R v HUYNH [2008] NSWCCA 16 | Case summary

1 McCLELLAN CJ at CL: I agree with Grove J. 2 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed by Woods DCJ at Sydney District Court. The respondent had been committed for sentence following her plea of guilty in the Local Court to a charge of importing a marketable quantity of a border controlled drug, namely heroin. The marketable quantity is specified as 2 grams and the commercial quantity is reached at 1.5 kilograms. In the present instance, the gross weight of drug was 141.30 grams with a pure content of 108 grams. The Crown facts estimated a wholesale value of about $49,840 and a street value of between $90,000 and $270,000. The respondent was sentenced to imprisonment for four years with a non-parole period of two years. 3 The evidence consisted of a statement of facts, the transcript of interview between the police and the respondent, a pre-sentence report and some oral testimony given by the respondent. The primary conduct out of which the offence arose was not in dispute. 4 On 9 March 2007 the respondent arrived at Sydney Kingsford Smith Airport on a flight which had originated in Ho Chi Minh City (Saigon), Vietnam. At the customs barrier she was approached by officers and consented to undergo an internal search. Australian Federal Police officers took her to St George Hospital where a CT scan revealed the presence of four foreign objects in her lower intestine. She was arrested. Over the following hours she passed these objects and subsequent analysis revealed them to contain white powder which was analysed to constitute the drug abovementioned. 5 The respondent is an Australian citizen of Vietnamese origin, now aged forty one years. She is the mother of two children aged eighteen and eight. At the time of her arrest she had been separated from her husband, with whom the children now reside. She has no prior convictions. She was not in employment and was in receipt of Centrelink benefits. Over the past seven years she has travelled between Australia and Vietnam on ten occasions and was, as his Honour found, well aware that the importation of heroin was unlawful. 6 Her explanation was that she was in considerable debt as a result of gambling losses and agreed to import the contraband for an anticipated fee of about $20,000 in order to meet at least a substantial part of her debt. She claimed that her multiple trips to Vietnam were to assess the prospects of an advance in her relationship with a boyfriend. She told police that she also visited a younger sibling and a brother in Vietnam, although she told the probation officer who prepared the pre-sentence report that her mother had died and after remarriage her father and her six siblings had left to reside in the United States. I do not suggest that anything in this appeal turns on this but it provides an example of the difficulty in assessing a number of matters about which there is imprecision and vagueness. 7 A further example is her claim to have no real ability to identify the persons on whose behalf she couriered the contraband yet she told police that she returned to Australia "early" because she ran out of spending money (Interview questions 165-170) of which change those who were expecting her and were to meet her at the airport in Sydney (Interview questions 156 and 157) would presumably have been unaware. 8 It is the Crown contention that his Honour's sentencing discretion miscarried as a result of both errors of fact and law. The restraints upon this Court when dealing with Crown appeals against sentence are well established and do not require restatement: see for example Everett v The Queen (1994) 181 CLR 295; Regina v To [2007] NSWCCA 200. 9 The Crown points to two critical findings made by his Honour, first, that the respondent had a "pathological interest in gaming, whether by poker machines or roulette or otherwise" and, second, that she committed the offence in circumstances of duress. 10 The respondent tendered evidence of membership cards showing that she belonged to a number of licensed clubs. In answer to police enquiry she asserted that she had a gambling addiction. The pre-sentence report expressed an opinion that it would appear that that was a contributing factor to the offence. 11 It was, in my view, open to his Honour to find that the respondent suffered from some form of gambling addiction. The appellant challenged the description "pathological" and drew attention to the absence of psychiatric or psychological support for such a diagnosis. It is not necessary to pursue analysis of this detail and I would not determine error in his Honour's finding that the existence of the respondent's gambling debts was included in the inspirations for her commission of the crime. Whether this is a matter of mitigation is a different question. I agree with the Crown submission that the observations of Latham J in Le v R [2006] NSWCCA 136 are apposite: "To the extent that his Honour found that the applicant's succumbed to gambling and that it was 'not unlikely that she may have been groomed and pressured into this importation by others who do not share her naivety and compliant personality', they are unremarkable features of many importation offences. It is commonplace for offenders to seek to explain participation in an importation, other than simply admitting that it was a premeditated act committed for financial gain. Whether that explanation be the offender's vulnerability arising out of a drug addiction, or a gambling addiction, it generally does not warrant the extension of leniency. 