R v Truong the Pham

[2007] NSWDC 210

CITATION:	R v Truong The Pham [2007] NSWDC 210
HEARING DATE(S):	23 August 2007
JUDGMENT DATE:	21 September 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted.; Sentence 5 years comprised of N.P.P. of 3 years to date from 26/2/07.; Overall sentence expire 25/2/12
CATCHWORDS:	Criminal Law - Sentencing - Commonwealth - importing border controlled substance - carried internally - 110 grams heroin - wholesale value $50K - recruited because of gambling debt - low trafficable quantity - 43 year old Vietnamese refugee - claimed visit to sick relative.
LEGISLATION CITED:	Crimes Act 1914 Commonwealth Criminal Code
CASES CITED:	R v Cuthbert (1967) 2NSWR329 R v Rushby (1977) NSWLR 597 R v Hayes (1984) 1 NSWLR 740
PARTIES:	Regina Truong The Pham
FILE NUMBER(S):	07/11/0398
SOLICITORS:	Crown: Ms M Laguna Offender: Ms F Way

SENTENCE

1 Truong The Pham, a Vietnamese-born Australian National, is aged forty-three. He works in the marble granite industry as a subcontractor making kitchen benches. He claims to have only been making two hundred to three hundred dollars weekly.

2 He is married with two children. He told police at the time of his arrest about four years ago things started to go really slow and he only got bits and pieces [of work]. He said he rented a room for seventy dollars per week.

3 The picture he painted at the time he returned to Australia from Vietnam was the picture of a man struggling to make his way in the world. Yet somehow he had managed to be able to travel to Vietnam to support his eighty-six year old mother who he said had been hospitalised with pneumonia.

4 On his return he was intercepted at the Sydney Kingsford-Smith Airport, in circumstances to which I shall return, with one hundred and ten grams of pure heroin in his person. Clearly the picture he painted of himself to the police is not the reality.

5 Today he is to be held accountable for his criminal conduct in importing a marketable quantity of a border controlled substance, namely heroin.

6 As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court committed by this offender harming our community in the way it does. See Gladue v The Queen [1999] 1 SCR 688 at [80].

7 My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender, subjective matters.

8 The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly.

9 This is an offence against the laws of the Commonwealth. S 16A of the Crimes Act 1914 requires a sentencing court to take into account a number of specific matters. These s 16A matters have the advantage of providing a useful checklist of matters relevant to sentencing. When a term of imprisonment greater than three years is to be imposed, as indeed one must in this case, the length of a non-parole period must be determined.

10 What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus, the protection of the community will also need to be determined. See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

11 On Monday 26 February 2007 Mr Truong The Pham arrived at the Sydney Kingsford-Smith Airport. He was travelling on an Australian passport. He was returning from Ho Chi Minh City, Vietnam.

12 After clearing the relevant immigration procedures he entered the Customs Hall. He was selected by Australian Customs Service officers for baggage examination. It would seem that they had some information. They suspected he was concealing internally narcotics. He was detained. He agreed to undergo internal examination.

13 For that purpose he was conveyed to the St George Hospital at Kogarah while there a CAT Scan was performed. That CAT scan confirmed what the officers had suspected. Present within his anal passage were four condoms containing one hundred and sixty-eight point five grams of admixture. When harvested that admixture was found to contain sixty-five percent pure heroin. It was worked out mathematically that that was a hundred and ten grams of heroin. He was then arrested and charged with the offence before the Court.

14 That quantity of drugs, a hundred and ten grams, expert have equated as amounting to eighteen hundred and thirty-three, or perhaps even as many as two thousand seven hundred and fifty street deals of heroin.

15 On the street the heroin would be valued, assuming it sold it lots of fifty or seventy dollars, as having an overall value of somewhere between ninety-two thousand and a hundred and ninety-one thousand dollars. Its wholesale value was said to be about fifty thousand dollars.

16 In his initial conversations with the Australian Customs Service Pham was less than frank. However by June he agreed to take part in a taped record of interview. He was co-operative in the estimate of police but unable to provide further information that could advance the investigation of the group that were funding him to import heroin.

17 Two months later in August he agreed to participate in a photo board identification process with a view to identifying a gambler by the name of Khan who he says had arranged for and purchased his tickets. He was unable to identify the person who had asked him to import heroin into Australia.

18 When interviewed on his arrival by the Customs Service he was asked how long he had been in Vietnam. He gave as his arrival date in Vietnam 29 December. It is to be remembered he was picked up on 26 February, so he had been there for almost three [as said] months. He told the service he was visiting his mother who was in hospital with ribs and a punctured lung. He claims she needed surgery. He had stayed beyond his return ticket, he said, but chose to do so because he said he had lost the money that he paid for the flight home and that his sister had paid it. The reality, as I say, turns out to be different.

