R v Anh Thai PHAM

REMARKS ON SENTENCE 1I am sentencing Anh Thai Pham. I am sentencing him for a very serious crime which carries life imprisonment. The crime is supplying a large commercial quantity of a prohibited drug. First I will refer to the crime and the Act of Parliament under which it is made. Then when a judge sentences a person the judge must say something about what happened to bring about the charge. Then the judge says, as I will say, something about the person, the offender, who committed the crime. I will refer to Mr Pham's evidence that he gave and the arguments of the prosecution and the defence and then I will announce the sentence. 2Mr Pham has pleaded guilty to supplying a large commercial quantity of a prohibited drug. The prohibited drug is methylamphetamine. The offence is created by s 25(2) of the Drug Misuse and Trafficking Act 1985. Parliament regards the crime as so serious that it has fixed a maximum sentence of life imprisonment. Not only that, it has fixed a standard non-parole period of 15 years imprisonment. 3When I am sentencing Mr Pham he has asked me to take into account another crime that he committed. That crime was an offence of supplying a prohibited drug which is called methoxymethamphetamine. When I sentence him I will take that into account and I sign the form under s 32 of the Crimes (Sentencing Procedure) Act 1999 saying that I have taken that into account. That crime itself is very serious and Parliament has fixed a maximum of 15 years imprisonment to it. 4Briefly what happened is this. The Australia Federal Police and the Australian Crime Commission were involved in a joint operation in July 2012. They had a number of people under surveillance. Those people did not include Mr Pham, but their investigations led them to his house in a street in Hinchinbrook. Mr Pham lived there with his 18 year old son and a friend. Each had their own bedroom. Mr Pham's bedroom had a lock on it. It was the only room with a lock although it was not locked at the time. 5On 25 July 2012 at about 7.00pm in the evening Australian Federal Police arrived with a search warrant. He was asked whether there were any drugs and he said "Some drugs in my room". Police searched the house and they found some drugs in his jacket pocket in his wardrobe. There was a snaplock bag which in turn contained five smaller snaplock bags. Each snaplock bag contained a number of capsules. In all there were 37. In the top drawer of the wardrobe they found $4,000 in cash. Under the bed they found a metal chest which was locked with a combination lock. 6Police opened the lock using bolt cutters and inside they found 16 clear snaplock bags and 4 freezer bags. Each of the freezer bags contained a white crystalline substance. There were 20 bags in all. The substances were analysed later on and found to be methylamphetamine. The overall weight was just over 19 kilograms. The purity was between 76 and 77 per cent. A large commercial quantity of methylamphetamine is 1 kilogram. This was almost 20 times the large commercial quantity. The net weight of the pure methylamphetamine was about 14½ kilograms. 7The 37 capsules were analysed and found to be a drug called 4-methoxymethamphetamine and the purity there was between 50 and 63 per cent. There were just over 8 grams and the indictable quantity is 5 grams. 8Police found in the kitchen a box containing a large number of clipseal bags and some scales. They found some more scales in the laundry. 9The wholesale value of the methylamphetamine is estimated to be between $3 million and $5.8 million. The street value is between $7 million and $29 million. The document I have been reading from is called the statement of facts and is part of exhibit A and it records that the "evidence in the police brief does not establish that the offender's role was any greater than that of a warehouser" in respect of the drugs found in the chest of drawers. 10It is now important to say something personally about Mr Pham. First he is a person who has no criminal record whatsoever. Mr J Peluso of counsel who appeared for Mr Pham called his client to give evidence. He is 41 years old. He was arrested on 25 July 2012 and has been in custody since then on this charge. In custody he has been employed. Before he went into custody he was working in a bakery for 5 days a week. He has a history of using recreational drugs since he was in his thirties. He ceased completely when he was in his late thirties because his son arrived from Vietnam to live with him and to go to school. However, he occasionally still used recreational drugs on special occasions such as birthdays. He said that the capsules in his jacket were given to him by a friend in preparation for his forthcoming birthday for use by him and other friends. It is therefore obvious that he proposed to share those drugs. 