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[2013] VCC 1788
General information, not legal advice.
County Court of Victoria
2013-11-15
Original judgment source is linked above.
**1 Ms Ly, you have pleaded guilty to importing a marketable quantity of a border controlled drug, namely heroin. The facts of the matter are set out in the prosecution opening, Exhibit 1, those facts are not disputed by your counsel. I do not now intend to recite the facts. Any reader of these reasons can refer to that exhibit which will be placed on the file to place the sentence in its factual context.
2 After a consideration of the evidence of your husband the prosecutor suggested a sentencing range of five to four years with a non-parole period of two to three years. That took into account his acceptance of your drug addiction limiting your moral culpability because of a causal link between that and the offending. He also referred me to the general principles of Commonwealth sentencing, in particular general deterrence, specific deterrence and prospects for rehabilitation.
3 On your behalf your counsel, Mr Nikakis, in mitigation submitted:
(1) you have pleaded guilty and you are entitled to a discount because that saves the court the time and expense of a trial and it is an acceptance of responsibility by you for your offending. It was made at an early opportunity and thus you will be given the full discount that I consider to be appropriate.
4 (2) you are aged 23, a very young person, your first time in custody. You have already spent 187 days in custody.
6 (4) Ms Nikakis tendered a report from Jeffery Cummings, forensic psychologist. In that report Mr Cummings sets out your very sad history. It sets out the circumstances of your family. Your father was an abusive alcoholic. You have one brother who had a heroin problem, you were subjected to sexual abuse by another male when you were 14. Your family was poor and you have little education. You started using heroin at around the age of 12 or 13 and you were an intravenous heroin user by the age of 15 . In the year or so prior to this offending you combined that use with the use of the very addictive and dangerous drug, crystal methylamphetamine. Mr Cummings sets out all those issues in much more detail than that summary.
7 You have tried on a couple of occasions to do something about your heroin addiction. You have been on a methadone program and a suboxone program. Unfortunately that has not been successful and indeed whilst on remand you have been drug twice and found to be positive for heroin.
8 Mr Cummings said you did not present as being psychotic or schizophrenic or having an anti-social personality disorder. He said that you felt powerless over your drug addiction, which is also combined with a problem with gambling which is set out in the report. He says that your prospects for long term rehabilitation are very guarded and you stated to him that you were not psychologically ready to cease using heroin. He believed that you are naïve, that your offending behaviour was very much limited to your drug addiction. You stated to him that you felt relatively settled whilst on remand.
9 (5 ) Mr Nikakis called your husband who married you when you were 19 or so in 2008, 2009 in Vietnam. He corroborated what is set out in the report about your family. He was aware that you had a problem with heroin when he married you. In fact he said that on the night of the wedding he found drug paraphernalia in your belongings. It cost him a lot of money to get you out of Vietnam. Apparently he had to pay the family $30,000. That suggests to me that your family do not necessarily have your best interest at heart. He has sponsored you to Australia. You are not yet an Australian citizen but have a permanent residence visa.
10 Your drug problems has caused problems in your marriage he said. Your husband tried to solve the situation a number of times by moving out of drug areas such as St Albans. The family house is now in Caroline Springs. He has tried to get you into drug rehabilitation which initially, for a brief period, was successful but thereafter you went back to using drugs. His evidence is that upon your release he intends to stand by you as long as you remain clean. He is a line marking contractor seemingly having a good business. It is not put to me he is involved in the criminal world. He told me, in fact, that he was stripped searched twice because the authorities suspected him of bringing drugs to you in gaol. Might I suggest that they look elsewhere and perhaps more closely at people around them. He paid off debts for you. Hopefully you will realise that you have someone interested in you and give you some course to try and do something about your drug problem.
11 In sentencing you I have considered s.17A of the Commonwealth Crimes Act and have considered all the available sentences. I am satisfied that a custodial sentence is appropriate in all the circumstances of this case because of the serious nature of the offending. These reasons for sentence can be taken to be entered as the records of the court. Taking into account and considered the matters in s.16A(2) of the Commonwealth Crimes Act included that because of the serious nature of the offending that a non-parole period should also be set.
