HIS HONOUR: The offender, Thi Chup Arnaout, appears today for sentence in relation to an offence that alleged that she, on or about 12 April 2014 in Sydney, in the State of New South Wales and elsewhere, did import a substance, the substance being a border controlled drug, namely methamphetamine and the quantity imported being a commercial quantity. I am informed by the Commonwealth Crown that this is an offence contrary to, "Subsection 307.1(1) Criminal Code (Cth)". This offence carries a maximum penalty of life imprisonment and/or 7,500 penalty units. The prisoner pleaded guilty on 27 February 2017 and I will come back to the circumstances of her plea and the discount I propose to give to her for the plea of guilty.
The prisoner was born, as I understand it, on 1 January 1956. There is an agreed statement of facts which sets out, in greater detail than I propose to set out in my judgment, the facts of the matter. The prisoner was intercepted arriving back in Australia on 12 April 2014 having travelled to Guangzhou, China, to Sydney. She had previously left Sydney for Guangzhou on 5 April 2014. She filled in the usual arrival card for incoming passenger card, IPC, denying that she had any goods that were otherwise prohibited from carriage into Australia. She was approached by Border Force officers after she had claimed her suitcase which was a "Crown" brand, olive-coloured bag. She told the Border Force officers that she had been sightseeing and shopping overseas. She had a conversation with those officers providing more details set out in the facts. Amongst those details she provided was that the suitcase was hers, she claimed that she had packed it herself, she was fully aware of the contents, she gave a period of time that she was in China, her movements in her travels, she gave her employment as a cleaner in a hospital which was correct, that she had paid for the trip in cash, that she had taken no drugs and she had done a lot of shopping in China and the bag in her possession was a larger suitcase than was originally hers. She gave the name of the person who had provided her with the suitcase to pack her shopping as 'Mai'.
R v ARNAOUT, Thi Chup [2018] NSWDC 110 | Case summary | Zoe
It was observed of the suitcase that the zips to the lining had been heat sealed and could not be opened. I point out as the facts to my mind establish that it is clear that this suitcase had been packed and the relevant border controlled drugs concealed in it, by persons other than the prisoner. The heat sealing of the lining points to others having control of the suitcase before it was provided to the prisoner. The bag weighed 23 kilograms when full, but when its contents were emptied it weighed 12.45 kilograms. It was subject to various examinations and ultimately in the lining of the suitcase the police found a white crystal-like substance within the lining for which presumptive tests revealed a positive result for the presence of methamphetamine.
The prisoner was arrested and over a period of time various investigations were undertaken. Her documents within her possession demonstrated that she had purchased in cash return flights to and hotel accommodation in Guangzhou and this purchase had occurred only a few days before she had departed for China on 5 April 2014. She agreed to participate in a recorded interview and was obviously not entirely frank. She gave an account in the "limited admissions" that she made that she did not know anything about the drugs in her bag. She had done a lot of shopping and that she had gone along with whatever had been suggested to her by her friend.
On subsequent forensic examination of the border controlled drug and the packages it was in revealed that each package that was found consisted of two brand heat sealed plastic bags. The total weight of the crystalline material within the bags was 5.6174 kilograms. However the pure weight of methamphetamine was 4.4681 kilograms. Testing in the usual way of various items, samples from the various containers with the methamphetamine in them, showed the purity of the border controlled drug to range from 79.1% to 80.1%. Obviously a very highly pure form of the drug.
There was a dark coloured hair found on the adhesive tape on the packages from the lid of the suitcase. The hair was examined but an unknown male's DNA profile was found. Swabs taken from the inside of the suitcase revealed a mixture of DNA profiles from at least three contributors but the source could not be determined due to insufficient information in the profile. The absence of a positive match with the DNA profile of the prisoner in my view supports the earlier observation I made about the character of the circumstances in which the suitcase and its contents, particularly the border controlled drug, came into the possession of the prisoner.
The evidence available to me is incapable of establishing beyond reasonable doubt that the accused knew the quantity of border controlled drug that was within the bag. I will come back to the issue of whether she had knowledge of, or was reckless to the presence of the border controlled drug later. The difference in weight between the empty bag and the bag when it was holding whatever luggage was in it, is of little significance in the matter if in fact as I said earlier, clear from the objective facts, the bag was delivered to the prisoner in the state in which it was imported into the country.
The prisoner is now 62 years of age. She was aged 58 at the time of the offending. It must be said that there has been considerable delay in this matter coming to court, the matter about which I will comment shortly. The Crown's antecedents details indicate that she is an Australian citizen. The Crown, as other material indicates, asserts that the prisoner is divorced and has six children from her marriage. She was a cleaner working at Fairfield Hospital earning approximately between $40,000 and $50,000 per annum at the time of her offending. She lost her employment after being charged and has lived on a disability support pension since her release to bail.
