Huynh v R

Factual overview

1. What follows is a summary of the Agreed Facts at the sentencing hearing.
2. The Applicant left Australia and travelled to Vietnam on 14 May 2013 because her mother was ill.
3. While in Vietnam the Applicant was approached at a coffee shop when she was crying by a woman who offered to give her a job. The next day the woman gave the Applicant a Vietnamese SIM card and AUD$3,000 for medication for her mother. She was promised a further AUD$7,000 upon arrival in Australia.
4. The Applicant agreed to bring something to Australia. The woman gave her four to five bags of food items which the Applicant placed in her bag. The woman showed her a pellet which had to be inserted into the Applicant. She had an injection to enable this to be done. She was asleep for about 45 minutes and her bag was not locked at that time. She knew that she was importing something illegal because she had accepted money. The Sentencing Judge said he could not find that she knew the precise nature of the drugs.
5. On 20 June 2013 the Applicant arrived at Sydney International Airport on board a Vietnam Airlines flight from Ho Chi Minh City. She was selected for a routine baggage search. During the baggage search Customs officials located nine packets which the Applicant said contained flour. The packets were later found to contain a pure quantity of 423.9 grams of pseudoephedrine.
6. The Applicant consented to a frisk search. The Customs officer noticed something unusual around the Applicant's groin area. The Applicant then passed a nine centimetre long pellet. She was taken to St George Hospital for a CT scan which revealed an internal concealment. The Applicant had internally concealed three pellets containing a pure quantity of 197 grams of heroin.

Findings of the Sentencing Judge

1. The Applicant was born in May 1976. She was aged 37 at the time of the offending.
2. The involvement of the Applicant was as a courier. She knew she was importing an illegal drug but did not know the precise nature or quantity of the drug. She became involved in the enterprise with her eyes open. She was involved for financial gain. She had a significant degree of desperation. It could not be found that she was involved in the procurement of the substance in Vietnam nor that she was going to be involved in the distribution in Australia other than handing it over to the recipient.
3. The Applicant had a criminal record that did not entitle her to any particular leniency. There was a very real issue of specific deterrence as well as the issue of general deterrence relating to the importation of border controlled substances. The applicant had, previously, in 2005, been convicted of a similar offence, and had served a period of imprisonment - see [25] ff below.
4. The Applicant's mother was ill and, given the Applicant will be in custody, she will be unable to help her mother.
5. The Applicant gave no evidence and so the expression of remorse was given little weight. There was some minor contrition but it was very slight and untested.
6. It was accepted that prison would be more difficult for the Applicant because of her separation from her three children aged 8, 16 and 18, issues relating to her mother being in Vietnam and her relatively poor command of the English language. These formed part of the overall subjective mix but did not reach the level of being truly wholly or exceptional circumstances.
7. The Applicant gave past assistance which was of intelligence value only which would warrant a discount of 5%.
8. The Applicant entered a plea of guilty.
9. Nothing was put before the Sentencing Judge as far as the Applicant's physical condition was concerned. There was no material by way of a psychological or psychiatric report regarding the mental health of the Applicant. It was noted from the decision of the Court of Criminal Appeal in 2006 and the judgment of Berman DCJ in relation to a previous offence committed by the Applicant that there were some mental health issues. They formed part of the subjective mix and could be put no higher.
10. His Honour was unable to find on the balance of probabilities that there were good prospects of rehabilitation. However, that was not to say that the matter of rehabilitation was completely hopeless. His Honour was unable to find on the balance of probabilities that the Applicant was unlikely to reoffend.
11. His Honour was of the opinion that there should be a relatively lengthy period on parole. There would need to be extensive supervision to ensure that the Applicant did something useful with her life and did not get involved or re-involved with illegal drugs.

