Regina v Chouh, Oum, Srey, Yin, Chea, BS and Leoung

[2007] NSWDC 253

CITATION:	Regina v CHOUH, OUM, SREY, YIN, CHEA, BS and LEOUNG [2007] NSWDC 253 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	25/5/2007, 17/8/2007, 19/10/2007, 26/10/2007, 2/11/2007
JUDGMENT DATE:	2 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Williams DCJ at 1
CATCHWORDS:	Criminal Law - Sentencing - Importing Marketable Quantity of a Border Controlled Drug (heroin) - Couriers - Parity between seven defendants - Importation of different quantities - Exceptional circumstances
LEGISLATION CITED:	Criminal Code Act 1995 (Cth) Immigration (Guardianship of Children) Act (1946)
CASES CITED:	R v PP [2005] NSWCCA 214 King v R [2006] NSWCCA 110 Jules v R [2007] NSWCCA 243 Alameddine v R [2006] NSWCCA 317
PARTIES:	CDPP Sothear CHOUH, Sophia OUM, Sam SREY, Sinary YIN, Chhengly CHEA, BS and Kunthea LEOUNG.
FILE NUMBER(S):	07/11/0147; 07/11/0153
COUNSEL:	Miss. C. Dobraszczyk (CDPP) Mr. S.J Buchen (CHEA) Ms. A. Francis (LEOUNG) Mr. Priddis (SREY) Mr. R. Driels (BS) Ms A Cook (CHOU, OUM & YIN)
SOLICITORS:	Mr. D. Provera (CDPP) Ms. A. Cook (Legal Aid Commission of NSW)

JUDGMENT

1 HIS HONOUR: Mr Chouh, Mr Srey, Ms Yin, Ms Oum, Mr Chea, Ms Leoung and Ms BS have each pleaded guilty to importing a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code Act 1995. The marketable quantity is two grams. The maximum penalty for this offence is twenty five years imprisonment and or a fine of $550,000.

2 Each offender has been in custody since 10 October 2006. Each offender is a Cambodian national. Each pleaded guilty at the earliest opportunity. I propose to deal with some general matters and then specifically with each offender in the order which submissions were made to me between 17 May 2007 and 19 October 2007.

3 The General Background. On 10 October 2006, Thai Airways flight TG995 arrived at Sydney Kingsford Smith Airport from Bangkok, Thailand. During the flight, one of the passengers and a co-accused in the present matter, Mr Chea, had fallen unconscious. Upon his arrival in Sydney, Mr Chea was transported to St George Hospital by members of the Australian Customs Service and custody was later passed to the Australian Federal Police.

4 Mr Chea underwent emergency surgery during which 176 small pellets wrapped in a balloon type substance were retrieved from his body. Removal of the balloon type substance from the pellets revealed a quantity of heroin. Mr Chea was travelling as a member of an RTR tour group. The tour group consisted of fourteen members and the tour was for a duration of ten days visiting a number of places around Australia.

5 Members of the RTR tour group travelled from Phnom Penh, Cambodia via Bangkok, Thailand. Upon arrival in Bangkok, Thailand, two members of the tour group fell ill and were admitted to hospital suffering from similar symptoms to Mr Chea. Royal Thai police have indicated that these persons were internally concealing heroin and have been charged with narcotic smuggling offences. The remaining members of the tour group travelled from Bangkok to Sydney.

6 Upon arrival in Sydney, members of the Australian Customs Service spoke with all remaining members of the RTR tour group. After speaking with these persons, all were detained as suspected of concealing narcotics internally.

7 Subsequently, Mr Chea and six other members of the RTR tour group were found to be internally concealing narcotics and were charged with narcotic importation offences.

8 Mr Chouh imported 149.9 grams of heroin in 159 pellets. Mr Srey imported 27.1 grams in thirty pellets. Ms Yin imported 222.9 grams in 268 pellets. Ms Oum imported 228.8 grams in 288 pellets. Mr Chea imported 146.8 grams in 176 pellets, Ms Leoung imported 169.7 grams in 218 pellets and Ms BS imported 239.2 grams in 253 pellets. Ms Leoung had 168 pellets concealed internally and fifty pellets in her luggage. All but Mr Chouh have provided assistance to the investigating authorities.

9 Sothear Chouh. I will deal firstly with Mr Sothear Chouh who imported 149.9 grams. He is aged thirty-eight having been born in 1969. He is a self employed farmer in Cambodia. His date of birth is apparently incorrect. He is married and has three children. Mr Chouh grew up in Cambodia in a family of rice farmers and was the eldest of four children. Like countless other Cambodians at the time, he lived during the Khmer Rouge Pol Pot regime. During this period, his father disappeared as did his mother’s family. He attended school as a child for a total period of eight years. He initially gave an incorrect date of birth record so that he could in fact begin school at a younger age. He is able to read and write in the Khmer language.

10 Later on in life, he subsequently joined the army and spent approximately four years in that capacity. He later married and that union produced three children. The ages of the children are thirteen, ten and four years of age. Mr Chou has no ties to Australia. He had not had any problems with the police in Cambodia and does not have a criminal record.

11 Before the incident before the court, he worked as a sel-employed farmer in Cambodia. The farm on which he worked was approximately one hectare in size. His residence and farm are located approximately seventeen kilometres from the nearest town and approximately seventy six kilometres from the capital, Phnom Penh.

12 He lived in a wooden hut with a thatched roof with his wife, three children and mother-in-law. There were six people, therefore, residing together in a one room hut. They had no electricity and he earned approximately a hundred to $US200 per year. His eldest daughter aged thirteen has now stopped attending school to look after her other siblings. This has enabled Mr Chouh’s wife to go to work at the rice farm and on some occasions she may work on another farm as well.

13 For one days work, she earned approximately 5,000 riels which equates to one dollar twenty five US. She works on the farm between 7am and 5pm. The family does not possess a bike or motorcycle. Mr Chouh previously possessed a motorcycle but he had to sell it in order to pay for medicine for his son.

14 His eldest daughter used to attend school which was approximately five kilometres from their home. Mr Choun and his wife also paid for their eldest daughter to take private lessons in English and Chinese. Mr Chouh actively encouraged her to learn other languages as he believed this skill would assist her in securing work in the future. He also had to pay for her school food and for her notebooks and so forth. He is not sure, however, how much this equated in US dollars.

15 Mr Chouh confirmed throughout his sentence hearing that he is aware that he will go to gaol for this offence. He stated in court that he is worried about his children’s health and wellbeing. He also revealed that he is very sorry for his offending and that he did not have time to think about what he was doing. He also expressed concerns for the health of his mother-in-law because she is very old and frail.

16 In terms of the current offence, he stated that “circumstances happened to me that forced me to do this offence and the hardships I was going through”. He had hoped that he could help in alleviating these problems.

17 Mr Chouh has spoken to his wife and son since being arrested and in prison for the present offence. He has not, however, told them where he currently is other than to say that he is in Australia. He has informed them that he is unsure when he will be returning to Cambodia. He wishes to save money given to him in custody from buy up to send back to his family.

18 However, during cross-examination, it was revealed that he did not know what a bank account was or even how to open a bank account. This logistical difficulty is exacerbated by the fact that he has no address for his village. It would appear that the village is located in an extremely remote part of Cambodia. There are no street names or numbers within his village. The nearest post office is approximately seven to eight hours away.

19 Mr Chouh told the court that he was offered $A40,000 on condition that he brought 300 grams of heroin into Australia. He was given $US600 to buy clothes, bags and so forth for his travelling needs.