She is said by the Crown in the antecedents to have a "conviction" for an offence. This is completely incorrect. She appeared at the Campbelltown Petty Sessions on 9 December 1981 at a time, as I would understand it, from the chronology just before her marriage, for an offence of stealing some clothes from a retail store contrary to the then summary provisions for stealing s 501 Crimes Act (1900) was proved but she was discharged pursuant to s 556A Crimes Act (1900) as it then was. I propose to disregard that matter, given its age and the minor character of the offending and its unrelated character to this offending.
The Crown however has provided information of importance in the context of the surrounding circumstances of this offending. Enquiries, by the AFP I assume, reveal that in March 2014, the offender played the poker machine at "Mounties", a registered club in Mount Pritchard, on eighteen separate days for a total of 70 hours and 29 minutes. She sustained a net loss in that period of time of $23,845.82. In the same month she attended upon Star City Casino where she sustained an additional net loss of $5,549.33, losses well beyond her financial means to sustain. I mention the fact that she was released to bail. She was initially refused bail. She was ultimately granted conditional bail in the Supreme Court of New South Wales on 26 June 2014 and has served two months and 15 days in custody for the offence which I am now concerned. That will be taken into account.
I have a report from the Community Corrections Service that was prepared in August 2017. Part of the history of this matter is that the matter was listed for sentence in August 2017 but counsel for the accused was unwell, and the matter was adjourned regrettably for six months before it came to me. The matter in fact had been before me in February of 2017 for the conduct of a fitness to be tried hearing. I found the offender fit to be tried.
The Community Corrections Service sets out her personal history and her current circumstances. It accords with other history that has been provided by the prisoner to a medical practitioner and a psychologist. She was born in Vietnam but came to Australia as a refugee in 1975. Anyone with any knowledge of the Vietnam War or, as the Vietnamese call it, the American War would know that 1975 was a landmark year in the conflict that had existed between the North and South Vietnamese nations. She travelled to Australia alone, having travelled as I understand it, via Hong Kong through a refugee camp, and for a number of years was separated from her family and did not know their fate. She is one of seven children. I understand that in Australia she was married in 1981 and as I said earlier, had six children, three boys and three girls. As I understand it currently, that is, at the time of the report prepared by Community Corrections, she was living with one of her daughters in the Campbelltown area. She had been divorced from the father of her children for a number of years before the offending with which I am concerned.
I mentioned earlier that she was employed at Liverpool Hospital at the time of her arrest and I understand that she had regularly been in employment save no doubt for when she was having children and concerned with looking after them. She said to the Community Corrections officer in relation to the offending that she believed that she had been "taken advantage of". The Community Corrections officer she appeared remorseful, saying that she had feelings of "shame ... guilt ... and embarrassment". She was assessed by Community Corrections as being at a 'low' risk of reoffending. Based on information given to Community Corrections by her general practitioner, the report notes a number of medical conditions, including at the time of the preparation of the report, frequent bouts of vomiting and internal bleeding. The general practitioner also confirmed a long history of depressive symptoms with some psychological management. In more recent times to the writing of the report, after her arrest in relation to this matter.
She was compliant and cooperative. Her regular employment was confirmed. She was assessed as requiring assistance in relation to her "mental health conditions". In the defence case, medical reports were provided and a psychological report, which were available to me for the fitness hearing which was conducted on 24 February 2017. No oral evidence was given by the prisoner. Her children were in court. I would have liked to have heard form one of her children, to be frank, but I do not penalise her for the decision made not to call a child to give evidence. The Community Corrections report describes her as a supportive parent.
I have two reports from Dr Stephen Allnutt, who is a respected psychiatrist, who is known to do assessments for both Crown and defence in the administration of justice here in New South Wales. He initially assessed the offender when he saw her on 17 June 2015, as I understood it, in relation to fitness issues. Although he does not expressly address them in the report. He assessed her again on 7 July 2016. As a result of these assessments, relevant reports were prepared on 14 August 2015 and 21 July 2016. Dr Allnutt in his first report had access as I would understand it, to the report from the clinical neuropsychologist, Dr Wayne Reid, who had assessed the prisoner with various accepted psychological tests, writing a report on 12 June 2015. Dr Reid assessed the offender's intellectual functioning as "low average", however testing in relation to memory and visuo-spacial skills revealed her performance to be poor. Cross-checking validated those results.
In his opinion, the prisoner had symptoms "consistent with an adjustment disorder, with mixed anxiety and depressed mood, and a neurocognitive disorder due to another medical condition". The other medical condition being liver disease. Liver dysfunction is known, according to the psychologist, to cause neuropsychological dysfunction affecting psycho-motor functioning, visual practical skill, abstracting abilities and memories. He assessed her as having "mild to moderate neuro-cognitive deficiencies". He was also of the view that these deficiencies would affect her fitness to be tried, an issue that I resolved to the contrary. In the context of the psychological testing undertaken by Dr Reid, Dr Allnutt was of the view, firstly in 2015, that she, on the history given to him, suffered chronic post-traumatic stress disorder as a consequence of exposure to multiple traumatic events through her life. It was characterised by nightmares, flashbacks, avoidance of triggers and cues that reminded her of those traumas. This led to a degree of hyper-vigilance, a loss of interest in activities and social withdrawal. At the time he first assessed her he said that she manifested a constellation of depressive symptoms, generally consistent with a depressive disorder, he believed that her current legal circumstances was one of the most significant stressors for her at that time.
