R v Ung

[2010] NSWDC 181

CITATION:	R v UNG [2010] NSWDC 181
HEARING DATE(S):	2 July 2010
EX TEMPORE JUDGMENT DATE:	2 July 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment for six and one-half years with a non-parole period of four years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Drug importation - Heroin
PARTIES:	The Crown Hoang UNG
FILE NUMBER(S):	DC 2009/00212494
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission

SENTENCE

1 HIS HONOUR: Hoang Phuc Ung got into a bit of financial difficulty through his gambling. He began borrowing money and because those who lent it to him were charging quite high interest, it soon got to the stage where he could not pay back what he owed. He says that it was at that stage that some people threatened him, and his family as well, that if he did not do what they said he should, he would be harmed, but that, if he did comply with their demands, his debt would be wiped. It was in those circumstances, the offender says, that he left Australia, went back to his country of birth, Vietnam, and returned with a substantial quantity of heroin.

2 He came to the attention of customs officers on the morning of 20 September 2009 after he returned from Vietnam. Those officers noticed that the shoes he was wearing appeared to be unusually high. They attempted to conduct a search of the accused at which point he made admissions. He told them not only were there narcotics concealed within his shoes, but there were also narcotics internally concealed.

3 Police came and interviewed him briefly. The offender told them that he had swallowed some objects and that someone had paid him money to bring both those objects and items hidden in his shoes. Between the time of his arrival in Australia and 23 September 2009, the offender passed a total of 133 foreign objects.

4 When his shoes were deconstructed, they were found to contain a cream coloured powdered substance. In total there was a significant quantity of powder concealed either internally or in the offender’s shoes. The combined pure weight was just short of 800 grams. The street value of that quantity of heroin is between one and one and one-half million dollars with a wholesale price of between $279,000 and $300,000. Clearly this is a significant importation. The figures I have just mentioned show how lucrative drug importation is. For that reason, sentences imposed upon those involved in the drug trade and drug importation must necessarily be harsh in order to deter others who may be tempted to do similar things, especially when they too get into financial difficulty.

5 I note also that the offender has no drug addiction himself but was doing this purely so that he could pay off the debt that he owed. It will be noticed that I have, in what I have just said, disregarded the offender’s explanation insofar as he says he was threatened and kidnapped. The offender has said similar things to a psychologist in the past, but there is no other material at all to suggest the accuracy of what the offender says. In circumstances where the onus of proof is on the offender to satisfy me the mitigating circumstance on the balance of probabilities, I am simply unable to determine that in the offender’s favour. It might be right, or it might not, I simply do not know.

6 The offender was born in Vietnam. He spent a great deal of time in a refugee camp after he left Vietnam where he met his wife. They had two children there. Eventually he and his wife came to Australia where they had two more children. They are now nineteen, seventeen, twelve and eight years of age. The offender and his wife are separated but the offender says that he regularly contacts his children and supports them. His ex-wife and three of his children are in court today.

7 The offender has been working on occasions, he has been employed as a chef and also as a truck driver. After he separated from his wife in around 2003 or 2004, he told a psychologist he began drinking. Others noticed that he went downhill. In 2008 he tried to reconcile with his wife but that was unsuccessful, he started to increase his gambling and drinking so that he could put out of his mind the unsatisfactory aspects of his life. A family friend, Ms Vo, also noticed his increasing use of poker machines and suspected that he had a gambling problem. In a document prepared for the court, she indicates that she learnt that he was constantly asking friends if he could borrow money from them. Lastly, the offence occurred at a time when the offender was vulnerable and easily influenced. However his offending was very serious indeed.

8 The offender claims that it was only after he has gone into custody that he realised just how bad drugs are. That may well be true but the offender does not suggest that, before he decided to leave Australia with a plan to return with a substantial quantity of drugs in his possession, he was unaware of the great harm that drugs do to many members of society. The offender’s decision to involve himself in this very serious crime was one that he made very much with his eyes open. He can have been under no illusions as to what was likely to happen to him if he was caught. He was clearly prepared to take that risk because of the rewards which would come his way.

9 It appears that the offender’s involvement in the organisation was relatively low level. I will sentence him on the basis that his involvement was simply to go to Vietnam and bring the drugs back. That does not mean however that his conduct was anything other than very serious indeed. The “Mr Bigs” of the drug trade depend on people such as the offender in order to carry out their criminal activities. The courts hope to disrupt and deter the Mr Bigs of the drug trade by imposing deterrent sentences on couriers who commit serious offences such as the offender’s.

10 The offender was, apart from this matter and another unrelated matter of drink driving, a man of otherwise good character. However the courts have repeatedly said that that circumstance is of less relevance in cases involving couriers because those who are asked to be couriers are almost invariably people without prior offences.

11 Although the offender said little to police on the day of his arrest, he later spoke to them about what he said were the circumstances in which he became involved in this offence. A letter indicating what the offender told the police on those occasions, because there were more than one, was tendered. That document is to be placed in an envelope and sealed and only to be opened by order of a judge of this court or of a superior court. I will not set out the nature of what the offender told police for obvious reasons. I will however note that it was described by those who investigated the matter as being information of low value. It was certainly not sufficient to justify the prosecution of any other person. Nevertheless, even given that I have difficulty accepting everything that the offender told police on that occasion, I do find that his nomination of particular people is evidence of his remorse.

12 There is other evidence of that as well, the offender telling the psychologist that it was wrong of him to bring the drugs into Australia. I should also indicate that the offender pleaded guilty, whilst not at the earliest opportunity, at an early opportunity. His willingness to assist the authorities in that regard together with his low level of assistance, has led me to impose a sentence which is thirty per cent less than would otherwise be the case. Both the Crown and Ms Johnson for the offender referred to other cases involving importations of drugs of this approximate quantity. Somewhat coincidentally one of them involved a person whom I sentenced. There were many similarities between the circumstances of that offender and the circumstances of this offender.

13 The offender is sentenced to imprisonment for six and one-half years with a non-parole period of four years. That is to date from 20 September 2009 and the offender’s non-parole period will expire on 19 September 2013.

14 HIS HONOUR: Now Mr Ung I just need to explain to you what I have done. I have imposed a sentence of imprisonment. It starts from 20 September 2009 because that is the day you went to gaol. The non-parole period is four years which means that the earliest you can get out from gaol is 19 September 2013. Whether you are released on that date or released later than that, depends on the parole authorities, not me. You must be released, that is you cannot be held in custody longer than six and one-half years from 20 September 2009. If you are released on parole, you will still be serving a sentence in the community which means that if you breach the parole orders, you can be taken back into custody to serve the remainder of your sentence. Mr Ung do you understand what I have said to you?

15 OFFENDER (INTERPRETER): Yes.

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