New South Wales District Court CITATION: R v Phuong PHAM [2009] NSWDC 362 HEARING DATE(S): 10 December 2009 EX TEMPORE JUDGMENT DATE : 10 December 2009 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment. I set a non-parole period of seven years to date from 19 May 2008 and I set a head sentence of eleven years. This means that the offender will be eligible to be released to parole on 18 May 2015. CATCHWORDS: CRIMINAL LAW - Sentence - Schedule under s 16BA - Border controlled drug - Cocaine - Commercial quantity - Attempting to possess a commercial quantity of methylamphetamine - Serving sentence in a foreign country LEGISLATION CITED: Crimes Act 1914 (Cth) PARTIES: The Crown Phuong Thu Thi PHAM FILE NUMBER(S): DC 09/11/0062 COUNSEL: Mr L Crowley Ms C Nash - Offender SOLICITORS: Director of Public Prosecutions (Cth) Ford Criminal Lawyers - Offender JUDGMENT 1 HIS HONOUR: Phuong Thu Thi Pham pleaded guilty on the day of her trial to an offence that on 19 May 2008 at Sydney she attempted to possess a substance which had been unlawfully imported, that substance being a border controlled drug, namely cocaine, the quantity being a commercial quantity. She asked that when I sentence her for that matter I take into account an offence on a schedule under s 16BA of the Commonwealth Crimes Act, that offence being attempting to possess a commercial quantity of methylamphetamine, that offence being committed on the same day. 2 Those matters arose in the following circumstances. The offender's cousin Hai Van Nguyen was a resident of Australia. In late September 2007 he set up a company purportedly for the purpose supplying beauty products. He thus leased a warehouse and registered business names. Arrangements were then made for the transport to Australia of products described as foot spas. These were sent by ship, that ship arriving on 2 May 2008. 3 In the meantime the offender had left Canada on 23 April 2008, arriving in Melbourne where she met up with Mr Nguyen. Together they travelled to Sydney. Arrangements were then made for the foot spas to be taken to a storage facility at Lansvale. 4 However, upon arrival in Sydney, Australian Customs Service officers detected anomalies within the consignment. AFP officers and Customs officers then conducted physical examination of the foot spas revealing a total of fifty-four blocks wrapped in black tape from the three foot spas. Some of the blocks contained a white powder substance whilst others had a yellow-white crystalline substance. The white powder turned out to be cocaine, the yellow-white crystalline substance turned out to be methylamphetamine. There was a very large quantity of drugs involved. The weight of the cocaine totalled slightly more than twenty-seven kilograms with its total pure weight being thirteen kilograms. The estimated street value of that drug is between fifteen and twenty-four million dollars with a wholesale value of between four and a half million and five and a half million dollars. The methylamphetamine, the subject of the offence on the schedule, was also very valuable, a street value of around eight million dollars and a wholesale value of between two and a half and five million dollars. This was, as those figures demonstrate, a large scale offence. 5 Of course, having been detected the authorities took steps. They substituted for the drugs an inert substance, repackaged the consignment and participated in its delivery to the storage facility in Lansvale. 6 Having come up from Melbourne, the offender Mr Nguyen and another female occupied a room at the Lansvale Hotel and Resort. Once arrangements had been made for the delivery to the storage facility of the foot spas, the offender sent a text message to a Canadian telephone number advising that delivery was to occur the following Monday. Further contact between the offender and that telephone number in Canada also led to the offender paying those people who conducted the legitimate business of arranging for the delivery for clearance, warehousing and delivery costs. 7 On 19 May, the day referred to in the indictment, the controlled delivery was made. Immediately afterwards Nguyen telephoned the offender and said to her, "I stay over here unloading the stuff and then I'll head back, all right." Once the foot spas were finally delivered to their destination the offender, using her mobile telephone sent further text messages to that number in Canada confirming that delivery had occurred. They then left the hotel where they were staying and went to the storage facility. Contained within the storage facility was a listening device that had been put there by the authorities. Once the offender and Mr Nguyen entered that particular storage unit there, authorities were able to hear through the use of the listening device, saw-like sounds as Nguyen and Pham attempted to break through the bases of the foot spas. It is apparent that they had some difficulty doing so because later on Mr Nguyen went to a hardware store and purchased a number of tools. Later, the offender and Nguyen went back to the storage unit and continued to work removing the contents of the foot spas. The offender received instructions as to how the foot spas should be dismantled, following which conversation was recorded in which the offender spoke to Nguyen about where they should be looking within the foot spas for the concealed packages. In that conversation the offender said that she would participate in the work by doing some chiselling. 