20 Mr Chouh was seen by a psychologist, Emma Collins and a report was prepared dated 18 December 2006 which is an exhibit in these proceedings. It states amongst other things as follows:

Offence . He told me that he thought he would take a chance by committing the offence because it could resolve his financial problems. He expressed a degree of regret for his conduct noting that importing drugs is wrong but he said that human greed got in the way and that he was motivated by a desire for a better life for his family.

He said that other than a concern for his children’s future, he has no issues being in gaol. Given the impoverished living circumstances he reports and factoring in for his low IQ, Mr Chouh’s current conditions in contemporary Australian society represent such an improvement on his home conditions that his concerns for his children aside, his standard of living has in fact been raised by coming into gaol in Australia. As such, the motivation behind the offences appear to relate to human need as opposed to what he termed human greed.

Presentation at Interview . He denied any mood disturbance telling me that he is happy in gaol because of the luxuries he has as compared with his home life in Cambodia.

Psychometry Testing . Mr Chouh performed very poorly achieving a result that places him within the mild mental retardation range outperforming less than the bottom one per cent of the normative sample for his age.

Current Clinic Issues . The effect of his low IQ is to restrict his ability to think through the repercussions of his behaviour as is the case with the current offence and perhaps makes him more prone to seemingly impulsive and irrational behaviours.

Summary and Opinion . The offence represented such an opportunity to him and to some extent in his mind the advantages outweighed the disadvantages. Mr Chouh is clearly missing his children but he is otherwise comfortable within the Australian prison lifestyle.

21 Mr Chouh explained the factual situation in evidence. He said that he was very sorry for offending, that he did not give much time to thinking about what he was doing and that he would tell his friends and relatives not to be tempted to commit this offence against Australia. If he is able to work in prison, he could earn thirty seven dollars per week which he would like to send home except as I have indicated, he has no bank, bank account and the nearest post office is a long distance from his village which itself does not have an address.

22 It is accepted that the plea of guilty was at the earliest opportunity and that Mr Chouh like the co-offenders was a mere courier. The principal areas of s 16A(2) that have been focussed on by all offenders are subs (l), character, antecedents, cultural background, age, means and physical or mental condition, on the one hand and on the other, subs (p), probably effect on the person’s family.

23 Although the submissions for Mr Chouh suggest I can take into account his assistance to authorities, (see p 21), there is no evidence of such except in that he apparently asked the tour guide to inform customs that he had heroin in his stomach and thereafter co-operated with the investigation. However, there has certainly not been the level of assistance provided by other offenders who are entitled to a quantifiable discount in that regard.

24 It is ironic that Mr Chouh’s income and standard of living in prison far surpasses his income and standard of living in Cambodia and the income and standard shared by his family who have now lost their sole provider.

25 He and his family were living a marginal existence. The psychologist report suggests he performs less than the bottom one per cent of the normative sample for his age. He was otherwise not under any psychological disadvantage. It is submitted that there is exceptional hardship in regard to the probably effect on Mr Chouh’s family of his imprisonment. In the normal case, hardship on a prisoner’s family is not usually a cause for a reduction of sentence, the logic being that if two people commit a similar offence, it would be unfair to one to reduce the other’s sentence simply because he or she has family responsibilities.

26 Of course in Australia, there is a substantial network of social service organisations that can assist a family who has its breadwinner in prison. However, Mr Chouh’s family is not in Australia but in Cambodia and the effect on them in my view will be substantially harder than a similar family situation in Australia. The question is does that amount to an exceptional circumstance? Having regard to the decided cases, it probably does not but it is a significant factor in determining the non-parole period, not only for Mr Chouh but for other offenders as well.

27 I am also asked to take into account an extra curial punishment occasioned by the potential danger to Mr Chouh’s health and his fear at seeing three other travellers collapsing from the poor packaging of the drugs for internal concealment. It is said that is why Mr Chouh told Australian Customs Service officers that he had drugs concealed internally and wanted to go to hospital. The trouble with that argument is that had no one collapsed, it is extremely doubtful if Mr Chouh would have said anything to customs on his arrival and the same can be said for the other offenders. Even if the argument was available, it would have little or no effect on the issue of penalty.

28 I accept that Mr Chouh was a person of good character and he is unlikely to re-offend as a consequence of his imprisonment for this offence. I accept that he was a courier. It also seems to be the case for all of these offenders that advantage was taken of their simplicity and deprived background to apply pressure to participate in the offending. It is one thing for a reasonably intelligent person who is otherwise in an economically stable position who acts as a courier for an extra economic benefit to participate in this style of offending. I think there is a distinction between that case and the case of someone whose ability to rationalise their behaviour is limited and whose economic position is deprived and acts as a courier as a potential way out of that deprivation.

29 There is also no doubt that like his co-offenders and like many foreigners who agree to courier drugs to this country, he will experience cultural and social isolation in a strange country where there are few people likely to speak his language. However, that is part of the risk that people take who choose to behave in that way. In that regard, all these offenders are no doubt substantially better off than their two co-offenders who collapsed at Bangkok Airport and were remanded in custody in Thailand and who, I am informed, probably face life imprisonment at the least or at the worst, the death penalty. By comparison with the other seven offenders, Mr Chouh is substantially equivalent with Mr Chea who imported 146.8 grams.

30 Mr Sam Srey imported 270.1 grams. Mr Srey is aged thirty five years. He is single with no children. He was employed within the police department in Phnom Penh and is described as a police officer but is in fact what appears to be a clerical assistant with no powers of arrest or detention. He was earning twenty five dollars per month. Mr Srey is the second eldest of six siblings. One of his siblings, a brother, however, was killed in a traffic accident approximately four years ago. Two of his sisters are married and live with their respective husbands. He has three younger brothers and all of his sisters work in the family business.

31 Mr Srey was raised and lived in Phnom Penh. He states that he had a happy childhood. Prior to this offence, his family ran a small grocery business in Phnom Penh and he also resided there with his three brothers and two sisters. The grocery business is located in a single storey building. Mr Srey has described the area in which the shop is located as a poor suburb. The shop has four distinct areas. It has a cooking area, two other areas used for sleeping and the rest of his siblings and himself sleep in the shop area after it has closed for business.

32 Mr Srey owns two small motorcycles but does not own a motor vehicle. His approximate salary is 1,000 riels which equates to twenty-five US dollars per month. He gives half of his income to his parents for board. He was employed in the police department and performs predominantly administrative duties in that capacity.

33 He has told the court that he has previously not used heroin or any other illicit substance. He claimed that he did not know anyone else who uses such substances. He said in his sentence hearing that:

Since I have been arrested, I have come to know the worst about drugs and I am sorry I brought drugs into this country.

34 Whilst in custody, Mr Srey is studying English. He has an AEVTI certificate in spoken and written English. He hopes to use these language skills when he returns to Cambodia and also hopes to train members of his family.

35 In the course of his time in custody, he has also undertaken sewing work. He currently works five days per week and earns sixteen dollars per day in the course of this employment. Mr Srey has told the court that he saves some of that money and uses some for food. He has done a textiles TAFE course and is employed at CSI Textiles.

36 He claimed that he was offered $A40,000 to come to Australia with the illegal substances in his body. He was initially bought 200 pellets to swallow but was only able to swallow a total of thirty pellets. He was allegedly told that he had not even swallowed enough to pay for the air ticket to Australia. Mr Srey was not aware how the payment would be calculated in terms of having just swallowed thirty pellets. Therefore, there was no surety that he was going to be paid or the amount to be paid given the circumstances.

