District Court New South Wales Medium Neutral Citation: R (Cth) v Vongphachanh [2024] NSWDC 431 Hearing dates: 8 August 2024 Date of orders: 8 August 2024 Decision date: 08 August 2024 Jurisdiction: Criminal Before: Neilson DCJ Decision: See par [49]. Catchwords: CRIME – SENTENCE – ATTEMPT TO POSSESS UNLAWFULLY IMPORTED SUBSTANCE – Commercial quantity 2.1034kg heroin - Plea of guilty – Good prospects of rehabilitation. Legislation Cited: Crimes Act 1914 (Cth) Cases Cited: R (Cth) v Darley; R (Cth) v Piras [2020] NSWDC 28. Texts Cited: Nil. Category: Sentence Parties: Crown - R (Cth) Offender - Tonh Vongphachanh Representation: Counsel: Crown – Ms Hegna, M. Offender – Mr Barrack, B. Solicitors: Crown – Office of the Director of Public Prosecutions (Cth). Offender – Ly Lawyers. File Number(s): 2023/00072430 Publication restriction: Nil. Judgment 1. HIS HONOUR: Tonh Vongphachanh stands for sentence as a consequence to pleading guilty to a charge that between about 23 February 2023 and 3 March 2023 at Busby and elsewhere in this State he did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely heroin, and the quantity being a commercial quantity. That is an offence against the law of the Commonwealth. The maximum penalty imposed by Parliament for that offence is imprisonment for life, and or a pecuniary penalty of $550,000. 2. In short, the offender has pleaded guilty to attempting to take possession of an unlawfully imported drug, namely 2.034 kilograms of pure heroin. The facts as far as are known are these. Facts 1. On 23 February 2023, an Express Mail Service air cargo consignment arrived in Sydney from Thailand. The details of the consignment are contained in the agreed facts. The identity of the consignor is irrelevant. The consignee was thus described: "Vongphachan [redacted] Kilmorey Street, Busby, NSW, 2168 [mobile number redacted]" 1. The description of the goods contained in the consignment was merely "cloth". Although the correct spelling of the offender's surname was not contained on the consignment details, the spelling is proximate to the correct spelling of the offender's surname. The address given is an actual address at which the offender's father resided. The mobile telephone number on the consignment details was that of the offender himself. 2. When the consignment arrived in Australia, members of the Australian Border Force intercepted it and conducted an examination. It was determined that the consignment consisted of table runners containing a compressed powdered substance which gave a positive presumptive test reaction for the presence of heroin. 3. On 1 March 2023, the Australian Federal Police deconstructed the consignment and replaced the heroin with an inert substance and reconstructed the consignment to its original appearance in preparation for a controlled delivery. Australian Federal Police Forensics examined the compressed powered substance and determined that its gross weight was 2,819.7 grams. The substance was heroin with a purity of 74.6%. That gave a total pure weight of heroin of 2.1034 kilograms. Heroin is a border controlled drug. A commercial quantity of heroin is 1.5 kilograms. The consignment clearly was greater than 1.5 kilograms of pure heroin. 4. The Australian Federal Police was granted a controlled operation authority to conduct a controlled delivery of the reconstructed consignment. Over the course of the following days the consignment was marked as follows by Australia Post on the publicly available Australia Post Tracker: "(a) 23 February 2023 - "arrived awaiting clearance" (b) 27 February 2023 - "cleared by customs" and "received by postal carrier for delivery" (c) 28 February 2023 - "processed at facility Sydney, NSW" (d) 28 February 2023 - "processed at facility Smeaton Grange, New South Wales" (e) 2 March 2023 - "delivery delayed" (f) 3 March 20223 - "on-board for delivery with driver"." 1. Between 22 February 2023 and 3 March 2023 an alleged co-offender, Paphatsone Sayyaketh, using her mobile telephone number, accessed the Australia Post tracking details and status of the consignment on 21 separate occasions from addresses in both Victoria and this State. 2. On 27 February 2023, the present offender made two Facebook Messenger calls to Anoulack Phommixay who had arrived in Australia on 18 February 2023 and was in Melbourne at that time with Ms Sayyaketh. 3. On 27 February 2023, the offender received a message via Facebook Messenger from Sayyaketh in Laotian language which translated into English said: "If there is a message from Auspost can you cap and send it to me first." 1. The offender and Sayyaketh had various discussions via Facebook Messenger about the delay of the consignment, when they were likely to receive the consignment, whether a similar delay had occurred before and the need to let a third party know about the delay. That last agreed fact points to there having been some earlier transaction involving at least the alleged co-offender. As to whether she knew of reasons why delivery might be delayed, and the last clause in the last agreed fact indicates that it is likely that the third party was Phommixay. 2. On the following day, the offender received the following message via Facebook Messenger from Phommixay. It was in the Laotian language. Translated into English it is this: "There will be a lot of things. They are sending to several places". 