R v Than Phan, Kevin Nguyen, Duc Phan & Antonio Oliveri

Commonwealth Criminal Code, s 307.11, subs (1) LEGISLATION CITED: New South Wales Drug Misuse and Trafficking Act s25(2) Commonwealth Crimes Act s 16A Crimes (Sentencing Procedure) Act NSW s 21A

Molesworth [1999] NSWCCA 43 Petravic [1998] VSCA 95 Henry [1999] 46 NSWLR 346 CASES CITED: Tobin unreported Berman DCJ 22/11/2002 Gennaoui unreported Nicholson DCJ 12/5/2006 Chapman [2001] NSWCCA 457 Pham [2009] NSWCCA 25

Regina Than Dinh Phan Kevin Nguyen PARTIES: Duc Hein Phan Antonio Oliveri Kevin Nguyen Duc Hien Phan Antonio Oliveri

FILE NUMBER(S): 2008/11/0279 NGUYEN; 2008/11/0282 D PHAN; 2008/11/0283 T PHAN; 2008/11/0284 OLIVERI

Ms Davenport SC for Crown Mr Walsh for Than Phan COUNSEL: Mr Luckman for Kevin Nguyen Mr Johnson for Duc Phan Mr Evans for Antonio Oliveri

Ms Schmidt CDPP Mr P Ash SOLICITORS: Mr Ledhin Ho Mr C Hammond Mr G Angelinas

The purpose of these sentencing remarks is to tell each of the offenders the sentence that he is to receive and to explain in language that he can reasonably understand why, within the legal and statutory framework, he has been given that sentence. Sentencing is not a science or an art, nor is it meant to be an essay on legal jurisprudence. It is the inevitable meeting of facts, laws and individual circumstances and the outcome of that meeting.

The orders that I make and the sentences that I impose are as follows:-

In regard to Mr Thanh Dinh Phan he is convicted. In regard to count 1 he is sentenced to eight years imprisonment with a non-parole period of five years to date from 28/2/2011. In regard to count 2 he is sentenced to eleven years imprisonment with a non-parole period of seven years to date from 28 February 2012. He is thus eligible for release on parole on 27 February 2019. The total term will expire on 27 February 2023. (see also paragraph 62)

In regard to Mr Kevin Nguyen he is convicted. He is sentenced to a minimum term of eight years imprisonment and an additional term of two and a half years to date from 4 November 2008 to take into account his pre-trial and post-trial custody. He will be eligible for release on parole on 3 November 2016. The total term will expire on 3 May 2019.

In regard to Mr Duc Phan he is convicted. He is sentenced to a minimum term of six years imprisonment and an additional term of two years imprisonment to date from 6 November 2008 to take into account pre-trial custody. He is eligible for parole on 5 November 2014. The total term will expire on 5 November 2016.

In regard to Mr Antonio Oliveri he is convicted. He is sentenced to a minimum term of six years imprisonment and an additional term of two years to date from 1 November 2008 to take into account pre-trail custody. He is eligible for release on parole on 31 October 2014. The total term will expire on 31 October 2016.

I will now give my reasons for coming to those conclusions. Five persons were charged with offences arising out of the importation and supply of a prohibited drug, namely, pseudoephedrine in quantities not less than the commercial and the large commercial quantity. One person, Thanh Dinh Phan, pleaded guilty to two counts of importing a commercial quantity of pseudoephedrine relative to 14 March 2007, called consignment 1, and 23 March 2007, consignment 2. The other four pleaded not guilty to knowingly take part in the supply of a large commercial quantity of pseudoephedrine on or about 28 March 2007 and 29 March 2009, which relates to consignment 1. After a lengthy trial three were found guilty and one was found not guilty. The three persons found guilty were Kevin Nguyen, Duc Hien Phan and Antonio Oliveri.

Caution needs to be exerted in sentencing these offenders because for Thanh Dinh Phan there is an agreed statement of facts outside of which it is not permissible to find other matters relative to the evidence at trial, because he was not a party to the trial proceeding. Likewise there may be matters in the agreed facts that did not come out in trial and cannot be taken into account against the remaining offenders. Further, Mr Thanh Phan pleaded guilty to two offences contrary to the Commonwealth Criminal Code, s 307.11, subs (1) which carries a maximum penalty of twenty-five years. Whereas the others were found guilty of a New South Wales Drug Misuse and Trafficking Act offence contrary to s 25(2) which carries a maximum penalty of life imprisonment and a standard non-parole period of fifteen years. The standard non-parole period would thus be relevant to a sentence of twenty years imprisonment.

