Solicitors:
J Mehta, Officer of the Director of Public Prosecutions (Crown)
L N Legal Solicitors and Barristers (offender Hoang)
Legal Aid Commission NSW (offender Xiao)
Van Houten Law (offender Nguyen)
File Number(s): 2013/00328814; 2013/00328823; 2013/00328878
[2]
Judgment
I am sentencing three members of a criminal syndicate responsible for the importation of prohibited drugs into Australia. The drugs were pseudoephedrine and some ephedrine. Although the drugs were imported into Australia, each of three offenders has been charged with New South Wales State offences to do with the supply of the drugs. Two of the offenders were couriers who travelled overseas to bring the drugs back to Australia. The third offender remained in Australia with an organisational role in the syndicate.
So far as the drug pseudoephedrine is concerned, it is helpful at this stage to quote from some remarks on sentence by my colleague Judge Berman SC. His Honour was sentencing a Mr Zheng in 2013 (R v Zheng [2013] NSWDC 151). His Honour said the following at [1] -
"Manufacturers of methylamphetamine face a number of difficulties in present day New South Wales. One of those concerns the supply of raw materials or, as they are sometimes known, precursors. Not too long ago one source of the precursor pseudoephedrine was cold and flu tablets sold in pharmacies, but changes in ingredients and changes in the regulation of the supply of such medication has meant that that source has dried up. That has placed more of a focus on the importation of such precursors. Pseudoephedrine, in particular, is a relatively common precursor which is now often sourced from overseas so that illegal drug manufacturers can use it to make methylamphetamine."
In my remarks on sentence in these cases, I will first list the charges to which each of the offenders has pleaded guilty. Then I will make some remarks about the facts surrounding the offences and, by reference to the exhibits, the personal circumstances of each of the offenders. It is important for me in due course to make findings about what happened. One of the aspects of sentencing is for a judge to determine how serious an example the particular offence is for that crime. In other words, where on the scale of seriousness for that crime does this particular offence lie? In addition, it is also important for a judge to refer to the personal circumstances of offenders because Parliament has made clear that the purposes of sentencing are not only to ensure that an offender is adequately punished and to prevent crime by deterring the offender and others as well as protecting the community, but also to promote the rehabilitation of an offender. Parliament also emphasises that offenders must be made accountable for their actions and their conduct must be denounced. Hence in sentencing, judges and magistrates refer to both the circumstances of the crime and the circumstances of the individual offender.
Robin Xiao has pleaded guilty to one offence of supplying a prohibited drug, namely pseudoephedrine. The amount is just over 4 kilograms. That is an offence against s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Parliament regards that crime as so serious that it has fixed a maximum of 20 years' imprisonment to the offence and, in addition, has fixed a standard non‑parole period of ten years. In accordance with sentencing legislation, Mr Xiao has asked me to take into account, when I am sentencing him for that offence, another offence; that is the supply of the prohibited drug ephedrine in the amount of some 260 grams. I will take that into account in sentencing him and I sign a certificate to that effect. Mr Xiao, I convict you of the offence of supplying a prohibited drug, pseudoephedrine.
Ann Hoang has pleaded guilty to the supply of 2.3 kilograms of pseudoephedrine. Again, that is an offence against s 25 of the Drug Misuse and Trafficking Act and carries the same maximum penalty and standard non‑parole period. Ms Hoang, too, has asked me to take into account, when sentencing her, another offence; namely the supply of 690 grams of ephedrine. I will take that offence into account when I am sentencing her and I sign a certificate to that effect. Ms Hoang, I convict you of the offence of supplying a prohibited drug.
I should add, and I omitted to add in respect of Mr Xiao, that the amount of the prohibited drug is the commercial quantity of prohibited drugs both for Ms Hoang and for Mr Xiao.
Ms Thi Kim Ngan Nguyen has pleaded guilty to conspiracy to supply a prohibited drug. In her case the amount is just over 4 kilograms of pseudoephedrine. That, too, is an offence against the same legislation and carries the same maximum penalty and standard non‑parole period. The amount of the drug in that case is also a commercial quantity. Ms Nguyen also has asked me to take into account, when I am sentencing her, an additional offence of conspiracy to supply a prohibited drug, namely ephedrine, in the amount of just over 260 grams. I will take that into account and I sign a certificate to that effect. Ms Nguyen, I convict you of the offence of conspiracy to supply a prohibited drug.
I will now say something about the circumstances of these offences. First I will refer to Mr Xiao and Ms Nguyen because their two cases are more directly related.
