CDPP v Parkinson [2025] VCC 1082

EP: 'You have to complete this transaction so that you will be able to receive your funds and then me will be able to get my 20 per cent from you.'

You: 'No probz, long as I have the funds 30M, take 6M, 20 per cent = 24M correct?'

You: 'How will I receive that - card, cheque, cash?'

EP: 'Cash...Take some money in dollars and some in local currency.'

You: $30.5m?... How about the $30.5m in bank cheque?'

1. On 31 October, when you were in Manila, you sent your wife LuP a message: 'Ha...gotta make it big score before come home, otherwise waste time coming here.'
2. Perry then arranged for you to travel to Vientiane, Laos, via Singapore, where you were to meet with a 'payment co-ordination officer.' You arrived in Vientiane on 2 November and on that day you again raised the issue of payment with Perry:

You: 'You didn't answer my question regarding the receipt of $30.5m?'

EP: 'You are to receive your total funds of US$30.5m.'

EP: 'When you get to Australia then the payment officer will instruct the bank to transfer your funds of US$30.5m to your bank account information in New Zealand.'

1. On 7 November, the day you were scheduled to leave Laos, you met with the payment co-ordination officer in the foyer of your hotel who was a woman you had not met before. The woman gave you a document to sign which would permit the release of the money to you and she also gave you the brown suitcase to take to Australia. You later confirmed with Perry that you had received the suitcase and that you had checked the contents of it and 'the new clothes and new handbag' looked okay. You also forwarded two photographs to Perry of the suitcase, with the accompanying messages: 'Nice bag' and 'Locked again.' Perry instructed you 'You should give it to the payment officer that you will meet in Melbourne Australia so that he will be happy and then instruct the paying bank to transfer your funds to your bank account information in New Zealand.'
2. On the same day you sent your wife two photographs of the brown suitcase with accompanying messages: 'The drugs case...' and 'Ano' which means 'Another.' On 9 November you told your wife: 'Gonna be rolling in it after Melbourne...'
3. Perry also instructed you: 'It is also important that you send me your picture of what you are wearing as you are travelling tomorrow to Melbourne Australia so that the payment officer will be able to know you when he meets with you.' You complied with the request. You then travelled to Melbourne, via Singapore, and Manila, Philippines. You confirmed with Perry when you landed at Melbourne Airport on 11 November.
4. It was the crown case that you travelled from Auckland, New Zealand, to Vientiane, Laos, to collect heroin that was packaged in the brown suitcase. You then travelled with that suitcase to Melbourne where you intentionally imported the heroin into Australia. The messages exchanged with Edward Perry and LuP establish that you knew, believed, or were aware of a real or significant chance that there were drugs in the brown suitcase and the circumstances in which you took possession of the suitcase and brought it into Australia established that you were reckless that the suitcase contained a border-controlled drug.
5. Your counsel argued that Perry manipulated you and that many people receive scam emails, but some, like you, get sucked in everyday because scammers target vulnerable, naïve and gullible people. It was submitted that you were a retired 70- year-old musician living in a small New Zealand town who was lured and sucked in by the promise of receiving US$30.5m less commission. You did not know Edward Perry when you received an email out of the blue telling you of your good fortune and you believed you were going to make it rich - not that you would be importing $2m worth of heroin.
6. You gave evidence at your trial and maintained that you had no idea or knowledge whatsoever of drugs being in the brown suitcase and you said you even opened it to make sure. You said you believed the purpose of your trip was to complete paperwork so you could claim US$30.5m, less 20 per cent commission, and that you had learned during the trip that you had to go to Australia and deliver the brown suitcase to the payment officer there for the payment to be facilitated. You said you signed a 'Treasury' document to facilitate the release of the funds in the foyer of your hotel in Laos. It had been brought to you by a woman, and after you signed, she gave you the bag. The Treasury document contained your bank details and referred to you receiving $30.5m. You said you were the victim of a scam. You disputed much of what officer Dogan said you told her, and you testified that you told police officer Martinez about Edward Perry when you were arrested and pointed out the hotel where you believed you were to meet the payment officer and give the bag. Martinez denied this interaction occurred.
7. In terms of the two messages and pictures you sent to your wife that read: 'The drugs case' and 'Ano', you said these messages were jokes between a married couple. You said you had sent them because your wife had sent you a facetious message when you first left that read 'drug runner' with a symbol for a man, and it was in the context of that message that you sent the later two messages. You said this showed an ongoing joke between you.
8. Clearly, the jury did not accept your version of events and you were convicted of the charge.

