R v Bun, Soeun

R v Bun, Soeun - [2008] NSWDC 138 - NSWDC 2008 case summary — Zoe

[40]

She used a translator in Court as is her right. But I am left wondering as to her level of proficiency in English. Associated with that issue is her level of isolation in custody. I cannot form a view as to whether she is likely to be completely isolated in custody but I have come to a view she is likely to be substantially isolated in custody. EDUCATION SKILL AND EMPLOYMENT
She arrived in Australia aged twenty-two or thereabouts. How long or where she was in refugee camps is not in evidence; nor is her education history. My sense is, she is unsophisticated, uneducated and suspicious. There is no evidence of her possession of any skills. She has had no employment in Australia since her arrival. All of these are areas that will require addressing if she is to have any prospects upon her release from prison. GENERAL HEALTH
She presented in Court as well nourished, small in statue and apparently in reasonable general health. Her affect was flat, her tone of speech quiet and subdued. Gambling problems are frequently associated with depression. From my observation of her, depression at some level could not be ruled out. She claims a gambling problem. Her gambling beyond her means is indicative of a pathological gambling problem, but in the absence of proper forensic evidence dealing with other symptoms, I cannot make that finding ( R v Huynh [2008] NSWCCA 16). GUILTY PLEA
Her plea of guilty was made at an early stage in the Local Court proceedings. It was indicative of her willingness to be held accountable for her actions. The Crown says it was entered in the face of a strong case and that is so. Nonetheless the administration of justice is well served by her plea, she has been willing to facilitate the administration of justice.
First and foremost because the interests of administration of justice are served through the public acknowledgement by an offender of her guilt. Pleas of guilty by offenders sustain the community's confidence in the administration of justice by maintaining the confidence of the community in the investigation of crime and the community's expectation that those guilty of crime are to be held accountable for it.

[42]

She is in the process of having, and will have heard her conduct denounced by a judicial officer of this Court. She will indeed endure a period of incarceration. My own view is that she will have experienced all of the personal deterrence that is necessary in this case. ADEQUATE PUNISHMENT
This is an offence calling for fulltime imprisonment as the only means of adequate punishment. Punishment and general deterrence are important drivers of this sentence. REHABILITATION PROSPECTS
There is little in the way of evidence giving insight into Ms Bun's rehabilitation prospects. She is unlikely to re-offend. If that were the only measure of rehabilitation then the answer on the question of rehabilitation is relatively easy. But she has other problems. Her children are estranged. She is a gambler. She has no working experience or skills. She appears to have little social support. Her legitimate income stream is subsistence level only. She will return to an economically, socially, emotionally and possibly culturally disadvantaged and deprived future. As best I can tell there are no post release plans in place. I have little insight into her psychological profile. Nor do I know anything of her response to custody thus far.
Section 16A(2)(p) requires me to consider the probable affect of her sentence on others of importance in her life. At the time of her arrest she claimed a boyfriend and a seventeen year old daughter. So far as one can tell, these two are her closest persons of importance. Her mother and other relatives live in Cambodia and were always likely to be isolated from her. There is no evidence as to what has happened to the boyfriend or seventeen year old daughter, although there are two people in court that fit that description. As the evidence stands I cannot determine what, if any impact, the sentence will have on them. As a matter of common sense there must be some separation; but whether that consequence will cause any serious sense of loss or hardship has not been agitated before the Court.

[45]

SECTION 16(G) 56. In the event it needs to be said so many years after its repeal, I am aware that section 16(G) of the Crimes Act 1914 no longer operates and no longer impacts upon sentence. SENTENCING RANGE 57. The Crown in her submission has drawn to my attention to four cases, Pham [2005] NSWCCA 314, 244.6 grams, eight years imprisonment, four and a half non parole. Dang [2004] NSWCCA 269, 218 grams, six years six months with four years four months non parole. Hendricks (2001) 125 A Crim R 303 162 grams, six years six months non parole four years three months. Le [2006] NSWCCA 136 seven years six months, non parole five years for 117 grams. 58. To this list can be added sentences imposed by this Court at first instance and not appealed to the Court of Criminal Appeal. Nhut Thi Hong Ho and Thanh Nhuo (sisters) Berman DCJ; 236 grams, six years head sentence, non parole three years. Phong Linh Nguyen Hock DCJ 700 grams, six years- head sentence, non parole three years. There is also a judgment of Sweeney DCJ, which I am not at the moment able to identify; 108 grams, six years-head sentence, non parole three. To this list can be added the case I earlier referred to Trung Ta Pham Nicholson DCJ 110 grams, five years-head sentence, non parole period three years. The sentence I am imposing takes all those cases into account. FORMAL ORDERS 59. Soeun Bun, you are convicted of the offence that you between 1.00pm and 1.01pm on 30 July 2007 at Mascot did import a substance, the substance being a border control substance, namely heroin and the quantity imported being a marketable quantity, contrary to subs 307.2(1) of the Criminal Code (CTH). For that offence you are sentenced to a period of imprisonment of five and a half years to date from 30 July 2007 and to expire on 29 January 2013. I set a non parole period of three years three months to expire on 29 October 2010. 60. You need to understand that you will be kept in custody because of the orders that I have made. The earliest date that you can be released will be on 29 October 2010.

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