1. The inference to be drawn from the first sentence is that there might be many things which would delay delivery of the consignment. 2. On 2 March 2023, the offender made two Facebook Messenger calls to Phommixay. 3. On 3 March 2023, a member of the Australian Federal Police purporting to be a delivery driver, delivered the substituted consignment to Kilmorey Street, Busby, the address shown on the consignment details. When the driver turned up there was nobody present at the address and the consignee's telephone number was not answered when called. Shortly thereafter however, the offender returned the call of the AFP member purporting to be the delivery driver and provided instructions to him or her to leave the consignment at the delivery address. That was what happened. 4. The offender then made three Facebook Messenger calls to Phommixay. Later on that day, 6 minutes after the AFP had delivered the consignment, the offender arrived at his father's address in his vehicle. As he approached the address, he was constantly looking over his shoulder and watching up and down the street, no doubt keeping a lookout for police. On approaching the consignment, the offender took three photographs of it at the delivery location, including close ups of the consignor details and a close up of the consignee details. He then made a Facebook Messenger call to Phommixay before picking up the consignment and he commenced to return to his vehicle. Whilst doing that it appears that he made further contact with Phommixay and took two messages from her. 5. It was then that the Australian Federal Police intercepted the offender as he approached his own vehicle, whilst in possession of the consignment. At the time that he was intercepted by the police he received a message from Phommixay in Laotian, the translation of which was: "Cancel sending messages". 6. After being intercepted by police the offender was overheard having a discussion with his father and with another person who was probably also Laotian. In it the offender said to his father as to the ownership of the consignment, that it was friends of a lady in Laos, who was identified merely as Bu. His father then indicated to the offender that he should take the police to see that lady. The inference to be drawn is that the offender was aware that the consignment had come, although from Thailand, was probably only through Thailand from Laos. 7. During this time the offender missed two phone calls from Phommixay and also from Sayyaketh in which they were inquiring as to whether "all done" which probably indicates that they were seeking confirmation from the offender that he had done the job that he was supposed to do. The agreed facts then refer to further conversations with both Phommixay and Sayyaketh immediately thereafter. 8. After being charged and advised of his rights the offender made some admissions to the AFP. He told them that the box was not for him. He was required to give it to someone else. That a lady would tell him what to do with the box and that the lady would give it to somebody in Melbourne. 9. A number of the agreed facts obviously speak to things that occurred after the offender first interacted with the AFP. 10. Exhibit 3 contains this matter: "On the day of arrest, the offender offered and provided assistance to AFP officers via direct approach, in that: He made full and frank admissions about his involvement and the involvement of others in importing and possessing the consignment; He answered phone calls and messages from two people higher in the syndicate, telling them that he had collected the consignment; Identified the names of two other people involved in the importation, including the address of one of those people and what he was to do with the consignment after collecting it; and He provided AFP officers with informed consent to search his house." 1. Exhibit 3 is a letter of assistance. That goes on to tell me that in the opinion of the Australian Federal Police the offender has now provided the full extent of his knowledge of the importation to the police. 2. Later, on 3 March 2023 the Australian Federal Police executed search warrants at the offender's residence at Bonnyrigg and at the residential addressed of the alleged co-offender Sayyaketh. During the execution of the warrant at the offender's personal residence the offender told the Australian Federal Police that he was to be paid $5,000 to collect the consignment, but he had not yet been paid any money at all. 3. When the AFP arrested the alleged co-offender Sayyaketh on 10 May 2023 she made a number of exculpatory remarks, but did admit that she knew the offender and had met him at a club or that she had had dinner with him. She was arrested on 31 May 2023. On the day however, that the offender was arrested, Phommixay had departed Melbourne from Tullamarine Airport on an international flight heading to Bangkok in Thailand. That probably was so that she could not be intercepted by either the AFP or the ABF at Melbourne Airport because those authorities would not have had sufficient time to place her name on any alert notice. Role 1. I will turn in due course to the personal circumstances of the offender. Suffice to say that like the police, I accept that the offender was promised for his involvement in this attempted importation a reward of $5,000. Considering the substantial risk that he ran and the value of the drugs that were sought to be imported, the reward to him was quite low. The risk to him was high. Any person who permits his surname or a close facsimile of it, his father's address and his own mobile phone number to be placed on a consignment containing illicit drugs, is bound to be arrested and ultimately to be convicted. 