The principal in the operation appears to be Thanh Dinh Phan in close association with Kevin Nguyen. The evidence is unclear as to the roles of Duc Phan and Antonio Oliveri, except to say that they were part of the supply chain after the product was imported. It seems that through contacts in Vietnam, Thanh Dinh Phan was able to arrange for shipments of what appeared to be crushed cold and flu tablets containing pseudoephedrine to be imported into Australia mixed in with genuine cosmetic chemicals for Thanh Dinh Phan's business front called, "Simply Fine". In fact a trial number of wholly legal cosmetic substances was made in February 2007, although who was involved in that apart from Thanh Dinh Phan is uncertain on the evidence.

Wilson Nasciemento, the freight forwarder at Phoenix Freight, thought that the same person rang him for both shipments. That is, the February 2007 shipment and the March 2007 shipment, which contained the pseudoephedrine. Although Kevin Nguyen admits that it is his voice in the conversations relevant to the March importation, he denied any involvement in the February matter. Having regard to the evidence and the jury's verdict I am satisfied beyond reasonable doubt that he was involved in the trial run. It seems fairly clear that an attempt was made by Thanh Dinh Phan for the addressee of the goods in Australia to be something of an innocent dupe. That is presumably why the jury acquitted the fourth person charged and why in regard to another shipment made later and addressed to a Ms Thuy Nguyet Nguyen in May 2007, she was not arrested and was not suspected of having played any role in that importation.

Consignment 1, the subject of charges involving all four accused, was detected by customs on its arrival at Mascot on 14 March 2007. The packages, two boxes, were deconstructed and then a substitution made. It was determined that there was a bulk of 43.9 kilograms containing 9.365 kilograms of pure pseudoephedrine. They were then sent to the freight forwarders, Phoenix Freight, where Wilson Nasciemento had a number of conversations with Kevin Nguyen. On 24 March 2007 a second shipment of drugs, similarly marked, entered Australia also consigned to Phuong Nguyen at Barden Street, Tempe, consignment 2. It is not suggested that Kevin Nguyen, Duc Phan or Antonio Oliveri had anything to do with this consignment. This consignment contained a substance that weighed 58.3 kilograms with a net weight of pure pseudoephedrine of 12.4 kilograms and is the second offence Mr Thanh Dinh Phan has pleaded guilty to.

Eventually the packages from consignment 1 were delivered to the stated consignee, Phuong Nguyen, at Barden Street, Tempe on 28 March 2007 by Australian Federal Police in disguise. Phuong Nguyen paid the freight cost of $925. The two packages were later picked up by Kevin Nguyen who loaded them into a vehicle which he then drove to the Bankstown District Sports Club where he met Thanh Dinh Phan. They left in two separate vehicles and travelled to 116 Williams Street, Condell Park. Consignment 1, which contained a recording device, was opened on 29 March 2007 by Thanh Dinh Phan. He was heard complaining that the individual packages were only 750 grams instead of the one kilogram as promised. This was because the substituted powder weighed less but had a greater volume than the imported material.

Later that morning Duc Phan arrived at William Street and picked up one of the boxes in a motor vehicle and proceeded to Noble Avenue, Greenacre in convoy with another vehicle. Duc Phan removed the box into the residence at 159 Noble Avenue. Later a black utility driven by Antonio Oliveri arrived at 159 Noble Avenue and reversed into the driveway. Duc Phan brought the box out of the house and placed it in the rear of the utility whose cover had been pulled back by Mr Oliveri. Mr Oliveri left and shortly after the vehicle was stopped by police and the box seized together with two mobile phones.

A search warrant was executed on 159 Noble Avenue which found three mobile phones. A search warrant executed on 116 William Street found $20,000 in cash, multiple copies of identification documents in the name of Phuong Nguyen, freight documentation relevant to the consignment, five mobile phones, the original cardboard boxes, kitchen scales, a Bankstown Sports Club coaster with notes as to chemicals used to manufacture methamphetamine from pseudoephedrine, the 29th edition of Martindales Extra Pharmacopeia, as well as many other relevant documents and things. A search warrant executed at Phuong Nguyen's premises found two mobile phones and his original identification documentation. Various mobile phones were the subject of lawful telephone intercepts, which revealed a number of incriminating conversations.

