extended family in Cambodia. That was a course which Mr Newton regarded as not advised. The separation from schooling in Australia and disruption of their lives would create later psychological disorder and behavioural problems, in his opinion. He considered that the applicant would benefit from the provision of appropriate counselling. He said that testing showed that the applicant was a person of above average intelligence but was notably immature and dependent in personality, adopting a submissive, passive and unassertive role in her relationships. He concluded that she was suffering significant depressive symptoms relating to incarceration and separation from her children and husband. Her depression was in excess of that which would normally be expected from a prisoner in her situation. He regarded it as sufficiently severe to warrant the diagnosis of “adjustment disorder with depressed mood”.
In my opinion, as significant as they are, these circumstances are not so out of the ordinary as to amount to exceptional circumstances. I acknowledge, however, that the Court nonetheless has an overriding right, by way of the exercise of mercy towards innocent children, to take account of such matters in appropriate cases.[4]
[4]See Carmody at 45, per Tadgell, J.A., per Callaway, J.A. at 47.
The sentence which was imposed of three years’ imprisonment was within range, in my opinion. The very long non-parole period which was fixed was a particularly generous sentencing order, one which no doubt could be attributed to the exercise of mercy by the judge by reference to the impact of the sentencing on the children. In this case the applicant did not enter a plea of guilty so she therefore does not benefit from the sentencing discount in that regard.
His Honour’s sentence was affected, however, by sentencing errors which were conceded to be such by counsel for the respondent. Those errors meant that the judge must have given less weight to the applicant’s prospects of rehabilitation than was appropriate, and although the sentence itself might well have been regarded as at the lower end of the range, and notwithstanding that we are exercising our own sentencing discretion rather than reviewing the judge’s, it is appropriate in my opinion that the head sentence be less than that which was imposed by his Honour. Likewise, in my opinion, some additional allowance by way of the exercise of mercy should be reflected in the non-parole period which is to be fixed in this Court.
The applicant Thi Loaug Thai has, as of today, served 271 days pre-sentence detention, that is nine months of the 12 months non-parole period that was fixed by his Honour. In making that calculation allowance has been made for a miscalculation by several days as to the pre-sentence detention made in the order of his Honour.
In my opinion, it would be appropriate to re-sentence the applicant to two years and six months' imprisonment, and in my opinion it would be appropriate to order that under s.20(1)(b) of the Crimes Act 1914 (Cth) she be released upon her recognisance after serving 271 days of that sentence. That means, in effect, if adopted, that she could be released so soon as she enters her recognisance.
CHARLES, J.A.:
I agree that each appeal should be allowed for the reasons given by Eames, J.A. and with the disposition he proposes.
BUCHANAN, J.A.:
I also agree.
CHARLES, J.A.:
In the case of Phenny Thai, the following orders are made:
The application for leave to appeal against sentence is granted.
The appeal is treated as instituted and heard instanter and is allowed.
The sentence imposed below is set aside and in lieu thereof the appellant is convicted and sentenced to 5 years' imprisonment.
The Court orders that the appellant serve 3½ years' imprisonment before becoming eligible for parole.
The Court declares that, as at this day, the period to be reckoned as already served under this sentence is 607 days and directs that the fact of the making of this declaration and its details be noted in the records of the Court.
By s.16F of the Crimes Act the Court is required by law to explain the effect of this sentence to the appellant Phenny Thai and, Mr Holdenson, we will require you,
since we are obliged to cause the sentence to be explained, to explain the effect of this sentence to your client.
MR HOLDENSON: I will cause that to be done.
CHARLES, J.A.:
In the case of Thi Loang Thai:
The application for leave to appeal against sentence is granted.
The appeal is treated as instituted and heard instanter and is allowed.
The sentence imposed below is set aside. In lieu thereof the appellant is convicted and sentenced to 2 years and 6 months' imprisonment.
The Court orders the release of the appellant under paragraph 20(1)(b) of the Crimes Act 1914 after serving 271 days of this term of imprisonment upon the appellant giving security by recognisance of $2,000 to comply with the condition that the appellant is to be of good behaviour for 21 months.
The Court declares that, as at this day, the period to be reckoned as already served under this sentence is 271 days and directs that the fact of the making of this declaration and its details be noted in the records of the Court.
The Court is required by law to explain the effect of this sentence to the appellant Thi Loang Thai and again, Mr Glynn, in the absence of your client we require you to explain the effect of the sentence to her.
MR GLYNN:I will do so.
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