Regina v Thanh Hai Nguyen Regina v Van Hau Pham Regina v Kam Pui To Regina v Huy Quang Vu

[2004] NSWSC 144

CITATION:	Regina v Thanh Hai Nguyen Regina v Van Hau Pham Regina v Kam Pui To Regina v Huy Quang Vu [2004] NSWSC 144
HEARING DATE(S):	10 and 11 December 2003
JUDGMENT DATE:	9 March 2004
JUDGMENT OF:	Sully J at 1
DECISION:	See paras 117 to 140 of 'Remarks'
LEGISLATION CITED:	Customs Act 1901 (C'th) Crimes Act (C'th)
CASES CITED:	Twala (unreported, 4 November 1994) Cheung Wai Man & ors. (unreported 22 March 1991) Chen & ors. [2002] NSWCCA 174 C (1994) 75 A Crim R 309 Briginshaw v Briginshaw (1938) 60 CLR 336 Reg. v Wirth (1976) SASR 291 Reg v Edwards (1996) 90 A Crim R 510 Wong and Leung (1999) A Crim R 531 & High Court of Australia (2001) 207 CLR 584 Nai Poon [2003] NSWCCA 42 Thomson and Houlton [2000] 49 NSWLR 383 Reg v Le Cerf (1975) 8 ALR 349 at 351
PARTIES :	Regina Thanh Hai Nguyen Van Hau Pham Kam Pui To Huy Quang Vu
FILE NUMBER(S):	SC 70228/02; 70229/02; 70230/02; 70231/02
COUNSEL:	D. Staehli - Crown P. Bodor QC - Nguyen D. Pullinger - Pham P. Young - To C. Davenport - Vu
SOLICITORS:	Commonwealth DPP - Crown Legal Aid Commission - Nguyen Ford Gaitanis - Pham Sten & Co. - To Mark Klees & Assoc. - Vu

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY

9 March 2004

70228/02 – REGINA v THANH HAI NGUYEN
70229/02 – REGINA v VAN HAU PHAM
70230/02 – REGINA v KAM PUI TO
70231/02 – REGINA v HUY QUANG VU

REMARKS ON SENTENCE

1 SULLY J:

Introduction

On 11 August 2003 five people were presented for trial in this Court. They were:

[1] Mr. Dinh Minh Nguyen (hereinafter “Dinh Minh”)


[2] Miss Thanh Hai Nguyen (hereinafter “Thanh Nguyen”)

[3] Mr. Van Hau Pham (hereinafter “Van Pham”)

[4] Mr. Kam Pui To (hereinafter “Kam To”)

[5] Mr. Huy Quang Vu (hereinafter “Quang Vu”)

2 An indictment was presented against Quang Vu charging that between 14 October 2001 and 16 October 2001 he did without reasonable cause convey prohibited imports to which section 233B of the Customs Act 1901 (C’th) applies, namely, a quantity of 3, 4 methylenedioxymethamphetamine, also known as MDMA, being not less than the commercial quantity applicable to that substance.

3 Quang Vu pleaded guilty to that charge. He was remanded in custody to the following day.

4 The Court was informed that proceedings were current in the District Court against Dinh Minh; that he was due to appear in that Court on Friday 15 August; and that he would not be indicted separately in this Court. Dinh Minh was remanded accordingly.

5 Each of Kam To and Van Pham was remanded to the following day, counsel for each having indicated the possibility of a plea of guilty to an acceptably framed charge.

6 A similar indication was given by Thanh Nguyen; but in her case the remand was for two days, i.e. to Wednesday 13 August.

7 On Tuesday 12 August an indictment was presented against Kam To charging that between 14 October 2001 and 16 October 2001 he had in his possession without reasonable excuse the same prohibited narcotics as were particularised in the Quang Vu indictment.

8 Kam To pleaded guilty to that charge. He was thereupon remanded in custody to a date to be fixed.

9 An indictment was presented, also, against Van Pham charging that between 1 June 2001 and 16 October 2001 he had imported into Australia the prohibited narcotics particularised in the Quang Vu indictment.

10 Van Pham pleaded guilty to that charge; and he, too, was remanded in custody to a date to be fixed.

11 After some discussion of procedural matters, Quang Vu was further remanded in custody to a date to be fixed.

12 On Wednesday 13 August an indictment was presented against Thanh Nguyen charging that between 1 June 2001and 16 October 2001 she had been knowingly concerned in the importation into Australia of the prohibited narcotics particularised in the Quang Vu indictment.

13 Thanh Nguyen pleaded guilty to that charge; and she, too, was remanded in custody to a date to be fixed.

14 The “date to be fixed” became, eventually, Wednesday 10 December 2003.

15 On that day a further indictment was presented against Van Pham. It charged that between about 23 June 2001 and 19 September 2001 he had been knowingly concerned in the importation into Australia by one Trung Van Le, (hereinafter “Trung Le”), of prohibited imports to which section 233 B of the Customs Act applied, namely narcotic goods consisting of not less than the prescribed traffickable quantity of heroin.

16 Van Pham pleaded guilty to that additional charge.

17 An identical further indictment was then presented against Thanh Nguyen. She, too, pleaded guilty to that additional charge.

18 A further indictment was then presented against Quang Vu. It contained two charges. The first charge was that between about 23 June 2001 and 16 October 2001 he had been knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of heroin being not less than the traffickable quantity applicable to that substance.

19 The second charge was that between about 23 June 2001 and 16 October 2001 he had been knowingly concerned in the importation into Australia of other prohibited imports to which section 233B of the Customs Act applied, namely narcotic good consisting of a quantity of Methylamphetamine being not less than the traffickable quantity applicable to that substance.

20 Quang Vu pleaded guilty to each of those additional charges.

21 Thereafter, the Court embarked upon the sentencing proceedings pertaining to Thanh Nguyen. The whole of the evidence in those proceedings was documentary evidence. I shall consider its detail later herein.

22 At the conclusion of those proceedings the Court reserved its decision on sentence.

23 The Court then dealt with the proceedings on sentence pertaining to Quang Vu. He gave oral evidence and tendered various documents. The Crown case was a documentary case, apart, of course, from the cross-examination of Quang Vu.

24 At the close of those proceedings the Court reserved its decision on sentence.

25 The Court dealt next with the proceedings on sentence pertaining to Kam To. The evidence on both sides of the record was documentary evidence.

26 At the close of those proceedings, also, the Court reserved its decision on sentence.

27 On the following day, Thursday 11 December 2003, the Court dealt with the proceedings on sentence in the remaining matter of Van Pham. The evidence in the Crown case was, for the most part, documentary; but some brief oral evidence was given by Det. Superintendent Michael Purchas of the Australian Federal Police, he being on secondment to the Australian Crime Commission.

28 The prisoner himself gave extensive oral evidence to the detail of which I shall return; and he tendered various documents.