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." 12 The respondent described some of the circumstances giving rise to her indebtedness in these words in her testimony: "When at the table at gambling sometimes I lost and as soon as it was known that I was losing money someone tapped my shoulder and say 'if you want to borrow some money to keep playing here's the money for you'." 13 She was asked whether she knew the names of the people who tapped her on the shoulder and replied: "Yes, there (sic) names are all known, but I just not know whether those names was their true names. But I know them as sister Ng (?), sister Hi (?) or some other sisters." (As the Court Reporting Branch transcript reads). 14 The respondent was unable to provide any greater detail of identity in relation to obtaining the drugs in Vietnam. When questioned by police she said: "This person came along and gave me the stuff and told to, yeah, put them in just like that - and left. I - I never caught the name or anything like that. Yeah." 15 In his remarks on sentence his Honour found that the criminality of the respondent was substantially mitigated "in this case when one puts together the gambling obsession, the trickery involved and the duress, even though the duress does not amount to a full defence." 16 I am unable to identify to what his Honour was referring as trickery. The respondent had told police that the people who asked her to do this trip said that she should go over there (to Vietnam) and "do this to be able to get money to settle a debt." In these circumstances there can be no other conclusion open but that the respondent left Australia having been offered the opportunity to earn money to discharge her debt to those from whom she had borrowed money and that she had decided, at the very latest, to import the heroin when she was given the drugs in Vietnam. Although she said she was scared, she did not indicate whether this was a fear of these people, fear of indebtedness or a fear of retribution for doing what she knew was criminal. She told police "yeah, so I thought I'll just be gamble and just do a trip and see if anything, you know." 17 On behalf of the respondent it was submitted that the proclaimed reliance upon duress as a matter of mitigation was supported by statements of the respondent to police and that it was not now open to the Crown to assert that the evidence could not support a finding of duress. 18 The questions and answers referred to by counsel in written submissions were the following: "Q135 Okay. With Hai what - what we would like to know is that just before you've - you've come back to Australia what - what we need to know is how the - the drugs that were found on your person, in your body, okay how did they get in you? A Like I said the other day over here 'cause at the time I - I was so wrong. I - I went to the casino and I - I gamble and I get all this debt. I owed a lot of money. I owe like forty, fifty grand. Q136 M. A And they said to me that now that you owe us thirty grand you better go and do that, you know, do that thing and - and then you have some money to pay us back, at least half of what you owe. … Q152 Okay. So you should go over. So you've decided that you're going to - to go over there and that you're going to --- A I - I - I was so wrong. I - I was scared and I - I got worried about the welfare of my kids and everything. These people are capable of doing what they're doing. Yeah, so I thought I'll just be gamble and just do a trip and see if anything, you know. … Q162 Okay. Did you know what was - what was inside the bag? A I said - I said, 'I don't know what to do and you've given me this.' And I was told, 'if you want to get the money you better take this over there, and these are not a lot.' I was very scared and I was saying I only owe not a lot of money. Q163 Mm. A And then the person said, 'Well it's up to you whether you want to go through with it or not. They can bring it back, don't care.' And then I was thinking, you know, I was worry about my family, my kids and that so, you know. … Q176 Now you've - you've sat down. Was it - were you uncomfortable on that trip or were you - were you - what were you feeling? What sort of emotions were you --- A Many things went through my mind really. I was scared. I was frightened. You know, I was thinking about the welfare of my two kids. You know, if anything happened I will leave them behind. You know, stuff like that. … Q245 Okay. So how long before you left did you decide to make the trip? A When I got over there I did a lot of thinking - a lot of thinking if I make this trip one time, if I could settle all the debt and my kids will - will not be angry with me. And I kept thinking and then in the end I decided that I have to do - I have to make this trip just one and clear all the debt and then will never do it again. Yeah, I was so wrong. I was, yeah, persuaded into doing it, you know, and I have a lot of regret right now. … Q262 Okay. How many people do you know who have brought drugs into Australia in this same way? A I - I am very scared and, no, I don't know. - I - I gamble and I do it all on my own, you know. Q263 Why are you scared? A Because I - I am very worried about the welfare of my two kids and I just see that I have committed an offence in here, you know." 19 As I earlier observed in relation to part of one of those answers, there is no suggestion that any fear that the respondent felt was the result of anything said to her by a creditor or someone acting on the creditor's behalf. Her answers were consistent with fears centred upon the situation in which she had found herself and this was a result of her agreement to involve herself in what she knew to be punishable criminal activity. That is scarcely a foundation from which a conclusion that she was acting under duress can be drawn. 