37 Mr Srey has also been seen by Ms Emma Collins, a psychologist and a report dated 18 December has been prepared. Amongst other things, she states as follows:

Mr Srey reports a reasonable upbringing with good family supports, educational attainment and a consistent employment history. However, his exposure to war, forced relocation and his father’s death appear to indicate quite the opposite with regards to his childhood. There was a consistent degree of emotional detachment evident through my assessment of Mr Srey and his history which may have allowed him to offend without considering the consequences. Further, he appears to have struggled somewhat in keeping up with the standards of his family whom he states are more successful than he.

It is concerning that Mr Srey is continuing to struggle with this issue given that he is unwilling to disclose his current circumstances to his family. Mr Srey denies any significant problems whilst in gaol other than home sickness. He states that he can eat the food and is maintaining work at present. His non English speaking background will inevitably impact upon his capacity to access education and clinical or medical treatment.

38 Mr Srey has provided a statement to the Australian Federal Police and signed an undertaking to give evidence against the organiser. His assistance is rated as being of a high value. He also gave evidence and confirmed the history obtained by Ms Collins with the exception that his evidence is that neither his father nor stepfather were arrested by the Khmer Rouge and his parents ran a small family grocery store not a trading company. Unlike many co-offenders, his parents were able to look after their children adequately.

39 I accept that the plea of guilty was at the earliest opportunity and that he was a person of prior good character. I accept that the usual hardships for foreign nationals referred to in Mr Chouh’s case applies also to him. He does not come from the sort of background described by Mr Chouh and I would not classify it as being deprived but certainly it was not one of wealth and affluence.

40 On the one hand, Mr Srey imported the least amount of heroin by a significant margin, although a physical condition prevented him swallowing more. On the other hand, Mr Srey’s education must have alerted him to the illegality of what he was doing and the risks associated with it. However, he has also provided a high level of co-operation.

41 Ms Sinary Yin imported 222.9 grams of heroin. Ms Yin is aged thirty seven, married and has a five-year-old son and a one-year-old daughter. Throughout her evidence in the sentence proceedings, she stated that she had a hard childhood. She does not have too much recollection of the Pol Pot regime as she was just five years of age at the time. She does recall, however, that there was some shooting and that everyone just started running. She also remembers that there was not much to eat.

42 Upon fleeing the shooting, her uncle made a shelter of palm leaves and they ate about one cup of rice per day. There was no clean water and the water that was available was obtained from a pothole. There was obviously no sanitation facilities, electricity or gas. They were unable to light a fire for warmth and for fear of attracting attention. Following this tumultuous period is Ms Yin’s young life, she eventually returned to her parents. She had to complete all the chores and was heavily disciplined by her parents.

43 Ms Yin has two children, a son who is five years of age and a daughter who is one year old. She was not, however, living with her children when the offence was committed. The children in fact resided with Ms Yin’s mother in another village. She would visit her children between two to three times a year.

44 She married predominantly as a result of cultural tradition and the wishes of her parents. Once married she experienced terrible violence at the hands of her husband. She recalled one incident in which her husband hit her to the point of unconsciousness. To compound such matters, she did not have the financial means and resources to seek medical attention for the injuries she sustained at the hands of her husband. She did not inform or report such matters to the police. She said that that sort of behaviour was a common practice in Cambodia.

45 In the course of employment, Ms Yin worked as a cleaner and performed other domestic duties. She also resided within the home of her employer. On an average day she would work approximately twelve hours per day, seven days a week and her daily duties consisted of washing, cleaning, cooking and hand washing. Her monthly earnings were approximately twenty dollars US. The relationship with her employer was one that was characterised as a master servant relationship. The money Ms Yin obtained from the course of this employment was sent back to her children and her mother. She has grave concerns for the health and welfare of her children and her mother in Cambodia. Her mother is aged sixty and is particularly frail and she no longer has any other family members to support her and therefore her children.

46 Ms Yin has been in custody in Mullawa since the date of her arrest. Whilst in custody she has worked in gaol putting together Qantas headsets. At Dillwynia, she packed sugar and coffee into bags. Ms Yin has saved all the money obtained in the course of this work to send back to Cambodia.

47 In the psychologist’s report, she expressed that she had never had so much food as she currently has available to her in gaol. The increased exposure and availability to a wide range of foods, however, does make her feel guilty. This is because she has concerns that her children may not have any food or means to acquire food on a daily basis in Cambodia.

48 Ms Yin was also seen by Ms Emma Collins and her report is dated 2 January 2007. Amongst other things it says as follows:

Background history . One would expect that the mass relocation and war merely exacerbated what was clearly a neglectful and abusive childhood. This is further evidenced by the fact that Ms Yin could not report any positive memories from her upbringing.

Offence. It appears from Ms Yin’s background that the advantageous of this offence almost outweighed the disadvantages and that she was living away from her children anyway and still struggled to provide for them. It is evident that Ms Yin was groomed into this offence from the perspective of being told it would allay her financial problems. She expressed regret for her conduct stating that she feels guilty for her actions.

Psychometric testing . She achieved a very poor result placing her within the extreme low to border line range of ability outperforming the bottom two per cent of the normative sample for her age. Ms Yin presents with low cognitive ability which is commensurate with her very limited education and her generally poor functioning in the community. Further, she also showed very limited knowledge of the court system and other westernised lifestyle patterns and behaviour.

Summary and Opinion. Ms Yin reports a significant history of early maladjustment marked by parental abuse, neglect, poverty and a lack of educational opportunity. Her history highlights continued and she was evidently groomed into the commission of this offence given the impact of her poor relationships, low IQ and unsophisticated functioning. Ms Yin reports relatively comfortable conditions since her incarceration compared to her life in Cambodia. However, she is clearly experiencing distress secondary to her separation from her family. This will make her adjustment to long term incarceration problematic. Her language will negatively affect her ability to adjust to a longer term custodial order.

49 Ms Yin was also seen by a Ms Armstrong who is a social worker in regard to the effect or the probable effect of her incarceration on her children. In a report dated 9 August 2007, Ms Armstrong said:

Although Ms Yin understands her children to be well looked after by their grandmother, she is currently unable to have any direct contact with her children and presents as being troubled by anxiety and depression as a result. It may well be the case that she fears about her mother’s ability to bear the financial burden of the children’s care now that Ms Yin is unable to contribute.

Cambodia has a very limited social welfare system. The children’s father is in a new relationship and his level of involvement or assistance is unknown. Ms Yin has expressed that she has had intermittent suicidal thoughts and has had times of depression and anxiety. She must be seen to be vulnerable and at risk of greater psychological fragility within the gaol system, particularly with her non English speaking background and lack of contact with her mother or children. She does not have a supportive partner and can clearly hope for little support or reassurance from her extended family.

It is to be hoped that some assistance can be given to Ms Yin in maintaining some rudimentary contact with her children and family and that some support systems are available will be explained to assist her in coping with the distress she is clearly experiencing.”

50 Ms Yin imported 222.7 grams of heroin, which is similar to Ms Oum who imported 228.8 grams and BS who imported 239.2 grams. She was told that she would receive $A10,000. Like Mr Srey, she has provided a statement to police and an undertaking to give evidence. Her co-operation was rated as being of high value.

51 Ms Collins’ report found her only outperforming the bottom two per cent of her normative sample with a low cognitive ability. Apart from that, she did not suffer any recognisable psychological illness. She appears to be from a similar deprived background to Mr Chouh with similar family responsibilities and similar considerations should apply. She was previously of good character without criminal offences and had no associations within the drug milieu.