29 In the case of Van Pham, as in the cases of his co-offenders, the Court reserved its decision.

30 Before proceeding further, it is convenient to make some additional preliminary points.

31 First, I shall refer in what follows to the importation of methylenedioxymethamphetamine as “the MDMA importation”; to the importation of heroin, excepting the fresh charge of that offence as preferred on 12 October 2003 against Quang Vu, as “the heroin importation”; and to the two charges preferred on 12 October 2003 against Quang Vu as “the postal importations”.

32 Secondly, I note that the relevant quantities prescribed by Schedule VI to the Customs Act are:

· The commercial quantity prescribed for MDMA is ½ kilogram.

· The traffickable quantity prescribed for heroin is 2 grams.

· The traffickable quantity prescribed for methylamphetamine is 2 grams

33 Thirdly, I note that the relevant maximum statutory penalties as prescribed by section 235 of the Customs Act are:

· As to the offences variously charged in connection with a commercial quantity of MDMA: imprisonment for life

· As to the offences variously charged in connection with traffickable quantities of heroin and of methylamphetamine: imprisonment for 25 years

An Overview of the MDMA Importation

34 In respect of each of the prisoners who now stands for sentence in connection with the MDMA importation, the Crown has tendered a detailed statement of facts prepared for the information of the Court by a Senior Investigator of the Australian Crime Commission. Each of the statements is very lengthy; and what follows is, of necessity, a greatly summarised narrative of that body of information.

35 On 2 October 2001 a vessel, P & O Nedlloyd Adelaide, arrived in Sydney and berthed at Port Botany. The cargo being carried in that vessel included a shipping container with the identifying number INBU 3018804.

36 On the following day, Australian Customs Service Officers examined the contents of the container. It was found to contain 20 crates, each individually numbered from 1 through 20. Each crate contained 36 boxes of marble tiles. Some boxes were labelled “pink 3”; and the others were labelled “grey/white”. The 720 boxes of tiles were x-rayed. Sixty-nine of them were found to contain perspex boxes which themselves contained MDMA tablets. There were about 420,000 tablets having an approximate gross weight of 150 kilograms. Later scientific analysis revealed that the amount by pure weight of MDMA was 52.702 kilograms. As previously noted, ½ kilogram of MDMA is by statute a commercial quantity for the purposes of he Customs Act.

37 On 23 September 2001 an airway bill had arrived in Australia in connection with the entry into Australia of the aforesaid container and its contents. The bill, and accompanying documents, had been intercepted and examined by the authorities, and had then been forwarded to the addressee. The documents constituting the bill and its attachments contained a number of letterheads in the name of a Malaysian company. The given name and address of the company were fictitious. One of the letterheads had written on it: “To Mr. Hau Pham”, undoubtedly a reference to the prisoner Van Pham. The consignee was a company having an address 28 Parraweena Road, Taren Point. The delivery agent was given as Mainfreight International – Sydney, with an address 38 Doody Street, Alexandria.

38 The hollowed out tiles containing the MDMA tablets were emptied and then re-filled with inert tablets. The tiles were then reconstructed and carefully re-packaged successively into the boxes, crates and container. The container was re-sealed and put into normal commercial circulation.

39 The subsequent tracking of the container and its substituted contents linked up with the addresses given in the consignment documents. That linkage, supplemented by intensive telephone and physical surveillance, eventually led to the arrest and charging of the prisoners.

40 The facts and circumstances, as thus summarised, of the MDMA importation formed a small, albeit critical, part of a mass of facts and circumstances which were pieced together by a process of painstaking intelligence and surveillance activities spanning the months from March 2001 to mid-October 2001, at which time the prisoners were arrested.

41 It is convenient to deal later, and separately as to each prisoner, with the respective roles of the prisoners as indicated by the totality of that material.

An Overview of the Heroin Importation

42 On Wednesday 19 September 2001 Trung Le, an uncle of Thanh Nguyen, arrived in Sydney on Flight CX 101 from Hong Kong. Among his luggage was a plastic bag containing what purported to be a bottle of Bailey’s Irish Cream Liquor. The bottle contained in fact 788.6 grams of a white pasty substance. Subsequent scientific examination of that substance revealed that it contained 477.8 grams by pure weight of heroin.

43 In the case of this heroin importation, as in the case of the MDMA importation, the facts as previously recited form but a part of a skein of related facts and circumstances spanning the period 20 August 2001 to 11 October 2001; and pieced painstakingly together by a process of both personal and electronic surveillance of those concerned in the planning and in the carrying into effect of the importation.

44 A fair overview of the whole of that material discloses a well organised plan to effect the importation. It discloses the fact of the involvement of Van Pham, of Thanh Nguyen and of Dinh Minh. It is convenient to deal later, and separately as to Van Pham and Thanh Nguyen, with the level of involvement of those prisoners in this heroin importation.

An Overview of the Postal Importations

45 Between July and September 2001 National Crime Authority officers intercepted five particular letters that had been posted from Hong Kong to Australia. Four of those letters contained a total of 54 grams, by gross weight, and 38.1 grams by pure weight, of heroin; and the fifth letter contained 13 grams by gross weight and 10.4 grams by pure weight of methylamphetamine.

46 As with the previously discussed MDMA and heroin importations, the interception of each of the five letters was the culmination of a careful and systematic project involving extensive personal and electronic surveillance spanning, in this instance, from 23 June 2001 to 7 September 2001.

47 The totality of that surveillance establishes an ongoing enterprise to traffic prohibited narcotics from Hong Kong to Sydney. A man identified only as “Ben” appears as the primary source in Hong Kong of the narcotics. Dinh Minh and his Hong Kong mistress are shown to be active in ongoing negotiations in Hong Kong with “Ben” for the ongoing supply by “Ben” of narcotics. Quang Vu is shown as the Sydney connection, his primary role being to arrange safe postal addresses to which there might be posted from Hong Kong letters or cards having every external appearance of being normal and lawful postal communications, but being in truth vehicles for the transmission through the ordinary post of regular quantities of prohibited narcotics.

48 It is not possible to say in any precise way whether any, and if so what, total amount of drugs was intended by the entrepreneurs to be brought into this country. It is, however, completely clear that what was contemplated was an exercise extending well beyond a mere five postings.

Objective Criminality – the MDMA importation

49 Each of the four prisoners was involved in some way in this importation. It will be necessary, therefore, to make findings of fact as to the respective role of each in the enterprise. Before doing that, it is important to set in place some relevant parameters of principle. It is proposed to do that by citing from three decisions of the New South Wales Court of Criminal Appeal.

50 In Twala (unreported, 4 November 1994) the Court of Criminal Appeal, constituted by Carruthers, Finlay and Badgery-Parker JJ, endorsed the following proposition:

“However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime as distinct from subjective features mitigating the penalty to be imposed.”

51 That proposition, if applied to the known facts concerning this importation, must surely result in a conclusion that the MDMA importation was an example of the worst case of the importation of prohibited narcotics. The quantity imported was 52.702 kilograms by pure weight: that is to say, between 105 and 106 times the minimum quantity prescribed by law as constituting a commercial quantity. If that does not constitute a Twala-type worst case of drug trafficking, then the very notion of a worst case in that context ceases to have any rational content.

