HIS HONOUR: Saegar Thangavelu stands for sentence as a consequence of having pleaded guilty to a charge that on 7 December 2014 at Mascot in this State he did import a Tier 1 prohibited good, namely, pseudoephedrine. The quantity of the drug imported by the offender was 842 grams.
On 7 December 2014 the offender arrived at Sydney International Airport on an Air Asia flight from Malaysia. He presented to an Australia Border Force officer for immigration clearance. He presented his Malaysian passport and completed and signed an incoming passenger card in English. That provided the offender's name and date of birth, told the Border Force officer that his occupation was a disc jockey, that he intended to stay in Australia for four days and that the main reason for his visit was a holiday. His anticipated address in Sydney was at the Aspire Hotel in Ultimo. He answered 'no' to a question which required him to state whether he was bringing into Australia anything that might be prohibited or subject to restrictions such as medication, steroids, illegal pornography, firearms, weapons or illicit drugs.
Pseudoephedrine is a form of medication. The importation of any amount of pseudoephedrine over 25 grams requires Government approval under the Customs Regulations 1926 cl 179AA and Sch 1AA. The amount of "25 grams" of pseudoephedrine is known as "the critical quantity". That is the highest critical quantity of any Tier 1 drug. That suggests that the pseudoephedrine is considered to have the least potential for harm. However, it is common ground that pseudoephedrine can be used in the manufacture of methylamphetamine.
Shortly after presenting to the Border Protection officer the offender was directed to the baggage examination area. A Border Force officer searched the offender's suitcase and located a toiletry bag. Contained in that toiletry bag was a bottle labelled "Royal Rose Aromatherapy Shower Cream" which was said to have a content of 1,000 millilitres. There was another bottle labelled "Johnson's Baby Powder" which was said to weigh 500 grams. It in fact weighed 537 grams. A test of each of the two bottles tested positive for ephedrine. The bottles were then X-rayed and their contents appeared to be inconsistent with the description of the goods given on the bottles themselves. Subsequent testing found that within the "Johnson's Baby Powder" bottle there was a plastic bag containing 398 grams of white powder. In the "Royal Rose Aromatherapy Shower Cream" bottle was a clear plastic bag also containing a white powder with a weight of 650 grams. The white powder in each bottle was subsequently analysed and it was determined that each contained pseudoephedrine with a purity of 80%. The total weight of pure pseudoephedrine was 842 grams.
R v Thangavelu [2015] NSWDC 390 | Case summary | Zoe
Prior to that testing the offender gave an interview to Border Force officers. The offender said that he was married with three children. Those children were said to be seven years, four years and two years old. The offender said that he worked both as a disc jockey and as a handyman. The offender said that his boss in Malaysia had paid for his airline ticket to come to Australia and for the offender's accommodation in Australia. That is a difficult proposition to accept at face value. However, the offender then said that he gambled regularly and in fact gambled daily and was losing between $200 and $1,000 when he gambled. In those circumstances one might form the view that the offender was a gambling addict who had incurred debt due to gambling which he needed to discharge. The offender told the Border Force officers that he had packed his suitcase himself. He then went on to say that he had told his boss that he wanted to buy some toiletries to take to Australia but then another friend of his called and told him that he did not need to buy such items and that they would be given to him gratis. That friend was also a friend of the offender's boss. One might infer that the offender's "boss" and his other "friend" were related in drug trafficking. The offender told the Border Force officers that his friend gave him the packages in Malaysia and dropped them off to him with the other contents of his toiletry bag. The offender said that he was not planning to meet anyone in Australia and that he was coming to Australia mainly to gamble at a casino. The offender told the Border Force officers that he was travelling alone and that he did not have any friends or family in Australia.
The offender was then arrested. He has been in custody ever since. He is two days short of having been in custody for 11 calendar months.
The offender has elected not to give evidence, nor has any oral evidence been given on his behalf, nor, indeed, has any documentary evidence been tendered on his behalf.
The offender first appeared before the Central Local Court on 8 December 2014. Eventually, after being served with the police brief and after lengthy conferences with his lawyers, which I wholly accept would be difficult conferences, the offender pleaded guilty at the Local Court without there needing to be a committal hearing and the offender was then committed for sentence to this Court.