Mr Oliveri was the only offender who agreed to be interviewed by way of ERISP. He said he did not see anyone put a box in the back of his utility. He said that Duc Phan gave him a mobile telephone and had called him to come over to Noble Avenue that morning. He admitted that Duc Phan worked for him. At question and answer 245 he was asked by the officer in charge: "Q. Now you've - were you ever under the impression that you had tablets? Did you say they were getting tablets? A. No they still - I heard once, not from him but from those other blokes, that some - it's a - it's a crushed tablet".

At trial Kevin Nguyen, Duc Phan and Antonio Oliveri gave evidence. It is clear from the jury's verdicts that their exculpatory explanations were not believed.

I am satisfied beyond reasonable doubt that the principal in regard to consignment 1 was Thanh Dinh Phan with Kevin Nguyen playing a secondary role but one that was essential to the scheme being operated by Thanh Dinh Phan. As far as Duc Phan and Antonio Oliveri are concerned the jury have found that each of them knew beyond reasonable doubt they were dealing with a large commercial quantity of an illegal substance. There is no evidence as to the final destination of the drugs in question and I draw no inferences in that regard. But each of them with full knowledge participated in the supply of pseudoephedrine in a large commercial quantity and should be dealt with accordingly.

It is argued that in regard to Mr Oliveri, the jury's verdict was that he had taken part in the supply of something more than five kilograms of pseudoephedrine and that I should not find that he had participated in the supply of substantially more. What is clear is that Thanh Dinh Phan, when he unpacked the drugs at his premises, kept eleven bags of substance and repacked the remaining thirty-two bags. The weight of this remaining substance was about twenty-three kilograms. One has to exercise a degree of common sense in regard to the evidence and the jury's finding. They found that Mr Oliveri knew that he was dealing in a weight of substance greater than five kilograms. The weight was actually twenty-three kilograms or thereabouts. This was not an accidental meeting of persons unrelated to each other. The use of many mobile phones by others involved, where the identity of the phone was in an untraceable name, and the provision of a phone by Duc Phan to Antonio Oliveri, his boss at the relevant time, bespeaks knowledge on the part of both as to the contents of the package and I see no reason to believe that Mr Oliveri did not have knowledge that the package contained about twenty-three kilograms of pseudoephedrine or illegal substance.

Mr Thanh Phan is aged thirty-eight, married with one child. Both he and his wife were charged in March 2007 with offences relating to another importation and possession of precursors relative to 720 kilograms gross and 146 nett of pseudoephedrine. Both are in custody serving sentences. On 19 October 2007, he was sentenced to a non-parole period of four years and six months and a total term of seven years and six months for his part in this offence. The non-parole period expires on 28 February 2011. His wife is serving the same sentence. The maximum penalties for the two offences he was charged with on that occasion were, respectively, five years and ten years.

Mr Thanh Phan is a Vietnamese Australian who arrived via a refugee camp in 1986. He completed the HSC, studied and completed a pharmacy degree and then worked as a pharmacist for six or seven years. It is said that he developed a gambling habit and consequent debts which led him into assisting his mother-in-law in her business, which ultimately proved to be of a criminal nature. The remarks on sentence by Charteris DCJ when sentencing Mr Thanh Dinh Phan in 2007 are available, as are the agreed facts for that matter, revealing a sophisticated importation of pseudoephedrine in the base of 1,500 ceramic ornaments. Charteris DCJ found that Mr Thanh Dinh Phan's mother-in-law was serving a lengthy sentence in Cambodia relative to dealing in heroin.

There are two psychologists' reports available, one prepared for the proceedings before Charteris DCJ and one for these proceedings. The historical material in the reports has been confirmed by Stephen Nguyen, Mr Thanh Dinh Phan's nephew. The first report by Dr Pullman indicates that his mood and affect, were appropriate to the occasion and there was no evidence of any formal thought disorder. His father worked as a medical practitioner in the army in Vietnam. Mr Phan described having a close family upbringing and denied any history of physical, emotional or sexual abuse. He said he started spending an increasing amount of time in clubs gambling. He was also playing soccer and started betting on soccer games. He described himself as having been hardworking for many years but when he started gambling and spending time in clubs he just lost control and started getting into debt.

He reported his mother-in-law offered to loan him money and in order to return the favour he started helping out by working in her business, which he described as booming at the time. In 2002 he quit working as a pharmacist and started working with his mother-in-law. He had nearly $100,000 in debts and felt obligated to assist his mother-in-law because she had helped him out by repaying his debts. He met his wife in 1998 and they married in 2006 and they have a ten month old daughter, Isabelle. He described being in good health, denied any history of psychological or psychiatric illness. He also reported that he has not used any illicit substances, does not smoke and denied any difficulties with alcohol.

