R v Vardhanabhuti

[2017] NSWDC 344

District Court

New South Wales

Medium Neutral Citation:	R v Vardhanabhuti [2017] NSWDC 344
Hearing dates:	21 November 2017
Date of orders:	21 November 2017
Decision date:	21 November 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	For the offence of trafficking controlled drugs the offender is sentenced to prison for a period of 2½ years. For the offence of importing commercial quantity of border controlled drug taking into account the matters on the schedule the offender is sentenced to imprisonment for a period of 4 years. Impose a non-parole period of 2 years and 2 months
Catchwords:	CRIMINAL LAW – Sentence – Trafficking controlled drug – Importing a commercial quantity of a border controlled drug - Gamma‑Butyrolactone (GBL) – Disordered thinking – Significantly mentally unwell – Reduced moral culpability.
Cases Cited:	DPP (Cth) v Maxwell [2013] VSCA 50.
Category:	Sentence
Parties:	The Crown Krittapas Vardhanabhuti
Representation:	Counsel: Mr G James QC – The offender Mr E James –The offender   Solicitors: Director of Public Prosecutions (Cth) Peritus Legal – The offender
File Number(s):	2015/363836

Judgment

1. HIS HONOUR: The offences I am about to describe are somewhat bizarre, particularly the one which lead to the offender being arrested. The offender is a dual citizen of both Thailand and Australia. He was living in Australia. He travelled regularly to Thailand. On one trip he was informed by Australian Customs officers that on the next occasion he returned to Australia from overseas his luggage would be searched. Despite that the offender brought into Australia more than 60 kilos of luggage paying a significant sum for excess baggage which, when examined was found to contain approximately 62 litres of a liquid containing the drug gamma‑Butyrolactone, more commonly known as GBL.

2. On 10 December the offender arrived in Australia at Sydney Kingsford Smith Airport on a flight from Thailand. His luggage was searched. He was found to be in possession of two suitcases. In one of those suitcases there were 12 bottles of liquid various described as Listerine, “Top Cleaner”, Mybacin Cool Mint and similar. In his other suitcase there were ten small size bottles labelled Top Cleaners and a large size bottle with a similar label on it. Presumptive tests revealed the likely presence of GBL in the liquid and upon further examination it was found that the offender was importing more than 35 kilos of that drug.

3. When police went to his premises and they found more GBL and drug paraphernalia. An examination of the offender’s mobile phone revealed that not only was he an importer of the drug GBL but he was a trafficker in that drug as well. Finally, it was discovered that the offender had arranged for the importation of two other quantities of GBL, in one case about 10 kilos of that drug and in another case about 5 kilos.

4. The Crown has helpfully done some mathematics which enables me to say that the total pure weight for those three importations was more than 51 kilos and that when converted to liquid form the total volume of the seizures would be about 46 litres.

5. The significant size of the offender’s illegal enterprise is to be observed by the circumstance that one usually buys GBL at street‑level in 5 ml lots. They are often sold those the small plastic fish shaped containers which the law-abiding amongst us know as containing soy sauce when takeaway sushi is purchased. If the GBL was sold in 5 ml lots the importations would have resulted in more than 9,000 doses, and if sold for $30 each, which is the approximate street‑level price of that drug, the value of the importations was more than $275,000. If on the other hand the drug was sold wholesale then it had a value of about $138,000. This was a large scale importing and trafficking operation.

6. Ordinarily one would expect a significant custodial sentence to be imposed but these are not ordinary circumstances. The very fact that there was a somewhat bizarre element to these offences in which the detection of the offender as a drug importer was almost certain, coupled with the fact that the offender had made few attempts to conceal his activities as a drug trafficker shows significant disordered thinking. The quantity involved and the way the drugs were packaged would to a mind in an ordered state clearly raise suspicions and concerns but Mr Vardhanabhuti’s mind was clearly not an ordered one at the time he was committing these offences.

7. The offender pleaded guilty at an early opportunity to two offences, they relate to the offence of trafficking GBL and the importation on 10 December. When I sentence him for the latter of those matters he asks me to take into account the two other importations relating to the two consignments, one of 24 November 2015 and one of 26 November 2015. In order to reflect the offender’s willingness to facilitate the course of justice the sentences I impose upon him will be about 25% less than they would otherwise have been.