52 An importation of so staggering a scale raises for consideration not only a matter of mere quantity, but also a matter of quality.

53 I touched upon this matter 13 years ago in remarks on sentence which I made when sentencing Cheung Wai Man & ors (unreported, 22 March 1991). I then said this:

“The importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the well-being of the Australian community. The same is to be said of any form of trafficking in heroin within this country.
The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.
In the face of such challenges each of the institutional supports of our society has a role to play. That of the Courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who …….. engage in drug-related crime …….. .”

54 I see no reason why that analysis is any less valid for an MDMA importation than for a heroin importation. Neither do I see any reason to think that the analysis is any less valid in general now than it was then. I am encouraged in that view by the fact that in Chen & ors [2002] NSWCCA 174, Heydon JA (as he then was) and Levine J accepted and applied that analysis.

55 In my opinion this MDMA importation was from first to last an enterprise breath-taking in its contempt for the law; in its disregard for the public order and welfare of this country and its citizens; and in its cynical amorality. Anybody instrumental in the planning and execution of so wicked an undertaking is criminally culpable in high degree.

56 It is now necessary to consider, within those general parameters, the objective criminality of each of the prisoners. In that connection if is useful to recall the following excerpts from the judgment of Mahoney JA speaking for the Court of Criminal Appeal in C (1994) 75 A Crim R 309 at 316-317:

“In sentencing the court must, in my opinion, take a firm grasp of reality. It is not to be circumscribed in what it does by artificial presumptions. On the other hand, a sentencing judge will not jump to conclusions or act upon ‘what everybody knows’ or upon what accords with current fashion in thinking. The judge must act upon the realities of each case.”

· As to Van Pham

57 It seems to me to be clear beyond reasonable doubt that the two principal operatives in this importation were, in every practical sense, the prisoner and a man named Lam. The prisoner was the principal in Sydney; and Lam was the principal in Hong Kong.

58 The surveillance material has the prisoner in constant contact with Lam in connection with the relevant shipment. It has him travelling to Hong Kong and Malaysia in order to deal with various aspects of the shipment. It has him organising the reception of the container; its carriage to safe premises; its opening and the removal from it of what he thought were the expected drugs. It has him taking an active role in arranging for the handing over of the supposed drugs to the intended ultimate recipient in Australia. The foregoing assessment is buttressed, in my opinion, by the following answers given by the prisoner in cross-examination at the sentencing hearing:

“Q. The day after that Peter Lam told you that he had spoken to his boss about your complaints about not being paid?

A. Yes.
Q. And he told you not to worry?
A. Yes.
Q. And he told you he would get one of his people to stay with you until you did get your money?
A. Yes.
Q. So at that time you did believe that you were going to be paid for what you had done for Peter Lam, isn’t tht right?
A. Yes.
Q. You did believe that you were going to get a very, very large sum of money for what you had done. Isn’t that right?
A. Yes.
Q. On 12 October you again spoke to Peter Lam and he told you that his boss had told him that you were to be paid first. Do you remember that?
A. Yes.
Q. ……….. (A)nd after you were to be paid then Dinh Minh Nguyen was to be paid next?
A. Yes.
Q. And after him Michael and Mr. Lam himself were to be paid?
A. Yes.
Q. That was because you were the most important person in relation to bringing this container into Australia; isn’t that right?
A. Yes.”
(T 11 December 2003, p 27(17) –(55) )

59 The prisoner had said earlier, and during his examination-in-chief:

“HIS HONOUR
Q. Did Peter Lam offer you any payment for helping in his plan to run drugs into Australia?
A. Not yet at that stage, your Honour.
[COUNSEL]
Q. Later on did he in fact say you’d be paid some money?
A. Yes.
Q. Did he at one time say you would be paid $500,000 and later on say you would be paid $300,000?
A. Yes.
Q. Was that Hong Kong dollars, Australian dollars, U.S. dollars; what kind of dollars?
A. Australian dollars.
Q. Did you expect that you would receive either $500,000 or $300,000 Australian dollars?
A. In fact I didn’t know whether I would be paid or not.”
[T, 11 December 2003, p 8 (42) – p 9 (2)

60 The prisoner gave in examination-in-chief a version to the effect that he was in part tricked, and in part intimidated, into co-operating with Lam, and Lam’s associates, in the planning and execution of the MDMA importation. The trickery had to do, allegedly, with his having paid $15,000 to Lam as consideration for a normal commercial purchase of tiles for use in the prisoner’s tiling business. The prisoner asserted, in effect, that Lam had simply pocketed the $15,000; had provided no goods in consideration of the payment of the $15,000; and had told the prisoner that if he wanted to see his $15,000 again he would need to co-operate in the MDMA importation. The intimidation was allegedly in the form of threats made to him by Lam as to the risk of harm to the prisoner’s Hong Kong mistress should the prisoner not co-operate.

61 These propositions are advanced by the prisoner as factors mitigating the seriousness of his criminal conduct. It is therefore for him to establish that mitigation on the balance of probabilities. As Dixon J pointed out in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, 362:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. …………… Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences.”

62 Applying that analytical method in the present case, I am wholly unpersuaded by the prisoner’s explanations. There is no evidentiary corroboration of an initially legitimate transaction of the kind alleged. Neither is there any corroboration of the alleged threat to the mistress: for example, by evidence of the prisoner’s having warned her of the threat; or of having taken, or even of having attempted to take, any steps to neutralise such a threat.

63 I am satisfied beyond reasonable doubt that the prisoner’s culpability is that of a principal; that his motive was huge financial gain; and that there are no “facts mitigating the seriousness of the crime” as described and explained by the decision in Twala.

· As to Thanh Nguyen

64 This prisoner was not as intensely and as directly active as was Van Pham, her sometime husband from whom she had divorced but with whom she was again co-habiting. The surveillance material shows quite clearly, however, that she knew what was afoot; that she had put money into the venture; that she was keeping in touch with developments as the venture proceeded; and that she was expecting to make a considerable financial profit when, as she confidently expected, the venture came eventually to fruition.

65 Very significantly in the case of this prisoner, things said by her during the course of a number of lawfully intercepted telephone calls give rise to a clear, indeed I would say an irresistible, inference that she was an experienced and successful drug trafficker; and that the MDMA importation was by far her biggest drug trafficking venture, more stressful than, but potentially much more profitable than, her previous and smaller-scale criminal ventures.

66 Not only was this prisoner engaged, in the senses previously described, in the MDMA importation, but she was also a source of encouragement to Van Pham on those occasions when he was stressed and anxious about incidental problems connected with the bringing to fruition of the importation.

67 I am satisfied beyond reasonable doubt that in terms of objective culpability, this prisoner is justly to be regarded as a principal party to the particular criminal enterprise.