The results of an objective personality assessment indicated symptoms of major depression. He expressed difficulties sleeping and was particularly concerned about his wife and young daughter. It was recommended that Mr Phan receive psychological review during the period of his imprisonment and undergo counselling upon release into the community. His participation in a suitable program to address his difficulties with gambling is what was also likely to be a considerable benefit to him.

The second report by Mr Watson-Munro indicated that he was an articulate and cooperative man. In the absence of treatment he felt Mr Phan developed a chronic gambling addiction. At examination Mr Phan expressed remorse for his actions which Mr Watson-Munro believed to be genuine and that he has endeavoured to use his time in prison in a productive manner. It is reported that Mr Phan has insight and motivation for this to occur and given his clear signs of intelligence it is believed, that with continuing support, supervision and treatment, his forensic prognosis is very positive.

Mr Phan stated that he fled from Vietnam at the age of sixteen years and Mr Watson-Munro felt that it was apparent that his dislocation from his father coupled to his exposure to a divergent culture and language during his formative years had a profound and telling impact on him. Despite that he managed to obtain a pharmacy degree at Sydney University. He reported to Mr Watson-Munro that he had ceased all gambling, although it did not appear that the underlying cause of his addiction had been addressed at any sort of professional level. He acknowledged feelings of depression and despair and at examination said that he was clearly suffering additional issues from his appreciation of the gravity of the charge and his looming sentence hearing.

It is said in the report that Mr Thanh's diminished performance in the earlier intellectual testing well demonstrated the impact of this man's longstanding anxiety upon his capacity to problem solve when under emotional duress. Mr Watson-Munro's observations of him reflect an individual whose ability in all likelihood lies between the superior and the very superior range of intellectual capacity. Mr Watson-Munro felt that Mr Phan was suffering from a longstanding adjustment disorder in accordance with the DSM 4 criteria, with aggravating features attendant to the development of a gambling addiction and his current incarceration. During the period of leaving his profession and incurring gambling debts he reported that he had become increasingly depressed and anxious, there being a further deterioration in his self-esteem with his symptoms, then in turn impacting upon his judgment at a level to significance. It was in the context of these considerations that he initially offended and then in the absence of treatment re-offended whilst he was on bail.

Mr Watson-Munro felt that his incarceration had had a salutary effect on Mr Phan. At examination he expressed, not only strong remorse for his actions but in addition, firm resolve to deal with his problems with a view to maintaining a law abiding existence upon his release from custody. He has remained free from gambling in prison and he spends most of his time processing the issues behind his fall from grace. He impresses as a highly intelligent individual who Mr Watson-Munro believed, with continued support, supervision and treatment, his prognosis from both a forensic and clinical perspective was positive.

Evidence was also given by Mr Phan's nephew, Stephen Nguyen, which confirmed the concerns expressed the family and in particular Stephen's mother in regard to Mr Phan's gambling. He also gave evidence about the measures undertaken by he and his grandfather to take Mr Phan's child, Isabelle, from Emu Plains Correctional Centre, where she resides with her mother, to Goulburn prison about six times a year where Mr Phan gets to spend about two hours per visit with his daughter. He told the court his uncle wants to requalify as a pharmacist and his sister, who is a GP in Queensland, is willing to employ him in her practice. I accept that Mr Phan has strong family support.

There is little value in comparing the sentences received by Mr Phan before Charteris DCJ and the matters before me, because each of the offences before me carries a maximum penalty of twenty-five years imprisonment. However, on the question of totality those sentences need to be taken into account. He has been in custody since June 2007 and is not due for release until 28 November 2011. In addition to these offences he also has a matter of transferring currency out of Australia in 2003 and two assault occasioning actual bodily harm offences in 1992, for each of which he received a fine.

Mr Nguyen is aged thirty-two, unmarried and from an extended Vietnamese-Australian family, including his mother and father, three sisters and two brothers. He is also in a relationship with a Ms Vu aged twenty-five with whom he has a child now aged twelve months. Mr Nguyen was employed as an accountant with Westpac earning $63,000 per annum. He resided at his parents' four days a week and at his partner's three days a week. The family came to Australia in 1990 having commenced proceedings to immigrate in 1984. There is a psychologist's report that indicates a gambling problem with current debts of $100,000 and the use of ecstasy, cocaine and crystal-methamphetamine.