19 In evidence before me he claimed he had a gambling problem, that he was indebted to the tune of twenty thousand dollars to a Vietnamese man named Khan, that he also owed members of his own family or extended family twelve thousand.

20 He was persuaded by Khan to satisfy the debt by bringing “something” in from

Vietnam. The accused agreed. Khan paid his air fare to and from Vietnam, if not directly then certainly through his associates. He was met in Vietnam by criminal associates of Khan who monitored him while he remained in Vietnam.

21 I am satisfied his mother was ill and that he remained longer than expected by Khan. I am satisfied he knew before his departure that he would be bringing contraband unlawfully into Australia. There can be no doubt he also well knew before his departure from Vietnam that he would be bringing drugs into the country by concealing them within his person. He agreed to make arrangements for the drugs to be concealed with the view of deceiving Customs Officials at the border, or at the point of entry.

Objective Criminality

22 I turn to the objective criminality. From the facts as he finds them to be the sentence judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offence with criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of this offence is evaluated. The objective criminality obviously has an important impact upon the overall sentence imposed.

23 The offence of importing heroin is an offence early in the drug trafficking phenomena. Heroin is not grown in this country, or manufactured in this country. Of necessity it must be imported. Those who import it illegally must necessarily be seeking to advance the criminal activities of either themselves or of some other person or persons. The importation is inevitably designed for on-supply of heroin to other people.

24 It is not difficult to understand why drug supplying is a criminal activity. The courts have long recognised that in assessing the objective seriousness of drug offences it is necessary to have regard to a drug’s potential for harm. Drug dealing is harmful to the community by its direct impact upon those who purchase drugs and its indirect impact upon the community at large.

25 Heroin is an addictive drug. It contributes to the disenabling of human beings. It creates, or sustains, drug addicts in varying degrees of addiction. Drug addicts are human beings whose capacity to function and to feel human is smothered to a greater or lesser extent by their addiction to a drug. Heroin is a drug of strong addiction. It is the disenabling of other human beings that is the real essence of the criminal harm done by those who supply drugs. Those who import drugs are one step away from those disenabling human beings who supply drugs.

26 Associated with drug addiction are other forms of crime such as armed robbery, breaking and enter and stealing. Putting to one side the emotional harm of such crime, the economic impact of such crime is also significant. It is a transference of wealth, or of property, from those with a legitimate right to that wealth or property to those with no right to it, for no corresponding economic benefit to the community.

27 Similarly the spending of money on drugs by addicts amounts to a monumental transference of wealth without any corresponding economic gain. As I just mentioned the economic wealth capable of being transferred in this case for no corresponding economic gain varied from fifty thousand on a wholesale value up to a potential a hundred and ninety-two thousand with nothing left for the community to see or benefit from as a result of that transference of wealth.

28 When assessing the potential for harm the Court should keep firmly in mind the quantity of heroin imported. In this case the quantity used to be called low trafficable quantity, I do not know whether it still has that name now that we have this different terminology for the charge - but at a hundred and ten grams it was considered in the lowish range, but nonetheless it could be on-supplied to one or more than one suppliers. Its potential for street harm could be measured at at least eighteen hundred street deals.

29 There is no suggestion in this case of any drug dependency by this offender as motivating his offence. Neither is there any direct nexus between his gambling problem and his criminal behaviour. True there is an indirect link, that is that he is succumbing to pressure to satisfy Khan’s demands on account of a gambling debt. Khan was, of course, in a position of some power over the accused because of the size of that debt.

30 It seems unlikely the offender would have committed this offence but for the pressure applied to him by Khan. That pressure needs to be recognised as confined to a desire to ameliorate a debt. It does not amount to duress created by threats or force, but simply a response to pressure.

Subjective matters

31 I turn to the subjective factors, I am both entitled and required to do that. Not only am I sentencing for the criminal offence but I am also sentencing this offender for it. Each offender coming before the court varies from other offenders who have stood or who stand for sentence, circumstances personal to an offender may offer to the Court some explanation and insight into the commission of this offence by this offender or some reason why a more or less sentencing outcome is appropriate.

32 Both counsel have in their submission to me dealt with the Court’s approach to this offence by reliance upon s 16A. I believe that I have already dealt with s 16A(2), nature and circumstances of the offence, both in terms of its facts and in terms of my analysis of its objective criminality.

Personal History

33 I want to look firstly at the personal history of the offender. He was born in Vietnam, as I say, forty-three years ago, he had a stable environment, there is no history of childhood trauma and he recalls a happy childhood. His schooling was at a Catholic boarding school. In his first three years of secondly schooling, as was done in those days, he contemplated becoming a priest. He ultimately left Vietnam in 1979 as a refugee. For five years he was in a refugee camp in Malaysia, was accepted into Australia in 1997 and has been living here in that time. He returned to Vietnam on three occasions, 2000, 2006 and 2007.