She had provided him of details of exposure to events in the Vietnam War before 1975, including witnessing deaths and seeing dead bodies and coming to Australia as one of the first of the Vietnamese refugees fleeing Vietnam after the conclusion of the "American War". She had never sought any professional treatment for the effect upon her of her experiences.
Before the commission of the offence, she gave a history of feeling "scared"; wanting to forget about the past; being depressed; having panic attacks; feeling constantly tired; having poor appetite and weight loss. She was "avoidant of thinking about what happened in Vietnam" and was having nightmares. She had given a history of being the victim of an "attempted rape" by three men upon her shortly after arriving in Australia. As I said earlier, she came to Australia separated from her family and only learned the fate of some of her family members after she had been in Australia for some time.
She gave a history to the doctor in relation to this offending of being duped by a friend having been taken on a holiday in Vietnam and then to China which, of course, is not in accordance with the objective facts and attending in China upon various shopping outings that she obviously could not afford.
She told him her airfares were paid for and she said it was "a friend" who suggested that they swapped suitcases. I pause for a moment to make two observations. One relevant to some submissions made by the Crown that I need not cite in depth, and one relevant to the assessment of the facts in this particular matter.
The Crown has pointed out in its submissions that the reliability of opinions expressed by professionals is very much dependent upon the history provided where a prisoner, for example, provides a history to a medical professional but does not give evidence. To put it in very simple terms, one must approach any findings based upon the history given with some circumspection. I am also mindful of the fact that the prisoner has given conflicting accounts of her involvement in this offence and her accounts are somewhat less than reliable. However, in terms of assessing the findings of Dr Allnutt and, particularly, as they are concerned with an assessment of her mental state before the offending in the context of the history she gave. I am prepared to accept what she told the doctor. The doctor did not seem to suggest in his clinical examination, and he is a very very experienced clinician, any observation of her distrust or lack of regard for the history in the manner in which it was given.
The facts of the matter are that for people of my generation the events in Vietnam are well known. I have taken some considerable interest in matters in Vietnam for a long period of time. Certainly, the timing of her arrival in Australia very much fits in with a range of events which are known to history, without attributing blame to one side or another, that left a large number of people seeking to flee the country for fear of their safety and seeking refuge in Australia. Of course, in this context, I appreciate there are accounts given to the doctor that aren't consistent with the objective facts. That is as to her involvement in the offence. I am mindful of her unreliability in that regard, but in the context of her background and her general character, I see her attempt to minimise her involvement in this matter merely consistent with a person seeking to - if I could use the expression; "confess and avoid". Because I have no doubt that she is very scared at the outcome of her criminal conduct for which she has been detected.
So far as her account to the doctor is concerned it is, to be said, consistent with the plea. Particularly, it is clear that her travel had been paid for as had been her expenses. As to the issue of whether she had knowledge of what drugs were in the bag, or whether they were border controlled drugs or whether she was reckless to that aspect of the matter, the only matter about which I could be satisfied of "beyond reasonable doubt" given the character of the bag that was examined by the border force people and officers is that she was in fact reckless. It is clear that she must have known that she was bringing into the country something that she could not bring into the country.
It is likely that she understood that it was a border controlled drug, to use the Commonwealth legislative expression, but, as I said earlier, there is no basis upon which I could be satisfied beyond reasonable doubt that she knew which drug it was and, certainly, that she knew the quantity that she brought to the country.
I have sentenced quite a large number of people that have imported drugs into this country in a range of ways and I have sentenced a large number of people within that group who have imported into the country border controlled drugs by bringing those drugs in in suitcases. I acknowledge that the quantity in this particular matter is above the quantity that one normally sees for such types of importations. There is no fixed amount that is imported, I appreciate. But one can see quantities ranging from a few hundred grams through to three of 4 kilograms. This is at the upper end of quantities of drug that are imported into the country by this means. As I said earlier, I do not see on the facts of this case, particular significance in the weight of the empty bag because I cannot be satisfied beyond reasonable doubt that the prisoner ever saw the bag in an empty state with the drugs concealed in the lining.
Dr Allnutt's report in 2016 reflected upon her medical history to which I have referred including Dr Reid's report. Substantially agreeing with the opinion that he had earlier expressed, he noted that she suffered from a constellation of physically and mental conditions and was significantly affected by her legal situation. There was no opinion expressed that she was unfit of be tried. He noted her limited education, cultural background, language difficulties as well as what he regarded as contemporaneously active symptoms of post-traumatic stress disorder and depression.
He was of the opinion that this constellation of matters, including I hasten to say something about which he did not comment, that is her financial circumstances and particularly her gambling indebtedness, would have "contributed to a tendency for her to be more prone to exploitation". Dr Allnutt opined that the offers made to her would have the effect of making her feel better emotionally and she was in those circumstances vulnerable to exploitation.