In the report Mr Nguyen acknowledged that he realised that Thanh Dinh Phan's business was shonky and probably involved something more than cosmetics. There is no suggestion that despite a difficult childhood, due to the deprivations occasioned by their passage from Vietnam to Australia, that he suffers any overt psychological or psychiatric illness. The psychologist regarded him as gullible, easily led and not really capable of organising the scheme devised by Thanh Dinh Phan. However, having regard to the evidence of his contact with Vietnam after the other offenders had been arrested, I do not accept that he lacked such organisational ability. Apart from that he is an intelligent and well qualified young man. I am prepared to accept that his gambling debts and use of illicit drugs, however, made it difficult to resist the seeming allure of easy money by dealing in drugs.

There is also a pre-sentence report which relevantly states that he is aged thirty-two. He has been in a relationship for about ten years with his partner who has recently given birth to their first child. There was history of tension in their relationship due to Mr Nguyen's gambling practices and spending great amounts of time with his friends. After completing year 12 in 1996 he commenced full time university studies for a mathematics degree majoring in finance. Mr Nguyen cited his gambling practices had had a negative impact on his results and as a consequence he withdrew from the course. He reported his problematic gambling was a major contributing factor to his offending behaviour. When asked to quantify his gambling Mr Nguyen appeared evasive, saying that whenever he had money he would gamble and he would also borrow money from friends, his partner and utilise his credit cards in order to satisfy his gambling practices.

Whilst on bail for a period of approximately nineteen months for the offence currently before the court, he stated that he continued to gamble, however, that after the birth of his son in February 2008 he curtailed his gambling practises. Mr Nguyen was also using illicit substances while socialising, identifying his substances of choice were MDMA (ecstasy), cocaine and "ice" or crystal-methamphetamine. He later used these illicit substances in order, "Not to think of my financial problems". The offender stated that in the twelve months preceding the offence he developed a pattern of use that involved him using ecstasy and smoking ice on weekends and occasionally during the week he would use cocaine to "relax from my problems". He estimated the cost of satisfying his drug needs to be approximately $500 per week. Mr Nguyen stated that whilst on bail his consumption of illicit substances did not cease but he curtailed it.

Because of his gambling activities Mr Nguyen formed a friendship with one of the co-offenders. He said that he had borrowed money from the co-offender at various times when his finances were depleted. The offender stated that when the co-offender asked him to carry out certain tasks he agreed believing that he was helping a friend. Although there was no duress applied to him he felt obligated to satisfy the co-offender's request. He had accumulated a debt of $80,000 via personal loans and credit cards. He stated that his creditors were becoming aggressive in their demands for repayments. The offender admitted that for his involvement in the matters before the court he was promised financial remuneration although no amount of money was agreed upon. He stated that he intended to use such moneys towards repaying his debts and to gamble.

Since his incarceration he has commenced proceedings to have himself declared bankrupt. His gambling practises and his drug use negatively impacted on his emotional wellbeing, his family and domestic relationships. He became progressively more and more isolated from his family, spending less time with his partner. The offender concurred with the Australian Federal Police facts. He indicated that he suspected illegal activity but his incentive was pecuniary driven by his gambling and financial needs and he rationalised his actions by claiming to be helping out a friend. He made appropriate statements of regret. He also expressed relief because his apprehension had forced him to address his issues and no longer hide them from his family.

He is housed in the general discipline area of Parklea Correctional Centre and has not recorded any internal institutional breaches. He has been employed in the furniture facility of Corrective Service Industries since 16 December 2007 and currently holds the position of Administrative Clerk within that facility, which is a position of responsibility and trust. The works overseer spoke highly of his work ethic, work performance and behaviour in the workplace. He was referred for intervention to address his addictions and is currently attending the Getting Smart Program. He was assessed as suitable for a low level of intervention.

Evidence was given by his sister which supports the history obtained by the psychologist. I have no doubt that the transfer from Vietnam to Australia was not an easy one. I expect the same would apply to all those unfortunate enough to have been caught up in that regrettable and inexcusable conflict. His sister is, I accept, a sincere and genuine person and in as much as she can be sure, is able to say he has learned a lesson and will not re-offend. In that regard, I accept he has strong family support. In addition, he has been accepted for enrolment at Charles Sturt University for a Bachelor in Business Accounting. He has completed a number of prison courses and I have no reason to doubt that apart from his involvement in the present matter, he is an intelligent young man, capable of rehabilitating himself and not re-offending.