34 His own father had died from a stroke and I have made reference to his aged mother. He has relatives in Vietnam, who I think are a brother and a sister whom he visited while he was there. He has a wife and two children that I have already mentioned. They are present in court and are supportive of him.

35 He has in Australian two brothers and he also has three sisters. None of them have criminal history. His sisters live in Vietnam and are not aware of his situation nor, as I understand it, is his mother.

Education and skills and employment

36 He, as I say, attended school in Vietnam, completed his final year when he was seventeen or eighteen. It is reported that he initially was a goldsmith for seven years until about twenty-five and until he left Vietnam. He learnt his English in the refugee camps and found work in a factory on arrival in Australia.

37 The physical and mental condition of the offender, as best I can tell I have dealt with that.

His prospects of rehabilitation

38 He has no prior convictions, he has family who support him, he has insight into his offending behaviour, he has education and work skills and a capacity to work. All of those are positive rehabilitation factors.

39 On the other hand, he has a pathological gambling addiction and his rehabilitation will depend upon how he handles that upon his release.

40 That will be difficult to tell from the point of view of those assessing his eligibility for release because the gaol is an artificial environment, but it seems to me that if he is well resourced with welfare type support services he is on the way to doing something.

41 There is evidence that he is willing to participate in an anti-gambling counselling recommended by Corrective Services or the Probation and Parole Service. He certainly should pursue that.

42 There is also in terms of his education a Certificate of Attainment in respect of having the requirements for a post-beginners strategy of learning in spoken and written English at Certificate 2 Level.

43 As I say, he was working in the marble industry making kitchen benches as a subcontractor. The evidence as to what he was earning is unclear but it was certainly more than two hundred to three hundred a week. I have seen the figure of fifty-four thousand annually. He says that that figure diminished as he became more committed to gambling and less concentrated on work. The point to be made from all that is that he has skills which he can used upon release to secure worthwhile employment and to make a contribution to the Australian community.

Health

44 He was involved in a motor vehicle accident in 1976, sustaining traumatic brain injury to the left side of his head. He was in a coma for three weeks and there are medical reports indicating the possibility of a personality change. The personality changes would appear to be to the lower end of the spectrum in terms of irritability and perhaps mood changes, but there does not appear to be any history of psychiatric illness. He does have a history of gambling and Peter Ashar classifies it as pathological gambling with a history of about eight to ten years and problematic gambling of about three years.

45 Coming now to the s 16A(2) matter of contrition. In the course of giving his evidence it was clear the appellant was expressing regret, remorse and contrition. He said that the offence was the biggest mistake in his life. He said that he thought it was lucky he had been caught because the drugs could do a lot of harm in the community. He recognised the offence as the means by which he lost his wife, children, brothers and sisters and daughter and son. He also expressed his regret in his interview with Mr Ashar.

46 He entered his plea of guilty at the Local Court on 9 May, that was a soon as the brief had been served. It was a plea early entered. It can be said that it facilitates the administration of criminal justice. First and foremost the interests of the administration of criminal justice are served through public acknowledgement by an offender of guilt. Pleas of guilty by offenders sustain the community’s confidence in the administration of justice, firstly by maintaining the confidence of the community in the investigation of crime; and secondly, the community’s expectation that those guilty of crime will be held accountable for it.

47 The administration of criminal justice is also served because court time, witnesses’ time and legal expenses are freed so that they can be devoted to other cases. The plea reduces considerably the likelihood of contest on appeal on the issue of guilt in respect of this offence. These are important factors in advancing the administration of criminal justice. A significant mitigation of the sentence can be given on that basis. It is not necessary, as it is in the state matters to quantify the amount but it would be fair to say that it seems appropriate that an approach not dissimilar to that taken in the state matters should be applied to federal offenders, all other things being equal.

The deterrent effect upon the offender

48 There is of course the impact of incarceration itself which acts as a personal deterrent. It should be understood that incarceration is the living by this offender with a number of other men, not of his choosing, a same sex environment, a regimented environment and an environment in which there is relatively little stimulation. All of that must act as a personal deterrence. He has been before the Court charged with this offence and he has heard his conduct announced by a judicial officer of this court. Those Court appearances must be considered as substantial personal deterrence.

49 He has lost access to his wife and children. The significance of that is a little stronger in this case than quite a lot of others. Both children have had exhibits tendered in their name which must be a poignant reminder of what he is missing. On reads

“Are you well Daddy? I miss you very much. Why don’t you come with me Daddy? Daddy do you know that when I sleep I dream of you buying many toys for me. I am very sad staying at home. When you are here take me out to the city market Daddy. Tri told me that without you Tri would die. You know that Mummy and Tri miss you very much. Why haven’t you come home? In my class everyone has a computer except only me, I am very sad. I love you forever.