Mr Xiao, it is agreed between the prosecution and the defence in a document which is part of exhibit B, "was one of two couriers used to transport drugs from overseas for the purpose of supplying these drugs" to another co-offender, a Ms Ho. Mr Xiao was detected arriving at Sydney Kingsford Smith International Airport. However the police knew in advance about the operations of the syndicate and had been monitoring telephone calls. They knew that Robin Xiao had been recruited for the purpose of bringing drugs into Australia and hence his departure from Australia and arrival were under scrutiny. In fact, he left Australia on 3 August 2013 and flew to China. On 16 August 2013 he flew from China to Ho Chi Minh City in Vietnam. He spent three days there and then flew to Sydney, arriving at a quarter past eight in the morning on 20 August 2013.
Mr Xiao was stopped by the Australian Customs and Border Protection Service and searched. They found four containers of "Herbal Life shake powder" and two containers of "Herbal Life protein powder" and six large bags containing a number of "Thanh Long Coconut Candy". The containers were inspected and found to contain "a brown paste-like substance". They were sent to the United Nations Office of Drugs where a drug precursor test kit was administered and a positive result was returned for ephedrine. Later they were formally analysed at the National Measurement Institute and the packages contained 435.48 grams of pseudoephedrine and 263.31 grams of ephedrine.
Mr Xiao was given some paperwork and allowed to leave the airport and to go home. Mr Xiao told Customs officials that he had been contacted by a woman in Vietnam on a phone number provided to him in Sydney. The woman attended his hotel room and handed him a box containing bags of lollies and tubs of herbal powder. He repacked that into his own suitcase. Mr Xiao said that he was told by the woman that the herbal powder was for her friend in Sydney and the lollies were for her children. Mr Xiao was arrested a month and a half later on 31 October 2013.
Before Mr Xiao left for Vietnam, Ms Nguyen (whom I am also sentencing today) was asked to meet Mr Xiao "to assess his suitability as a courier" as the facts agreed between the prosecution and the defence record. Ms Nguyen met Mr Xiao and reported back to a woman named Huynh to advise on the arrangements for the supply. Conversations on the telephones being used by Ms Nguyen and by Ms Huynh had been monitored. There was another person involved in Sydney named Ms Ho. Discussions which were monitored commenced as early as 25 July 2013. Mr Xiao was identified as "the man with the walking stick" and his age - he was in his sixties - was referred to.
Ms Nguyen became involved again - and much more - on the arrival of Mr Xiao from Vietnam on 20 August. It became obvious to Ms Nguyen, Ms Ho and Ms Huynh that there must be a problem. Mr Xiao was meant to arrive on the flight at 8.15, but he was not seen for some hours. In the telephone conversations being monitored by the police, there are regular exchanges amongst Ms Nguyen, Ms Ho and Ms Huynh. Ms Nguyen was relaying information between Ms Ho and Ms Huynh. She was also giving directions to Ms Ho.
It is relevant to observe that Ms Nguyen admitted in the phone calls to being very nervous. It is also relevant to observe that at one stage - towards the end, when they had abandoned hope of seeing Mr Xiao - Ms Ho said to Ms Nguyen, "What sort of treat do I get from you two ladies when I come back because I've been shaking like hell all morning?" The agreed facts note that obviously Ms Ho "is requesting additional payment for her additional work". Ms Nguyen replied, "I am the same, my heart keeps pounding all morning, too. You go up there, find out and report back to me." Ms Nguyen too was arrested on 31 October 2013.
Ms Hoang was involved in a separate importation. Police knew from monitoring the phones that I have referred to that Ms Hoang had been in Vietnam since 2 July 2013. Police monitored her movements and she returned to Sydney at about quarter past 8 in the morning on Sunday 4 August 2013 from Ho Chi Minh City. Ms Hoang "was accompanied by six other companions, her two daughters and two friends with their children."
Again, Customs officers searched Ms Hoang and recorded what they found. They found two containers of "Mayfair" whitening lotion and two containers of "Dello" slimming body cream and one "Avocado plant hair care" and one "Rotary" amino hair mask. Customs officials inspected the contents and found "a brown paste-like substance". They were tested with a precursor test kit, returning a positive result for ephedrine. Samples were sent to the National Measurement Institute and the results returned were 2,326.38 grams of pseudoephedrine - a commercial quantity - and 692.4 grams of ephedrine - an indictable quantity.
Ms Hoang was interviewed and agreed that the bags were hers and that she had packed them. She said that she "had only clothes and cream that her friend gave her." Her explanation was as follows -
"I went to have my hair done in a shop. I met a friend and that friend said that she got a friend in Australia who has hairdressing salon and if I bring these things back to her friend then I can go to her salon and I will have the reduced price when I want to do the facial massage or doing my hair."
Ms Hoang said that the woman gave her articles to bring back to Australia. She filled in paperwork and was allowed to leave the airport.
Again, the intercepted telephone calls indicated to the police that there were arrangements for Ms Hoang to fly to Vietnam to get prohibited drugs and to bring them back to be supplied to Ms Huynh. Again, there was great concern when Ms Hoang did not emerge at the expected time from the airport. This time the telephone monitored was that of Ms Huynh.