8 Having removed fifteen of the packages they left the facility and went back to the hotel. Ms Pham, the offender, then sent a text message to a mobile number stating "I hand over 15 all right." Many other telephone calls and text messages were made relating to the delivery of those packages. At one stage the offender met with someone who was unknown and handed over the 15 substituted packages that had been removed from the consignment. 9 Problems were then identified by the various criminals, those problems flowing from the fact that inert substances had been put in place by the authorities. One particular problem was that whilst in the original packaging a layer of scented powdered detergent had been placed, that was no longer there. The offender had a conversation with an unknown female in Canada in which she told that person of those problems. Later on she received a telephone call from an unknown male in which, using coded language, the offender was advised that the packages that had been handed over did not contain any drugs. After that call Ms Pham again telephoned the unknown female in Canada in which she passed on the information that she had received from the unknown male. Shortly thereafter the offender was arrested. 10 The authorities then went back to the storage unit and discovered that two of the foot spa units had been damaged and number of the reconstructed substituted narcotic packages had been removed. The fifteen substituted blocks which were supplied have not been recovered. There were twenty-two other packages left in the storage unit. 11 The offender thus played a very significant role in this offence. She was responsible for liaising with the Canadian end of the operation about various aspects of the operation, including the payment of money, the deconstruction of the foot spas, the destination of some of the packages, and it was she who communicated with Canada about the problems that were identified when the packages were found not to contain any drugs. She physically assisted with the removal of the packages as well. This is not a case where she simply told someone else what to do, but she did a lot herself and she also delivered fifteen packages of what she thought were drugs to a purchaser. This is offending at the higher end of the range. Both the offence on the indictment and the offence on the schedule involved quantities of drugs many times that which exposes the offender to life imprisonment. Of course the quantity of the drug is but one factor in assessing the objective seriousness of an offence. But when one looks at the offender's involvement and the role she played and what she actually did it can be seen that she placed herself in a significant position within this criminal enterprise. That is why I say that this is offending at the higher end of the range. 12 The offender is now thirty-three years of age. She was thirty-two at the time of this offence and has no prior criminal convictions. She was born in Saigon but left Vietnam in 1993 when she went to Canada. Whilst in Vietnam, her maternal grandparents brought her up after her father was sent to a communist re-education camp. She has two older sisters and two older brothers who also live in Canada. Whilst there she was employed in both a car company and also did some cooking in a restaurant. It was whilst she was at the restaurant that she met the man who asked her to become involved in this offence. When she first met him she did not know that he was involved in sending drugs to Australia, but she did find out that that is what was sent. She said in evidence today that she did not know what the drugs were, but she recognised that they could have been cocaine, could have been methylamphetamine, could have been heroin for that matter. The fact that she did not know precisely what the drugs were is scarcely a matter of mitigation. 13 The man she met in Canada whilst working at the restaurant asked her to become involved and offered to pay her, not only to pay for her air fare to Australia but also to provide some money to her although he never told her how much she was going to get. She said that her role was to supervise what her cousin Mr Nguyen was doing. Although one has to be careful not to sentence according to labels, the offender's involvement extended beyond mere supervision of her cousin. 14 She travelled from Canada to Australia for the specific purpose of committing a serious offence involving drugs. She contacted people in Canada about various aspects of the criminal enterprise. As I have mentioned she attended the storage unit herself and participated physically in the removal of what she thought were drugs, liaising with people in Canada as she did so. It was she who instructed the offender how to extract the drugs based on what she had learnt from the Canadian end, told him how many packages were to be removed, and together with Mr Nguyen, transported fifteen of those packages for the purpose of delivering them to another person. And it was she who received complaints about the standard of the drugs and passed that information back to people in Canada. 