· As to Kam To

68 This prisoner was a close associate of Lam. He was sent by Lam from Hong Kong to Sydney for purposes of real practical significance in the carrying into effect of the post-delivery handling of the container and its contents. It is beyond any reasonable doubt that Lam trusted the prisoner to act as, so to speak, Lam’s eyes and ears at the Sydney end of the importation. The prisoner was in constant communication from Sydney with Lam, keeping Lam up to date as the enterprise entered its final phase.

69 It is clear that in the context thus described, this prisoner acted as Lam’s man-on-the-spot in ensuring the safe delivery of the container and its contents to a location at which the container could be safely opened, and its contents recovered. He took the lead in breaking open some of the tiles in order to recover their contents. He reported constantly to Lam on the progress of that work; receiving from Lam progressive instructions as to how to deal with practical problems in recovering urgently the contents secreted in the tiles. At Lam’s direction, the prisoner acted as guardian of the drugs pending their delivery to the ultimate buyer. The prisoner was active in the arranging of that ultimate delivery, and was present and active when the ultimate delivery took place. He reported promptly to Lam the successful accomplishment of the ultimate delivery.

70 I am satisfied beyond reasonable doubt that the relevant role of Kam To was very much more than a more or less cameo appearance. His coming to Australia as Lam’s representative; and the whole course of his subsequent conduct in connection with the MDMA importation, stamped him with the character of a participant at the highest level after that of a participant who had a direct entrepreneurial stake in the importation.

71 His objective culpability is correspondingly high.

· As to Quang Vu

72 This prisoner is, in my opinion, the prisoner having, as among the four prisoners, the lowest level of objective culpability.

73 He was in effect a local courier, charged with miscellaneous tasks of fetching and carrying in connection with the handling of the drugs, and with the transportation of the drugs and of various of the persons who were the moving forces behind the carrying into effect of the importation.

74 It is, however, clear in my opinion that Quang Vu, although operating at a lower level of objective culpability than his co-offenders, did so act with his eyes open to the obvious fact that the enterprise in which he was thus playing his part was no routine and comparatively modest enterprise, but was, rather, a highly organised and massive venture.

75 Quang Vu gave evidence at his sentencing hearing. The greater part of his evidence was directed to the postal importations rather than to the MDMA importation. About the latter importation, Kuang Vu gave this evidence-in-chief:

“Q. If I could take you now please to the importation of the MDMA, ecstasy, your involvement in that, you understand, is limited to your dealings with Mr. To and your driving the blue and white bags containing the tablets. If I could ask you please in terms of that, I think you agree that you have picked up your father-in-law and Mr. To and carried those bags to your house; is that right?
A. Yes.
Q. And Mr. To stayed at your house with those bags in his room, is that correct?
A. Yes.
Q. On the day that you were arrested you were driving Mr. To with those bags to meet the next person he was to hand them to. Do you agree with them?
A. To meet with --
Q. To meet with a man who was to be given the bags?
A. Yes.
Q. Were you to receive any money for your part in the arrangement regarding the drugs?
A. I had been involved in the other dealing and I realised that the money I made from that dealing was not clean and in relation to this situation I was only helping other people. I did not receive anything.
Q. Why did you become involved in helping other people with this matter?
A. Because it was very difficult for me to refuse my father-in-law request because in the past he had helped me with my marriage and also he had helped me to trying to take over the laundry business, so I felt very difficult to say no to him.
Q. Your mother and father – did you want to say something else?
HIS HONOUR I thought he wanted to add something. If he wants to add something, ask him to do it.
WITNESS In my own family the discipline was very strict and when my father-in-law came back to Vietnam and he went to see my parents what my parents told him that the power of the family, all the disciplines in the family was given to him.”
[T, 10 December 2003, p15(20) – p16 (10) ]

76 I understand this evidence as being an attempt to identify “facts mitigating the seriousness of the crime” in the sense described in Twala. It is for the prisoner to establish on the probabilities, and according to the Briginshaw principles previously discussed, that the seriousness of the crime of which he has acknowledged his guilt should be regarded as having been so mitigated.

77 I am unpersuaded on that score. The laws proscribing the importation of specified narcotics are laws made for the protection of Australian society. They cannot have that operation if Courts allow any watering down of them by some woolly-minded generalising about familial discipline and cultural idiosyncracies. The proper and effective operation of those laws requires that it be understood clearly and by all concerned that a person, - any person, - who is knowingly concerned in any way, - I repeat, any way, - with illicit drug trafficking can expect to be dealt with by the Courts with all appropriate severity; and cannot expect to side-step those just desserts by generalised self-serving statements of the kind exemplified by this prisoner’s relevant evidence-in-chief. Those propositions must be applied, as a matter of simple common sense it seems to me, with even greater firmness in the case of an enterprise of the scale of the MDMA importation.

Objective Criminality: the Heroin Importation

78 Of the four prisoners only Van Pham and Thanh Nguyen were active participants in this particular importation.

79 What I have said previously about “some relevant parameters of principle” applies as much to this importation as to the MDMA importation.

80 The quantity of heroin involved in this importation was 477.8 grams by pure weight. The traffickable quantity prescribed for heroin is 2 grams. It is at once plain that this importation was, in terms of traffickable quantities, a huge importation. It must follow that, in terms of objective culpability, this importation is, if not a worst case example in a forensically hair-splitting sense, certainly a case of very high objective criminality.

81 It is not necessary to distinguish in any detailed sense between the roles played respectively by, and therefore the objective criminality respectively of, Van Pham and Thanh Nguyen.

82 It suffices to say that each prisoner was active at every stage of the planning and execution of the enterprise. Each was undoubtedly motivated by the expectation of substantial financial gain.

83 I am satisfied beyond reasonable doubt that the criminal culpability of each prisoner is that of a principal participant in an extremely serious drug trafficking crime.

84 I should add that in making that assessment of the prisoner Van Pham, I have not overlooked the evidence given by him in connection with the heroin importation. If I do not recapitulate now the detail of that evidence, that is because the prisoner’s true position emerges clearly, and consistently with the relevant surveillance evidence, in the following answers given by the prisoner in cross-examination:

“Q. It is the case, that you willingly involved yourself in the importation of the bottle of heroin into Australia, isn’t it?
A. Yes.
Q. Do you want to say that Nguyen Dinh Minh threatened you in any way to involve you in the bottle of heroin?
A. No.”

[T 11 December 2003, p25(15) – (23) ]

Subjective Matters: Van Pham

85 The prisoner was born on 5 May 1962 in North Vietnam. He was aged therefore about 39-1/2 years at the time of the commission of his offences; and he is now aged 41 years and about 10 months. He completed his secondary education in Vietnam. He was conscripted before he was able to enter university as a student of mining engineering. He deserted; remained in hiding in Vietnam for about a year; escaped with family support to Hong Kong in 1982; was interned there for some 3-1/2 years and was permitted to come to Australia in 1986. He became an Australian citizen on 4 July 1989. In Australia he worked continuously. He acquired trade skills as a tiler and stonemason; becoming self employed in that trade in 1993. He appears to have worked diligently and successfully.