52 For similar reasons to Mr Chouh, it is claimed that there is extra curial punishment in regard to the dangers she placed herself in as well as the separation from her children and the fact that her children are not having their basic needs met. However, unlike Mr Chouh, I note that she is a sole parent.

53 Sophia Oum imported 228.8 grams. Ms Oum is aged thirty-five, married with three children aged fifteen, thirteen and ten. She is the only child and therefore does not have any biological brothers and sisters. During the Pol Pot regime she was taken away on a truck along with a number of other children. At the age of approximately six, she and another fifteen or so children were beaten. Only two of the children survived as a result of the beatings and Ms Oum was one of these children. She vividly recalls being thrown into a pile of bodies and pretending to be dead.

54 After a considerable amount of time she and the other children ran off into the Cambodian jungle. Ms Oum resided in a children’s camp during the Pol Pot regime. She can recall that there were approximately ten to twenty children within the camp and that some children died from starvation and malnutrition.

55 The ages of the children within the camp ranged from two to six years of age. Children including herself were supervised by three adults. She recalls that no clothing was provided either to herself or the other children in the camp and that food supplies were minimal. She described that in the morning she would consume rice porridge, a small handful, as well as the same at night.

56 Sometimes she recalls that she would be given rice porridge mixed with vegetables. Her accommodation at the camp consisted of a bamboo hut with a palm tree roof. There were no beds. Often all the children would huddle together for body warmth on the bamboo floor. She recollects that it was often cold and rainy at night.

57 The water that was used for food and cleaning was gathered from a nearby pond. She remembers that the water was murky and muddy coloured and was obviously not fit for consumption.

58 Ms Oum did not receive an education in Cambodia as a child. Her parents were executed during the regime. She stated that during the sentence her parents were forced to dig their own graves. Were blindfolded, hit on the head and buried in the graves. Her sister was also executed.

59 Ms Oum was married and has three children. Her husband works as a motorbike taxi driver and she was employed selling second-hand clothes. She told the court that she would sell second-hand clothes from under an umbrella and would sell the clothing on the street. She would usually break even.

60 Ms Oum and her family resided in a home made of fibro and wood. Her husband, children and herself all lived in a home which consisted of only one room. There was no electricity and they would obtain firewood for warmth and lighting. Their home was approximately one hour from Phnom Phen by motorcycle.

61 Following her arrest her husband now looks after the children. She has spoken to him over the telephone and he has told her that life is very difficult. Ms Oum stated that she is devastated and sorry about what has happened to her children. They are no longer attending school and her husband has limited financial capacity and ability to effectively support the family unit.

62 She does not speak English and has great difficulty communicating and will thus face cultural isolation whilst in custody. She is however undertaking an English course but finds concentrating difficult. She also worked at Dillwynia putting products into plastic bags. She worked five days per week and earned approximately twenty three dollar, seventy cents. She spends some of her earnings on making telephone calls and on food. She has saved approximately fifty to $100 and plans to use that for her business when she returns to Cambodia.

63 Throughout the sentence proceedings she openly stated that she was sorry for what she did. She had no previous experience with drugs before and has now seen the effects of drugs on other people whilst in prison. She realises now that she should not have brought illegal drugs into Australia. She stated that she would never do it again no matter how much was offered to her.

64 She also expressed relief when she had been caught. The forms of medical intervention that were made available to her once caught may have prevented the pellets from bursting in her stomach. She was offered $100 per pellet and she would be paid upon delivery of the pellets in Australia, 288 pellets would therefore result in a payment of $28,800.

65 She also stated that she was given $US500 prior to coming to Australia. She used this money to buy clothes and luggage. She left $US100 to spend and use once she arrived in Australia. She left thirty US dollars behind for her children.

66 Initially she vomited 60 of the pellets when she was told to swallow all of the pellets which was initially 290. She was told that if she did not swallow all the pellets she would have to refund the $500. She had planned to use the money to buy a home and a waterproof store to sell clothes.

67 Ms Oum has been seen by Ms Collins and Ms Armstrong. Ms Collins obtained her background history. She also went on to say as follows:

Relationship history. Ms Oum lived in relative poverty despite some security of tenure. She explained that her children can no longer attend school because of her limited finances and her husband reported only makes enough money to feed them.

Offence. She advised that this money would alleviate her financial worries and allow her family to live comfortably. She expressed regret of her conduct stating that she did not consider the ramifications of her actions. Ms Oum stated that the financial gain was the motivating factor for the commission of this offence.

Psychometric testing. She achieved a score that places her within the extremely low to borderline range of ability at performing the bottom one per cent of the normative sample for her age; it is most likely that this score slightly under represents Ms Oum’s true ability level given that she has no education and as such has not been exposed to any abstract task previously. Nevertheless, she impresses as a woman with low intellectual functioning but one who can function at a basic level in her normal community.

68 The classification of Ms Oum after psychometric testing places her in a similar situation to Ms Yin and Mr Chouh. Ms Armstrong reported as follows:

Ms Oum reports having episodes of fainting from and undiagnosed cause and as the psychologist report suggests, this may be related to elevated anxiety and stress. Ms Oum has not complained of any elements of her imprisonment other than worrying about her children’s welfare. She presents as operating from a point of anxiety in most of her functioning but this would be consistent with someone who has had an early history of exposure to war and personal trauma in childhood. Ms Oum must be considered to be at risk of depression, increased anxiety, social isolation and disadvantage by not speaking the language of the country in which she is imprisoned.

She will be unlikely to avail herself of clinical support of counselling programs partly due to the language barrier and possibly also due to her focus consistently being concern for her children’s situation rather than her own.

69 I note that her children are being looked after by her father. Like Mr Srey and Ms Yin she has undertaken to give evidence and her information is also rated as being of high value. Similar submission are made for Ms Oum as have been made for Ms Yin and Mr Chouh in regard to extra curial punishment, effect on family and past history and antecedents.

70 I would regard Ms Oum as coming from similarly deprived circumstances as Ms Yin and Mr Chouh and of a similar psychological profile. Likewise, she was previously of good character and not involved in any drug subculture. Each of Mr Srey, Ms Yin, Ms Oum, Ms Leoung and BS have provided statements to the Australian Federal Police and undertaken to give evidence against the organiser. Each has been assess as providing information of a higher value by the Australian Federal Police.

71 Whilst there does not appear to be any risk of repercussions against them in regard to their current imprisonment, each will eventually be returned to Cambodia where the same situation may not apply. In that regard they are all in a similar position and I see no reason to vary the amount of discount that each should receive for the assistance given and the evidence to be provided which are essentially one and the same. I note that in all probability they will be required to give evidence at committal and at trial. I will allow a twenty per cent for their cooperation.

72 The problems facing the sentencing of offenders who conceal drugs and travel as a group has been examined in three decisions of the Court of Criminal Appeal; R v PP [2005] NSWCCA 214; King v R [2006] NSWCCA 110 and Julesv R [2007] NSWCCA 243, although the factual circumstances were somewhat different. The cases related to the same importation by five co-offenders. Beasley JA in King said this at para 39:

The amount of harm potentially done the to Australian community is greater the greater the quantity of drug involved. The reward to the individual for agreeing to engage in the criminal behaviour is usually dependant upon the quantity of drug. That in turn is relevant both to personal and general deterrence.

73 Her Honour found that there should have been a distinction between the offenders having regard to the amount imported despite the fact that it may well be the case that someone wanted to swallow more pellets but was physically unable to do so.