The pre-sentence report suggests that his gambling and drug use were causing tension with his partner. He put his abuse of illegal substances down to pressures associated with his financial difficulties as a means of avoidance and said he was spending up to $500 a week. His reason for offending was to get money to repay his debts. He said he suspected that what he was involved in was illegal but pressed ahead nonetheless. He has apparently filed for bankruptcy.

Given all of the above and the various references that have been supplied, both work related references and private references, it is difficult to understand why a person of his age and intellectual ability would see committing a serious offence as a way out of his difficulties, rather than acknowledging that he had a problem and getting help for it, if from no one else than other members of his large and supportive family.

Mr Duc Phan is aged twenty-five, the second youngest of nine children. He obtained the school certificate and completed a traineeship as a stonemason and indeed was working for Mr Oliveri's company at the time of the offence installing kitchen tops, bathroom work, club work and the like. He also runs his own business. Whilst on bail for these matters he was employed at a recruitment employment company and has been offered that position back on his release. In his pre-sentence report Mr Duc Phan denied any involvement in the offence and blamed his arrest on Mr Oliveri. Therefore, remorse is not a mitigating factor and there must thereby be a question as to his rehabilitation prospects. He has been well behaved in prison and he is employed as a machinist. He is not regarded as a risk of re-offending nor is it seen that he requires supervision on release.

40. He was the youngest of the offenders and has served some pre-trial custody as well as having been in custody since the verdict. He has two Children's Court convictions of armed with intent to commit an indictable offence and larceny, but no adult offences, other than traffic matters. He was not on conditional liberty at the time of his offending.

Mr Oliveri is aged forty-four, married with a four-year-old son and has no previous convictions. He works in his father's stonemasonry business, A Oliveri and Sons Pty Limited. Indeed, his father gave evidence at trial. There is a psychologist's report dated 26 February 2009 from Rose Cantalli which indicates that Mr Oliveri's son suffers from the DSM4 illness of pervasive developmental disorder. She feels that the absence of his father will grossly disadvantage the child and recommends that Mr Oliveri serve his sentence in the Sydney Metropolitan region so as his son can keep in contact. I see no reason not to accept this evidence, supported as it is by Dr McDessy who also says that the child suffers ADHD, moderate intellectual disability and language delay. There is an additional confirmatory report from another psychologist Ms Schmidhopper. In addition, lengthy letters and references have been provided by Mr Oliveri's wife, his father and personal and professional friends and acquaintances, all of whom speak highly of him.

42. Whilst I have great sympathy for Mr Oliveri's son and the predicament his father has placed him in, I am not satisfied, other than generally, that that is a situation that would otherwise permit of a reduction in the appropriate penalty. Mr Oliveri gave evidence in the trial and also made an ERISP. He maintained that he was unaware that Duc Phan placed anything in his truck, a situation that was contrary to observational evidence and quite frankly somewhat absurd and clearly not believed by the jury. The only deduction to be made in the circumstances is that he well knew what he was transporting. I accept that he is a good candidate for rehabilitation and that whatever led him to offend on this occasion it is unlikely to recur, given his age and responsibilities.

43. As to any extra curial punishment, it has been indicated that the family business will suffer and may well cease due to his absence. That would of course be regrettable but it is not the sort of extra curial punishment that is so personal to the offender that it needs to be taken into account.

Mr Thanh Dinh Phan and Kevin Nguyen have presented material suggestive of a problem with gambling that caused them to act in the way that they did. In that regard, the situation that has been considered by the NSW Court of Criminal Appeal in Molesworth [1999] NSWCCA 43. The binding principle in Molesworth is that it will be a rare case where an offender can properly call for mitigation of penalty on the ground that the crime was committed to feed a gambling addiction. Additionally, the court in Molesworth approved the Victorian Court of Appeal decision in Petravic [1998] VSCA 95, where it was said:

"The fact that an offender was motivated to commit the crimes in question by an addiction to gambling will no doubt usually be a relevant and indeed may also be an important consideration for a judge sentencing an offender. A gambling addiction, even if pathological, that to some extent generates crime, will not on that account necessarily mean that the offender is immune from punishment by imprisonment."

In R v Henry [1999] 46 NSWLR 346 Wood CJ at Common Law at para 273 talked about the relationship between drug addiction and armed robbery and said that the fact that an offence is motivated by an addiction may be taken into account as a factor relevant to the objective criminality of the offence insofar as it may throw light on matters such as impulsivity of the offence and the extent of any planning for it and/or the state of mind or capacity of the offender to exercise judgment.