86 He married the prisoner Thanh Nguyen in Hong Kong. They had three children, a son aged 20 and two other children who are teen-agers. By 1993 the marriage had broken down and they had divorced. The prisoner established an extra-marital liaison with a woman in Hong Kong. It was while he was visiting Hong Kong in March 2001 that he was first introduced by Dinh Minh to Lam. By then the two prisoners were again living together although not re-married; but Van Pham was still actively maintaining his Hong Kong liaison. The prisoner was arrested on 16 October 2001. In August 2002, after consultation with his then counsel, he was put in contact with the Australian Federal Police. Thereafter, according to the prisoner’s evidence, he intended at all times to plead guilty; but pleas of not guilty were in fact entered in February 2003, “because at that stage there were many charge which are not exactly correct according to my barrister”. As has been previously explained, he pleaded guilty on 12 August 2003.

87 I have read and considered the material Exhibit VHP1 and Exhibit C3 on sentence. The events which are described in those materials followed a long and convoluted path due in part, I infer, to the prisoner’s then counsel; due in part, also, to understandable language difficulties; but due in part, as well, and as I am satisfied beyond reasonable doubt, to a process which it is not at all unusual, in my own experience at least, to encounter in drug trafficking cases: that is, a process by which the arrested drug trafficker tests as best he can how strong the case against him appears to be; and then, if satisfied that the Crown case looks to be a strong one, tests whether he can negotiate an acceptable bargain with the relevant law enforcement authorities.

88 All other things being equal, the prisoner would probably be entitled to some very limited leniency for his pleas of guilty and for his conduct as evidenced by the two exhibits. Whether even that limited leniency should be accorded in the context of crimes of the magnitude of the MDMA importation and of the heroin importation is a matter for further consideration in the light of relevant sentencing principles which I shall discuss in a later section of these remarks.

89 I have had regard to the material Exhibit VHP2 on sentence, and I infer from that material that the prisoner has at least attempted to do during his current detention something useful by way of educational improvement.

90 I have had regard also to the various testimonials that comprise Exhibit VHP5 on sentence.

91 What practical effect, if any, can be given in this particular criminal context to those materials is, also, a matter for later decision.

92 I have had regard, finally, to the collected correspondence Exhibit VHP6 on sentence. It is, except for a notice of ceasing to act which was filed on or about 3 March 2003, a series of letters and memoranda passing between the prisoner’s former counsel and the Office of the Commonwealth Director of Public Prosecutions. It is not necessary to traverse the detail, much of which is somewhat acrimonious. The real present relevance of the material is that it shows that it was generally agreed that a contested trial could take anything from about 12 weeks to, perhaps, about 20 weeks.

Subjective Matters: Thanh Nguyen

93 I have had regard to the testimonials and certificates forming, respectively, Exhibits THN 2 and THN 3 on sentence.

94 Exhibit THN 1 on sentence is a lengthy report dated 5 September 2003 and prepared by Associate Professor Susan Hayes, Head of the Centre of Behavioural Sciences in the Department of Medicine at the University of Sydney. The report is a clinical psychological assessment of the prisoner. The background material for the report appears to have been information supplied by the prisoner through a Vietnamese interpreter during an interview of the prisoner by Professor Hayes at Mulawa Correctional Centre on 4 September 2003. It seems that Professor Hayes had access to documents, but it is not quite clear what they were or quite what they said.

95 The report contains this statement:

“As noted above, Ms Nguyen has pleaded guilty, although she claims that she did not know what was to be hidden in the bottle in relation to the heroin charge and that she did not know what drug was involved in relation to the ecstasy charge and nor did she know the size of the shipment. She claims that her husband did not directly tell her that the marble shipment contained illegal drugs although she suspected something, and she advanced some cash and purchased air fares, although she understood the cash and air fares were helping in the organisation of the “bottle business”.

96 It seems to me that those self-serving statements cannot be accepted: first, because they are inconsistent with the pleas of guilty; and, secondly, because they are inconsistent with the surveillance evidence.

97 The report details a family and social history. It derives largely, I infer, from the prisoner’s own statements and assertions made to Professor Hayes. The report notes the prisoner’s age as having been 38 at the time of the assessment. The report describes the prisoner’s completion of secondary schooling and her projected entry into a business and commerce course at a university. According to the report, the prisoner left Vietnam before commencing that projected course. She left as a refugee; reached Hong Kong in very difficult circumstances; was befriended and cared for by Van Pham whom she married in 1983; was interned with him as previously herein described; and was eventually sponsored with him as an immigrant to Australia.

98 According to the report, the prisoner’s marriage with Van Pham was volatile, sometimes violent, and, from her point of view, very unhappy. She and Van Pham divorced in 1993. Sometime thereafter there was a cautious reconciliation. It was not helped by her discovery of Van Pham’s Hong Kong liaison with another woman.

99 The report expresses this opinion:

“Although Ms Nguyen had a number of psychological/psychiatric symptoms in the months leading up to the offences and she still suffers from depression and suicidal ideation occasionally, in my opinion none of these disorders are of a nature which would increase the likelihood of her re-offending. Furthermore, she does not have any substance abuse problems which would increase the likelihood that she might re-offend. She has very positive prospects for rehabilitation and for not re-offending once she is released back into the community.”

100 I take a guarded view about these opinions. I think that they are weakened by the inconsistencies to which I have previously referred. A fair view of the whole of the relevant surveillance evidence seems to me to justify an inference that, beyond reasonable doubt, this prisoner knew a lot more than she was prepared to tell Professor Hayes about what was being done, and by whom, in connection with both the MDMA importation and the heroin importation.

Subjective Matters: Kam To

101 The only material in evidence is a psychometric assessment dated 18 September 2003, and prepared by Mr. W. John Taylor after a consultation held with the prisoner on 2 September 2003, and with the assistance of a Cantonese interpreter.

102 The prisoner was aged 32 years at the time of that consultation.

103 It is convenient to set out the ultimate opinions of Mr. Taylor:

“Mr. To provided a history of having been raised in a very large family in a poor area of Hong Kong. He stated that he is the oldest of 15 children in his family. His father died when he was 6 or 7 years of age and the family apparently lived under very poor conditions. He got married when he was 23 years of age but the marriage only lasted about 3 years as he went to gaol because of a drug-related offence. He stated that his motivation to commit that offence was to provide for his children. Mr. To has not had much education and the impression was gained that he is a person of low average intellectual ability. His employment has therefore mainly been in relatively unskilled areas. He has found it difficult to maintain regular employment in the past.
His personality profile indicates that he has a histrionic and dependent personality adjustment. He is to some extent immature and his adjustment is in keeping with him being inadequate in a number of areas of his life. He finds it difficult to cope with adult responsibilities and is likely to be somewhat naïve. He has felt quite inadequate and vulnerable. Therefore, when he had been approached to commit the present offence, he would have been particularly vulnerable as he stated he had not worked and was very worried how he was going to care for his family. He stated that it was for this reason that he agreed to take part in the offence.
Mr. To expressed a degree of regret in relation to the offence particularly because of the fact that he is in gaol and is no longer able to care for his children. He stated that he is very worried about the welfare of his children. He is assessed as having a low to moderate likelihood of recidivism. This assessment is based on actuarial assessment as well as other measures. Of course, Mr. To would not have any potential for recidivism in Australia as he will be deported upon release from prison.
It should be noted that Mr. To is going to find life in an Australian gaol difficult due to the fact that he speaks no English and has no emotional or social support. His difficulties are going to be compounded further by the fact that he is a rather vulnerable person who would be likely to find it difficult to cope with some assertive or aggressive inmates.”