11He was asked by Mr Peluso to explain how the chest came to be under the bed in his room. He said the person whom he bought recreational drugs from needed someone to keep what were described as damaged goods which could not be sold. That person was prepared to pay the keeper $4,000. Mr Pham understood that the damaged goods were something like crystal ice. The man brought the trunk the next day and Mr Pham kept it under his bed. The man said he would come back and despite Mr Pham contacting him a number of times, he did not. The chest or trunk had been under his bed for two months when he was arrested. Mr Pham thought it would be okay keeping the chest for a short time. The trunk was secured by a combination and he himself did not know the combination and never opened it. 12He kept the lock on his door for privacy he said. He rented the place where they were staying for $350 a week. His only asset was an old car and his only income was from working nights for five days a week in the bakery clearing about $100 a night. In the end he had just enough to cover his expenses. 13His son is the child of a relationship he had with a woman when he, Mr Pham, was on his way to Australia. He arranged to bring his son to Australia to complete his education. The boy was in Year 12 at Busby High School at the time. They still have a close relationship and his son visits him in gaol. He is Mr Pham's only child. His son has had to leave school and is on unemployment benefits looking for work. He cannot remember anything about the scales which were found in the house. He expressed his regret for what he acknowledged he had done and that it was wrong. 14Cross-examined by Mr D I Curran who appeared for the Director of Public Prosecutions, Mr Pham acknowledged that he had received the chest some 2 months before the police arrived. He was not prepared to identify the person from whom he had received the chest because of fears for the safety of his son. He said the $4,000 found by the police was the payment made for keeping the chest. He acknowledged that he had kept that $4,000 for two months without spending it. 15Mr Peluso tendered a report from a psychologist who had examined Mr Pham. Her name is Ann-Marie De Santa Brigida. She noted the history of substance abuse since the age of 30, initially experimenting with ecstasy but also using cocaine and alcohol which she found encouraged an unhealthy gambling habit. Ms De Santa Brigida did not regard Mr Pham as having a substance abuse disorder but concluded that he had high anxiety and depression related mainly to his custody and prospects. She said there was no evidence of any undiagnosed mood disorder or psychosis or personality disorder. She thought that he had a low risk of re-offending. 16Mr Pham's employment is confirmed in a document tendered by Mr Peluso from the Metropolitan Remand and Reception Centre. 17In their submissions Mr Curran took me to a series of cases and Mr Peluso took me to a series of cases as well. I should note what they are. There was MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44, R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462, R v El Helou [2010] NSWCCA 111; (2010) 267 ALR 734, R v Mahmud [2010] NSWCCA 219, Robinson v R [2012] NSWCCA 26 and Ayik v R [2013] NSWCCA 119. I will say something more about the cases later. 18Mr Curran observed that the weight, being 19 kilograms, was almost 20 kilograms above the large commercial quantity with a high purity. He argued that the courts regarded warehouser of drugs, which Mr Pham was, as serious offenders. He acknowledged that Mr Pham had pleaded guilty at an early time and indicated that the prosecution would not cavil with an appropriate discount being 25 per cent because of that plea of guilty. He observed that it could well be a case where the standard non-parole period would be appropriate. 19Mr Peluso on the other hand argued that the case of Ayik was factually similar to this case and reminded me that since the High Court decision in Muldrock v The Queen [2011] HCA 39; (2011) 120 CLR 120 the standard non-parole period is just one factor and not the determining factor. He invited me to accept his client as reasonably credible. I at first would have some difficulty in accepting that proposition because of the fact that he had had the chest for 2 months and because of the presence of the plastic bags and the money, I would regard it as unlikely that he would have $4,000 stored for 2 months without spending it. However, Mr Peluso made some significant arguments about there being none of the usual trappings or indicia of a significant involvement in the actual supply of drugs. I think he was right in those submissions. There was no evidence of any telephone intercepts involving Mr Pham dealing in drugs. The only amount of money found was $4,000 which is a relatively small amount compared to some of the amounts which are found in other cases. 20There were no trappings of wealth. He lived in a rented house paying $350 a week. The house itself was not fitted with any surveillance such as cameras or bars. There were no documents which are sometimes found relating to drugs, keeping records of monies or lists or amounts supplied. There were no firearms to protect the house. There was no suggestion that Mr Pham was involved in the transportation of the drugs. His role was limited. The door itself was unlocked when the police arrived and the chest had to be broken into. There was no evidence of fingerprints or DNA from Mr Pham on any of the packages. 