If I could just turn to the course of the litigation because it is tied up with a number of points that were made in the course of the written submissions of the Crown which were most helpful and the oral submissions of counsel for the prisoner. I point out at this time that I have taken into account all the submissions and the matters that are variously raised by the parties are addressed in this judgment without me having to cite the particular submission that was made.
The prisoner was committed for trial and the matter was listed for trial in May 2015. Just prior to the trial commencing, the issue of the prisoner's fitness to be tried was raised. I understand from the bar table the prisoner had the same legal representations, at least as far as the solicitor was concerned, at the Local Court as here in the District Court. In the course of oral submission the learned Crown informed me that s 20B Crimes Act (Cth) (1914) provides that the issue of fitness to be tried which can only be determined, of course, in the court with jurisdiction to finally dispose of the matter. If raised in respect of an indictable offence at the Local Court the fitness issue can be transferred to the relevant superior court of the issue to be resolved. If that particular jurisdiction determines that the person is fit to be tried the matter is then remitted back to the Local Court for the usual process, that is committal for trial or not to take its course, depending upon, one assumes, the relevant legislative provisions in the relevant State or Territory. That did not happen here.
In this matter, if there was a delay in the issue of fitness to be tried being raised with the Court occasioned, I cannot conclude that it was through any part on the part of prisoner. I note the report of Dr Reid is dated June 2015 after the prisoner had been committed for trial and in fact dated after the date of the trial.
It would appear on that information that the legal representatives had not obtained any particular opinion about the matter, at least in writing, before the matter was raised with this Court the issue of fitness to be tried. I accept that it was raised in good faith and I need not conduct an examination as to what actually occurred back in 2015. I have no transcript in any event.
Whilst the issues relevant to fitness determination were not immediately apparent, it would seem that the lawyers acting for the prisoner at the time she was in the Local Court, it is clear on the evidence available to me that the lawyers did not have a professional opinion that she was unfit to be tried until after the committal proceeding and after the matter had been listed for trial in this Court.
Bearing in mind the cultural background of the prisoner, the lack of familiarity with the legal system, I don't regard an appearance at the Campbelltown Local Court to get a s 556A discharge for what is in effect shoplifting some clothes as sufficient connection with the legal system. Having regard to her language limitations and lack of education and the like, I am certain the prisoner at all times would have been captive to legal advice given to her in good faith.
Ultimately, it was appropriate for a legal representative to raise the issue of fitness to be tried even though the psychiatrist retained, Dr Allnutt, prepared reports which either did not expressly address the issue of fitness to be tried and/or impliedly determined that she was fit to be tried. I found her fit to be tried, as I said earlier, on 24 February 2017. I am informed that she pleaded guilty to the charge on the indictment three days later on 27 February 2017, this is to my mind a very significant matter that she pleaded guilty the next occasion the matter was listed after I found her fit to be tried.
Taking into account the other matters that I have referred to reflects in my mind a number of things, firstly, the willingness of the prisoner to accept the advice; the willingness of the prisoner, notwithstanding some history she has given to others, to accept her responsibility; expression of contrition by her; her willingness based upon advice provided to her to facilitate the course of justice and, of course, it shows, even though a trial date had been fixed, a utilitarian benefit to the administration of justice, I have come to the view that I should accord her a discount of 20% upon the otherwise appropriate sentence in accordance with the conclusions, for example, of the Full Bench of the New South Wales Court of Criminal Appeal in Xiao [2018] NSWCCA 4, some passages of which are helpfully cited in the Crown's written submissions.
The calculation of that discount is a reflection of both the utilitarian benefit of the plea of guilty and the facilitation of the course of justice. The second matter, of course, requiring consideration of the fact that it was a very strong case against her. I accept, as I foreshadowed from the statements she has made to others notwithstanding the fact she has not given evidence in court, that the prisoner is genuinely remorseful. I am mindful that she has maintained that she believes that she was taken advantage of and had limited knowledge of the fact that there were drugs in the suitcase.
However, in judging a human being in this regard and any prevarications that are made by them in relation to criminal conduct, what seems apparent in this case to my mind is her vulnerability and her lack of what I would regard as "criminal know-how". Which may have made it difficult for her to acknowledge perhaps self-evident facts, particularly with the threat of a prison sentence hanging over her head.
As mentioned before, the Crown statement of facts specifically identifies the fact that the prisoner was a person with a significant gambling problem losing much more money than she could afford on poker machines. The figures speak for themselves when one considers what her annual income was as a cleaner.
I appreciate every case is different and I appreciate the prisoner has not acknowledged that the offending is related to financial difficulties, particularly her substantial gambling debt. But the fact of the matter is that I have sentenced quite a number of Vietnamese women particularly for offences of similar character with very similar modus operandi. Although this is the first case where such a person has come directly from China rather than from Vietnam with a border controlled drug.
