REGINA v Loan Phuong LUONG [2000] NSWCCA 139 | Case summary

1 PRIESTLEY J: Justice Smart will give the Court's reasons. 2 SMART AJ: The Director of Public Prosecutions appeals against the alleged inadequacy of the sentence comprising a minimum term of eight months and an additional term of two years ten months in respect of one count of supplying not less than a commercial quantity of heroin on 14 January 1999. The quantity alleged was 716.5 grams and the supply was a deemed supply. 3 The trial of the prisoner took place from 27 July to 6 August 1999. The Judge said: "The Crown case accepted by the jury was that the prisoner was in joint possession of the heroin with her de facto in a car that was stopped and searched on the Hume Highway some kilometres from Albury travelling from Melbourne to Sydney. The prisoner and her de facto were resident in Melbourne and the prisoner was six months pregnant at the time. The heroin was found secreted under the back seat". 4 The jury rejected her evidence and that of her husband that she was unaware of the heroin being in the car. 5 When searched she was found to be in possession of $12,000 and a set of electronic scales. She said that her husband had handed to her the sum mentioned at the Casino, being money which he had won. 6 The judge rejected the suggestion that the prisoner and her husband were only couriers. He found that their money was involved in the transaction. 7 The prisoner entered Australia in September 1998 for the purpose of living with the co-offender, her de facto, and later her husband. She is Vietnamese and was born on 12 December 1965. She speaks Vietnamese and Laotian but at the time of the offence and sentencing she did not speak English. The judge noted that within a few months of her arrival in Australia she was involved in the supply of heroin. 8 The judge found that greed was the reason for the offence but thought that it was probably her husband's greed. She assisted him because of their relationship. He was a heavy gambler. 9 The judge recorded that the family relationship and any special hardship had been considered and dealt with in the sentence of the prisoner and that the judge sentencing the husband should be appraised of this. In fact, Judge Gibson subsequently sentenced the husband to a minimum term of four years six months and an additional term of one year six months. 10 The judge took into account that: (a) she showed no remorse and that this was consistent with her plea of not guilty; (b) she was unable to speak or understand English and that this would make her time in gaol more onerous. Further, her relatives are in Victoria and this would much restrict visiting; (c) her behaviour whilst in custody had been good; and (d) she had no prior criminal convictions. 11 The prisoner attended school until year 10 or 12 in Vietnam. She is the mother of three children, two from a prior marriage, one of whom, a boy aged about eight she brought with her from Vietnam. She had known her husband for some years. They had lived together in Laos prior to her coming to Australia on a visitor's visa. Almost immediately on her arrival she became pregnant and a child was born in custody in June 1999. The prisoner was married to the co-offender in Melbourne about a month after her arrival in Australia. The child born in custody is an Australian citizen and it appears that at least her husband had residency rights if not citizenship rights. 12 The prisoner's son by her prior marriage was living with her sister at the time of sentencing. The judge was informed and accepted that as the son arrived in Australia on a visitor's visa with his mother he was unable to attend school and thereby considerably disadvantaged. The son understands only Vietnamese. 13 The judge took into account the report of Mr W J Taylor, psychologist. That revealed that the prisoner had become depressed. The diagnosis was of a moderately severe depressive disturbance. She had only seen her eight year old son once since her arrest and it was difficult for her to be treated because she did not speak much English. She had had no treatment or counselling since she was in gaol. The report emphasises how distressed she was at having her baby taken away from her shortly after his birth and only seeing him infrequently since. The report concludes: "It is of concern however that she is currently feeling very depressed and it is felt that she is in need of support and therapy to assist her in coping with this. The reasons for her depression were outlined earlier. It is going to be difficult for her to receive counselling due to her lack of knowledge of the English language. Therefore any time that Mrs Luong has to spend in custody is going to be much more difficult for her than it is for the average woman. This is not merely because of language and cultural differences but also due to a lack of emotional support in this country together with the separation from her children." 14 All this is readily understandable. It would be surprising if this were not so. 15 The judge was disturbed that after his birth the baby was almost immediately taken away from the prisoner, that she was only able to see the child twice a week and that this arrangement did not always operate properly. 