R v Truong [1997] QCA 49

Court of Appeal (Qld)|1997-02-27|Before: Fitzgerald P, Davies JA, Byrne J

THE PRESIDENT: This is an application for leave to appeal against a sentence imposed in the Supreme Court on 18 November 1996. On that date the applicant pleaded guilty to an ex-officio indictment charging her with one count of possession of a dangerous drug namely heroin, the quantity of which exceeded two grams.

The applicant committed the offence on 22 February 1996. She was sentenced to imprisonment for nine years with a recommendation that she be eligible for parole after she had served three and a half years.

The applicant is 27 years of age, born on 8 June 1969. She migrated to Australia from Vietnam when she was 12 years of age. She is married and has two young children aged five and seven years of age. At the time when she was sentenced she was the proprietor with her husband of a take-away food shop. She has no prior criminal history and no addictions, and she spent no time in custody prior to being sentenced.

On 21 February 1996 police observed the applicant driving away from a hotel in Sydney. She was accompanied by her five year old daughter. The next day she was apprehended by police at the Brisbane Airport. Her luggage included a child's back pack which contained a bag of powder weighing 135.143 grams containing a pure weight of 76.896 grams of heroin. The street value of the heroin was approximately $300,000.

Although she initially denied knowledge of the powder in the child's back pack the applicant participated in a record of interview in which she made full admissions. On her version of events she had accepted an offer of $5000 from a man whom she met at a casino in exchange for her services as a drug courier.

The offence involved the applicant and her daughter travelling to Sydney with the applicant wearing a black jacket and her daughter carrying a red school bag. On her arrival at the Sydney destination the applicant was approached by a man whom she did not know who took her child away and returned 15 minutes later with the child.

As the applicant understood the heroin was hidden in the child's bag. Pursuant to the arrangement the applicant and her child returned to Brisbane the next day where the applicant was instructed to place the heroin in a casino locker. As the applicant was not to receive payment until the transaction was complete she did not receive any money.

After her arrest the applicant named the two men involved in the transaction but has declined to give a statement against them and at present there is insufficient evidence to charge them.

The sentencing Judge referred to factors such as the prevalence of drugs in the community, the applicant's financial motivation and her lack of resistance to being separated from her child as aggravating features.

His Honour did not accept that the applicant would not have re-offended if she had not been caught. Furthermore, he did not accept that the passage of heroin within Australia was any less serious than the importation of heroin from an overseas country.

His Honour referred to the applicant's lack of prior convictions, her partial co-operation, in particular her identification of the principal offender, and her early plea of guilty as mitigating circumstances. He considered that her contrition was genuine and took into account the hardship and anguish endured by her family as a consequence of her offence.

He considered that a non-parole period was required in order to give credit for her co-operation and the support of her husband, but was of the view that her failure to co-operate fully was an inhibiting factor against giving as large a discount as would otherwise have been appropriate.

In this Court the respondent supports the sentence imposed. Emphasis was placed on the significant role of couriers in the distribution of illicit drugs necessitating strong deterrent penalties. The respondent admitted that the appropriate sentencing range was from seven to 10 years, and that accordingly the head sentence was within the range which was not really disputed below.

However, it was argued in this Court by the applicant that the sentence was at the high end of that range and should have been lower. It seems to me that it is more correct to regard the fact that the sentence is towards the high end of the range as relevant more to the length of the non-parole period and considering the level of which that should have been fixed.

The applicant's principal submissions in that respect were that the sentencing discretion miscarried, because the sentencing Judge did not give sufficient weight to her personal factors. Matters emphasised on behalf of the applicant were her plea of guilty on an ex-officio indictment, the limited but nonetheless substantial extent of her co-operation with police which involved identifying the person who gave her instructions to go to Sydney, and a description of his address and the circumstance that her conduct was an aberration from her normal character. There was no suggestion by the prosecution that she was a trafficker and in her record of interview she denied that she had ever done anything like this before. She had been in the community as a law-abiding citizen after her arrest for nine months prior to her being sentenced.

Her remorse was evidenced by her plea of guilty, and statements in the record of interview which she gave to police that she recognised that she had done the wrong thing and was sorry. Her remorse was also said to be indicated by her demeanour in Court when she was sentenced, but this Court can only accept that she is remorseful without knowing the accuracy of the statement about her demeanour.

It was said also that she recognised the consequences of what she had done which weighed very heavily on her, that she had brought hardship on her family and shame causing them to be shunned by people within the community, that she and her husband were not confident that he has the skills necessary to properly look after their children.

She has a particularly close relationship with the youngest child and concern that that child will have difficulty in adjusting to her absence, and she is concerned about the viability of the family business. She has had to suffer considerable shame within her own family as well as the community and her husband's anger, and that in a sense it was said that her offence was not motivated by greed because she did not want the money for herself but to send to her relatives in Vietnam.

This was not a professional or clever crime on her part, she simply followed instructions and was very much under the control of the man who approached her and his brother in New South Wales, and it was said that she was unlikely to re-offend and had not realised the enormity of what was occurring until her child was taken away to be given the heroin, or had to have the heroin placed in her bag, at which time the applicant became extremely frightened.

All these factors do certainly bare in my mind upon the appropriateness of the recommendation for parole which was given to the applicant by the sentencing Judge, particularly in the context of what I regard as a sentence towards the higher end of the range as a head sentence.

However, in my opinion it cannot be said that the sentence imposed was outside the exercise of a sound sentencing discretion and I would accordingly refuse the application.

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