2. There is no evidence of the offender's having any other role in this attempted importation than being willing to be involved for a financial reward and providing his details to others in the chain of persons involved in the importation, and then being the person most likely to be arrested by taking possession of what were thought to be drugs. This was inevitable even if he arranged for somebody else to take possession of the drugs, his having provided essentially his personal details as being the consignee of the delivery. 3. He was, if one needs to put a tag on the job to be done by the offender in this attempted importation, a person who was to pick-up or receive the importation and then deliver it to somebody else for a fee of $5,000. His role was crucial yet at the bottom of those involved in this importation. Clearly, he was being monitored by the alleged co-offender Sayyaketh, who is yet to stand trial later this year, and who appears to have been controlled herself by Phommixay who arrived from Thailand and returned to Thailand post haste. Personal Circumstances 1. The only source of the personal circumstances of the offender is a letter to me from his wife, Pouy Phavilayvongsa. I do know from the offender's date of birth, that at the time he committed this crime he was 31 years old. He was soon to turn 32. He is now 33 years old. He has now been in custody for one year, five months and six days since his arrest on 3 March 2023. 2. The offender was born in Laos and is the eldest of his siblings. His parents were farmers, and he assisted his father on the family farm during his youth. He was schooled in Laos between the ages of seven and 17. In addition to his schooling he continued to work on the family farm. According to his wife, the offender: "Had a rough and impoverished upbringing as his family often didn't have enough food to eat during his childhood. Tonh's family were very poor and struggled to feed all the children. There was also domestic violence practiced by his parents because his mother had an addiction to gambling." 1. The offender came Australia at either the age of 18 or 19, in 2010. His father had married a new wife, who I assume was Australian, and she sponsored the offender to come to Australia from Laos. When the offender came to Australia, he worked with his father in a furniture factory for some nine years. 2. The offender married his wife in, probably, 2019. They had one child, a son, who was born here in Australia. His wife had only recently fallen pregnant at the time of the offender's arrest. His wife is currently unemployed. I do not know whether she has had any employment in Australia. According to his wife the offender first started using methamphetamine or ice around the age of 16 when he was still in Laos. He hid his drug use from his wife when they were courting. They, as I have said, have married. In her letter she said that she would see the offender take drugs when his friends came over to their house for a party. When she realised that her husband had an addiction to drugs, she remonstrated with him but that caused her to leave the home that they shared for two days, and she did not remonstrate with him thereafter because she did not wish to cause strain or any distress in their relationship. 3. The wife's letter tells me also that the offender had monetary problems. She refers to owing $11,000 in two tranches to a "loan shark" and owing $10,000 to a money lender. It is probably because of such indebtedness that the offender agreed to do what he did in attempting to take possession of this drug importation. 4. One section of the offender's wife's letter is this: "Tonh has told me that he was offered a large sum of money and because I was pregnant with my son at the time, he felt pressured to commit the offence as he has no other avenues to support the family." 1. Unfortunately, I cannot give that statement any weight at all and because I do not know the date of the birth of the son, except that learned counsel for the offender believes that the child was born in September 2023 and is now almost 11 months old. However, the timing is such that it may not have been known to the couple that the wife was pregnant at the time that the offender was arrested. What she says in her letter may reflect subsequent discussions she has had with her husband. 2. However, what the offender's wife's letter does tell me, is that the offender had debts which were pressing. He was offered money to involve himself in this attempted importation, he took that bait and now has been in custody for almost 18 months and now stands for sentence as a consequence of it. One must feel sympathy for both his wife and his son, and one can also feel sympathy for the offender. Prospects of Rehabilitation (1) 1. One topic of discussion during the sentencing hearing was the prospects of rehabilitation. It is patently clear that the offender has almost no ability to speak English, and that is crucial to obtaining employment in this country. He was able to obtain his initial employment because of his father. No doubt his father could speak English better than he could and thus enabled him to have the job in the furniture factory. 