16 The judge recorded that he had been informed that there was no provision for a woman in custody awaiting trial to keep her baby and to properly bond with the baby and that if she appealed against her conviction or sentence the same situation prevailed until the appeal was resolved. The judge directed the prosecution to inform the responsible Minister so that provision could be made for her or any other woman in the same position to have the immediate and continuous care of her new born child. 17 By the time of the trial the harm had been done in that the baby had been denied the solace of his mother through his early months and an opportunity to establish a good relationship with her in those days. A lot of ground had to be made up. The fact that once any appeal was finalised and the prisoner was serving her sentence the prisoner could, if approved, have the baby with her, did not meet the problem that the prisoner and her baby had been separated in the very early months. I do not think that the judge was, as the Crown suggested, under a misapprehension that the baby could not be with the mother after sentence. 18 The judge was also influenced by the prisoner's husband being in gaol for a longer period and unable to offer any support or look after the children. 19 The judge was aware of the authorities as to when hardship to third parties, for example children, could be taken into account. He held that there were no truly exceptional circumstances but there were special circumstances. I agree that there were. This was the lady's first time in custody. The prisoner's sentence was going to be harder on her than most. There were acute problems with the children and the loss of both members of the household. The judge emphasised this. 20 The judge was acutely conscious of the gravity of the offence. He recommended that the prisoner be deported. He said, "...anyone that comes to this country and within months is engaged in serious crime does not deserve to be given the protection of citizenship or residency in this country". 21 The Crown's approach was that whilst the head sentence was low, it fell within the lower limit of the permissible range. The Crown contended that the minimum term was manifestly inadequate. 22 The minimum term expired on 13 September 1999 and she had been in custody since her arrest on 14 January 1999. She was released on 30 September 1999. Thus she spent eight and a half months in custody. She has been at liberty for six and a half months. 23 The Crown contended that the judge had erred in finding special circumstances. He had, it was submitted, not focused on the need for a longer than usual additional term and the consequent extended supervision. In most cases the need arose from something emanating from the prisoner and not from a need in some other party. This experienced judge dealt with the question of special circumstances concisely. He was confronted with a situation where harm had already been done. The mother was severely depressed. For her health to begin to recover the position with the baby and her eight year old son had to be substantially improved. It was not going to be easy as she would have no support from her husband who would be in gaol. Further, she would need extended support and supervision while he was in gaol. It was important that the task of restoring her health commence as soon as possible, subject to an appropriate sentence being imposed. Having presided at the trial the judge was well placed to assess the extent of her criminality and the proportion between the minimum and additional terms. 24 It was submitted that the judge had not adequately appreciated the effect of section 29(2)(c) of the Correctional Centres Act 1952 and the administrative arrangements which could be made. I do not agree. The judge was concerned with what had already happened. That does not mean that he was unaware of what could happen in the future. It was further submitted that the judge also attached undue weight to his recommendation for deportation and that this let him to impose too light a minimum term. I do not agree. 25 The judge dealt with imposing the sentence which he regarded as correct. The recommendation for deportation was a further and separate matter. For my part I would refrain from making any recommendation. Questions of breaking up the family and the husband not seeing his son would require consideration. 26 In the wholly unusual circumstances of this case I am not persuaded that in setting the length of the minimum term and that of the additional term the judge specified a minimum term which was manifestly inadequate. Even if I am wrong in that view I would nevertheless dismiss the appeal in the exercise of the Court's discretion, bearing in mind that the prisoner has been at liberty for six and a half months since more than completing the minimum term of the sentence imposed. 27 I propose that the appeal be dismissed. 28 PRIESTLEY JA: I agree with the reasons given by Justice Smart. 29 FOSTER AJA: I agree. 30 PRIESTLEY J: The Court's order then is that the appeal is dismissed.

REGINA v Loan Phuong LUONG

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