50 Sketches of two hearts on each side of the paper says this note, paper cutting with the word “Number 1, goodbye or write Daddy. I will write to you more on another occasion Daddy. When you receive this letter write me back”. Two paper cuttings with the words “Top stuff. Love from your daughter, Sandy”. There is another one of similar poignancy from the son.

Character and antecedents of the offender

51 It is agreed that there is no criminal history recorded against the offender. Of course the authorities make it clear that the absence of criminal history is given less weight when sentencing on an importation because one of the features that the recruiters look for are persons who will not otherwise attract attention.

52 While I am dealing with his character I should mention of a reference from Hw Duc Tran, a priest in charge of the Vietnamese Chaplaincy in the Diocese of Parramatta, and he indicates knowledge of the offender as one who was occasionally at weekend mass with his family.

53 One of the criteria inn s16A is the impact of the sentence imposed on this offender upon others. The younger child, Tri Mihn Pham, is seven years old. He has severe language disability, moderately severe receptive skill deficit, severe expressive skill deficit and requires much assistance from his school as well as a speech therapist. He requires intensive coaching and supervision by his mother.

54 The evidence before me was that the mother was spending forty-eight dollars an hour to have the child with a speech therapist. Clearly this child will lack stimulation that would come naturally from having his father around. In cases such as this, where there is congenital intellectual difficulties, interaction with parents is a vital input into the development of such children.

55 It must also make the offender’s own time in custody the more arduous. True it is, it would seem that he wasn’t paying a lot of attention to that while he was gambling. But it must be that nonetheless his child is suffering as a result of his incarceration.

56 I have already referred to the co-operation, such as it was, with the law enforcement agencies, both its absence at the beginning and its more focused co-operation at the end, but to no useful purpose.

Sentencing Range

57 The crown in its submissions has usefully provided a synopsis sentencing for cases in this low trafficable range, I think there were some half dozen cases which, no doubt, if there is a need to review my remarks will be available from their submissions. The overall range appears to be a range of five years, six months to seven and a half years head sentence with a non-parole period ranging from three and a half years to five years.

58 The defence in its submissions made available cases from my own court of two judges experienced in the criminal law; one where the importation was nearly six hundred grams of admixture with a thirty-eight to forty-three percent purity giving a calculated net weight of two hundred and thirty-six grams and a head sentence of six years with a non-parole of three years in a matter of two sisters, Nhu Thi Hong Ho and Thanh Nhu Ho. That was a Judge Berman decision. The criminality of those offenders was of a higher order than the criminality I am dealing with here. There was another case of Phong Linh Nguyen of Judge Hock where the import was nine hundred and ninety-five point seven grams, seven hundred grams of which were pure heroin. She also set a sentence of six years with a non-parole of three years and six months.

59 There is a third, a decision of Judge Sweeney of this Court. She was dealing with a hundred and eight grams with an estimated street value of fifty-five thousand - I think with respect her Honour was wrong, that was the wholesale value I would have thought. The sentence she imposed, on the basis of five to seven years imprisonment as the range for head sentences for low level trafficable quantities after a plea of guilty, was six years with a non-parole of three.

Formal Orders

60 Stand up please. Truong The Pham for the offence that you imported a marketable quantity of border controlled drug, namely heroin, contrary to subs 307.2(1) of the Commonwealth Criminal Code and bearing in mind that that carries a maximum penalty of twenty-five years, I sentence you to a sentence of five years with a non-parole of three years. That sentence will date from your time in custody which I understand to be the date of your arrest, 26 February this year.

61 The overall sentence will expire on 25 February 2012 and the non-parole period will expire on 25 February 2010.

62 Mr Pham the law requires me to make sure that you understand what I have done.

OFFENDER: Yes I understand.

HIS HONOUR: Thank you. For the reasons that I gave I held that the offence that you did was a very serious offence. I determined that it required that you remain in gaol for a minimum period of three years. I determined that the first date upon which you could be released is 25 February 2010. But you should understand that you will not necessarily be released on that date.

OFFENDER: I understand.

LAGANA: Your Honour if I could just indicate that according to the Commonwealth legislation if the sentence is under ten years he will be released on that date.

HIS HONOUR: He will be released?

LAGANA: On that date, it’s slightly different to the State.

HIS HONOUR: I am told that you will be released on that date all other things being equal. But you will be on parole for two years after that and if you commit any offence while you are on parole you may be returned to prison.

63 Is there any other matter you want me to explain to him Ms Way?

WAY: No thank you. I should just clarify something - a fact for the record which was not known to the court on the last occasion that Mr Pham’s mother passed away on the ninth of this month, just to make sure that that’s clear.

HIS HONOUR: Those who are concerned with his health should make sure that as a consequence of that and the sentence pronounced that they assess his level of depression. The offender may be returned to custody.

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