Berman DCJ and Nicholson DCJ at this court in Tobin, an unreported decision of Berman J on 22 November 2002, and Gennaoui unreported judgment of Nicholson J on 12 May 2006, have made comparisons between drug addiction and gambling addiction and suggest that a gambling addiction could be given similar considerations to a drug addiction. However, as Berman J pointed out, illegal drug taking is an offence whereas gambling is not and is even encouraged by both government and private interests. I also note that an addiction to illegal drugs is more likely to follow their use than is pathological gambling likely to follow from normal gambling.

The most serious question that concerns the court is why persons who develop such an addiction do not usually seek help, especially from the point when they realise what is happening to them and the problems it is causing but instead decide to commit serious criminal offences.

In another case of Chapman [2001] NSWCCA 457 Ipp JA said at para 13, "The consequences of a gambling addiction are undoubtedly serious. He (namely the offender) was certainly under the effect as established in the sentencing process of a psychological condition. There is ample authority however, from this court to the effect that while a gambling addiction is relevant to the sentence it is not a mitigatory circumstance".

There is nothing in the evidence before me to suggest that any of the offenders who rely on it have what is generally regarded as a pathological gambling addiction and the extent to which that issue can be taken into account is as set out in the preceding paragraphs and that is the way in which I have approached the personal issues involving Mr Thanh Dinh Phan and Mr Kevin Nguyen. There is no suggestion that this issue was a problem in regard to Mr Duc Phan or Mr Antonio Oliveri. It is particularly important when one looks back at the case of Henry that in having regard to the offences before me, they were not impulsive offences, they exhibited a significant degree of planning and there is no evidence that the state of mind or capacity of the offenders to exercise judgment was in any way affected by their gambling problem.

I accept the submissions made by the Crown that Mr Thanh Phan was the principal of the Australian operation of what ever was occurring and that Mr Kevin Nguyen was his lieutenant, as it were. I also accept the Crown's concession that there is no evidence to support a role greater than that of a so-called courier as far as Mr Duc Phan and Mr Oliveri are concerned and that their offending falls below a mid-range of objective seriousness for this offence. However, it needs to be remembered that their participation as a courier of the parcel was on the basis, as the jury have found, that they were couriering a large commercial quantity of a prohibited drug and their individual criminality is thus more substantial because of that.

Mr Walsh for Thanh Dinh Phan disputes the Crown's assertion in the Crown's submissions para 46B, that Than Phan was clearly responsible for the Australian end of the business. In Mr Walsh's submissions at para 2.4 he says that there is no evidence that he was involved in the actual manufacture of any drugs nor that he was aware of any illicit laboratory. Whilst that is true, what cannot be overlooked is the fact that Mr Phan was a pharmacist of lengthy experience and found at the premises where he was arrested there was a formula for converting pseudoephedrine to amphetamine as well as another book on chemistry. Apart from that, he knew immediately that he had been short changed on the shipment and was apparently the only person who split the shipment up retaining eleven bags in his own possession. Given the fact of his involvement in two importations close together in time, which were offences committed whilst on bail for similar behaviour, it is difficult to escape the only inference that can be drawn, namely, that he was indeed the business end in Australia of whatever was occurring elsewhere. Whilst there is no direct evidence of this, again the inescapable conclusion is that it was he who recruited at least Mr Kevin Nguyen, Mr Phuong Nguyen, who was found not guilty, and Mr Duc Phan.

The evidence in regard to Mr Kevin Nguyen is that he was Mr Phan's willing assistant. He conducted the negotiations with Phoenix Freight and when the others were arrested he contacted persons in Vietnam to warn them of that fact. He assisted in transhipping the boxes after they were delivered to Phuong Nguyen. There is telephonic evidence of contact between he and Thanh Phan in regard to the short weights of consignment, one that clearly indicates he was more than just a courier of some description. Mobile phones and Phuong Nguyen identity documents were found at his premises when a search warrant was executed. In my view, the evidence clearly establishes him as Thanh Phan's lieutenant.

As to Mr Duc Phan and Mr Oliveri, the Crown concedes that they played a lesser role and there is certainly no evidence to suggest a greater involvement than as knowledgeable transporters of a substantial percentage of the shipment. Mr Duc Phan worked for Mr Oliveri and yet it was Duc Phan who supplied Mr Oliveri with an unidentifiable mobile phone he used wholly, except for one call, at the time when the parcel of drugs was in the process of being moved from one location to another. Mr Oliveri has no previous record and despite a minor record on the part of Duc Phan I see little reason to make any distinction between their roles and the sentences that they should serve.