Ground 1: Sentence manifestly excessive

1. In her written submissions the Applicant makes it clear that she does not wish to appeal against her overall sentence but only the length of the non-parole period. Nothing else was said in either the written or oral submissions to suggest that any error had been made in fixing the length of the non-parole period or the sentence as a whole.
2. A matter of some significance in relation to this ground of appeal is the fact that on 29 April 2005 the Applicant was arrested at Sydney Airport having been found to have imported a quantity of towels which had been impregnated with methylamphetamine. Subsequent analysis found that the towels contained a total of 537.2 grams of pure methylamphetamine. The Applicant was charged pursuant to s 233B of the Customs Act 1901 (Cth) for an offence which carried a maximum penalty of 25 years imprisonment and a fine of $550,000.
3. The Applicant was found guilty by a jury at trial. On 4 August 2006 she was sentenced to a period of imprisonment of four years with a non-parole period of two years: R v Nguyen [2006] NSWDC1; (2006) 3 DCLR (NSW) 216.
4. On a Crown appeal to this Court, the appeal was upheld and in lieu the Applicant was sentenced to a period of six years imprisonment with a non-parole period of three years: R v Nguyen [2006] NSWCCA 369; (2006) 205 FLR 79. That sentence expired on 15 June 2012. The present offence was committed on 20 June 2013.
5. In upholding the Crown appeal and resentencing the Applicant James J (with whom Hidden and Hislop JJ agreed) said: [30] I am further of the opinion that the sentence imposed by his Honour was manifestly inadequate. The respondent had imported over 500 grams of methylamphetamine. Unlike many other offenders, she had not pleaded guilty but had stood trial and she had not provided any assistance to the authorities. She had not shown any contrition. The sentencing judge had declined to make a finding that she had good prospects of rehabilitation. Even after taking into account some subjective circumstances in favour of the respondent, including her difficult life, the absence of any serious previous criminal conduct, the fact that prison for the respondent would, for a number of reasons including the separation from her children, be more than usually onerous and the hardship to members of her family (to the extent to which that factor could properly be taken into account), the sentence imposed was manifestly inadequate. … [35] In re-sentencing the respondent I take into account the principle that, if the Court of Criminal Appeal allows a Crown appeal, the sentence it imposes in re-sentencing the respondent will usually be less than the sentence which the Court considers should have been imposed in the first instance. I would vary the usual ratio of the non-parole period to the head sentence when sentencing for Commonwealth offences, for the same reasons and in the same way as the sentencing judge did.
6. The Sentencing Judge was provided with a Schedule which contained a summary of what were said to be comparative cases both for the principal offence and for the offence on the Schedule.
7. During the course of the sentencing hearing when those decisions were being discussed this exchange occurred between the Sentencing Judge and the Applicant's counsel: LANGE: In my submission if your Honour has regard firstly to that sentence [Nguyen] as compared to that imposed by Bui's case, one sees quite a range of sentences available. Because the Court of Criminal Appeal upheld a sentence of seven years in one particular case does not mean that that is a sentence which is appropriate in this particular case, just as much as I couldn't say that - HIS HONOUR: It's got to be getting up there. LANGE: It's certainly getting close your Honour. I'd be disingenuous by suggesting anything to the contrary in view of the previous offence. HIS HONOUR: It's the previous offence that's the problem.
8. Three other matters point to the conclusion that the sentence is not manifestly excessive. First, the amount of the heroin, as the Sentencing Judge noted, was nearly 100 times the marketable quantity and about one eighth of the commercial quantity. Secondly, the offence on the Schedule was itself a serious offence and the amount of the precursor involved in that offence was substantial. Had this offence been dealt with separately and not on the Schedule, the overall sentence may have been greater than was imposed. Thirdly, the ratio of the non-parole period to the head sentence was relatively low, even bearing in mind this was a Commonwealth offence.
9. In my opinion, neither the overall sentence nor the non-parole period can be regarded as excessive, particularly in the light of the Applicant's previous conviction for a very similar offence, the applicable maximum penalty and the fact that a second serious offence was taken into account in sentencing.

