R (Cth) v Sayyaketh [2025] NSWDC 555 | Case summary | Zoe

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R (Cth) v Sayyaketh [2025] NSWDC 555 | Case summary | Zoe

On the following day, 2 March, Tonh used FMA to call Phommixay on two occasions with each call lasting approximately one minute. On 3 March 2023, at 11am, an Australian Federal Police member purporting to be a delivery driver, delivered the substituted consignment at the address in Busby, the address of Tonh's father, and the delivery address for the consignment.
After knocking at the front door of the address and receiving no answer, the AFP member attempted to call Tonh, without success. A short time later, Tonh called the AFP member purporting to be the delivery driver, and agreed for the consignment to be left at the front of the those premises. The AFP member left the consignment at the front of those premises.
The co‑offender Tonh used FMA to make three calls to Phommixay. At about 11.10 that day, the co‑offender attended the delivery address in a black Toyota RAV4 vehicle. He walked towards the front of the address and took three photos of the consignment. He then used the FMA to call Phommixay. A short time later, the co‑offender picked up the consignment and started to walk back to his vehicle. He used FMA to make two short calls to Phommixay, and received two short calls from Phommixay.
Tonh was then intercepted by the AFP on his way back to his vehicle, having in his possession the substituted consignment. At 1.14am, about the time that he was intercepted by the AFP, Tonh received an FMA message from Phommixay stating in Laotian, "Cancel sending messages". That perhaps was an indication by Phommixay that when the consignment had been collected by Tonh, he was not to make any further contact with her in order, perhaps, to protect her from being implicated in the crime.
Between 11.29am and 11.32am, Tonh missed two calls from Phommixay and received an FMA message from this offender asking in Laotian whether the job had been completed. Tonh missed a further two calls from this offender, and from Phommixay, before receiving two FMA messages from Phommixay asking Tonh in Laotian to make contact with her.
At 11.59am, Tonh sent an FMA message to this offender saying in Laotian that the job had been completed, and the offender replied in Laotian that he should call another who was worried. The inference to be drawn is that this offender was telling Tonh to contact Phommixay.
At 3.30pm on that day, 3 March 2023, the Australian Federal Police executed a search warrant at premises in Canley Heights, which was then the offender's residence. She was not present at the time that the search warrant was executed. Nothing was seized at that time.
On 10 May 2023, in the early morning just before 6am, the Australian Federal Police executed a section 3E Person Warrant on the offender at an address in Fairfield West. That led to her being arrested by the AFP on 31 May 2023, at an address in Wetherill Park. She then participated in an electronically recorded interview with the AFP, in which she said that Tonh had asked her to track for him the number of the consignment, and that was all she had done: she merely did it because he had asked her to do so.
I have previously sentenced Tonh, and I cannot use any information that I had in connection with his sentencing to go beyond the facts agreed between the Crown and this offender as to the circumstances of her offending. However, the offender has been interviewed by Mr Anthony Diment, a psychologist, at the request of her solicitors. She told Mr Diment something about her involvement with another, which is relevant. The relevant part of the history obtained by Mr Diment is this:

The person that the offender described as the lady she met in Melbourne in 2023 appears to be the lady known as Phommixay. She has not been brought to justice. As I understand it, when it was realised that Tonh had been arrested, Phommixay boarded a flight returning to Thailand. There is no evidence that the offender profited at all by her taking part in this purported importation, and it would appear that her involvement in the crime was that she was reckless as to whether the importation contained a border‑controlled drug.
By her plea, the offender admits that she intended to aid or abet an offence of the type committed by Tonh, namely, attempting to possess a border‑controlled drug. The Crown does not contend that the offender knew either the nature of the drug or the precise quantity of it, meaning that she was reckless that it could have been a border‑controlled drug. Her offending is clearly less than that of Tonh who must have been aware of what was being imported because of the attempts made to disguise the fact that he was collecting the package in which the drugs were thought to be contained at the time when he did take possession of it.
As has been submitted by the Crown, the conduct of the offender in this importation was tracking the consignment via the Australia Post application on multiple occasions and providing to Tonh, and perhaps also Phommixay, if she were the principal, with tracking information regarding the clearance of the consignment and delivery details of it.
It has been submitted on behalf of the offender that hers was not a vital or necessary role in the attempted importation in that, for example, somebody physically had to take delivery of it, but any person might be able to provide the tracking information. To an extent, that is true, but somebody had to do it who had an ability to use the Australia Post tracking information. That could be almost anybody who imports things.
The offender comes before this Court as a lady of prior good character. She has no criminal record in Australia or in her native Laos. When admitted to bail on 23 June 2023, her conditions of bail were somewhat onerous. She was, as one would expect, required to surrender her passport and not to apply for any other passport, and she was not to approach within 100 metres of any international point of departure. She was required to live at an address in Fairfield, but that does not appear to have been onerous. However, she was not permitted to leave this State.
She was only permitted to have one mobile phone, details of which she was required to give to the officer‑in‑charge of the criminal investigation. The most draconian thing was a requirement to report once daily to police at Cabramatta between 8am and 8pm. Daily reporting is not usual for offenders. Reporting once, twice or thrice per week is fairly normal, but not daily reporting. She was also required to provide a guarantor, and the bail security was a deposit of the sum of $20,000. That is onerous.

I was told that the offender divorced in Australia. Apparently, she and Sulasay came to Australia together in July 2017, and they were divorced in Australia in the following year, yet they still live in the same accommodation, although they live "separately". That is, the children they have are supported by each of the offender and her former husband. The children, as ought be clear from the history, live with the offender's mother in Laos.
The opinion of Mr Diment is that the offender may be suffering from post traumatic stress disorder resulting from the sexual assault when she was a teenager, and the unfortunate relationship she had with Sompong after she finished school, a relationship that lasted one year. In the body of his report, Mr Diment calls in aid of that, a referral by the offender's current general practitioner known to the offender as Dr Su, referring her on a GP mental health care plan for treatment for anxiety or depression, resulting from her past sexual assault. However, it is clear that that referral was only made after the offender had been interviewed by Mr Diment, and Mr Diment made contact with the offender's general practitioner, Dr Su.
There is no evidence whatever of any pattern of any treatment of the offender at any time in the past. That supports the thesis put forward by Mr Diment in his report. It makes it very difficult for me to accept that the offender's criminality is lessened by the fact that she may have been suffering from some form of depressive illness or anxiety illness that could fit within the umbrella of post-traumatic stress disorder; that is, that her psychiatric condition has anything to do with the offending. It appears the offending was because she was happy to mix with Phommixay and also with Tonh in order to track the consignment in which the heroin had been secreted.
It is conceded by Mr Apostle, who appeared for the offender, that the threshold established by s 17A of the Crimes Act 1914 (Cth) has been crossed in relation to this offence. Section 17A(1) of the Crimes Act 1914 provides that:

The Crown has submitted that the only appropriate sentence is a term of imprisonment with a non‑parole period. A term of imprisonment with a non‑parole period would be a term of imprisonment exceeding three years' imprisonment. However, the offender through her counsel, has submitted that a recognizance release order on conditions that would include that the offender abide by the treatment plan of Mr Diment in his report of 22 August 2025, would be an appropriate penalty, having regard to the unique sentencing factors of this case.
The unique sentencing factors in the submission of Mr Apostle are her prior good character, the fact that her involvement in this attempted importation was not vital, and that there was no evidence that she stood to gain anything from her involvement. Those are the essential facts relied upon by the offender. The Crown, on the other hand, points to the general policy of the law that, in crimes of this nature, there must be a penalty which shows the need for general deterrence, as well as specific deterrence; the fact that the drug trade is inimical to both the health and welfare of the population, and good order in society; that so much crime results from the use of illicit drugs, and the trafficking in them, such that all those who become involved in drug trafficking in any way should be severely punished so that the trade may be eventually hindered and suppressed.
Of course, there are competing sentences which are referred to by both counsel for the Crown and counsel for the offender. Those are set out, for example, by the Crown in MFI 2 and by the offender in her counsel's submissions, which are MFI 3. Perhaps, the appropriate sentence to consider is that which I passed upon Tonh: [2024] NSWDC 431, which is directly relevant to this attempted importation.
Another factor which the offender relies upon is the fact that her short experience of incarceration, she found daunting, part of which I set out in my earlier quotation from Mr Diment's report which goes on to contain the offender's remorse for getting herself involved in this attempted importation. There was discussion in submissions between the Bench and the Bar as to whether imprisonment would be extremely onerous for the offender because of her background, and her finding incarceration very difficult. However, one must bear in mind one of her references, one from Mr Stephen Vincent with whom she works, and who has known her for nearly five years. His reference bears date 22 June 2025, and is part of Exhibit 1. In it he says this:

When I sentenced Tonh, I started the sentencing exercise with a starting head sentence of imprisonment for 5 years. In his case, I gave a discount of 35% because of the early plea of guilty and certain cooperation that that offender gave to the authorities in assisting in the administration of justice. A head sentence of five years is a head sentence of 60 months. I start this sentencing exercise with a lesser head sentence of 40 months' imprisonment. However, that can only be reduced by 10% because of the late plea of guilty, plea of guilty made on the day that the matter was listed for trial. The allowance can only be, in my view, 10%. That reduces the head sentence to 36 months or three years.
The question then becomes how much of that sentence should be served by way of full‑time custody. Of course, in New South Wales, the relevant statute fixes a nexus between the head sentence and the non‑parole period of three‑quarters of the head sentence, but that does not apply to Commonwealth offending under the Crimes Act 1914 (Cth).
I have taken the view that the appropriate full‑time custodial sentence should be 2 years' imprisonment; however, the offender spent 27 days in custody before being released on parole. The commencement date for the sentence should be backdated by those 27 days. I have carefully counted out 27 days using the calendar, and it appears to me that the appropriate commencement date for the sentence should be 19 August 2025. Since the sentence which I propose does not exceed 3 years, I shall order that at the expiry of 2 years, the offender be released on recognizance for a further term of one year in which she will be required to keep the peace, and to report to the Court if called upon to do so.
I am wholly aware, that in dealing with offenders against the law of the Commonwealth, I am require to consider each of the matters referred to in s 16A(2) of the Crimes Act 1914 (Cth). I have sought to explain the nature and circumstances of the offending. There are no other offences which need to be taken into account. The offending did not form any part of a course of conduct. I have carefully considered the offender's personal circumstances. There is no direct evidence of any injury, loss or damage resulting from the offence, but if the offence had been achieved, illicit drugs would have entered the community and contributed to the misery brought about in our community by the use of illicit drugs. There's no individual victim as ought be clear from what I have just said.
Section 16A(2)(f) requires me to take into account the degree to which the offender has shown contrition for the offence in any manner, and that contrition is shown by the late plea of guilty, but here it must be realised that the plea was late, and I have taken that into account. That, of course, indicates that I have also taken into account paragraph (g) of s 16A(2). There is no evidence of any cooperation that the offender made with law enforcement agencies, other than her late plea of guilty.
Clearly, I have taken into account both specific and general deterrence, and I again stress that in a case of this nature, general deterrence is extremely important, as the authorities point out. Again, the sentence which I propose will ensure adequate punishment for the offence.
Paragraph (ma) of s 16A(2) requires me to take into account the person's standing in the community if it were used to aid in the commission of the offence. There is no evidence that that had anything to do with this offence.
The penultimate consideration is the prospect of rehabilitation of the person. I am confident that with the imposition of the penalty I propose, that the offender will not offend again. The final consideration is the probable effect of any sentence on any of the persons, family or dependants. Here I am asked to take into account the effect on the offender's children during the period of her imprisonment. During that period of time, the father of the children will be able to support them insofar as he can, providing the support which the children need from their parents, bearing in mind the age and health of the grandmother with whom they currently reside.
It appears that the offender and the children's father have been seeking to have the children come to Australia for some little time now, but there is no evidence of the progress of that application to date, and I do not know whether it is likely that the children will be given a visa to come to live in Australia. The evidence is unclear about that. In fact, there is no direct evidence as to whether any application has actually been made to the Commonwealth.
I have inquired of the solicitors for the parties whether any further reasons for judgment are required, and I am told that none is so required.