Again, on 31 October 2013 Ms Hoang was arrested and charged. She repeated the account she gave of bringing back the beauty products and getting a reduced price.
I should say something now about how serious an example of this particular offence these crimes were that I am sentencing each of the offenders for. It is clear and agreed that both Mr Xiao and Ms Hoang were couriers. In sentencing drug offenders, often reference is made to whether there is a hierarchy and where the particular offender fits into the hierarchy. By reference to such a hierarchy, couriers are usually placed at the bottom. However the High Court has cautioned sentencing judges about adhering strictly to an artificial concept such as a hierarchy. It is of course relevant but more important is what activity and conduct the offender being sentenced actually engaged in. Although Ms Hoang and Mr Xiao were couriers, their criminal activity must be seen in the context of what they actually did.
Ms Hoang and Mr Xiao have pleaded guilty and been convicted of the offence of supply a prohibited drug. The basis of the supply is not that the drugs were actually passed on to somebody in Australia (that did not happen because they were intercepted) but that they were in possession of so much of the drug that the law provides that it must have been for the purposes of supply - if a person possesses drugs for the purposes of supply they are guilty of the crime of supply.
Returning to the activity of each of Mr Xiao and Ms Hoang, this is not a case where the offender on one occasion is caught by the police carrying more than the amount which the law regards as for the purposes of supply. But - and this is why the events preceding it are important, to appreciate the context - both of these offenders went overseas and back. They collected the drugs overseas and brought them back into Australia. I repeat I am not sentencing them for importation. These are State offences not Commonwealth offences. But their actual activity and conduct has to be appreciated. They were engaged in a good deal of relatively sophisticated activity over some time.
I also need to bear in mind that the commercial quantity for a drug of this kind is 1.25 kilograms. Hence the amount that Ms Hoang had in possession for supply was almost double and the amount that Mr Xiao had in his possession for supply was more than three times that amount. Indeed, an amount of pseudoephedrine moves from a commercial quantity to a large commercial quantity at 5 kilograms. So the amount that Mr Xiao was dealing with, to use that term generally, was approaching the large commercial quantity.
The law acknowledges that although low in the hierarchy (so to speak), couriers are necessary to any drug syndicate. Each of them in this case had been paid some money but neither of them was involved in the business enterprise or derived any profit. Ms Hoang for example was to receive $2000.
It is also relevant to make this observation (this is relevant to all three offenders): the drugs themselves were not distributed into the community. That is relevant to take into account because there will be some cases where a judge is sentencing an offender where the offender may have been engaged in distributing prohibited drugs within the community for some period of time. In this case, fortunately for the community, the drugs were intercepted by the efficient operations of the authorities.
Mr R Steward of counsel for Ms Hoang developed an argument for his client by reference to what the courts understand as the principles set out by Hunt J (as his Honour then was) in R v Clark, NSWCCA, 15 March 1990 (unreported). His Honour said in that case as follows -
"The position is worse when there has been a profitable exploitation, but trafficking alone in any substantial degree should normally lead to a custodial sentence".
Mr Steward argued that his client Ms Hoang was involved in an individual act of supply and may not attract the principles in Clark. He argued that his client was not engaged in a sophisticated commercial arrangement and that there was a limited degree of planning. I reject those arguments. His client was engaged for a financial reward. It was not a share of the profits but nevertheless she expected some benefit for the efforts which she put into her crime. This was not a spontaneous short lived episode of criminal activity. It involved overseas flights. She had plenty of time to think about what she was doing and it involved receiving and packaging - or at least packing - the drugs before bringing them back into Australia. It involved almost double the commercial quantity. There was involved a good deal of planning and execution of those plans. Of course Ms Hoang had to be involved at a basic level but nevertheless she was involved. I regard it as artificial to suggest that the principles in Clark are not engaged. Of course this is trafficking to a substantial degree. Although Ms Hoang is not charged with importing but possession, the observations about the trouble that she went to to bring the drugs into Australia are important in dealing with the argument presented about her limited involvement.
Mr D N Shridhar, counsel for Ms Nguyen, developed arguments about his client's role in the syndicate. He acknowledged, which had to be the case, that the role of his client "was to determine the suitability of Xiao as a courier". That was based clearly upon the agreed facts. In addition, his client was "to keep informed Huynh as to the progress or otherwise as to Xiao returning to Australia." He correctly pointed out that there was no evidence to suggest that she was involved in arranging for payment for his air fare or visas, nor was there evidence to suggest she determined the nature of the drugs or that she intended to distribute them beyond Huynh. She did not select Mr Xiao but approved him.