None of the offenders gave evidence on sentence. This is a matter that must be taken into account on the issue of remorse, at least for the State offences. The fact is that in their evidence at trial each disavowed any involvement in offending, although in his pre-sentence report, Mr Kevin Nguyen seems to resile from that.

The Commonwealth Crimes Act s 16A and the Crimes (Sentencing Procedure) Act NSW s 21A, require the court to take into account various matters in determining the appropriate sentence. Firstly, there is no dispute that these offences must involve a sentence of imprisonment. That is necessary on the issue of general deterrence. Both parliaments have indicated the penalty applicable to dealing in drugs of the quantity in question. What that particular drug may be in the overall scheme of toxicity, danger or other measure is implicit in the weight amount the parliaments have set as being a commercial or a large commercial quantity. The fact that a large commercial quantity of pseudoephedrine is five kilograms and above but in respect of ecstasy, for example, is 0.5 of a kilogram, is a sufficient indication of seriousness, so that within the respective statutory limits as to amounts, once those limits have been breached, criminality is not necessarily affected by the type of drug in question. That being said, the State offences relate to a large commercial quantity of pseudoephedrine, the usual source for the manufacture of amphetamine and methylamphetamine, drugs that can induce psychotic behaviour in users.

As far as Thanh Dinh Phan is concerned there also needs to be a substantial element of specific deterrence given that these are two serious offences committed whilst on bail for similar behaviour of a similar level of seriousness but involving substantially lesser penalties on the previous occasion. In his case, however, having determined appropriate sentences for the two offences before me, I need to consider the question of cumulation of penalty for each offence, the question of cumulation on those sentences on his existing sentences and then look at the question of the overall totality. I agree that it would be inappropriate to impose a crushing sentence, that is, one without any degree of hope or rehabilitation.

Some reliance was placed by Mr Luckman for Kevin Nguyen on the recent case of Pham [2009] NSWCCA 25 which was an unsuccessful appeal against a sentence of a minimum non-parole period of seven and a half years and an additional term of two and a half years for Mr Pham's part in the supply of 300 kilograms in bulk of pseudoephedrine hidden in the base of 766 statues. It is clear from the facts in that case that Mr Pham's role was apparently limited to helping unpack the shipment after its arrival and breaking off the base of the statues. At best, his involvement could be equated to being somewhere above Mr Duc Phan and Mr Oliveri's involvement in the present case and that was also a case where there was no plea of guilty. Mr Kevin Nguyen's involvement in the present case was a more substantial one than the offender's was in the Pham case.

The Crown argues that as far as Mr Kevin Nguyen is concerned I should find that his offending falls within the mid range of objective seriousness and that a minimum term of fifteen years with an additional term of five years would not be inappropriate. There would be no need to find special circumstances as the five year parole period would be more than enough to allow for his rehabilitation into society.

Whilst the offences that Thanh Dinh Phan has been charged with do not involve any question of a standard non-parole period and other considerations also apply, the sentences of the other offenders have to bear some relativity to the sentence imposed on the principal, albeit, the principal plead guilty. Thanh Dinh Phan has been in custody, as I said, since 1 June 2007 and his current non-parole period expires on 28 February 2011, although the sentence for intentionally importing prohibited tier one goods in 2003 was backdated to 1 September 2006 to take account of pre-trial custody. Whilst Thanh Dinh Phan pleaded guilty, the plea of guilty was not at the earliest opportunity, but can be looked at as indicating a willingness to facilitate the course of justice on his part and he is entitled to have a reduction of the penalty otherwise thought to be appropriate. There can be no doubt that all of the offending involved planning and sophistication but that is somewhat inherent in dealing with a commercial quantity of any drug. One does not usually find spontaneous acts of offending occurring when large commercial quantities or commercial quantities of any drug are involved. It is of course of significant concern to me, as far as Mr Thanh Dinh Phan is concerned, that his daughter will be substantially disadvantaged by the conduct of both her parents.

Having regard to those matters I make the orders above.

9 July 2009 This matter was re-listed to correct Mr Than Phan's sentence to impose a single non-parole period as is required under Commonwealth legislation. The correction is not disputed.

The orders I make are that the non-parole periods previously imposed are quashed and in lieu there is a single non-parole period of 8 years to commence on 28 Feb 2011 and to expire on 27 Feb 2019.

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