74 In the present case, as I said before, I note that Mr Srey was only able to swallow thirty pellets containing 38.8 grams of powder, 27.1 grams of which was heroin. I also noted again that in the case of Ms Leoung, she concealed 168 pellets internally containing 131.4 grams of heroin but also had fifty pellets in her luggage containing 38.3 grams of heroin making a total of 169.7 grams. It is probably debatable that general deterrence and specific deterrence ought play a significant role in the sentencing of these offenders for these offences.

75 The starting point for sentences where there’s been a plea of guilty after the appeal of s 16G and having regard to the JIRS statistics seems to be a head sentence of about seven years imprisonment, a non-parole period being around two-thirds of the head sentence. That seems to have been the case in the reported judgments that I’ve referred to.

76 In determining the sentence relevant to each offender, I have taken into account the pure weight of heroin imported by each, the plea of guilty, the assistance provided where applicable and the personal circumstances of each offender and their dependants.

77 Although I’m sentencing four of the offenders today and the remaining three on 2 November 2007, I can indicate that the sentences imposed on all offenders reflect the relativities of each offence and each offenders’ subjective background and further the sentences relate by way of parity to each other. In other words, Mr Chouh, Mr Srey, Ms Oum and Ms Yin suffer no disadvantage in being sentenced today instead of next week. Mr Chi, Ms Leoung and BS will not be better or differently treated for the same reason. The separation only comes about because of the fact that it wasn’t until last Friday that I received the final submissions in regard to Mr Chea, Ms Leoung and BS.

78 The major reason why the sentences differ is because the amount of drug imported by the individual as well as the reduction for the assistance offered. The other factors have generally only had a relatively marginal effect on the outcome. Bearing that in mind, I make the following orders:

79 Each is convicted.

80 Mr Chouh is sentenced to five years and six months imprisonment with a non-parole period of three years and six months to date from 10 October 2006. He is therefore eligible for release on parole on 9 April 2010.

81 Mr Srey is sentenced to three years and two months imprisonment with a non-parole period of two years and two months to date from 10 October 2006. He is therefore eligible for release on parole on 9 December 2008.

82 Ms Yin and Ms Oum are each sentenced to five years and six months imprisonment with a non-parole period of three years to date from 10 October 2006. They are therefore eligible for release on parole on 9 October 2009.

83 These sentencing proceedings are stood over part-heard until Friday, 2 November 2007 when I will deal with the remaining offenders. Each of the offenders presently before the court is excused from further attendance.

* * *

84 HIS HONOUR: These remarks on sentencing need to be read in conjunction with my remarks on sentencing and findings in the judgment given on 25 October 2007 in regard to the co-offenders Mr Srey, Mr Chouh, Ms Oum and Ms Yin.

85 Mr Chea imported 146.8 grams. Mr Chea is aged thirty six, is married with one child.

86 During the flight from Bangkok Thailand to Sydney Mr Chea had fallen unconscious. It was suspected that Mr Chea was carrying narcotics internally. Upon arriving at Sydney Mr Chea was transported to St George Hospital by ambulance in company of members of the Australian Customs Service. Custody was later passed to members of the Australian Federal Police. The accused underwent emergency surgery during which one hundred and seventy six pellets were retrieved from his body. On 13 October 2006 Mr Chea was arrested and cautioned. On 14 October 2006 he was charged with the matters now before the court.

87 Childhood. Mr Chea was born in the province of Preving in Southern Cambodia. His father died when he was twenty years of age. His mother is now aged fifty one years of age and is currently physically unwell. He has thirteen siblings, he has ten brothers and three sisters. He commenced school at the age of eight and left school at the age of twenty. He repeated at school three times, repeating twice in grade two and then repeating one year in grade eight. In the sentence hearing he stated that this was because he found the work very difficult.

88 Whilst growing up in Cambodia he remembers living within the Pol Pot regime. “Yes I remember a little and I forget a little bit”. He claims that “nothing happened to my family” throughout the Pol Pot regime but does recall that his family was sent approximately ninety kilometres out of their town as a result of the regime.

89 Throughout this period he worked looking after cattle but conceded that during the Pol Pot era, “I was hungry; sometimes I had food and sometimes I didn’t have food”. At the cessation of the Pol Pot regime in Cambodia Mr Chea joined the army when he was aged approximately seventeen years. He spent one year in the army and married at the age of twenty three. Mr Chea was employed as a motorcycle driver in Cambodia. He stated throughout the sentence proceedings that he earned the equivalent of one dollar per day. He is married and has a daughter who is thirteen years of age.

90 The offender resided in a house in Cambodia which was approximately the same size as his prison cell. The walls of the house were made out of palm and leaf as well as the roof. He slept on a mat made out of palm leaf. His home did not have running water, electricity or a toilet. Since his incarceration Mr Chea’s motorcycle has been sold in order to provide money for food for his wife and daughter. He stated that “my wife didn’t have anything to eat so she had to sell the motorbike”.

91 He recently informed his siblings of his incarceration approximately two months ago and they have shown anger and disbelief as to his motive for committing the offence. Once he is released he has indicated his aspiration to open a small restaurant selling food at home. He has no ties in Australia.

92 Custody. Whilst in custody Mr Chea worked sewing and studied English for three months. He has however subsequently ceased studying English which he attributes to his poor memory. In his sewing job in gaol he makes curtains, pants, blouses, pillow casings, bath towels and bed sheets. He earns twenty dollars per week from this form of employment.

93 Since spending time in custody Mr Chea has expressed remorse and contrition with respect to the offence. In the sentence proceedings he stated that,

“since my arrest I understand these offences will affect the Australian community causing trouble to them, causing breakdown in families”.

94 A clinical neuro-psychologist’s report was prepared and is dated 1 August 2007. It states amongst other things that,

his primal level of intellectual functioning was estimated to be in the low average to border-line range. There appears to be evidence of a slight decline in some areas of Mr Chea’s intellectual functioning from his premorbid estimate which were identified in his very poor basic non verbal reasoning skills, visuo-spatial problem solving and visual recognition. His verbal memory also appears to be mildly impaired relative to his premorbid estimate. It is difficult however to comment on whether he has sustained significant impairment in his frontal executive functions. It seems that his very poor visual organisation and planning abilities reflect an acquired deficit in these cognitive abilities.

Mr Chea has evidence of acquired impairment in his intellectual functions, verbal memory and frontal executive skills. Mr Chea had limited capabilities prior to his cerebral hypoxic brain injury and the further decline in his functional ability following his brain injury will have a particularly adverse affect on his life whilst in custody and in his ability to understand the proceedings of the court.

I do not however feel that his life situation would change very much on his return to Cambodia as he would be back in his familiar environment and this would prompt his ability to utilise previously well stored knowledge to get by. If however he was to go back under changed circumstances it is likely he would experience major problems in adapting, surviving and supporting his family. He would have been extremely vulnerable to exploitation and susceptible to any offers of money to relieve his family’s poverty. Furthermore, given his limited intellectual abilities it would seem he would not at the time have thought through any consequences or the possible legal implications of his actions.

95 Mr Chea pleaded guilty at the earliest opportunity and further has undertaken to give evidence against the organiser. The Australian Federal Police rate his assistance as being of a high value. There seems to be a joinder of opinion as to Mr Chea being within the border-line to low average range of intellectual functioning. The effect of a hypoxic brain injury caused by his overdose of heroin appears to have resulted in a slight decline in some areas of his intellectual functioning from what it had been before. There is no evidence that this slight decline is likely to get any worse and I do not attribute that meaning to these words “the further decline in his functional ability following his brain injury” that appear in Professor Reid’s report. All this refers to is that the additional impact of his brain injury on his premorbid condition will have an increased effect on his ability to deal with prison life. However Professor Reid also says that his injury is unlikely to affect his ability to reintegrate with his familiar Cambodian environment.