Referring to the concept of a hierarchy, Mr Shridhar argued that it may be as simple as Ms Huynh recruiting his client, Ms Nguyen, "due to her gambling debts" and asking her "to take certain actions on Huynh's behalf, thus distancing Huynh". These observations have some merit but, on the other hand, the evidence in exhibit D - a transcript of the intercepted telephone calls including his client's conversations - reveal clearly in my opinion that his client was above Ms Ho in any hierarchy and closer to Ms Huynh but also below her. Ms Huynh is clearly the senior person in the syndicate that we know of. She admitted in one of the telephone calls that she is "the big sister of you all". Ms Huynh gives directions and approvals to both Ms Nguyen and Ms Ho. Others go to see her. Ms Nguyen, the offender, reports back to Ms Huynh regarding progress at the airport. Ms Nguyen gives directions to Ms Ho as well as analysing the circumstances and providing advice. Her role is clearly an advisory role to Ms Huynh. As I noted, Ms Ho expects reward from "you two ladies".
It seems to me that Ms Nguyen's contribution, although limited, did involve her judgment, intelligence and advice being brought to bear in the criminal activity. It is true that we do not know the full extent of any syndicate. But I am confident in finding the relationship amongst the four that we do know of is this: Ms Huynh is at the top; Ms Nguyen is below her; Ms Ho is below Ms Nguyen; then there are Ms Hoang and Mr Xiao. I repeat, the main factor however is not some hierarchy - which is developed analytically by looking at the facts - but the evidence about what the offender actually did to amount to the crime. I agree that Ms Nguyen had no independent decision-making and derived no profit but, I repeat, she contributed to the enterprise her judgment, intelligence and advice.
I should now say something about each offender's personal circumstances. Mr Xiao is now 67. He has a criminal record. It is not very serious. It involves traffic offences but it also involves four offences of obtaining benefits by deception in 1999. They were obviously not very serious because he received fines and a good behaviour bond. Nevertheless, that deprives him of the extent of leniency that might be afforded to someone with a completely clean criminal record. I must emphasise that the law is clear that a criminal record does not aggravate the seriousness of the crime. In this case it is simply the extent of leniency that may be available to the offender.
There is an affidavit from Mr Xiao's wife, Ms Zhou. They met and started living together in 1998. When they met Mr Xiao was in a poor financial situation. He was receiving Centrelink benefits. Over the last few years he was receiving an aged pension. Ms Zhou was receiving a carer's pension in order to look after Mr Xiao. As she said, they "never had much money and have always struggled financially". She thought that Mr Xiao "felt ashamed that he could not provide better for me financially" and had always been upset about their living conditions. She said they have "moved about 17 times since we got together, and 12 times in the past five years". The couple were finally granted public housing "about six weeks after Robin went to prison but were not able to take it because he was in custody".
Ms Zhou reports that Mr Xiao tells her that he is remorseful and she thinks that he is sorry about being imprisoned is also ashamed. I take into account to some extent that evidence of remorse expressed in the affidavit of Mr Xiao's wife. Remorse is a relevant factor in sentencing. However the remorse was not expressed in the witness-box under oath or affirmation and therefore carries less weight than if it had been. Ms Zhou is prepared to "care for him and stand by him and encourage him to persevere". She is not prepared to allow him to travel in the future, unless it is with her. As she said, there will "not be a second time".
There is also a report about Mr Xiao from a clinical psychologist, Michelle Player. That report provides a good deal of personal information and background about Mr Xiao. He is well‑educated, with a tertiary education. He came from a stable, supportive and nurturing family but when he was nine years old he went to Singapore with his grandparents. He came to Australia in 1972 when he was 24. As Ms Player observes, he has "a sound education history" with tertiary qualifications in science, chemical engineering and migration. Mr Xiao held steady employment for a period of time but injured his back in 1992 and received a disability support pension for that. He has two adult sons. He reported suffering from hypertension and cataracts and reported as being in poor physical health. Mr Xiao said that he had been coping poorly with gaol since his remand in custody on the day of his arrest on 31 October 2013. He had lost almost 15 kilograms and had difficulty sleeping.
Ms Player thought that his account showed what she described as ""substantial depressive symptoms". She said that since coming into custody "Mr Xiao's psychological functioning has been poor and he is struggling with depressive and anxiety-type symptoms including persistent low mood, excessive worry, feelings of hopelessness about the future and sleep disturbance". Ms Player thought that he would benefit from receiving professional support, and possibly medication, whilst in custody. She concluded by saying that enabling Mr Xiao "to maximise his time in the community, by granting him as long a period of community supervision as possible, will maximise the likelihood that he does not come before the criminal justice in the future".
Amongst the documents provided to me by Mr C Smith SC, who appeared for Mr Xiao at the sentence hearing last year, were statistics from the Judicial Commission regarding sentencing patterns for this offence. However the database is very low, being only four. Appropriately, they included the database for the offence involving a large commercial quantity which is relevant to consistency in sentencing.