Hardship to the Applicant's family

1. Section 16A(2) of the Crimes Act 1914 relevantly provides: In addition to any other matters, the Court must take into account such of the following matters as are relevant and known to the Court: … (p) The probable effect that any sentence or order under consideration would have on any of the person's family or dependants.
2. That particular consideration must be read consistently with the common law so that it is necessary for the Applicant to show exceptional hardship to a third party to ameliorate an otherwise appropriate sentence: R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 at [13] - [17]; R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265 at [93].
3. The opening words to s 16A(2) refer to "matters … known to the Court". In fact, the Sentencing Judge had scant information concerning the Applicant because little evidence was placed before him. He had a letter from the Applicant faxed on the day of the sentencing (10 July 2014) which relevantly said this: My husband is in Egypt. He was refused a visa to return to Australia. … I will miss my children, their education and grow up (sic). I have asked them to forgive me. … I worry each day of my mother. She is in Vietnam. She has done so much for me, now that she is ill I cannot service her during her prime time of need. … I hope your Honour will give me the chance to be a mother to my children. I have disappointed them and hope my children will grow up, be good and be educated.
4. In addition, as noted earlier, in the Agreed Statement of Facts it was said that the Applicant went to Vietnam because her mother was very ill.
5. None of that information could be said to demonstrate exceptional hardship.
6. What the Applicant has sought to do at the hearing of this appeal was to place fresh evidence before this Court in relation to these matters and in relation to her own health issues.
7. The Applicant has put forward documents apparently from a hospital in Vietnam where the Applicant's mother has been treated. Although the document appears to be dated 23 April 2015 the events to which it refer concern the Applicant's mother's admission to hospital from 14 - 20 November 2013. There are further documents which seem to concern medication that was prescribed for the Applicant's mother during 2012.
8. On any view, the information contained in these documents was available to the Applicant at the sentence proceedings. It is necessary, therefore, for the Applicant to show that a miscarriage of justice would result if this evidence was not received: Gallagher v The Queen (1986) 160 CLR 392 at 395; R v Fordham (1997) 98 A Crim R 359 at 377; Colomer v R [2014] NSWCCA 51 at [47]-[50]. No explanation has been offered why this information was not before the Sentencing Judge. Nor has any information been offered to explain the absence of any evidence from the Applicant herself at the sentence hearing. The Applicant was legally represented at that hearing.
9. The absence of the evidence sought now to be tendered did not result in a miscarriage of justice. Nor is it likely to have had any impact on the non-parole period which the Applicant received. It is not clear, in any event, what the Applicant intended to do as far as caring for her mother was concerned. She was living in Australia at the time of the offences with three children. The trip where the drugs were obtained appears to have been for a five week period, presumably to see her mother, but how many other trips there would have been to care for her mother is not known.
10. A further consideration is that the Applicant could not be said to be a person who may not have realised the effect imprisonment would have on her family. It was a matter considered by both Berman DCJ and this Court in relation to her previous offence. At that time her three children were aged 10 years, 8 years, and 7 months, and arguably in greater need of their mother than at the present time, some 9 years later. It is clear also that the Applicant was aware of the needs of her mother whom she was visiting when she decided to offend.
11. That is highlighted by what Berman DCJ said in his remarks concerning her previous offending: [12] …Of course balancing that consideration [being in custody away from her young children] is the fact that the offender went into this, with one exception [she did not know she was pregnant], with her eyes open. At the time she imported those drugs into Australia she knew she was the mother of two children. She knew that if detected she would go to gaol, but nevertheless she went ahead.
12. I would reject this ground of appeal.

Ground 3: Ill-health of Applicant

1. Section 16A of the Crimes Act 1914 relevantly provides: Matters to which court to have regard when passing sentence etc. - federal offences … (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: … (m) the character, antecedents, age, means and physical or mental condition of the person;
2. Attached to her submissions on the appeal was a report from Tim Watson-Monroe, a forensic psychologist, dated 10 July 2014 in relation to the Applicant as well as information from Justice Health some of which predated the sentence proceedings and some of which was more recent. The more recent material was an anatomical pathology report dated 9 March 2015. This report concerned two specimens from the Applicant's cervix. They were reported as showing acutely inflamed endocervical squamous mucosa. It was said that no AIS or malignancy was seen.
3. It may be accepted that the recent material was not available at the time of the sentencing proceedings. In Fordham Howie AJ (with whom Hunt CJ at CL and Smart J agreed) said: Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. … It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: Goodwin (1990) 51 A Crim R 328, compare De Marco [CCA, 20 November 1995, unreported]. There is also a general power in the Court to receive fresh or new evidence where the interests of justice require that course: Many (1990) 51 A Crim R 54.
4. I do not consider that it is appropriate that this recent evidence should be received. It is of no real significance in circumstances where there is no medical evidence to explain how what is demonstrated in the Pathology report affects the Applicant. Nor is there any evidence of what treatment, if any, is needed, and if treatment is necessary, that it cannot be provided within a custodial setting. In that way, the interests of justice do not require that it be further considered.
5. As far as the remaining evidence is concerned, there is no explanation why the report of Mr Watson-Munro, which was dated the same day as the sentencing hearing, was not before the Sentencing Judge. Nothing of any significance is disclosed in the report. Mr Watson-Munro refers to her "psychological problems which date back many years" and to "an exacerbation of chronic depression". The Sentencing Judge said that he was aware of those issues from the judgments in relation to the earlier offending.
6. In her submissions the Applicant said that she had been diagnosed with diabetes whilst in custody. One of the documents attached to her submissions was a referral form from Justice Health dated 29 August 2013. In the summary of clinical notes it referred to her having Type 2 Diabetes from approximately two years earlier. It reported that she came into custody taking Diaformin XR (a drug for diabetes) and Lipidil (a cholesterol lowering drug). Not only is her assertion of having been diagnosed with diabetes whilst in custody incorrect, the material concerning this matter was clearly available at the time of the sentencing hearing.
7. The Applicant does not establish any miscarriage of justice by reason of this material not being placed before the Sentencing Judge.
8. I would reject this ground of appeal.

Conclusion

1. I propose the following orders: (1) Grant leave to appeal. (2) Appeal dismissed.
2. HAMILL J: I agree with Davies J.

Amendments 26 June 2015 - Year of District Court decision on cover sheet amended from 2013 to 2014. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2015