96 There is no evidence before me of any other long term medical consequence of the heroin overdose. Except for the hypoxic brain ischemia the catalogue of possible consequences referred to by Professor Starmer in his report have not apparently eventuated in Mr Chea.

97 It is argued that Mr Chea’s heroin overdose and its aftermath constitutes an extra-curial punishment. It is well established that when determining a proper sentence, a court can take into account any serious loss or detriment suffered by an offender as a result of committing the offence (see Daetz 2003 NSW CCA 216). In that case, Daetz had received a fractured skull and a brain injury as a result of being assaulted by friends of the victims.

98 In Alameddine (2006) NSWCCA 317, the offender was seriously burned when he accidentally caused an explosion in an amphetamine laboratory. In both cases the variation in sentence allowed by the court of appeal was in the order of twenty percent of the head sentence only in the case of Mr Alameddine and one twelfth of both head sentence and non parole period for Mr Daetz. The injuries sustained by both Mr Daetz and Alameddine were far more substantial than that suffered by Mr Chea in the present case.

99 I accept that Mr Chea was a person of prior good character with no involvement in drugs. As indicated previously, he and Mr Chouh imported about the same amount of heroin, one hundred and forty six grams as opposed to one hundred and forty nine grams. Mr Chouh however did not provide any assistance. I also accept that Mr Chea came from a similar deprived background with similar intellectual resources as did Mr Chouh, Ms Yin and Ms Oum.

100 Kunthea Leoung imported 169.7 grams. Ms Leoung is aged twenty five, is married with a twenty nine month old daughter with whom she arrived in Australia on 10 October 2006. The child Khemawatey has been the subject of an intervention by the Department of Community Services and is currently in foster care.

101 Ms Leoung is the middle child of three children born in Phon Pham. She has an older sister and a younger brother. The sentence proceedings were mainly based on the actual offence before the court and the effects of the offence on her relationship with her daughter. There was little, if any, sentencing submissions relative to her early childhood and the effects of the Khmer Rouge on her upbringing.

102 Ms Leoung in Cambodia. Ms Leoung was residing in the capital of Phon Pham, Cambodia. She resided there with her husband and daughter immediately prior to her incarceration. Whilst in Cambodia she was working on a stall selling jewellery. She stated that her whole life as she was mainly working, the only period in which she did not engage in any paid formal employment was after six months into her pregnancy.

103 Her Custody in Australia. In her sentencing hearing, Ms Leoung stated that she had no idea about Australia or how long the flight was or even that there was a stopover in Bangkok and the serious penalties that could be imposed for drug importation matters there. She also added that she found out the real quantity of heroin when she was in Australia.

104 Ms Leoung’s Child. In respect of the offender’s child enquiries with the New South Wales Department of Community Services has disclosed that the New South Wales Minister for Community Services has been awarding parental responsibility under s 4AAA of the Immigration (Guardianship of Children) Act (1946). International Social Services have conducted an assessment and found that there is no suitable person in Cambodia to take care of the child on a full time basis.

105 In addition to this, the Department of Immigration and Citizenship has issued bridging visa E sub-class 0 50 to the child. This type of visa allows the child to remain in Australia. The situation and status of the child however remains uncertain as both DoCS and DIAC await the outcome of these sentence procedures before making final determinations. The next hearing date in respect of Ms Leoung’s child is to be held at Parramatta Children’s Court on 26 and 27 November.

106 Ms Leoung was also assessed by Ms Collins and Ms Armstrong with particular regard to the effect of her imprisonment on her daughter, who in a sense is also being imprisoned within Australia for an indeterminate time. I have no doubt Ms Leoung is very concerned for her daughter’s welfare and that was evidenced from the time of her arrest when she asked the arresting officer what would happen to her if she was in prison (see Exhibit 1).

107 I now read from extracts from Ms Collins’ report which was prepared on 12 February 2007.

Background History. Ms Leoung is the middle of three children born to her parents in Phon Pham. She described a good childhood up to the time of her parents separation when she was eight years old. She told me that her childhood declined at that time explaining that she had to work and could not continue on at school. Ms Leoung reports that she only completed two years of formal education up to eight years of age. She explained that she commenced school but she had to leave when her parents divorced and she was required to work. Ms Leoung states that she did not want to leave school at such a young age and regrets not having any formal education.
Ms Leoung reports that she had consistently maintained work. From age eight she worked cleaning and waitressing and then from fifteen she worked in a lottery office selling tickets. Ms Leoung told me she has maintained a market stall selling costume jewellery for the last four to five years. Ms Leoung advised that she and her husband have been renting a property for the last few years and living independently.

Relationship History. She described her relationship as positive and she denied any discordance or substance abuse issues. She told me that her husband is very distressed by her incarceration and by their daughter being in care. Ms Leoung reports that she is upset that she has been separated from her daughter, however she did state that she believes her daughter is well looked after in foster care. She said that her daughter appears to be relatively happy during the weekly visits that she has with her.

Ms Leoung has been advised that her daughter may remain in Australia following her release from gaol and she was concerned that she may not be able to return to Cambodia with her. She did not report any significant mental or physical health problems or any substance abuse history.

Ms Leoung told me that the offence was motivated by a need for money. She said that a man approached her and advised that she could be given an opportunity to travel overseas if she completed her task. However she reports that this man would tell her what the task entailed until she agreed to participate. Ms Leoung states that once she agreed she was advised that she had to bring something with her but she was never told what the items were. She was concerned that they were likely illicit substances.

Ms Leoung reports that she could not refuse to participate at that time because her airplane ticket and documentation had been prepared and she had to pay $4,000 back for these which she could not do. Ms Leoung told me that she is angry that she showed poor judgment by becoming involved with this offence and she believes importing drugs to be wrong.

Clinical Presentation at Interview. No disturbance in thought or language was apparent. Ms Leoung reported some reduction to her mood which she states results from concerns that her daughter will not be able to return to Cambodia with her upon her release. She described good appetite, sleep and energy patterns. Ms Leoung reports a degree of distress further to the possible long term separation from her daughter. This is evidently a worry for her and one that will increase commensurate with her approaching release date. She appears to be hopeful that this possibility may not eventuate given the early stage in these proceedings.

I do not believe that Ms Leoung’s functioning will necessarily improve given the long term implications associated with a formal separation from her daughter upon her release.

Psychometric Testing. She achieved a score that places her within the extremely low to border-line range of ability, outperforming the bottom one percent of the normative sample for her age. Ms Leoung’s limited education would have affected her ability to complete these tasks which she struggled to understand. These tasks likely had limited real world meaning to her.

Family Assessment. As part of the assessment Ms Leoung was observed having a weekly visit with her daughter, who is currently in foster care, for a total of two hours.

In discussion with DoCS it was stated that her daughter is settling into foster care. Although the DoCS report suggests a tenuous attachment between mother and child, my observation is not entirely consistent with this. It does seem a bond exists between mother and child although it is inevitable that such a bond will be distorted given the unusual situation the mother and child find themselves in.