104 This prisoner has criminal antecedents in Hong Kong, and they are very troubling for present purposes.

105 On 19 December 1994 the prisoner was sentenced in Hong Kong to imprisonment for 9 years for having trafficked in dangerous drugs as defined in the relevant Hong Kong legislation. The dangerous drug in question is described in the relevant documentation as “salts of esters of morphine”. The quantity was 77.05 grams by pure weight in a gross quantity of 184.10 grams. No non-parole period appears to have been set, but it is obvious that the prisoner was released prior to the expiration of the 9 years. Quite when he was released is not clear.

106 The prisoner was 23 years of age at the time he was so sentenced. He had no previous criminal record. He appeared to have no health problems and was not a drug addict. He had completed his secondary school education up to Form 3 in 1985. He had worked in a number of trade-related occupations, one of which is given in the relevant documents as .”marble worker”.

Subjective Matters: Quang Vu

107 This prisoner was born on 15 July 1976. He is now aged, therefore, 27 years and some 8 months.

108 I have read and considered the personal and family history as set out in Exhibit QHV 4 which is a psychiatric report prepared in December 2003 by Mr. Doug Tran, a General and Forensic Psychiatrist. Mr. Tran’s ultimate opinions are expressed thus:

“Mr. Vu appears to be experiencing adjustment difficulty in response to his incarceration and its impact on his young family. Although his reactivated traumatic experiences did not appear to be clinically significant, Mr. Vu’s custodial adjustment would have been compromised by his past adversity as well as his limited acculturation. Mr. Vu also appears to be experiencing significant anticipatory anxiety in relation to his impending sentencing, understandably in view of the potential ramifications.
Mr. Vu’s offending behaviour could be understood in the contextualised framework of his psychological and social vulnerability. He would have been under some emotional pressure to partake in his stepfather-in-law’s drug enterprise, which he would have been gradually drawn into, especially in view of the fact that Mr. Vu’s only support network was his wife and her family.
As a young father, Mr. Vu would have felt the need to reassure himself and his family in terms of his earning capacity. He would have been so driven by financial rewards that his judgment, as to his liability and potential legal consequences, became impaired. In addition Mr. Wu would have been rendered susceptible to legal transgressions as a result of his exposure and proximity to his stepfather-in-law’s drug activities.”

109 On 18 December 2003, and following the conclusion of the proceedings on sentence, a facsimile transmission was received from learned counsel for the Crown. The transmission forwarded to the Court material explanatory of the course of events leading up to the prisoner’s plea of guilty. The material was forwarded with the consent of learned counsel for the prisoner. The whole of the facsimile transmission will be marked for identification QHV1.

110 It appears from this material that the prisoner was charged originally with conspiracy to import 150 kilograms of MDMA; with an alternative charge of having been knowingly concerned in that importation; and he was charged as well with the postal importation offences. He was committed on 23 July 2002 for trial on the first two of those charges.

111 On 1 July 2003 the prisoner’s counsel intimated to the solicitor then acting for the Crown that the prisoner might plead guilty to a charge more limited than the conspiracy charge. This intimation progressed in further discussions held on 17 and 21 July 2003. An agreement was reached, and confirmed in writing on 25 July 2003, that the prisoner would plead guilty to the charges in connection with which he now stands for sentence.

112 I shall return at a later point in these remarks on sentence to a consideration of what, if any, particular leniency the prisoner ought justly to receive for his pleas of guilty.

Additional Considerations

(1) Crimes Act (C’th) Section 17A

I have considered this section in its application to each of the prisoners. In no case could it be thought appropriate to do other than pass significant sentences of full-time imprisonment. No contrary submission was put for any prisoner.

(2) Crimes Act (C’th) Section 16A(2)

What I have written previously covers most of the specific matters that this provision requires to be considered. I add:

(a) In the case of each prisoner I accept that imprisonment will be somewhat more difficult by reason of language barriers.

(b) In the case of each prisoner I accept that lengthy imprisonment will bring with it hardship to innocent family members. I do not accept that the fair measure of such hardship brings it, in any of the four cases, into the category of highly exceptional circumstances in the sense discussed by Wells J in Reg v Wirth (1976) SASR 291 at 295-296; and see also Reg v Edwards (1996) 90 A Crim R 510 at 515.

(c) In the case of each prisoner I accept that there is not much risk of re-offending. That is so in part because of the terms of the sentences that I propose to pass. It is so, in part also in the cases of Quang Vu and of Kam To, because there must be a practical certainty in Kam To’s case and the prospect in Quang Vu’s case that those offenders will be deported at the first practicable opportunity.

(d) I have previously touched upon aspects of the factor of contrition. I acknowledge that contrition, in the sense of a genuine acceptance of moral as well as of barely legal responsibility for criminal conduct, is almost impossible to assess with any confidence that one’s perceptions are in fact correct. I have to say, however, that I am unpersuaded that any of these four prisoners is more than sorry in the primary sense of regret at having been caught.

(3) Crimes Act (C’th) Section 16A(3)

There is no evidence to establish in any particular way any need to allow in any of these cases for custodial conditions, - e.g. strict segregation on protection, - that are of a kind or a severity greater than normal

(4) Crimes Act (C’th) Section 16A(1)

This provision entails that the sentences now to be passed “ must” be “of a severity appropriate in all the circumstances of the case” .

In the case of drug trafficking at the level of the MDMA importation and of the heroin importation, but also at the comparatively somewhat lower level of the postal importations, appropriate severity entails:


(a) That general deterrence is a major, perhaps indeed the major, consideration. The reason why that is so is obvious. Unless potential drug traffickers, whether foreign or local, are brought to realise that if they play at all with that particular fire then they will assuredly be badly burnt, the Australian public is not being properly protected against that evil activity and its appalling social consequences. If authority for that proposition is necessary, it will be found in Wong and Leung , both in the Court of Criminal Appeal at (1999) 108 A Crim R 531, and in the High Court of Australia, at (2001) 207 CLR 584.

(b) That in the interest of providing that general deterrence, subjective matters cannot be given, generally speaking, a weight that they might otherwise have attracted.