20 In my view the Crown submission that his Honour's finding that the respondent's criminality was substantially mitigated by duress was wrong should be sustained. I add that the respondent pointed to no evidence which could constitute the trickery which his Honour mentioned in this context. 21 It is perceptible that such an error may have infected the assessment of sentence but, in any event, in my view the sentence is so low as to be outside the appropriate pattern of sentencing within which range sentence should be assessed. At the first instance hearing reference was made to three cases which provide indicators confirming the view that the assessment in this case is below range. 22 In R v Chew [2004] NSWCCA 26 the offender arrived at Sydney Airport concealing packages ultimately analysed to contain 71.8 grams of pure heroin. Like the respondent, this offender was taken to St George Hospital for internal search and whilst on route he admitted the internal concealment of contraband, and sought to bargain with authorities in order to be able to leave Australia. He was a courier. He received a sentence of six years imprisonment with a non-parole period of four years. 23 In R v Dang [2004] NSWCCA 269 the offender arrived from Vietnam carrying heroin in his shoes. He was a courier who had been promised $5000 for the importation, which was analysed to contain 218.6 grams of pure heroin. He gave authorities some assistance which was evaluated as a discount of 30 percent on sentence. A sentence of six and half years imprisonment with a non-parole period of four years and four months was not disturbed on appeal. 24 In Le v R (supra) the offender arrived at Sydney Airport internally concealing two packages. She consented to external search but denied carrying any concealed contraband. Although she gave different versions of events to police and to a psychologist, she had contended that she acted as a courier in order to expunge gambling debts. A sentence of seven and half years imprisonment with a non-parole period of five years was not disturbed. 25 Whilst the effect upon sentencing patterns consequent upon the repeal of s 16G of the Crimes Act 1914 is recognized, there is nothing to demonstrate the invalidity of the conclusion that, having regard to the cases abovementioned, the imposition of sentence upon the respondent was markedly below an established range. 26 The Crown has contended that errors were made by his Honour in the procedure which he adopted in first applying a discount for the plea of guilty to a notional sentence and then further reducing the sentence for reasons of mitigation and has also challenged his ultimate assessment of a non-parole period which is equivalent to 50 percent of the head sentence. As, in my view, this Court should uphold the Crown appeal and proceed to resentence, it is unnecessary to deal in terms with those submissions. 27 In relation to the firstmentioned, however, a reference can be made to the observations of Spigelman CJ in Mulato v R [2006] NSWCCA 282 at par 13: "It is now well established that it is an error of principle to select a specific figure - whether that be a maximum sentence or a standard non parole period of a 'subliminally derived figure' (see Markarian v The Queen [2005] 79 ALJR 1048 at [39]) - and to add or subtract matters item by item in some sort of mathematical process. The reason that this approach constitutes legal error is because it impermissibly confines the sentencing discretion." 28 In imposing sentence it is necessary to keep in mind the restraint which is consequent upon what is frequently termed the double jeopardy faced by the respondent to a successful Crown appeal against sentence. 29 As at the present time there is evidence describing the favourable response of the respondent to incarceration and this should be taken as an indication that she has good prospects for rehabilitation. The plea of guilty was offered at the very earliest opportunity and I would re-apply an approximately similar assessment to that of the primary judge for the value of that plea. 30 His Honour's remarks suggest that he gave some weight to a disapproval of the extent to which gaming facilities are widely available, specifically poker machines. It can be observed that the respondent spoke of roulette and cards, although I appreciate the information from Senior Counsel for the respondent, which I would accept, that in the context "roulette" is a gaming machine activity rather than betting on the fall of metal balls into a slotted wheel. His Honour dilated at some length upon the frequency with which predators persuade those rendered vulnerable by gambling debts to engage in crime such as presently in issue. It suffices to observe that those circumstances do not give rise to a claim for special or enhanced leniency. 31 I propose the following:

R v HUYNH

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