Recommendations. Ms Leoung does not report any particular difficulties directly related to her incarceration. She is maintaining work and eating and functioning to a sufficient level. However, she is limited in many of the vocational opportunities she can assess due to her non English speaking background. In terms of Ms Leoung’s relationship with her daughter, a lengthy separation will further destabilise their bond given the already unstable attachment between mother and daughter. Further, her daughter will develop an increasing cultural detachment commensurate with a lengthy absence from her family and cultural background. When considering the ongoing distress Ms Leoung is currently experiencing and likely to continue to experience, she will not be able to access consistent clinical intervention to assist her through this process whilst in gaol, again due to her limited English skills.

108 I will now deal with the report from Sarah Armstrong, which is dated 9 August 2007. This assessment report predominantly assesses the relationship between Ms Leoung and her child.

Ms Leoung is undoubtedly vulnerable within the correctional centre and is in danger of being isolated and the likely impact on her daughter of separation from her mother. The psychologist assessing the interaction between her daughter and Ms Leoung proposed that it is necessary to be cautious in interpreting the responses an infant may make when their primary attachments are disputed. The reason for removing her daughter from her mother’s care was based entirely on the circumstances of the offence committed and there is no evidence that her daughter was otherwise at risk when in the mother’s care. For the purpose of natural justice to both mother and child the most appropriate course of action must be to make decisions about her dughter’s care needs once the sentencing of her mother has been decided.

Summary and Recommendations. The care plan stated that her daughter has a healthy attachment to her mother and Ms Leoung is very attentive towards her daughter in providing her basic physical and emotional needs. Ms Leoung shows keen regret for the poor decision she made at the time of the offence and this regret does not centre on concern for her own incarceration but rather the plight of her daughter and the fear that she may permanently be separated from her child.

109 Recommendations.

(1) Application to the mothers and children’s program through the Department of Corrective Services for her daughter to be placed with her mother, Ms Kunthea Leoung, in one of the full-time residential programs ordered within this program for mothers with children under school age.

(2) Parental responsibility should be restored to Ms Leoung and a supervision order introduced to ensure her daughter’s safety and progress are monitored.

(3) It would be essential for her daughter’s welfare that she have an ongoing close relationship with her mother. For a child of her age such a contact would have to be frequent in order to maintain the attachment, with weekly contact being optimal. Adequate and effective arrangements should be made in order to serve the child’s best interests.

(4) Such visits must be closely supervised but the current plan of six visits a year would not be a sufficient frequency to maintain a relationship between such a young child.

110 I accept that Ms Leoung was a person of prior good character and with no exposure to the drug milieu. She was unaware of the death penalty for drug importation that applied in Bangkok. She had no appreciation of the effects of drug abuse in society. Like the others she has undertaken to give evidence and her assistance is rated as being of a high value. Her statement reveals a particularly difficult method of secreting the pellets within her body at a stage where she was unable to withdraw because of the money already expended on her behalf. (See Exhibit D).

111 The situation with her child is unusual as far as a similar problem that might occur if she had been an Australian citizen. Ms Leoung speaks Khmer. Kehmawatey is fostered with an Australian family who do not speak Khmer. The child’s first language is therefore likely to be English rather than Khmer, which is going to create a communication problem for mother and child during her imprisonment. But more importantly if her child is returned to her on release the child will be going back into an environment where little or no English will be spoken. That problem exists in addition to the bonding and emotional troubles referred to by Ms Collins and Ms Armstrong. Ms Leoung’s intellectual resources are poor and are unlikely to help the situation and I accept that her background and antecedents in that regard are similar to Mr Chouh, Ms Oum, Ms Yin and Mr Chea.

112 In regard to Mr Chea and Ms Leoung, I make the following orders.

113 Each is convicted.

114 Ms Leoung is sentenced to four years and five months imprisonment with a non-parole period of two years and nine months to date from 10 October 2006. She is therefore eligible for release on parole on 9 July 2009.

115 Mr Chea is sentenced to four years and five months imprisonment with a non-parole period of two years and eleven months to date from 10 October 2006. He is therefore eligible for release on parole on 9 September 2009.

116 I strongly recommend Ms Leoung be permitted to participate in the mother and children’s program, subject to assessment as to the propriety of that from time to time by the Department of Community Services. I will have something to say at the end of the proceedings in regard to BS about the discount situation but I do not need to go into that at this point of time.

117 HIS HONOUR: I’ll make a non-publication order in regard to BS’s matter as well. I’ll make the non-publication order of any names associated with this matter.

118 BS imported 239.2 grams of heroin. She is aged thirty-seven and is married with three children. The youngest, a boy called Vichith Srang now aged two years and five months, accompanied her to Australia. He has also been the subject of an intervention by the Department of Community Services and is currently in foster care. Since her imprisonment she and her child have been diagnosed as HIV positive.

119 Childhood. BS is a Cambodian citizen and was born in the capital Phnom Penh. She has four brothers and two sisters and she is the youngest of seven children. The sentence proceedings did not go into detail as to her childhood per se nor the effects if any of the Pol Pot regime on her as a child. However, what is known is that she described having a conventional childhood, unaffected by various factors such as the political climate and poverty.

120 She resided with her husband in Phnom Penh prior to the offence. Her husband was employed and his work involved him travelling to surrounding provinces. She is a mother of three and she was travelling with her 20-month-old son when she was arrested. Her eldest son is aged eighteen and her daughter is aged eleven. BS and her husband and her children resided in an average sized wooden house. The whole family in fact resides in a large family home but the home is divided up into areas and rooms for each family. BS had never left Cambodia and knew very little about Australia. She did not have a previous criminal record and is otherwise of good character. She is currently learning English in custody.

121 In respect of her child, the New South Wales Minister for Community Services has been awarded parental responsibility under s 4AAA of the Immigration (Guardianship of Children) Act 1946 and the child is now a ward of the State until aged eighteen. She sees her child twice a week for two hours. She stated that her child cannot speak Khmer but can speak some words in English. She described her child in the sentencing proceedings as dressing like an Australian. She also showed remorse and regret for her actions, stating that she finds it very difficult, “I’m regretful for what I did that caused our separation”.

122 Since her arrest BS and her child have been diagnosed as HIV positive. At this time she does not require any medication but does not know if her child is obtaining or in need of HIV medication. She has no hope that she will receive medical treatment for HIV once she is deported back to Cambodia. She is aware that treatment is available in Cambodia, as suggested by evidence presented during the sentence proceedings from the HIV AIDS Legal Centre. However, she does not accept that she will be able to access that treatment as a result of lack of money.

123 BS was assessed by Ms Collins and Ms Armstrong. The histories obtained were confirmed by BS in evidence. I will deal firstly with the report by Emma Collins dated 10 January 2007.

History. She described a conventional childhood, stating that her parents had enough money to support the family. She said that her childhood was not greatly affected by the political difficulties in Cambodia, however, she did state that she spent a few years of her early childhood being cared for away from her family during the Pol Pot regime. She advised that this was normal at that time because of the war and restrictions upon children attending school.
She denied any learning difficulties, achieving reasonable grades and denied any disciplinary issues. She said that her parents retired to their home village in 1999 and she lives with her siblings on a family owned block of land. She has one floor of the property, which she maintains with her husband and children. Nonetheless, BS described financial hardship in attempting to care for her family and put her children through school. She told me that she and her husband have struggled to provide adequately for their family in spite of maintaining consistent work.

Relationship History. On my last visit with her BS told me that she has been advised that her son may remain in DoCS’ care until he is eighteen years of age. She was extremely distressed. She said that she wants her son to return home with her once she has completed her sentence period. BS states that her two other children remain with her husband.

Medical and Clinical History. When I saw BS for the second session she had just found her 20-month-old son had been diagnosed as HIV positive. She was extremely devastated by the news and she is yet to be tested herself.