Mr Smith also provided me with two sentencing remarks by his Honour Judge Berman SC in the matters of Yin [2013] NSWDC 234 and Zheng [2013] NSWDC 151. Both of them concerned large commercial quantities of pseudoephedrine, in each case over 27 kilograms. They were also pleas of guilty. His Honour sentenced one offender to seven years and the other offender to eight years imprisonment.
Turning to Ms Hoang's personal circumstances, she turned 45 late last year. She has no criminal record and the law provides that I may take that into account in extending some leniency to her and I will do so in due course. There is a presentence report prepared by Community Corrections about Ms Hoang. It notes at the date of the report (15 September 2014) that she "is a mother of two young daughters, aged 14 and 12". She was a single mother. The author of the report was concerned that at that stage "the offender has refused to inform her children of her current situation, which is of concern". That has since changed. The author of the report noted that Ms Hoang was visiting her mother in Vietnam who had recently had a stroke and that she was offered $2,000 to bring a package back to Australia. Ms Hoang had medical bills mounting up for her mother's treatment. She maintained that she was falsely informed what the packages contained. The author of the report concluded that "Ms Hoang presented as emotional and having no insight into the serious nature of her current charges". Ms Hoang is unemployed and "has been for the past two years". She was receiving Centrelink benefits.
Mr Steward tendered on behalf of his client, Ms Hoang, a report from the forensic psychiatrist Dr Richard Furst. He noted her report that her teenage years were "chaotic". Her father died when she was young and her mother still lives in Vietnam. He reported that Ms Hoang "fled to Malaysia by boat, later migrating to Australia as a refugee in 1991, being 21 years of age at the time". She has worked as a seamstress and a hairdresser. She stated that she was offered $2,000 to import the drugs. Dr Furst said that Ms Hoang "expressed a lot of remorse and regrets in relation to her offences, being even more worried about the welfare of her children should she be incarcerated". He noted that she "has now informed her children of her charges and upcoming sentencing hearing". She repeated to Dr Furst how sorry she was.
Dr Furst diagnosed Ms Hoang with a generalised anxiety disorder and an adjustment disorder with depressed mood. He thought that the onset of her anxiety was probably from early childhood losses. Dr Furst notes a history of chronic anxiety and that Ms Hoang presented for psychiatric assessment and treatment to a psychiatrist "only days before leaving for Vietnam in July 2013". I will refer to that psychiatrist's report shortly but it comes as no surprise to me that she would be anxious at that time given what she was undertaking. Dr Furst recommends that she be placed under the care of a psychiatrist and a health nurse if sent to custody. He also expressed the view that a "custodial sentence is likely to weigh more heavily on Ms Hoang than the average inmate by virtue of her high levels of anxiety, depression, and her fears for the safety and welfare of her two daughters". He thought "Ms Hoang has good prospects of being successfully rehabilitated and making ongoing substantial contributions to the care of her two daughters and the community generally. Her risk of her reoffending is low." Those are factors which I take into account in accordance with the law.
The psychiatrist whom Ms Hoang saw was Dr S K Law. He noted that he saw her on 25 June 2013, not long, I add, before she left for Vietnam and complained that "in the past couple of years she has suffered from impaired concentration". He thought that she suffered an anxiety disorder. Again, I observe that there may well be generalised anxiety suffered by Ms Hoang but I must place less weight on that anxiety being increased at the time that she was about to commit these offences. Dr Law thought that Ms Hoang, as a person suffering from severe anxiety disorder, "probably has a somewhat weaker will power and determination to resist offers that appear too good". I put limited weight on that because he first saw her not long before the offence. He did add significantly that if "she is given a custodial sentence for her offences, she will almost certainly suffer from an aggravation of her anxiety level, and a custodial sentence will almost certainly have some negative impact on her two early teenage daughters."
There is a report from a person in Vietnam who, I think, is a brother of Ms Hoang confirming their mother's poor health and the expenses involved in her treatment. There is also a medical report concerning Ms Hoang's mother confirming that she suffers from diabetes and hypertension, as well as noting "acute hepatitis/stroke".
There is a reference from a friend of Ms Hoang's, Thi Tau Nguyen. She also has two teenage children and is a single mother living at home. Ms Nguyen reported that Ms Hoang had told her how sorry she was and that she had "made a very bad mistake" and cries whenever she talks about it. Ms Nguyen has said significantly that if Ms Hoang goes to gaol she, Ms Nguyen, is "willing to take care of her children. I know it would be extremely hard for me to look after four teenage children, given my health conditions, but I will try my best." Ms Nguyen has even spoken to the Department of Family and Community Services who, she says, "support my intention to care for the children".
Finally, I turn to the offender Ms Nguyen's personal circumstances. Ms Nguyen is 36. She too has no prior convictions at all and I take that into account in her case. In a letter to the court (which became exhibit 10) she confirms that she "came to Australia with [her] family on 1 June 1990 as a 12 year old refugee." Her parents separated in 1992. She explained her personal circumstances and her marriage to her husband, Peter Tannous.