Those people all had clear criminal histories hence their recruitment so they will not attract attention at the customs barrier are usually single people, separated from husbands; had become addicted to poker machines and have been promised, although there is no evidence of this directly in this case, a method by which they can overcome their financial difficulties. I appreciate, of course, there is no admitted evidence from the prisoner of a direct link between the offending and the offer of financial assistance for travel to South East Asia to bring back into Australia goods that would require her co-operation.
The absence of direct evidence though has to be seen in the context of the fact that clearly she was provided with the cash to pay for the trip which must have come from another source, the people that managed or controlled or organised this importation and, of course, I am not blind to the fact that she must have done this for some financial advantage and not just a holiday.
It is the case, in the absence of any admission, that she was offered a trip and benefits which came with a price and the quid pro quo to be paid for her was to bring into this country a suitcase that contained a product that was prohibited from importation. It is easy to say, of course, from our perspective here as lawyers and judges that the prisoner had permitted herself to be exploited and must pay the price for that. But it appears in this case to be a situation, of which I am satisfied on balance, that the offender because of her personal circumstances and her background of depressive symptoms was a person vulnerable to such entreaties and caused her to act in a manner which was uncharacterised.
In that regard, of course, I am very mindful of decisions of the Court of Criminal Appeal which have made it very clear that a gambling addiction in such cases - if that is the correct expression is not a "mitigating factor". Latham J in the decision of Le [2006] NSWCCA 136 made the observation at [32]:
"The deterrent value of sentences imposed on those who import drugs would be undermined if leniency were extended merely on the basis that an unsophisticated and compliant offender came under the sway of more unscrupulous people".
Which, clearly, is the case here. There are many authorities that deal with the principle that gambling addiction is not a "mitigating factor" although, of course, it is accepted it forms part of the factual context. One other such case is Mirza v The Queen [2007] NSWCCA 257.
This brings me to another aspect of the matter from the evidence that is available to me in this case, that is the relevance of the conditions that are assessed by Dr Allnutt in this sentencing exercise. There is a case in which a Full Bench of the New South Wales Court of Criminal Appeal sat which dealt with various aspects of sentencing of drug importers. I must confess I am constantly dismayed that it is not cited more often particularly by the Commonwealth Director of Public Prosecutions' representatives. In fact, it almost invariably is never referred to no matter what relevant issue arose out of it. That case is DPP (Cth) v De La Rosa [2010] NSW CCA 194. The reason that a Full Bench of the Curt of Criminal Appeal was convened was because the case was purportedly a matter that raised issues of a constitutional legal colour. I need not concern myself with that aspect of the case. I particularly want to concentrate on the decision of McClellan CJ at CL.
The first part of the judgment of his Honour, which is reflected in the extract from R v Obeid in the judgment of Beech-Jones J, is his Honour's survey of the relevance of mental health issues or disabilities for sentencing. Particularly I refer to [177] - [178] of his Honour's judgment. In this regard his Honour in his usual thorough and erudite way, surveyed quite a number of authorities up until that date dealing with the development of the law in relation to the sentencing of people with mental disabilities and disorders, short of mental illness. He referred to a large number of cases, including authorities in New South Wales, such as R v Engert, in which Gleeson CJ of the New South Wales Supreme Court, as he then was, discussed again in his usual succinct and erudite way, some important fundamental principles in consideration of this area. The other decisions that might be referred to quickly are R v Letteri, a judgment of Badgery-Parker J, prior to R v Engert, and a subsequent judgment of R v Israil under the stewardship of Spigelman CJ. These judgments and the principles summarised by McClellan CJ at CL, have been reiterated since DPP (Cth) v De La Rosa cite that extract from R v Obeid provided by the Crown.
The relevance of his Honour's analysis and the effect of the judgments before and since to this matter, is that notwithstanding the fact that I agree obviously that general deterrence still has its part to play in this sentencing exercise, general deterrence being of paramount importance of course in drug importation cases as the Crown has correctly stated in the written submissions, in this particular matter I believe lesser weight should be given to general deterrence because the prisoner is not an entirely appropriate vehicle for the full weight of the effective general deterrence. That is not to say there must not remain some element of general deterrence as was for example, discussed by Gleeson CJ, in R v Engert. The prisoner does not suffer from conditions or conditions that make her a danger to the community. Nor do I believe in the context of her experience in relation to this matter that she poses a future threat to the community, or is a threat of committing further offences particularly of this type for amongst other things. She would not be recruited again, one would have thought, with this conviction on her record to bring drugs back into the country. For the purposes of drug importation she no longer would have any use to persons who had manipulated her whichever way the matter can be viewed because of this conviction.
I appreciate what has been said on a number of decisions of higher authority about the need to make an example of others, even if the circumstances and their reason for offending may arise out of the conduct of others. R v Le is such a case. A very good example of that is found in the judgment of Johnson J of the Supreme Court in the decision of R v Ticknius, where his Honour discussed the relevance of non-exculpatory duress in sentencing and made the point that there will be cases where 'non-exculpatory duress' is raised, and established on balance, but there will still be a need to make an example of the offender, so as to ensure that others will not be tempted to succumb to the pressure involved in non-exculpatory duress.