15 In assessing the offender's moral culpability it is important to identify the circumstances in which the offender attempted to come into possession of drugs and what it was intended that would happen to the drugs. There was some discussion as to whether I could take into account that the offender was involved in the supply of drugs, Ms Nash ultimately conceding that I was entitled to have regard to the fact that she participated in the delivery of what she thought were drugs. In any case, one does not import twenty-seven kilograms of cocaine for personal use. The offender was fully aware that she was involved in an enterprise which had as its object the distribution within the Australian community of a large quantity of drugs. 16 The offender says now that she is sorry. It is difficult to understand what has happened since the offender first agreed to travel to Australia in order to commit this criminal offence, to explain why she would now feel genuinely remorseful about her involvement in this enterprise. In any case, the claim to be remorseful is somewhat inconsistent with the circumstance that the plea of guilty entered in this case was entered on the first day of the trial. I note that despite the lateness of that plea it still did demonstrate a limited willingness to assist in the administration of criminal justice and so I will discount the sentence I would otherwise have imposed by about ten per cent to reflect that circumstance. 17 It is clear of course that the offender will serve her sentence in a foreign country. She has no family in Australia apart from Mr Nguyen who is serving a sentence of imprisonment. Her English is such that she was assisted by an interpreter during today's proceedings and so she will do her time in custody harder than a person serving a sentence in his or her home country, able to receive family visits and able to communicate not only with fellow prisoners, but also with officers in charge of the prison. Of course not too much can be made of that fact because after all the offender went into this with her eyes open. She must have known that if she was caught she was going to be spending some time away from her family, in custody, in Australia. But nevertheless she took the risk, presumably because of the financial advantage that she expected to gain. 18 The offender made reference to her elderly mother in Canada. I have not been asked to reduce the sentence that I would have otherwise imposed because of hardship to the offender's mother. Her circumstances are certainly not exceptional and although she may well prefer to stay with the offender, the offender's mother has four other siblings in Canada, presumably capable and willing of looking after their mother. 19 I mentioned before that the quantity of drugs involved was substantial. The offender may not have known the precise quantity of drugs involved, but she must have known that it was significant. A sophisticated operation involving the setting up of an apparently legitimate business, travel to Australia, renting of a storage area, all point to a large quantity of drugs being involved. 20 The quantities of drugs in this case and the related profit that one can make from illicit drug activities emphasise the need for substantial sentences to be imposed as a deterrent to others who may be tempted by the prospect of financial gain, as this offender was. This offender was not involved in the offence to satisfy her own addiction. She was involved in it for money and there are many others who might give consideration to doing what the offender did so that they can profit at the expense of those who are ultimately supplied drugs of this kind. General deterrence is thus of particular importance in sentencing people such as this offender. 21 Although I am of course sentencing only for the offence on the indictment, I do have to bear in mind that contained on the schedule is a second very serious offence. It is of such seriousness that were it being dealt with separately, it would justify a lengthy period of imprisonment in its own right. 22 The offender is sentenced to imprisonment. I set a non-parole period of seven years to date from 19 May 2008 on which day Ms Pham was taken into custody and I set a head sentence of eleven years. This means that the offender will be eligible to be released to parole on 18 May 2015. 23 Ms Pham I will explain to you what has just happened. I have sentenced you to imprisonment and you must spend at least seven years in gaol. You may be released after seven years, that is on 18 May 2015, but if you are released you will still be serving your sentence until it expires eleven years after it starts, and if you commit another offence during your time on parole you can be returned back into custody. ********** 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.