1. You were born and raised in the Bay of Islands in New Zealand, and you ordinarily reside in Moerewa, New Zealand. You are a middle child of 16 children. Four of your siblings are now deceased. You completed high school and have always had employment. Your first job out of school was repairing roads with the local council. You then spent around 37 years as a boner in an abattoir. You played music on the weekend. You also spent many years in northern Queensland as a full-time musician.
2. You have two children from a previous marriage and your wife Luana has three children from a previous marriage. Together you have 17 grandchildren and one great grandchild. You have had the support of your family while you have been in custody and continue to have their support. Your nephew was present in court during the trial and at the plea hearing. Your wife is contributing to your bank account so you can make purchases in custody. You receive visits from your nephew, but I do accept that your time in prison has been and will continue to be made difficult because you are isolated from your family who you love and your friends, and you are considered the elder statesman of your family.
3. During your time in custody, you worked as a unit billet but unfortunately you lost this job when you had to come to court for your trial. You are a very proud Māori man, and you are looked upon as an elder in the Māori community in New Zealand where you have been actively involved. Indeed, you have been teaching Māori culture and language to other Pacific islander inmates since you have been in custody, and they also look upon you as an elder. You received a certificate of appreciation from Fulham Prison for choregraphing and leading other men in the Haka traditions and rituals on Waitangi Day. You currently spend your time in custody working with IT and going to the gym while you wait to obtain another job.
4. You have no mental health issues, and you deny any problems with alcohol or drugs. You provided two clean urine screens that were tendered at the plea hearing. Your hearing has worsened and you have not yet been assessed for a hearing aid but expect that you will require one in the future. Due to your age your eyesight has also deteriorated, and you have lost several teeth.
5. I have given weight to the character reference provided by your wife Luana Parkinson. She said she is fully committed to supporting you and that you have a strong network of family and loved ones in New Zealand who are ready to provide you with support when you return. She said you are a respected member of the community who has been involved in local country music clubs, providing free entertainment to the hospice society, Covid response team and local marae. She says you are known for your kindness, humbleness and willingness to help others. She believes that this offending was an isolated incident and does not reflect the man she knows.

1. As this offence is a Commonwealth offence, I am required to sentence you in accordance with Part 1B of the Crimes Act (Cth). Pursuant to s16 1A of the Crimes Act, any sentence I impose must be of 'a severity appropriate in all the circumstances of the offence' and in determining sentence I must consider the non-exhaustive list of matters set out in s16A(2) of the Crimes Act that are relevant and known to the court.

1. I am cognisant that when sentencing following a conviction by jury, a sentencing judge must interpret the facts in a way that is consistent with the jury's verdict.[2] Further, any adverse findings of fact I make, I must find beyond reasonable doubt.[3]
2. It was made very clear to the jury in the defence closing address and in my directions that there were only two elements in dispute in the trial. It was not in dispute that you physically imported a substance into Australia, the substance was the border-controlled drug heroin, and the quantity imported was a commercial quantity. What was in dispute was whether you intended to import the substance and whether you were reckless as to the substance being a border-controlled drug. By its verdict the jury must have found that the prosecution had proved beyond reasonable doubt that you intended to import the substance,[4] on the basis that there was a real or significant chance there was a substance concealed in the suitcase, and you were aware of a substantial risk that that substance was a border-controlled drug and that in all the circumstances known to you it was unjustifiable to take that risk, and I sentence you on this basis.
3. I note, however, what was said in DPP (Cth) v Afford,[5] that an awareness of a significant risk that a substance is a drug is not the same as having actual knowledge that it is, but this is not a factor that mitigates offending. Rather, actual knowledge would have been an aggravating feature of your offending.[6]
4. In assessing the gravity of your offending, I have also had regard to the uncontroversial and well settled sentencing principles that apply to offending such as yours:[7]
5. I will not read those out now, but I note The Queen v Nguyen & Pham and Nguyen & Phommalysack v The Queen.
6. There is no doubt your offending is very serious. The charge carries a maximum penalty of life imprisonment, reflecting the seriousness with which parliament considers this offending. The maximum penalty, taken with other relevant factors, provides a yardstick against which a sentence is to be considered.[8] You imported 2.632.8 kilograms of pure heroin which is 1.7 times the applicable commercial quantity of 1.5 kilograms. You were motivated by financial gain as reflected in the content of the messages you sent to Perry and your preoccupation with receiving money in exchange for what you were doing.
7. I accept the prosecution's characterisation of your role as being akin to a courier. Certainly, it was not submitted or evidence-led that you were responsible for placing the drugs in the suitcase or the handbag or that you were the organiser of the venture. You nevertheless performed an integral role, albeit you are at the lowest end of the drug enterprise.
8. In terms of your moral culpability the prosecution submits this is high. The jury found you intentionally imported the substance being reckless as to it being a drug. I agree that intention as to the first element (in the sense of you being aware of a real and significant chance the suitcase contained a substance), and recklessness that it was a drug, carries a high degree of moral culpability and you took the unjustifiable risk purely for financial gain. You also took the risk in the face of what were, in my view, clear signals along the way that there was a real or significant chance there were drugs in the suitcase you were given, but you went ahead anyway.