(c) That it is unacceptably artificial to make what are more often than not scientifically uninformed distinctions between, relevantly, MDMA and heroin. Parliament has provided a scale of punishable quantities and levels; and a corresponding scale of penalties. There is, in my opinion, no warrant for the arbitrary grafting on to those statutory provisions of unscientific forensic, or if I may presume to say so, judicial, glosses and distinctions. I agree respectfully with what is said on the topic in Nai Poon [2003] NSWCCA 42.

(5) The Imposition of a Federal Life Sentence

Both the Federal and the New South Wales State sentencing regimes allow for the passing in an appropriate case of a sentence of life imprisonment. The Federal regime also allows, however, for the setting of a non-parole period even in the case of a head sentence of life imprisonment.

Even with that significant rider, a sentence of life imprisonment is not to be passed in the absence of very good cause, for the setting of a non-parole period permits, but does not automatically guarantee, release to parole at the expiration of the appointed non-parole period.

It remains the case, however, that the life sentence, when set by Parliament as an appropriate maximum sentence, is there to be used in a proper case. It seems to me to be incontestable that a course of conduct designed to bring into this country MDMA and heroin in the quantities involved respectively in the present MDMA importation and in the present heroin importation, is ample to warrant the passing upon the principal entrepreneurs of that maximum penalty. That warrant is strengthened, in my opinion, when those principals were themselves not drug addicts, and so were motivated by greed of a degree that simply overrode any consideration of personal, social, legal or moral duty and responsibility.

In such a case the ability to set a non-parole period seems to me to enable the sentencing Court to combine a maximum head sentence such as can be supposed reasonably to provide a real and appropriate general deterrent; with a prospect of conditional parole calibrated to the just requirements of subjective aspects of the particular offender’s case.

I have approached on that basis the consideration of the Crown submission that at least some of the present cases ought to attract a Federal life sentence.

(6) Discounting for the Pleas of Guilty of the Prisoners

I venture the suggestion that few sentencing decisions of recent times have been so great and so persistent a spur to creative forensic mathematics as the guideline judgment of the New South Wales Court of Criminal Appeal in Thomson and Houlton [2000] 49 NSWLR 383.

The core guidelines are simple. They are stated as follows in the judgment of Spigelman CJ:

“(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.” [at paragraph 160]
While it is true that the High Court of Australia subsequently struck down the guidelines as formal components of sentencing for a Federal offence, forensic enthusiasm for at least a de facto application of the Chief Justice’s propositions does not seem to me to have abated, even in the case of a plea entered to a Federal offence.


No doubt even national and international drug trafficking on a massive scale is not necessarily beyond the pale of, to speak frankly, a utilitarian bribe given, as often as not, in exchange for a plea that represents, in the real world, a cynical and pragmatic calculation of self interest, rather than, to adopt the frequently encountered but somewhat unworldly alternative description, a willingness to facilitate the course of justice. Even so, there must be an intelligent limit. In the present cases the pleas have recognised the inevitable: that is to say, that there was no realistic prospect that a reasonable jury properly directed would simply acquit outright; and that the best thing to do, therefore, was to bargain for the best available plea. I do not for a moment suggest that there is anything wrong about such an expedient trimming of the sails. I think, however, that there is a great deal wrong with turning that unabashed expedient into some kind of leverage for more or less automatic percentage discounts of the kind about which the Chief Justice spoke in Thomson and Houlton .

I cannot say, as present authority stands, that the prisoners are entitled to absolutely nothing for their pleas, which did at least free up twelve or more weeks of Court time and resources. But they are not entitled, in my opinion, to much. I have built in to the sentences now to be passed a recognition of the pleas, but on the instinctive synthesis approach rather than on the mathematically computed one.

I add for the sake of completeness that I have taken the same approach to the fact, where relevant, of cooperation and assistance with the authorities; and to the need to consider what finding, if any, should be made as to special circumstances. I have been conscious, when setting any non-parole period, of the range, frequently adopted, of 60% - 66-2/3% of the head sentence

(7) Cumulation and Concurrence

In my opinion the MDMA importation and the heroin importation were discrete crimes and a measure of cumulation is clearly warranted.

I consider, likewise, that the MDMA importation and the postal importations were discrete crimes, and that in connection with those matters, also, a measure of cumulation is warranted.

I acknowledge the need to have a proper regard, when making any such cumulation of sentences, to the principle of totality.

Conclusions as to Sentences

· Van Pham

113 This is a case in which a Federal life sentence is, in my opinion, well warranted in connection with the MDMA importation.

114 The heroin importation offence attracts a statutory maximum penalty of imprisonment for 25 years. It seems that Trung Le was sentenced in the District Court to imprisonment for 6 years with a non-parole period of 3 years and 6 months. I have not seen the relevant remarks on sentence; but, judged in the light of the evidence placed before me, I would have thought that sentence to be, with respect, strikingly lenient. It seems, however, that the apparent leniency of the sentence is explicable by reason of subjective matters not present in the case of Van Pham: an age of about 64 years; physical disabilities; and foreign nationality giving rise to a more trying than normal incarceration.

115 I will set a non-parole period recognising all of the offender’s subjective features, including his pleas and any other particular discount; and so as not to extinguish any glimmer of hope for parole after a suitably long non-parole period has been served.

116 I propose to pass, in respect of the heroin importation, a fixed sentence back-dated to 16 October 2001, the date of arrest. I propose to pass a Federal life sentence in respect of the MDMA importation and to date it so that it commences on 16 October 2003. I propose to set a non-parole period of 23 years which will be dated to commence on 16 October 2003. The effect of what is thus done will entail that this prisoner will serve at least 25 years of imprisonment.

117 Van Hau Pham: For the crime of being knowingly concerned in the importation of heroin, you are convicted upon your plea of guilty. You are sentenced to imprisonment for 15 years. That sentence is dated to commence on 16 October 2001. For the crime of importing MDMA, you are convicted upon your plea of guilty. You are sentenced to imprisonment for life. That sentence is dated to commence on 16 October 2003.

118 I set a single non-parole period of 23 years to commence on 16 October 2003 and to expire on 15 October 2026.

119 I am required to explain to you the following matters:

[1] You will serve in prison a minimum period of 25 years. That period will commence on 16 October 2001 and will expire on 15 October 2026.

[2] Prior to that latter date consideration will be given by the appropriate authorities to your release to parole upon the expiration of the minimum period of 25 years.

[3] If those authorities consider that your conduct while in prison is deserving of parole, then you will be released accordingly to parole, and you will remain on parole for the remainder of your life. Any such parole will be subject to appropriate conditions. They may be varied from time to time. If you fail to comply with those conditions, your parole will be revoked and you will be returned to prison.

· Thanh Hai Nguyen

120 I can see no just basis upon which to distinguish between this offender and Van Pham in connection with the heroin importation.

121 As to the MDMA importation, my first inclination was to pass upon this offender, also, a Federal life sentence for the reason that, as I have earlier herein explained, I consider her objective criminality to be that of a principal in that importation.