I also appreciate in a real world it is easy to say that people should not succumb to temptation or threats. People subject to temptation and threats are not the people that are reading judgments of the Court of Criminal Appeal or reading judgments of sentences imposed in the first instance. But obviously I respect the point that Johnson J, has made, in that case, that in the appropriate case it will be important to send a message. In fact I have expressly said so in a number of judgments, where non-exculpatory duress has been raised.
This is not this case. I note, not that it is important, that this is the first of a number of people that I have sentenced in this context, where the prisoner is a person who has directly suffered from the Vietnam War. Further in the context of DPP (Cth) v De La Rosa principles, I believe this prisoner will find the circumstances of custody more difficult, having regard to her conditions, both her mental conditions and her physical conditions. Her underlying liver issues are very significant medical problems. Even if she was to receive no special classification whilst in custody, she will still find the circumstances of custody difficult. She will have, it must be said common with people of her background in this circumstance, language difficulties in custody. The truth is however, she has been in Australia for 40 years. Whilst I accept that she has English as a second language and is not necessarily proficient at the language, I cannot accept that she cannot get by with rudimentary English. I would imagine in any event there would be a number of Vietnamese women in custody with whom she would be able to communicate in that language, who would be of assistance. However, because of her prior good character, she is now exposed to her first term of imprisonment. Although she spent a time in custody which is earlier referred to of two months and 15 days, which will be taken into account in imposing the sentence to be given for this matter.
With regard to the written submissions of the Crown, and without having to cite them in detail, because much of what the Crown has prepared in the written submissions is without question, it is clear, firstly, that I am required to sentence the prisoner to an appropriate sentence, having regard to the objective seriousness of the offender's conduct and giving due weight to any relevant mitigating factors. The Crown expressed it as being, "the need for general deterrence in comparable cases (reflecting that) the only appropriate sentence is a significant period of fulltime imprisonment". The terms of the Commonwealth Crimes Act on this matter, particularly 17A, are quite clear. A term of imprisonment should only be imposed when it is the appropriate sentence and clearly a term of imprisonment is the only option available to me here. I am required to sentence the prisoner in accordance with part 1B of the Commonwealth Act. I am required to take into account the relevant matters listed in s 16A(2) that are known to the court and I must impose a sentence which is of "a severity" appropriate in all the circumstances. The Crown has very helpfully gone through the various matters it has identified from s 16A(2). Obviously the Crown's written submissions can only address the matters within its knowledge. I have already dealt with the nature and circumstances of the offence. The Crown accepts the position that the prisoner "performed the role of a courier". But I agree with the Crown's submission that whilst the prisoner might be "classified" as a courier her role was a significant and essential one in the importation of drugs in Australia.
I do not forget, nor should I forget, what was said about these matters in the leading judgment of Olbrich v The Queen (1999) 199 CLR 610. Disguising activities with labels can sometimes not give full recognition to what has actually been done by the prisoner. I have dealt with the facts of the matter and made some comments upon them. I point out of course that the prisoner was the principle importer. If she did not bring these drugs into the country, they would not have come into the country in the way they were. I come back to De La Rosa, which I will refer to again shortly in relation to the issue of comparable sentences. McClellan CJ at CL, pointed out, at [258], in many cases a person described as a courier may have responsibilities in the enterprise that go beyond simply transporting drugs for a modest fee at the direction of others. Although described as 'couriers', they play a role above that of a mere courier and should be sentenced accordingly. It was for this reason that the High Court in Olbrich was concerned to emphasise that "the label should not be allowed to obscure the reality". There is no evidence available to me that the prisoner was in any position to do anything other than bring the drugs into the country. Although I have no evidence from her or any other evidence in relation to the matter, in the context of her background and the manner in which it would appear she was recruited, it would seem that she would have been required to provide the suitcase to others for the distribution of the drug. She bears a responsibility for that as well, I appreciate, but clearly this is not a case where she was a courier with other administrative duties in relation to the distribution of the drugs.
I have already commented upon the relevance of the facts to the assessment of the amount of the drug. The amount of the drug clearly is a relevant factor which the court must have regard to notwithstanding the striking down of the guideline judgment by the High Court in relation to drug importation in Wong and Leung v The Queen (2001) 207 CLR 584. This is not a case where the weight of the drug will have the increased significance in sentencing it would have if the prisoner has knowledge of the amount of the drug to be imported. I have already reflected upon the issue of financial gain. I am required to have regard to the maximum penalty, which is of course a very very significant maximum penalty, the highest maximum penalty that can be imposed under Commonwealth Law, and assess the matter in the context of the range of conduct anticipated to be caught by the relevant provision in the Criminal Code.