Ms Nguyen is pregnant. I should put that remark in context. Mr Shridhar tendered a report from Dr Harry Ngo, an obstetrician and gynecologist (which became exhibit 11). Dr Ngo reported that on the date of his report, 2 March 2015, Ms Nguyen was "currently about 13 weeks IVF pregnant." Dr Ngo has been looking after Ms Nguyen's pregnancy since she was 8 weeks pregnant. He reported that her expected confinement date is 4 September 2015. He reported that her pregnancy has been "progressing quite well so far." Dr Ngo goes on to say this -
"However, Mrs Nguyen has had high risk obstetric history. She has had seven miscarriages and two unsuccessful IVF pregnancies since January 2011. Therefore, Ms Nguyen has been under a lot of anxiety and stress. In order to maintain healthy pregnancy this time, she was advised to avoid any stressful situation. She will be going to have the most important morphology ultrasound at 19 weeks on 16 April 2015. Based on her poor obstetric history, she will need to be closely monitored at least fortnightly, and the baby will be delivered by Caesarean section at 38 to 39 weeks gestation because of her history."
It is also relevant to observe, which became apparent from exhibit 12 and the submissions of Mr Shridhar, that an earlier IVF pregnancy had to be terminated at 15 weeks on 15 June 2013 which, I note, is about a month before this offence. Exhibit 9 confirms that Ms Nguyen underwent an embryo transfer resulting in her current pregnancy on 17 December 2014, two days before she came before me for the commencement of her sentence proceedings on 19 December 2014. A terminated pregnancy in June 2013 resulted in an autopsy report which, as I said, is exhibit 12.
I make these observations of otherwise very personal information for two reasons. One is what the Court of Criminal Appeal has said in a case drawn to my attention by Mr Shridhar. The case is HJ v R [2014] NSWCCA 21 and at [66] Garling J (with whom the Chief Judge at Common Law, Hoeben J, and Hulme AJ agreed) said the following -
"The relevance of an offender who stands for sentence being the mother of a young baby is undoubted. It is always a question of weight as to the impact which this factor has on the sentencing process."
Now of course Ms Nguyen is not the mother of a young baby but she is pregnant and I would respectfully adopt what his Honour said - that that circumstance must be "a question of weight as to the impact which this factor has on the sentencing process." The second reason is that the weight Mr Shridhar has asked me to put on his client's pregnancy is significant. He points to the numerous miscarriages his client has had and to the previous unsuccessful IVF procedures, as well as to what appears to be the current successful procedure and the report of his client's gynaecologist and obstetrician. Mr Shridhar realistically acknowledges that his client is most likely to receive a full-time custodial sentence. His submissions were focused on my delaying the commencement of that sentence until after she has given birth.
That submission was anticipated by Mr Mehta, for the Director of Public Prosecutions. He tendered (as exhibit E) a report from the manager of the Mothers' and Children's Program of Corrective Services. In particular Mr Mehta refers to p 6 of that letter, where the author sets out how Corrective Services deals with pregnant offenders. They receive ante-natal care from a Justice Health midwife educator and attend pregnancy clinics. In addition, there is a high risk pregnancy clinic at Dillwynia Correctional Centre staffed by medical and social workers from Nepean Hospital. Offenders who deliver their babies at either the Nepean or Westmead Hospitals - which are linked to Corrective Services facilities - "are subject to standard NSW health and hospital guidelines and regulations regarding the management of post-natal women and neo-nates." Mr Mehta also referred me to the fact that New South Wales Corrective Services has provision for "pre-school aged children" being given "the opportunity to reside with their mother or primary carer at Jacaranda Cottages" which is at Emu Plains Correctional Centre or at the Parramatta Transitional Centre. The child must be 6 years or under and the offender must be a particular classification.
Mr Shridhar pointed out on behalf of his client, in addition to arguing that her sentence may be postponed, that his instructions were that if she went into custody, she did not propose to use the facility of keeping her child in custody, but the child would be looked after by her husband and his family.
I should add that there was a report (exhibit 8) from a psychiatrist, Dr Ben Teoh. He recorded a reported "history of addiction to gambling" on Ms Nguyen's part. She apparently told him that she "was in debt for more than $300,000" and "was banned from the casino in 2013." She thought she could help herself. She reported to the psychiatrist the terminated pregnancy in June 2013 and said how depressing and stressful it had been, which I accept. The psychiatrist reported that Ms Nguyen had "experienced intense grief followed by significant depression after the termination" and did not care about anything anymore and felt like giving up.
Again in respect of Ms Nguyen, as with Ms Hoang and Mr Xiao, she has not given evidence in the witness box so I do not have a verified account of her circumstances. I say that, not to doubt her reaction to the termination of the pregnancy which I might add was followed by a funeral she arranged, but because of the importance of any diagnosed causal relationship between that and her offending behaviour.