2. It is, however, clear that the offender is well supported. Present today are his wife, his father, his brother and aunty and his step-mother, that is his father's second wife. No doubt chastened by the predicament in which he finds himself at the moment, the offender would not consume drugs. There is no evidence that he has been taking drugs whilst in custody. The custodial records before me tell me only that the offender is incarcerated at the Metropolitan Remand and Reception Centre. There he tells me he has a job, which I would categorise as a sweeper, which is a trusted job which would not be given to anybody who was a drug user. 3. Whilst any attempted drug importation is a very serious criminal offence, the offender's role in this attempted importation was, although crucial, minimal, and also completely unsophisticated. Although there is no formal Sentencing Assessment Report before me nor any assessment of the likelihood of rehabilitation and reoffending, I do know that the offender is prepared to work. He is working as a sweeper, as I said - a trusted position. He has the support of his family here and no doubt, as I said, chastened by his experience, it is unlikely that he would do again what he did on 3 March 2023. The prospects of rehabilitation, as far as I can assess them, appear to me to be good. Knowledge of Details of Importation 1. One issue that was discussed was whether the offender knew of the type of drug or its purity or its weight. Considering where the drugs were coming from, from Laos through Thailand, it is likely that he suspected it may have been heroin, but equally it could have been methamphetamine. He would have had no idea of the purity. As to the weight, all that one can say is that he knew he was to receive a package, so it was not as if he was receiving a number of parcels on a pallet, which often is the case with attempted importations. In other words, the extent of the importation was likely to be small rather than large. Prospects of Rehabilitation (2) 1. Another thing to say about rehabilitation, is that the offender's cooperation with the police at the time of his arrest and subsequently, speaks of a prosocial attitude to his responsibilities as a guest in this country and that speaks in favour of rehabilitation and rehabilitation speaks against the likelihood of reoffending. Consideration 1. The offender is entitled to a discount on the sentence properly to be passed upon him. Firstly, he pleaded guilty at the earliest available opportunity and in conformity with authority he is entitled to a discount of 25% for the utilitarian value of that plea. Such is conceded by the Crown. 2. The offender has also cooperated with authorities. Whilst in Commonwealth offences it is not necessary to express any particular discount. I am used to doing so because of hearing State cases. 3. The letter of assistance tells me that the AFP have assessed the offender's assistance as being of medium value. He has not, however, agreed to give evidence for the Crown. I would allow a further discount of 10% for his assistance to the authorities. He is therefore entitled to a discount of 35% of the sentence to be properly passed upon him. 4. As is almost de rigour in cases of this nature, I have been provided with a schedule of cases by the Crown and a schedule of cases by the defence, all pointing in different directions. The case by which I am perhaps best assisted is my own decision in R (Cth) v Darley; R (Cth) v Piras [2020] NSWDC 28. Mr Barrack relied upon the decision in R v Piras. 5. At [44] and [45] of that decision I discussed what Piras had done. What he did was somewhat more involved than anything that the current offender did. 6. I start this sentencing exercise with a head sentence of five years imprisonment. I reduce that five year period by 35% for the discounts I have allowed the offender. That reduces the five years to three years and three months. 7. Under the Crimes Act 1914 (Cth) I am required to impose a non-parole period. There is no statutory nexus between the head sentence and the non-parole period in the Crimes Act 1914 (Cth). Doing the best I can, I fix a non-parole period of two years and two months. The head sentence will accordingly be from 3 March 2023 to 2 June 2026. The non-parole period will be from 3 March 2023 to 2 May 2025. Sentence 1. Tonh Vongphachanh, on the charge that between 23 February 2023 and 3 March 2023 at Busby in this State you did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely heroin, and the quantity being a commercial quantity, you are convicted. I sentence you to imprisonment. I fix a head sentence of three years and three months commencing on 1 March 2023 and expiring on 2 June 2026. I fix a non-parole period of two years and two months which expires on 2 May 2025. 2. Are there any other orders sought? 3. BARRACK: No your Honour. 4. HENGA: No your Honour. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2024