Offence. BS said that she did not think through the repercussions.

Psychometric Testing. BS gained a score that places her within the extremely low to borderline range, outperforming the bottom two per cent of the normative sample for her age. This result probably under represents her true ability level because she gave up on some of the harder tasks easily and she appeared nervous when completing the test. It is likely that BS’s cognitive functioning is not higher than low average given her reported limited educational attainment. She impresses with low intellectual resources.

Family Assessment. BS was observed on two occasions when having a weekly visit with her twenty-month-old son. In discussions with DoCS it was reported that Vichith had taken a considerable time to settle into his current foster care placement, although he is also described as having attached to his carer well at the present time. On the two visits I observed BS actively sought out her son, playing with him and attempting to maintain his attention for most of the time. He appeared quite emotionless at times. It is likely that his emotional response to his mother is likely to be quite severely affected by the separation.

The concern is that over time and given his age, alienation from his family of original, including his family in Cambodia, will occur and circumstances will become quite difficult for him. As time continues there will become further problems in the mother son relationship as this is a crucial period up to age five in the bonding and attachment system of a child. Vichith was quiet expressionless and unemotional towards his mother initially but this lessened as the visits progressed.

There was no verbal interaction between them for the majority of the visits. However, that is considered to be quite culturally common in South East Asian families. In my opinion the separation of Vichith from his mother is having a significant impact upon his emotional and general adjustment. It is perhaps more concerning that he makes no attempt to talk at this present time. The crucial attachment time for children is around the two to five year age period. He will probably experience problems with regards to language and cultural identity. His foster carer is not Cambodian and specific isolation from his family.

124 Under ‘Summary and Opinion’ Ms Collins says that BS appears very impressionable and that she was always compliant during her visits.

125 I will deal with the Sarah Armstrong report, which is dated 9 August 2007. Under the heading ‘The likely impact on BS of separation from her son Vichith and her two children remaining in Cambodia’, she says that:

BS describes her family of origin as being close and that her marriage is a positive one. She has successfully raised two older children, one of whom was destined to commence university. Mother and son have both been diagnosed with an infectious disease and her knowledge of her son’s condition has exacerbated her level of distress. She is undoubtedly vulnerable within the correctional centre and is in danger of being isolated and without supports. It is unknown to what degree or ongoing health issues will be attended to whilst in custody and this may further impact her fragile coping mechanisms. BS expresses deep regret for the offence she commenced and speaks entirely of the impact of the current circumstances on her three children. Her absence and the lack of income this creates is likely to have a deep impact on her family and the educational prospects of her children there.

The likely impact on the child of separation from his mother. There would appear to be no evidence he was at risk in his mother’s care prior to the offence being committed. There is no suggestion in the information provided that BS was providing inadequate care for her son. It would seem therefore that the most appropriate course of action would have been to make decisions about his long term care needs once the sentencing of his mother has been decided.

If he remains in foster care, however, his infectious disease will undoubtedly create disadvantages for him in terms of his social adjustment within Australia and will decrease the likelihood of being able to maintain links with his Cambodian culture. Should he return to Cambodia in his mother’s care at the end of her custodial sentence there are indications that his particular health needs will be able to be met in his own country. The Cambodian government is providing significant funding for new paediatric services with a focus of infectious diseases and their impact on paediatric health. There is undoubtedly a decreased chance of finding a suitable placement within Cambodian carers due to his health care needs and he is at risk of isolation due to the inability to place him with young children due to the risk of infection.

Summary and Recommendations. The care plan indicated there are no options for the child to be restored to his father and that placement with his extended family members in Cambodia could not be recommended. The Department of Community Services do not give evidence that BS should not have her son returned to her care.

126 It is recommended:

(1) That application to the mother and children’s program through the Department of Corrective Services for the child to be placed with his mother should be made.

(2) If BS receives a short sentence and one of the following: (a) the above named facilities are unable to offer adequate health service to make this a viable option for the child or his mother or (b) the decision be made to return the child to his mother’s care at the end of BS’s sentence, consideration be given to revising the contact arrangements detailed in the care plan.

(3) The child should have frequent visits with his cousin, KR, acknowledging the close bond generally enjoyed by cousins in the Cambodian community.

127 BS has undertaken to give evidence and her assistance is rated as of a high value by the Australian Federal Police. She imported a similar amount to Ms Yin 222.9 grams and Ms Oum 228.8 grams. I accept that her intellectual resources are of a similar level to Mr Chouh, Ms Oum, Ms Yin, Mr Chea and Ms Leoung. Her antecedents and background, although difficult, do not appear to be as deprived as theirs, and I accept that she had no previous involvement in drugs. It is perhaps ironic that when she returns to Cambodia with her son, he is likely to get better treatment for any HIV related illness than she is. Indeed if she does require treatment whilst in custody that is probably going to be to her advantage compared to the situation likely to pertain in Cambodia.

128 BS is faced with the situation that she has two children with her husband in Cambodia and a child in care in Australia, with no particular surety of having that child returned to her at the end of her sentence. That child because of his HIV status is likely to be additionally disadvantaged in the Australian community for the reasons indicated in the reports. Similar considerations to those applicable to Ms Leoung and her child also apply to BS. It appears that BS’s husband is the person responsible for infecting her and her child. She has had little contact with him because of the difficulties of communication and the fact that she is more concerned about her child and herself, given that he was the cause of their current health problems. She said that she was unable to leave her son with her husband because he had to travel within Cambodia for work and would have been unable to look after him.

129 In my view, the hardship suffered by BS and her child in all the circumstances is exceptional, although had they been Australian citizens that would not have been the case. The exceptionality is brought about by the combination of the circumstances of both being found to be HIV positive; of her young child being made a State ward until the age of eighteen; the likely effects of separation at this impressionable time of life where the child will develop a language not his own which will create communication problems with his family and the wider Cambodian community when or if he is returned to Cambodia; where the child, because of his HIV status, is going to have less opportunity within his foster family and the Australian community while resident here; and finally, where there is likely to be a significant disparity of medical treatment between himself and his mother on their return to Cambodia.

130 That being said, BS imported the largest amount of heroin of all seven offenders and any penalty needs to reflect that.

131 I have discounted the sentence I imposed by twenty per cent in all cases, except that of Mr Chouh. The sentence that I discounted by twenty per cent was one that I had already discounted for a plea of guilty. I would allocate five per cent of the twenty per cent for past assistance and fifteen per cent of the twenty per cent for future assistance. The sentences I would have imposed but for the assistance in each case was as follows: Mr Srey four years, Mr Chouh five and a half years, Ms Oum six and a half years, Ms Yin six and a half years, Mr Chea five and half years, Ms Leoung five and a half years and BS six and a half years.

132 Bearing in mind the matters referred to in my judgment of 25 October 2007 and the above matters I make the following orders in regard to BS.

133 She is convicted.

134 She is sentenced to five years and three months imprisonment with a non-parole period of two years and nine months to date from 10 October 2006. She is, therefore, eligible for release on parole on 9 July 2009.

135 Again I strongly recommend that BS be permitted to participate in the mother and children’s program, subject to assessment as to the propriety of that from time to time by the Department of Community Services.

136 I’ll order a copy of that judgment be taken out as urgently as possible. I grant liberty to the parties to put the matter back in the list at any stage if there’s any problems associated with any of the sentences.

oOo

04/04/2008 - Removal of the name of relevant children and one child's father in accordance with a non-publication order - Paragraph(s) 107, 108, 109, 125 and 126