12 I have taken into account all the submissions made and the witness called and exhibits tendered including any not specifically referred to in these reasons. General deterrence, that is, I have to impose a sentence that will stop other people committing these offences is important for drug importation. It is moderated here because of your personal circumstances of the use of drugs from a very early age and your serious addiction to heroin. It is not, in my view, a proper vehicle for the full effect of general deterrence and it is moderated for that reason.
13 I have to express the court's denunciation of your conduct, that is, the court's view of drug trafficking. You must realise that when you bring heroin into the country other people like yourself will use it and suffer the same consequences that you have. I have to consider what is called specific deterrence, that is, to try and stop you from doing it again. It is a very difficult proposition here as is the proposition of your prospects of rehabilitation, that is, whether you can actually stop. Specific deterrence has a role to play here because you need to spend time in gaol not only to try and stop you from doing it again but I suspect for your own benefit.
14 Mr Cummings, is very guarded about your long term prospects. It really is going to remain up to you. Your prospects of rehabilitation are certainly not helped by the availability of heroin in the Corrections system. You are a person struggling with a very serious addiction and the very least the state could do is to provide a correctional facility that does not put temptation in front of you. In my view it is a complete failure by the state to not be able to run drug free prisons and has direct consequences for people like yourself.
15 Weighing up all the competing sentencing considerations, doing the best I can, taking into account your plea of guilty and your age and the other matters I have mentioned, I sentence you to term of imprisonment of three years with a non-parole period of 18 months. The sentence starting day is today's date, which is 15 November 2013. Any other orders I need to make?
18 I declare that the period of time of 187 days that you have served on remand is to be taken into account as a term of imprisonment under this sentence.
19 Section 6AAA I sometimes do it for Commonwealth matters, sometimes I do not but there seems to be various views but just to please everyone. But for your plea of guilty I declare under s.6AAA of the Commonwealth Sentencing Act I would have imposed at least a sentence of six years with a non-parole period of four years.
20 MR KERLIN: Your Honour, one minor matter if I may.
22 MR KERLIN: Your Honour, to impose a non-parole period - - -
24 MR KERLIN: - - - the sentence has to be over three years. So that - - -
25 HIS HONOUR: Three years and one day. Sorry I forgot that. That's in - I should know that That was why there was the one day in Samjudin.
27 HIS HONOUR: Yes. All right, anything else? Have I made any other mistakes? Please feel free to tell me.
29 HIS HONOUR: Even though I've been doing this for a while, it occasionally gets me that Act. All right, Ms Ly, do you want to talk to her?
30 MR NIKAKIS: I do, Your Honour, in the absence of the court?
31 HIS HONOUR: The big Chief has said we have to stay while you talk. Again as of yesterday he sent another memo around saying if counsel want to talk to the client in court after a plea or something like that judges have to stay. I promise not to listen and I'm not interested - - -
33 HIS HONOUR: Yes. I heard there was a case recently where a judge ordered a transcript of a conversation in the dock for some very strange reason. Something I would never do and am not interested in.
34 MR NIKAKIS: Well the problem of course, which obviously the Chief Judge doesn't take into account is to get an interpreter down into the - - -
35 HIS HONOUR: I know. You're talking to the converted here.
36 MR NIKAKIS: Thank you, Your Honour. Thank you, Your Honour.
37 HIS HONOUR: Thank you, I'll just give all this - you can take Ms Ly out now, thank you.
38 HIS HONOUR: Do you want your file back or should I put that on the - I have so many of them I don't know what to do with them all.
40 HIS HONOUR: Thank you. I might keep this case you referred me to. It seemed to be quite interesting. All right, I'll adjourn the court until ten o'clock Monday.
DPP
Ly [2013] VCC 1788