The Crown has accepted that the offender's plea was entered "at the earliest stage in the proceedings". The Crown case is strong. However, the offender did give an explanation to the Border Force officers, which had he not pleaded guilty, would have required a trial to ascertain whether the offender knew of the presence of the prohibited drugs in his possession when he arrived at Sydney Airport or whether otherwise he was criminally liable for the drugs that were found in his possession. In other words, the offender's guilty plea was both an acceptance of responsibility for his crime and showed a willingness to facilitate the course of justice. In the circumstances I am prepared to allow the offender a discount for his plea of guilty at the earliest stage of the proceedings as conceded by the Crown.
The facts before me and common sense suggest that the offender had a gambling habit, had become indebted and needed to bring pseudoephedrine into the country so that someone else could use the pseudoephedrine to manufacture illicit drugs. The offender said when interviewed by the Border Force officers that he intended to stay in Australia for four days but he had a return ticket indicating that he was to leave Australia on 9 December 2014 two days after he arrived. In other words the period that he was to be in Sydney was extremely short and probably merely reflects a window of opportunity for him to pass on to somebody else involved in drug trafficking the pseudoephedrine so that it could eventually be turned into a prohibited drug. The offender was a drug courier or drug mule. There is no evidence to suggest that he was a principal in drug trafficking, nor does the Crown submit that he was.
The offender, I have to accept, is a man of prior good character. He has no criminal record in Australia. He had come to Australia with a visa and it is likely that he was interrogated in his application for a visa about his criminal past and that he provided some information in that regard. Whatever he said appears to have been accepted by the Australia officials concerned leading to his being given the visa to enter Australia as a tourist. In other words, there is nothing to suggest that the offender has some antecedent criminal history in his native country, Malaysia.
I accept that he is a man of prior good character. However, to enter a country such as Australia, if one has a criminal history, is likely to lead to enquiry and search. In other words, to be a successful drug mule or drug courier, being of good prior character is a distinct advantage. The significance, therefore, of prior good character is diminished in crimes of this nature but must still be given some weight.
The offender, as I have already stated, is a married man with three young children. There is no evidence of his having any family or even friends in Australia. He has been in gaol now for nearly 11 months. Although he is from Malaysia he is ethnically a Tamil and that is his native tongue, and I accept that it has been difficult for him to communicate with others since his arrival in Australia, and one can accept that being in the New South Wales custodial system as a "foreigner", speaking a little spoken language in this country, would be of great shock to the offender and a cause of grave disquiet to him.
The maximum penalty for this offence is imprisonment for five years and or 1,000 penalty units which at the current time under Federal law amounts to the sum $170,000. It is unlikely that the offender could satisfy any pecuniary penalty. The offence with which he is charged would extend to amounts of pseudoephedrine of much greater moment. Indeed cases to which I have been referred by solicitors for the parties indicate that one offender was sentenced for importing 5.375 kilograms of pseudoephedrine, another sentenced for importing 2.5 kilograms of pseudoephedrine. Whatever amount of pseudoephedrine was imported, if the importer was charged under s 233BAA(4) of the Customs Act 1900 the maximum penalty that could be imposed is that of five years and or 1,000 penalty units.
All matters have to be taken into account in passing any sentence. They include, but are by no means dictated by, the quantity of the drug, the nature of the drug, the circumstances of importation, the offender's role in the importation and the offender's personal circumstances.
Even for a "mere drug courier" or "mere drug mule" deterrence looms large, both personal deterrence and general deterrence. Anyone coming to this country must realise that breaking the Customs law concerning illegal or prohibited drugs and the like results in severe penalties.
Each of the Crown and the offender have put before me three cases which it is submitted give comparable sentences.
The first is the decision of Solomon DCJ in R v Manh Hung Nguyen (Unreported, District Court of New South Wales), a sentence passed on 23 March 2012. That offender was either 42 or 43 years old. She was female. She imported 5.375 kilograms of pseudoephedrine. His Honour imposed a head sentence of 22 months and permitted the release of the offender on recognisance after 11 months.