1. You pleaded not guilty as was your right and I do not aggravate your penalty because you pleaded not guilty. However, this means you are not entitled to the very significant mitigatory benefits a plea of guilty carries, such as its utilitarian value, facilitation of the course of justice and demonstration of remorse.

1. In sentencing you I give weight in mitigation of sentence to the fact that you readily provided the authorities with your mobile phone when requested and provided your PIN. You also agreed to admit certain facts as not requiring proof during your trial which reduced the length of the trial and the need to call witnesses.

1. I give weight to the need to deter you personally from reoffending, but in my view this may be tempered to an extent by the fact that you are now of a more advanced age and will be close to 80 when eligible for parole, which will affect your capacity to reoffend and because imprisonment for many years away from your family and your community will no doubt serve as a powerful deterrent.
2. I must also give weight to the need to punish you for your offending and to denounce your offending. The case law makes it clear that stern punishment will be warranted in almost every case involving drug importation.

1. As noted earlier, general deterrence is a primary sentencing consideration in your case, especially in view of the harmful impacts of illicit drugs on the community if they are released and the difficulty of detecting such offences.

Character, antecedents, age, means and physical and mental condition

1. You are currently 72 years old. You were 70 years old at the time of the offending. I accept that your advanced age and the fact that you are a first-time offender at such an age will make imprisonment harder for you. You do not presently have any significant health issues. In determining the weight to be given to your age, however, you are not the oldest person to be sentenced for drug offending, and it is not the case that older age is determinative of the length or type of sentence to be imposed. Sentencing principles such as just punishment and general deterrence remain very important sentencing considerations and an unacceptably inappropriate sentence cannot be justified simply because you are in an older demographic.[9]
2. You have a criminal history but because your convictions are for very dated offending and are not offences that are in any way related to drug offending, I do not give them any weight in sentencing you.
3. You do not rely on the application of the principles in Verdins[10] to reduce your moral culpability or to reduce the weight to be given to the principles of general and specific deterrence.

1. In my view your prospects of rehabilitation are good given your age when you are released from prison, the fact that you have no priors for drug-related offending and your desire to be reunited with your family overseas. I consider also that you are unlikely to reoffend in the future.
2. I was provided with a schedule containing intermediate appellate sentences said to represent cases comparable to yours. I have had regard to these cases bearing in mind there are relevant differences in the facts and circumstances of those cases and yours. At the end of the day, each case must be decided on its own facts and circumstances.
3. I will now proceed to sentence.

1. On Charge 1, import a commercial quantity of a border-controlled drug, you are convicted and sentenced to nine-and-a-half years' imprisonment. I direct that you serve a period of six years before becoming eligible for parole.
2. You have been in custody since 11 November 2023 and have served 631 days of pre-sentence detention, excluding today. I direct that these days be entered into the records of the court.
3. All right, I will adjourn. Thank you both for your attendance today.

[1] 2.371.7 kilograms in the suitcase and 261.1 grams in the handbag.

[2] Cheung v The Queen [2001] HCA 67; [2001] 209 CLR 1, [9], [14] ('Cheung')

[3] R v Pilley (1991) 56 A Crim R 202; Savvas v The Queen (1995) 183 CLR 1, [8]; Cheung, [14].

[4] Inferred on the basis that there was a real or significant chance that there was a substance concealed in the suitcase.

[5] [2017] VSCA 201, [31].

[6] Lau v The Queen [2011] VSCA 324.

[7] The Queen v Nguyen & Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 [72] as adopted in Nguyen & Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673 at [34].

[8] Markarian v The Queen (2006) 228 CLR 357 at [30]-31].

[9] R v RLP [2009] VSCA 271; 213 A Crim R 46, [39], citing R v Bazley (1993) 65 A Crim R 154 at 158; R v Smith (1987) 44 SASR 587

[10] [2007] VSCA 102; (2007) 16 VR 269