I am also required to ensure that the prisoner is adequately punished for the offence and to give weight to general and personal deterrence, as I have earlier commented upon. I am required to assess the degree to which the person has shown contrition for the offence, and the fact that the prisoner has pleaded guilty to the charge. I have dealt with the issue of assessing the discount to be given. I acknowledge the fact that she ultimately has pleaded guilty. She pleaded guilty within days of being found fit to be tried, which as I said earlier is a significant matter in context. I am prepared to accept that on balance the prisoner has shown contrition, notwithstanding the absence of evidence from her. I really could not reasonably expect a person of her background to be a person comfortable giving evidence and in fact she has expressed contrition to Community Corrections and those that have medically assessed her.
With regard to the deterrent effect of sentences to be imposed in this matter, I accept of course the need for general deterrence in such matters. I have already made comment upon the reason that I do not give as much weight to general deterrence in this matter as might otherwise be the case. But the various matters identified by the Crown in its written submissions are acknowledged. There are no third parties I am advised that suffer hardship from the prisoner's imprisonment. I appreciate, as her counsel pointed out, that whilst in custody she will miss landmarks relating to her grandchildren and the like. This is an inevitable consequence of her conduct. I have dealt with her antecedents and medical and physical conditions.
With regard to her prospects of rehabilitation, I assess her prospects of rehabilitation as good. I believe that her involvement in this matter will provide a salutary lesson to her and particularly having regard to her age, the major concern I would have of course is the issue of her returning to gambling and particularly poker machine gambling. It has the capacity to compel people to spend far more than they are able to afford. It is a constant source of concern to the community that it would appear registered club and other organisations will permit people to develop debts in relation to such activities that they have no prospect of repaying. Although there is no evidence of any loan sharks being involved in this, it is a constant feature of these cases and other cases that there is evidence of people wandering around clubs offering the loan of money for a great price in return. It is very disturbing indeed. In fact, speaking really without particular regard to this case, and without being seen to get on one's soap box, whenever I go into a registered club and I see an ATM machine, I feel like physically picking it up and carrying it out into the street because people gambling, unlike as was the case 20, 30, 40 years ago, are able to get access to funds immediately on losing all their money by going to an ATM machine. Whereas if they just ran out of money, they would have to stop, because they could not play anymore.
I have noted what the Crown's submissions are in relation to the issue of delay and in this matter of course, delay is not a "mitigating factor" nor was it submitted to be. This was a matter commented upon again by Beech-Jones J, in R v Obeid [12] [2016] NSWSC 1815.
We come now finally to the issue of comparable cases. I wish to say something about what has been put before me in relation to this matter. It is worthy of some extended comment beyond what would normally be the case. Firstly I accept the Crown's submission that consistency in Federal sentencing is an important matter, although it does not necessarily require numerical equivalents, as was made clear in the decision of Hili and Jones v The Queen (2010) 242 CLR 520, particularly a [48] - [49]. This was a matter emphasised I hasten to say, in De La Rosa and particularly what was said by McClellan J at [193] - [203].
The Crown annexed to its written submission at annexure B a schedule, as well as the relevant cases, supposedly providing some assistance to me for comparative sentencing. The schedule is an exhibit in the case and unless I need to cite the particular case, I will not cite the relevant authorities. Four authorities were cited. Two were Queensland cases, two were New South Wales cases. Before I turn to the more important matters that I wish to raise about this, it is worthy of note that the case of Van Zwan v The Queen [2017] NSWCCA 127, in the additional remarks of Campbell J he noted a reference to "comparative sentences" that were provided to the sentencing judge. He made the observation:
"I have borne in mind that at best they provide a yardstick against which the sentence I may impose can be measured. Reference to such a yardstick helps to promote consistency and in that regard I have borne in mind that it is consistency of principle that the criminal law seeks to promote, not numerical equivalence…"
citing that passage that is quoted by the Crown in Hili and Jones. However, as would be expected for a person who has been sentencing people for 18 years, I have been sentencing people in relation to breaches of Commonwealth Law throughout that period of time. How many? I do not know. Probably dozens and dozens and dozens. I keep all the written submissions from the Commonwealth. They are very thorough. I have found by looking back through written submissions that were provided to me, that the cases referred to by the Crown in this matter are not the same cases that have been provided to me in other sentencing exercises of similar character. This brings me back to De La Rosa. I am grateful to the Crown's provision of four cases that it says might provide some assistance, albeit in the context of accepting that consistency does not amount to "numerical equivalence". McClellan J in De La Rosa, in the context of discussing the importance of consistency in sentencing. Between [207] and [253] in De La Rosa his Honour undertook the task of examining a huge number of cases in New South Wales and elsewhere in the Commonwealth of Australia, relating to the importation of commercial quantities of drugs, either contrary to the Customs Act, as it was then provided for, now currently in the Criminal Code. He went to the trouble of assessing this, not only in relation to commercial quantities but also in relation to importing trafficable, as they were then called, or marketable quantities. He undertook an analysis which he summarised in tables which are set out at [224]. He also went through and summarised a large number of cases. I should point out, most of which were from New South Wales. Some were including, dare I say it, judgments of the District Court of New South Wales where most of Commonwealth sentencing occurs.