The next case was R v Yan Huang [2012] NSWDC 298 a sentence passed by Letherbarrow DCJ on 7 September 2012. The offender in that case was aged 40, and was female. She had pleaded not guilty but had been found guilty at trial. That woman had imported 760.35 gram of pseudoephedrine. Her case was somewhat unusual. His Honour imposed a sentence of 12 months imprisonment with a release on recognisance permitted after seven months.
The next case is that of R v Tram Anh Vo (Unreported, District Court of New South Wales), a decision Haesler DCJ on 23 August 2013. The offender in that case was a single mother who had pleaded guilty to importing just over 3 kilograms of pseudoephedrine. She was sentenced to 18 months imprisonment and permitted to be released on recognisance after six months.
The next decision was R v Goh (Unreported, District Court of New South Wales), a decision of Charteris DCJ on 20 March 2014. The offender in that case was 39 years old and female. She had imported 2.5 kilograms of pseudoephedrine. His Honour imposed a head sentence of two years imprisonment and permitted a release on recognisance after 15 months.
The next decision is that of R v Chung (Unreported, District Court of New South Wales), a sentence passed by Armitage DCJ on 6 June 2014. That offender was a 54 year old male who had imported 1.414 kilograms of pseudoephedrine. His Honour sentenced the offender to 18 months imprisonment and permitted his release on recognisance after nine months.
The most recent of the six cases was that of R v Le (Unreported, County Court of Victoria), a sentence passed by O'Neill CCJ (Vic) on 13 May 2014. That offender was a female aged 54 who had imported 740.06 grams of pseudoephedrine. His Honour sentenced that offender to 15 months imprisonment and permitted release after eight months on recognisance.
This offender is now 49. He was 48 years old at the time he committed the offence on 7 December 2014. He clearly has a young family. However, there is no evidence to establish that the period that the offender has already spent in custody caused the members of his family the "exceptional hardship" that must be established for the purposes of s 16A(2)(p) of the Crimes Act 1914 as stated in R v Togias [2001] NSWCCA 522, R v Hinton [2002] NSWCCA 405 and R v Zerafa [2013] NSWCCA 222.
There is also no evidence that the offender is otherwise than in good general health.
Under s 16A(2)(f) I am required to take into account the degree in which the offender has shown contrition for the offence. The only contrition that I can determine is that given by the plea of guilty but as I said earlier that may be because of a strong Crown case. As the offender has not given any evidence it is very difficult to make any positive finding on his behalf in this regard.
Under s 16A(2)(k) I am required to ensure that the offender is adequately punished for his offence and in that regard I have been given written submissions by the Crown in which it has been submitted that a full time custodial sentence is the only appropriate sentence in the circumstance. I agree with that submission but it is somewhat academic bearing in mind the fact that the offender has already spent almost 11 months in custody.
Under s 16A(2)(n) I am required to take into account the prospect of rehabilitation of the person. Again, one needs here to speculate but the speculation is probably sound. It is unlikely that the offender would seek to return to Australia carrying in his possession any prohibited substance because of his experience this time around. However, it is unlikely that in future he would be permitted to enter the country in any event because of the offence for which he currently stands for sentence. Therefore, in theory, the prospects of the offender not committing this offence again are good.
There is really no other matter referred to in s 16A(2) of the Crimes Act 1914 that I need to consider.
Bearing in mind all of these considerations, and applying the instinctive synthesis which one does from hearing the cases of this nature regularly, I have come to the view that the starting point for this sentencing exercise is a period of imprisonment of 20 months. I discount that because the offender's plea of guilty to 15 months. I believe that it is appropriate in the circumstances for the offender to be released on recognisance after 11 months, that is, that he be released on recognisance on 7 November 2015.
Saegar Thangavelu on the charge that on 7 December 2014 at Mascot in the State of New South Wales you did import a prohibited tier 1 good, namely pseudoephedrine, you are convicted. I sentence you to imprisonment for a term of one year and three months commencing on 7 November 2014. I order that you be released on your recognisance in the sum of $500 to be of good behaviour commencing on 7 November 2015.
Is an order for the destruction of the substance required?
RALPH: No, I don't, your Honour. Thank you.
HIS HONOUR: All right. Ms Manea, I think all I need to tell the offenders is, it's two more days.
MANEA: Thank you, your Honour.
HIS HONOUR: The Court will adjourn.
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Decision last updated: 17 May 2016