Ms Nguyen has an elderly mother who is not in good health, living with or near her. She said she had been approached by someone in the casino who asked her if she was interested in being a courier. Dr Teoh thought that Ms Nguyen's presentation was "consistent with a diagnosis of major depression and pathological gambling". She expressed remorse for her behaviour. That does not carry as much weight as it would have if she had given evidence in the witness box.
Ms Nguyen has seen her doctor regularly for treatment and has been compliant and, he thought, had developed a good insight into her condition . He thought her prognosis good "provided she continues to attend treatment." He recommended counselling fortnightly to deal with her depression and gambling addiction.
I turn now to consider the appropriate sentences for each offender. Although I may not have recorded in these remarks all of the submissions made in writing or in Court on behalf of each offender, I have read and heard them and taken them into account.
I start with Mr Xiao. I bear in mind, as I said, that as a courier he is at the bottom of what might be described as a hierarchy. But I have listed the actual activity he was engaged in, in order to be in a position to commit this offence of possessing for supply this large amount of drugs. I would regard an appropriate sentence for Mr Xiao as one of 6 years imprisonment. However Mr Xiao has pleaded guilty to the offence at what the prosecution agrees was the earliest available opportunity. That not only indicates remorse but in New South Wales the Court of Criminal Appeal says that it must attract a discount for the very good reason that it facilitates the course of justice. It means that the busy courts are relieved from what may be a long and expensive trial whilst other accused persons are waiting for their turn. For someone who pleads guilty at the earliest available opportunity the discount is 25%. I would therefore reduce the sentence I indicated to one of four and a half years imprisonment. I should add that the only appropriate form of sentence given the seriousness of the offence is one of full-time custody. Normally, for a sentence of four and a half years imprisonment the sentencing legislation envisages a non-parole period - during which an offender cannot be released - of 75%, which would be three years and four months in Mr Xiao's case. However the legislation permits a sentencing judge to take into account any special circumstances for reducing that non-parole period. In this case Mr Smith SC pointed out on behalf of his client that special circumstances include that it is his client's first time in custody. He will do custody harder because of his age and because of his state of health. A period of extended parole will also assist him in integrating back into the community. I accept those submissions. I propose to reduce the non‑parole period to a percentage of the head sentence which is just over 55%. The non-parole period for Mr Xiao will be two years and six months. In due course I will sentence Mr Xiao.
I turn to Ms Hoang. Again, Ms Hoang was a courier. But, as with Mr Xiao, she did a lot before she was in a position to commit this crime. I have to take into account that she had a smaller amount of the drug, just over 2 kilograms as compared with Mr Xiao's over 4 kilograms. Ms Hoang also receives the benefit of having no criminal record whatsoever. I should say here that Mr Steward presented an argument, which he acknowledged was a brave submission, to the effect that her overall sentence may be something like two years which might then be suspended. It was a brave submission. It is not appropriate at all for his client to receive such a low sentence. I regard an appropriate penalty for Ms Hoang as being one of five and a half years imprisonment. Again, Ms Hoang has pleaded guilty at the earliest available opportunity. I would discount her sentence by 25% for the same reasons I have mentioned, which brings it to just over four years which I will round off to four years imprisonment. For a prison sentence of four years the sentence legislation envisages a non-parole period of three years imprisonment. Again, Mr Steward argues that there are special circumstances for reducing that non-parole period in his client's case. I agree. The special circumstances include her mental health, as diagnosed by Dr Furst, and the fact that she has two teenage children. I would regard an appropriate reduction as being just a little over 58%, so that I would regard an appropriate non-parole period for Ms Hoang to be one of two years and four months.
First I will indicate the appropriate sentence for Ms Nguyen before turning to the submission made regarding her pregnancy by her counsel. Ms Nguyen was involved for almost a month in the criminal activity which resulting in the conviction of conspiracy and, as I have found, contributed her intelligence, her judgment and her advice. The weight of the drug in her case was also just over four kilograms, more than three times the commercial quantity and a kilogram short of the large commercial quantity. In her case, so far as her place in the notional hierarchy is concerned, I have indicated where that is - it is higher than Mr Xiao and Ms Hoang. I would regard an appropriate sentence for Ms Nguyen as being one of eight years imprisonment. Again, Ms Nguyen pleaded guilty at the earliest available opportunity. She too is entitled to a discount of 25%. That means in her case that the sentence I will eventually impose is one of six years imprisonment. For a sentence of six years imprisonment the sentencing legislation envisages a non-parole period of 75%. That would be a non-parole period of four and a half years imprisonment without release. There are special circumstances, as set out in his submissions by Mr Shridhar, for reducing that non-parole period. It is also Ms Nguyen's first time in custody. She needs treatment in the community for her psychiatric conditions including her gambling addiction. She, too, will serve custody harder because of her mental health issues. In addition, she will have, hopefully, a young baby in the community outside and I take that into account. I regard an appropriate percentage as being just under 55%, so that the non-parole period for Ms Nguyen will be three years and four months' imprisonment.