8. Mr Vardhanabhuti was born in Malaysia but at a very young age he went to Thailand because both his parents were Thai. He came to Australia on a student visa, initially settling in Perth. His father was apparently in the Thai diplomatic service.

9. He moved to Sydney in about 2011 and was living alone. He was already somewhat isolated. He found it difficult to relate to other people and was separated from his family back in Thailand when he began to use drugs. Whether that decision was the cause of the offender’s downturn in his mental state or whether he would have become unwell anyway is beside the point. What is clear and undisputed is that the offender suffers from schizophrenia, his symptoms worsening after his mother’s untimely death in October 2015. Indeed at one stage it was contemplated that despite the offender’s pleas of guilty in the Local Court, he might nevertheless be unfit to be tried. Various psychiatrists have examined Mr Vardhanabhuti and at times have concluded that he was unfit, but of recent times his condition has improved so that it is agreed between the psychiatrists that he is fit to be tried. They also agree that he remains significantly mentally unwell, although his condition has improved once he has ceased drug use and is now treated appropriately whilst in custody.

10. The offender’s mental state is a very important circumstance that I must take into account in deciding the appropriate sentence to impose upon him. There was no challenge to the suggestion from Mr James QC who together with Mr E James appears for the offender, that the offender’s moral culpability was reduced because he was less able to understand the rights and wrongs of his behaviour.

11. The offender’s mental illness has other importance as well in this sentencing exercise, it will make his time in custody harder. Prisons are terrible places even for those mentally well, but a person who is prone to paranoia and psychotic episodes, including hallucinations may well find prison a very frightening experience.

12. There is also the well-known circumstance that I should give less weight to general deterrence when formulating the appropriate sentence to impose upon the offender. This is particularly important because in offences involving the importation of drugs, general deterrence is usually of prime importance.

13. There is, as the offender’s activities demonstrate, a troublingly large market for drugs in Australia with demand often being satisfied by importations of the kind with which I am dealing today. For that reason severe and even at times harsh sentences are often imposed upon drug importers, but as I have already said the offender’s mental illness makes it inappropriate for what is usually the prime consideration in sentencing for drug importation offences to be given full weight in his case.

14. I mentioned before that the offender was somewhat isolated from others, and in particular his family, that has also multiple relevance. It made his offending much more likely, in the first place. Away from the influence of his father and his sister and, until her untimely death, his mother, his condition was able to deteriorate without too many people noticing.

15. One person who did notice was a friend of the offender’s in Australia, a Ms Annie Clark. She describes the downward spiral that she observed in the offender, as well as telling me about the sort of person the offender is when he is not mentally unwell.

16. With appropriate medication, and especially if the offender is able to remain off drugs, there are prospects for his future. It may be that he will be best off if he is cared for by his family in Thailand but the decision as to what will happen upon his release from custody is not for me.

17. His time in custody will not only be harder because of his mental illness but also because he is separated from his family who live in a foreign country. Of course not too much can be made of this because it was the offender’s decision to commit his offences in Australia knowing that if he was detected and sent to gaol that is exactly what would happen to him.

18. The Crown provided me with some very helpful written submissions. They were, as is usual in Commonwealth matters, comprehensive and they also made reference to a number of what was said to be comparative sentences involving decisions in both New South Wales and other parts of Australia concerning importations of GBL. I was also provided with a specific decision from the Victorian Court of Appeal DPP (Cth) v Maxwell [2013] VSCA 50. Those comparative cases have been of great assistance to me. They indicate the range of sentences which have been imposed for offences of the kind for which I must sentence the offender, in some cases involving offenders suffering mental illness. Of course no two offences and no two offenders are the same but I have been able to make allowances for that when I compare the present case with the comparative cases that I was asked to look at.

19. Consistent with the sentencing range displayed in those comparative cases, taking into account most significantly the offender’s mental illness, I have determined that the following sentences should be imposed:

20. For the trafficking offence imprisonment for two and a half years to date from the offender’s arrest on 10 December 2015.

21. For the importation offence taking into account the matters on the schedule imprisonment for four years to date from 10 June 2016.

22. I set a non-parole period of two years and two months which will expire on 9 February 2018, the overall sentence expiring on 9 June 2020.

23. His Honour then explained the sentence to the offender.

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Decision last updated: 05 December 2017