122 It is, however, the case that she has pleaded guilty to having been knowingly concerned in the importation rather than to having been the actual importer. I think that the distinction between her role and that of Van Pham is minimal, but it is a distinction nonetheless. I think, as well, that there is some difference, albeit not a very marked one, between the comparative subjective features of the two cases.

123 I propose, therefore, to pass the same fixed term of imprisonment upon her as upon Van Pham for the heroin importation. In relation to the MDMA importation, I propose to pass a sentence of imprisonment for 25 years dated to commence 2 years after the commencement of the fixed term passed in connection with the heroin importation. I propose to set a non-parole period of 16 years so as to entail that this offender will serve in all a minimum term of imprisonment of 18 years.

124 Thanh Hai Nguyen: For the crime of being knowingly concerned in the importation of heroin, you are convicted upon your plea of guilty. You are sentenced to imprisonment for a fixed term of 15 years to commence on 16 October 2001.

125 For the crime of being knowingly concerned in the importation of MDMA, you are convicted upon your plea of guilty. You are sentenced to imprisonment for 25 years to commence on 16 October 2003 and to expire on 15 October 2028.

126 I set a total non-parole period of 16 years to commence on 16 October 2003 and to expire on 15 October 2019.

127 I am required to explain to you the following matters:

[1] You will serve in prison a minimum period of 18 years. That period will commence on 16 October 2001 and will expire on 15 October 2019.

[2] Prior to that latter date consideration will be given by the appropriate authorities to your release to parole upon the expiration of the minimum period of 18 years.

[3] If those authorities consider that your conduct while in prison is deserving of parole, then you will be released accordingly to parole, and you will remain on parole for the unexpired balance of your sentence. Any such parole will be subject to appropriate conditions. They may be varied from time to time. If you fail to comply with those conditions, your parole will be revoked and you will be returned to prison.

· Kam Pui To

128 This prisoner was not a principal in the sense in which Lam and Van Pham were principals; but he was, as previously explained, the trusted lieutenant of one of the principals, Lam.

129 I have come to the conclusion that the reasonable requirements of the principle of parity are met by passing upon this prisoner the same head sentence as was passed upon Van Pham; while reducing moderately the non-parole period.

130 It seems to me that this prisoner is the paradigm of the foreign operatives who, to speak colloquially, must be stopped dead in their tracks if there is to be any realistic hope at all of rolling back the trafficking into this country from abroad of socially destructive drugs of addiction. It is timely to recall, yet again, the observations of Wells J in Reg v Le Cerf (1975) 8 ALR 349 at 351:

“But again, assuming all other things are equal, it does not follow that a person less exalted in the organization can confidently expect that his punishment will be correspondingly less severe. The ambit of his direct responsibility in deliberate law breaking is, in a sense, less, simply because his authority and role are less important to the organisation as a whole, but it remains true that he has knowingly entered into an unlawful conspiracy with persons known and unknown to obtain and distribute drugs, and it is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were no middlemen and underlings, there would be no top men in an organization. If an organization is starved of recruits it must collapse.
It seems to me to follow that after making all due allowance for the personal circumstances and antecedents of the prisoner, the facts of the particular case, and the need to show such mercy as is compatible with the safety of the public, a court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organization for purveying drugs, as well as to potential recruits, the simple truth, that a man who participates in such an organization at any level – I repeat at any level – must expect, and will receive, a heavy penalty. I do not, in saying that, mean to imply that no distinction at all will be drawn between the upper and lower echelons of organized crime. But I wish it clearly to be understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive.

131 Kam Pui To for the crime of having had in your possession without reasonable excuse not less than the prescribed commercial quantity of MDMA, you are convicted upon your plea of guilty.

132 You are sentenced to imprisonment for life, that sentence being dated formally to commence on 16 October 2001.

133 I set a non-parole period of imprisonment for 20 years. That period will commence on 16 October 2001 and expire on 15 October 2021.

134 I am required to explain to you the following matters:

[1] You will serve in prison a minimum period of 20 years. That period will commence on 16 October 2001 and will expire on 15 October 2021.

[2] Prior to that latter date consideration will be given by the appropriate authorities to your release to parole upon the expiration of the minimum period of 20 years.

[3] If those authorities consider that your conduct while in prison is deserving of parole, then you will be released accordingly to parole, and you will remain on parole for the remainder of your life. Any such parole will be subject to appropriate conditions. They may be varied from time to time. If you fail to comply with those conditions, your parole will be revoked and you will be returned to prison.

[4] You should not assume that you will be released to parole as a matter of course at the conclusion of your 20 year non-parole period. In your particular case the authorities might well take the view that having served your non-parole period of 20 years, you should be at once deported from Australia and never again be allowed at large in Australia.

· Huy Quang Vu

135 As previously herein explained, I consider that the objective criminal culpability of this prisoner is at a much lower level than the respective objective criminal culpability of his co-offenders. The principles quoted earlier from the decision in Le Cerf seem to me to be equally applicable to the case of this prisoner, but tempered, of course, to the just requirements of the individual case.

136 I propose to make concurrent and identical the sentences passed in respect of the two postal importations. I am satisfied beyond reasonable doubt that those importations, although they were effected at a time when the MDMA importation was running its course, were nevertheless illicit drug trafficking episodes separate and apart from the MDMA importation. I propose, therefore, to provide a measure of cumulation between on the one hand the sentence passed in respect of the MDMA importation, and on the other hand the two concurrent sentences passed in respect of the postal importations.

137 Huy Quang Vu for the crime of having carried without reasonable cause more than the prescribed commercial quantity of MDMA, you are convicted on your plea of guilty. You are sentenced to imprisonment for a term of 10 years. That term will be dated so as to commence on 16 October 2003.

138 For the crime of having been knowingly concerned in the importation into Australia of not less than the prescribed traffickable quantity of heroin, you are convicted upon your plea of guilty. You are sentenced to imprisonment for a fixed term of 8 years commencing on 16 October 2001.

139 For the crime of having been knowingly concerned in the importation into Australia of not less than the traffickable quantity of methylamphetamine you are convicted on your plea of guilty. You are sentenced to imprisonment for a fixed term of 8 years commencing on 16 October 2001.

140 I set a single non-parole period of 6 years commencing on 16 October 2003 and expiring on 15 October 2009. I am required to explain to you the following matters:

[1] You will serve in prison a minimum period of 8 years. That period will commence on 16 October 2001 and will expire on 15 October 2009.

[2] Prior to that latter date consideration will be given by the appropriate authorities to your release to parole upon the expiration of the minimum period of 8 years.

[3] If those authorities consider that your conduct while in prison is deserving of parole, then you will be released accordingly to parole, and you will remain on parole for the unexpired balance of your sentence. Any such parole will be subject to appropriate conditions. They may be varied from time to time. If you fail to comply with those conditions, your parole will be revoked and you will be returned to prison.

141 The exhibits in the proceedings on sentence will remain in Court pending further order.

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Last Modified: 03/12/2004