21Mr Peluso argued that all of these were consistent with his client's evidence, giving his account about how he came by the chest full of drugs. I accept that submission and to my mind he demonstrates on the balance of probabilities that his client's account is true. He pointed out that his client has no criminal record and has had steady employment. His client's prospects of rehabilitation are reasonably good. He did not have a substance abuse issue. His son is waiting for his father to be released. A psychologist assessed him as a low risk. 22Mr Peluso also added that there were special circumstances for adjusting the normal ratio between a full sentence and the non-parole period. Normally a non-parole period is 75 per cent of a full sentence. He said these special circumstances were the lengthy amount of time he would obviously have to spend in gaol - which Mr Peluso frankly and correctly acknowledged - and that it was his client's first custodial sentence and that he would need supervision on parole. 23I found four of the cases referred to by Mr Peluso and Mr Curran to be helpful. Three of them concerned large commercial quantities, namely, Ayik, Mahmud and El Helou. In Ayik the offender was convicted of supplying 28 kilograms of heroin with a street value of over $30 million. He or she had also pleaded guilty but had stored the drugs for only 3 days. That offender received a sentence of 9 years. In Mahmud the amount involved was relatively small, 1.78 kilograms, but methamphetamine. The Court found that the offender was providing a repository for another to store the drugs. The purity was also very low, just over 2 per cent. That offender also received a sentence of 9 years. In El Helou the drug was pseudoephedrine and was almost 260 kilograms. The offender had been involved as a transporter and warehouser but for only 2 days. El Helou had pleaded guilty as well. Robinson was of less value because it concerned a commercial quantity rather than a large commercial quantity of MDMA, although the offender had prior convictions and for drug supply and had served custody and the conviction was the result of a verdict. 24I have taken those cases into account. I also take into account Mr Pham's age and the fact that he has no criminal record. I take into account his evidence and what was said by the psychologist. 25I first have to make some assessment of how serious this offence is compared to other offences. The amount was almost 20 times, specifically 19 times, the large commercial quantity. I regard it as being a very high purity and the storage was not a matter of days or weeks but for 2 months. I regard the case as falling comfortably within the middle of the range of objective seriousness. I should have added on the other hand that there was no evidence of actual supply. Despite that, I regard it as falling within the middle of the range of objective seriousness. 26In fixing a sentence it is important for me to keep in mind that Parliament has fixed a maximum of life imprisonment to this crime. Not only that, it has fixed a standard non-parole period of 15 years. I also need to take into account the other offence which is an offence of supplying a prohibited drug which Parliament regards as so serious that it has fixed a maximum of 15 years imprisonment. 27Taking all these matters into account I would regard an appropriate overall starting sentence as one of 18 years imprisonment. However, Mr Pham has pleaded guilty. He has pleaded guilty at the earliest opportunity. I would discount that sentence. A discount of that sentence by 25 per cent would produce a sentence of 13½ years imprisonment. I propose to round down his sentence to 13 years imprisonment which will be his sentence. 28The non-parole period envisaged by the sentencing legislation is usually 75 per cent. In this case it would be just over 10 years imprisonment. Because of the special circumstances referred to by Mr Peluso I propose to reduce his non-parole period to 9 years imprisonment. HIS HONOUR: I will sentence you now, Mr Pham. 29First I convict you of the offence of supplying a large commercial quantity of methylamphetamine. I fix a non-parole period of 9 years to commence when you went into custody on 25 July 2012. That will expire on 24 July 2021. The balance of the term is 4 years which will commence on 25 July 2021 and expire on 24 July 2025. The first date on which you will be eligible for parole is 24 July 2021. Once you are released on parole you will be still serving your sentence in the community until 24 July 2025. Have a seat. HIS HONOUR: Mr Curran and Mr Peluso, any matters that I need to attend to? CURRAN: I'd seek the standard drug destruction order. 30Yes, I make that order under s 39P of the Drug Misuse and Trafficking Act. CURRAN: There's also an application by the Crown to confiscate the proceeds of the crime which in this case is the $4,000 fine. I have a notice of motion with attached short minutes of order. If your Honour could sign those orders. I understand it's by consent or certainly not opposed. PELUSO: It is. CURRAN: If I could have a signed copy returned to my file. 31I make the order contained in the short minutes of forfeiture order signed and sealed by me and dated today. There is a copy for each party. CURRAN: I've provided a draft copy to my friend. I only need one signed copy for the Crown's file. The others can stay on the Court. HIS HONOUR: We'll put that, one on the file. One back to Mr Curran. I don't need the third. I'll give the exhibits back to my associate. Anything else? CURRAN: No. HIS HONOUR: Mr Pham can be taken down.