I turn now to the submission made by Mr Shridhar regarding deferring the commencement of the sentence. I propose to accept that submission. I have given particular weight to the report of her treating gynaecologist and obstetrician, including a history of seven miscarriages and two unsuccessful IVF pregnancies. That doctor's advice was also that she should "avoid any stressful situation" and that there is a very important ultrasound next month. He was of the view that "she will need to be closely monitored at least fortnightly".
I do not make this decision lightly, nor does it involve any criticism whatsoever of the commendable services provided by Corrective Services for pregnant women and for mothers of young children. I repeat, the information set out in exhibit E reflects what seems to me to be a very enlightened attitude for women who are either pregnant or mothers. However, the punishment which I have imposed on Ms Nguyen is by fixing a prison sentence on her. It is not part of her punishment that her pregnancy should be put under threat or that she should be at greater risk of losing the child because of the obvious stress that will be involved in being in prison and having the child. I think in the circumstances, her case is best managed in the community by her own doctor and for those reasons I propose to accept Mr Shridhar's submission and I will list Ms Nguyen's case again, either this afternoon or next week, for further directions as to how the process is to be managed whereby his client will commence her sentence after she has given birth.
HIS HONOUR: Now I am going to formally sentence each of the offenders. I'll just check, Mr Mehta and Mr Funnell, Mr Xiao's sentence commenced 31 October 2013, am I right?
MEHTA: That's so, your Honour.
FUNNELL: That's the day he went into custody, your Honour.
HIS HONOUR: Mr Funnell and Mr Mehta, please note the figures and the dates that I am reading out, because I will ask you both to check them.
Mr Xiao, I fix a non-parole period for your sentence of two and a half years, two years and six months. That commenced when you were arrested and went into custody on 31 October 2013. Your non-parole period expires on 30 April 2016. On that date you will be eligible for parole. Whether you get parole or not is a matter for the Parole Authority. The balance of your sentence is two years, commencing on 1 May 2016 and concluding on 30 April 2018. So your overall sentence is four and a half years commencing 31 October 2013 and expiring 30 April 2018, and your non‑parole period expires on 30 April 2016. Do you understand that? Have a seat.
HIS HONOUR: Ms Hoang, and again Mr Mehta and Mr Nguyen if you would keep a note of these figures and make sure that they are right, that they add up.
Ms Hoang I fix a non-parole period of two years and four months. It will commence today 20 March 2015 and your non-parole period will expire on 19 July 2017. On that date you will be eligible for parole. The Parole Authority will determine whether you get parole or not. The balance of your term is one year and eight months commencing 20 July 2017 and expiring 19 March 2019. So I repeat, your overall sentence is four years. The time you must spend in prison is two years and four months until 19 July 2017. After that, if you are on parole, the balance is one year and eight months and your sentence finishes on 19 March 2019. Do you understand?
INTERPRETER: Yes thank you your Honour.
HIS HONOUR: Now Ms Nguyen I probably will not formally sentence you now because I am going to postpone the sentence and I do not know when it will commence for the reasons that I have given. But it is important that you know that you have a sentence of six years imprisonment and the non-parole period is three years and four months. Do you understand? Now Mr Nguyen, Mr Funnell, Mr Mehta, the figures in Xiao and Hoang are there any corrections?
NGUYEN: That's correct.
HIS HONOUR: Mr Mehta do you agree?
MEHTA: All correct.
HIS HONOUR: Mr Funnell?
FUNNELL: Yes your Honour.
HIS HONOUR: Now Mr Mehta, Mr Nguyen, Mr Funnell I don't think I need to make any other orders in respect of your clients Mr Funnell and Mr Nguyen and I'll just check with Mr Mehta as well. I have sentenced them.
MEHTA: No your Honour.
HIS HONOUR: I don't set the parole conditions because they are both over three years.
NGUYEN: I just wonder if your Honour would state on the record that your Honour has taken into account the offence on the Form 1.
HIS HONOUR: Thank you. I did. Thank you very much. I did in each case when I signed it during my remarks on sentence.
But for abundance of clarity I make it clear that in each case I have taken into account the offence of possessing or rather supplying ephedrine which each offender has pleaded guilty to as well.
In respect of Ms Nguyen I find her guilty of the offence, and under s 11(1)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) I make an order adjourning the proceedings to Friday 1 May 2015 at 2pm for the purpose of assessing the progress of her pregnancy. Bail is to continue on the same conditions as presently fixed, with the addition that Ms Nguyen is to notify the Court registry and the officer in charge of the case if she is no longer pregnant.
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Decision last updated: 09 September 2015