Mr Milanovic (Counsel for the offender)
File Number(s): 20219/366246
[2]
Judgment
Thi Phoung Ngoc "Natasha" Nguyen pleaded guilty to the one offence contrary to s 3LA(6) of the Crimes Act 1914 (Cth) alleging that she contravened a requirement of an order which she was capable of complying with and the offence which the relevant warrant related was a serious offence. The offence carries a maximum penalty of ten years imprisonment.
The maximum penalty is of course an important yardstick in the sentencing process.
She has spent no time in custody.
She was living at Bass Hill with, amongst others, her sister and her boyfriend.
In 2019, Australian Federal Police engaged in an undercover operation in relation to the importation of drugs and700 kilograms of MDMA was seized in the Netherlands as a result of the undercover operation. An inert substance was substituted for a 700 kilogram consignment.
After further investigations into the importation, Police executed a warrant at the offender's address on 11 November 2019 in relation to her sister's involvement in the importation. Police found the offender in her bedroom. They seized cash, but the offender was not alleged to have committed an offence in relation to the cash. They found four mobile phones on the bedside tables in her room.
Later that day they served on her an order under s 3LA of the Crimes Act 1914 (Cth). She attended the AFP headquarters the next day with her lawyers. She admitted owning the Blackberry phone but she did not know the password. A little later, the lawyer informed the detective that his client had told him that the phones did not normally need passwords to open them and that between the time they were removed and taken by police something had happened to make them require passwords.
The detective said, "If I have my police technical team gain access through the phone, will you provide me with passwords or other necessary details to gain access to secured software on the Blackberry or the Samsung?" and she said, "I will not. I would also like to claim all four phones are mine."
She was then charged with contravening the 3LA order.
Her only record is of making and using false instrument in 2001 for which she was dealt with under a s 10 bond. There is an offensive behaviour in 2006 dealt with by a fine.
The subjective case comprises a brief record of a psychologist who diagnoses mixed anxiety and depression based on her history. This is consistent, so far as it goes, with other material on the subjective case and is not challenged by the Crown as a reasonable basis on which to proceed.
In short, she is 45 years of age. She has not seen her father for over 20 years as he was an abusive alcoholic. She suffered post-natal depression following the birth of her first child and she separated from her husband of 15 years in 2017. She lost her brother to suicide in 2001. She had been on various doses of antidepressants after her diagnoses in 2008. She lives with her mother, and she has no drug or alcohol dependencies.
The psychologist said that she expressed and displayed genuine remorse while discussing the offence and repeatedly broke down in tears . He said that she was ashamed and embarrassed at what had happened and expressed a desire to take steps such as engaging in psychological treatment to make sure she does not reoffend.
Material in support including a number of references show that she was a successful and popular local live band artist who has been performing for the last 19 years singing English and Vietnamese pop songs.
There is a favourable reference from her ex-husband, the father of her two children; and from other people in the community.
As the Crown points out, the particular offence under s 3LA(6) creates the higher level of offence where the failure to comply relates to the offence to which the underlying warrant relates and is a serious offence or a serious terrorism offence. The rationale for the increased penalty in 2018 was, according to the explanatory memorandum, to recognise how critical it is that detectives have the ability to compel assistance in the interests of Australia's national security. The maximum penalty of ten years of course reflects the seriousness with which the legislation abused this conduct.
As Bellew J said in R v Zahab [2019] NSWSC 629, among the factors relevant to assessing the objective seriousness are the nature of the serious offence to which the underlying warrant relates, whether the offender is herself implicated in the serious offence, importance of the evidence sought to be obtained, and the extent to which the failure to comply with the order frustrated the investigation.
In assessing the objective seriousness and the nature and circumstances of the offence pursuant to s 16A of the Crimes Act 1914 (Cth), Mr Milanovic points to the following matters.:
It is not alleged that the offender was involved in any activities related to her sister.
There was no suggestion that she was implicated in the drug offences.
She wasn't connected with any of the cash located in her bedroom, and there was evidence as to the source of the cash.
In her subjective case, the phones were not shown to be connected to her sister and the Crown conceded that as the phones have still been unable to be accessed, the Crown is unable to put before the Court evidence of the importance of the information contained on the devices. However, given that the offender was not implicated in the drug offences, the Crown cannot submit that there is likely to be evidence relevant to those offences on the phones. The Crown concedes that there is no evidence of how the failure to provide the passwords impeded the police investigations and there was no evidence that Mai Nguyen had used the phones.
The Crown points out the principle involved concerns preventing the investigative efforts by Police and the offence to which the underlying warrant related was very serious in nature.
In cases where there is an inability to access the devices, the Crown may have limited evidence of what is contained in the devices and the extent to which the information may assist police investigations and there is clearly a need for both general and specific deterrence to feature in the sentencing process. I accept that the offending falls towards the lower end of the range of offences in the circumstances. In particular, it is much less serious than those considered in comparable cases provided by the Crown being Duong v DPP [2021] VSCA 136, DPP (Cth) v Cacaj, Gjolaj and Camaj [2019] VCC 2200 R v Zahab [2019] NSWSC 629, DPP V Le & Anor [2021] VCC 582 and DPP (Cth) v Waller [2021] VCC 79.
I take into account contrition, the plea of guilty and the objective utilitarian value of the plea is a significant matter. She indicated an intention to plead guilty to the offence on 9 November when the matter was listed for trial this week, so the plea has avoided the need for a jury trial. While the Crown submits that the late plea provides limited evidence of contrition or acceptance of responsibility, I accept the history given to the psychologist which contains expressions of remorse and contrition.
The Crown accepts that the offender has no relevant criminal history and that she has reasonable prospects of rehabilitation.
Mr Milanovic points out that there is no evidence of a series of criminal activities, there are no apparent victims, there is no injury, loss, or damage.
I accept that in terms of the deterrent effect that she is unlikely to commit any further offences, taking into account her good character.
As Mr Milanovic submits, a full time sentence of custody should be the last resort and here, the Crown does not submit that the threshold has been crossed requiring full time custody. I accept that submission.
The orders I will make are:
1. That the offender is convicted of the offence.
2. I impose a sentence of two years' imprisonment commencing 24 November 2021.
3. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth)she is to be released forthwith on condition that she enters into a recognisance, self, in the sum of $100 subject to the following conditions,
(a) She is of good behaviour for two years.
(b) She is placed under supervision of Community Corrective Services for as long as that service deems necessary.
There will have to be a reporting condition, where does she live, Mr Milanovic, where is the closest Community Corrections office?
MILANOVIC: Bass Hill. I think Bankstown or Parramatta might be the closest.
HIS HONOUR:
(c) She is to report to Parramatta Community Corrections by 5pm next Wednesday, 1 December.
Anything else, Ms Crown?
EPSTEIN: No, your Honour.
HIS HONOUR: Thank you. Mr Milanovic, nothing further?
MILANOVIC: No, your Honour. Thank you, your Honour.
Note - These extempore remarks were revised without access to the court file
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 May 2022