The point I simply make is, that this is a rich treasure trove of intellectual rigour in the analysing of supposedly "comparable" sentencing to the case at bar. It is also a source of information far more extensive than the four cases that the Crown assisted me with in relation to this matter, and I have had regard not only to what the Crown has shown me but I have had regard to the various matters that are identified by McClellan J, within the paragraphs that I have set out in my judgment. I do not propose to read from the judgment or extract a specific matter beyond noting the characterisation of categories of offender and offending that might fall within particular identifiable groups, reflected in past sentencing exercises. It is with regard to that as well as the material by the Crown that I have undertaken as far as is possible, the difficult task of having regard to supposedly "comparative" sentences. I have also had regard to my own judgments in this regard, not one, that I am aware of, that has been the subject of appeal by the Commonwealth Crown. I doubt that any of them have been the subject of appeal by the prisoners.
So be that as it may, the point I make expanding upon the matter more than I thought I would, is that whilst I am grateful for the Crown's reference to a few cases, there are sources of information out there that I am somewhat surprised the Commonwealth Crown and other parties do not rely upon to try and assist the Judge at first instance to have a 'real' range of comparative sentences that are of some meaning. Not just a selective range of cases which might not be necessarily reflective of sentencing patterns in reality, either in New South Wales or other States. The great danger with just picking three or four cases is that the cases chosen may not be proper examples of sentencing patterns. They may be within the range, to be fair. But the individual discretion of judges is very important as was said by the Mahoney ACJ, in the decision of Lattouf approved by Spigelman CJ in the guideline judgment of Henry in 1998: "If justice is not individual, it is nothing". We do not have a 'Hammurabi code' in Australia and we do not have mandatory sentencing in most areas of sentencing.
So finally, in deference to the submissions that have been made by the parties, particularly the technical and as I said, exemplary submissions of the Crown in nearly all respects, I turn to the issue of the non-parole period. I do not know why the Commonwealth Crown keeps on referring back to the judgments of Bernier and the like, that set down a supposed pattern for fixing non-parole periods in Commonwealth sentencing which whilst accepted for a long period of time by the superior courts, were clearly not correct as the High Court has held in Hili v The Queen, the decision to which I referred earlier. The court is required to fix a non-parole period in accordance with those judgments at the High Court, setting out the particular purposes of the fixing of minimum terms such as Power v The Queen and Bugmy v The Queen. That decision in Bugmy, (1990) 169 CLR 525, is not to be confused with the 2013 decision of Bugmy, which a very important judgment in relation to the sentencing of indigenous offenders and goes far beyond the issues relevant to the fixing of non-parole periods. It is not a question of fixing a non-parole period that fits in with someone's idea of what an appropriate percentage of the head sentence the non-parole period should be. It is a matter of fixing an appropriate sentence by way of non-parole period that is the minimum term the offender should spend in custody, giving due recognition to the objective seriousness of the offending, but also giving due regard to the issues that are relevant to the grant of a minimum term and thus a hope of release to parole. Such as the need for the person to receive professional assistance in the outside community to assist the offender to adjust to community living and to provide an appropriate period of time for supervision to be provided to try and assist the offender from offending in the future and return to normal life. There is a reference in the Crown's written submissions to a decision from Western Australia which I cannot see having any relevance to the issue of a non-parole period in this matter or actually the sentencing situation here at all. There are other matters under s 16A(2) that I do not need to dwell upon, the issue of cooperation with law enforcement agencies in this matter is of little moment and certainly no issue of a discount arises. The issues of pre-trial disclosure and the like are of no moment either in this matter.
Thus, having regard to all the issues that were raised in the submissions and also the additional matters that I have addressed in my remarks, I turn to the sentencing of the offender. Can you stand up thanks, Ma'am?
In relation to the offence that you have pleaded guilty to, you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of three years and two months, to commence on 6 January 2018 and to expire on 5 March 2021. Balance of the sentence I impose is three years four months. I calculate that to expire on 5 July 2014. You will be first eligible for release to parole on 5 March 2021. Whether you are released to parole or not at that time, I cannot tell you. That will be a matter for the Parole Authority, presumably in consultation with the Commonwealth Authorities. I am obliged under the Commonwealth Legislation to explain to you however, that if you are granted parole and released to the community, you will be subject to supervision by the New South Wales Parole Authority and if you fail to comply with the conditions of your supervision, your parole can be revoked and you can be returned to custody to serve either the balance of the sentence or such further time of the sentences the Parole Authority deems appropriate in all the circumstances of your case.
Now Madam Crown, is there anything else that I should deal with?
CROWN PROSECUTOR: Not to my knowledge your Honour.
HIS HONOUR: No order for destruction of the drugs or anything like that required? It's all been taken care of, I hope.
CROWN PROSECUTOR: All been taken care of, your Honour.
HIS HONOUR: Thank you very much. Much appreciate. Anything from you, Mr Barber?
BARBER: No, your Honour.
HIS HONOUR: Thank you.
[2]
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Decision last updated: 09 May 2018