New South Wales District Court CITATION: R v Quang Het Tran [2007] NSWDC 52 JUDGMENT DATE: 16 February 2007 EX TEMPORE JUDGMENT DATE : 12 April 2007 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted. Overall sentence of seven years imposed. [66]; N.P.P. 4 years and 3 month's to date 12 August 2005 and expire 11 November 2009. ; Whole sentence expire 11 August 2012. CATCHWORDS: Criminal Law - Sentence - Importation of prohibited drug - heroin varying levels of purity - weight 860grams - drugs concealed in suitcase lining and book covers - courier - nature of objective criminality - nature of custodial conditions - significant intellectual impairment - application of deterence. LEGISLATION CITED: Crimes Act 1914 (Cwlth) s.16A Customs Act (1901) s233B Gladue v The Queen [1999] 1 SCR 688 at [80]. R v Cuthbert (1967) 2 NSWR 329, R v Rushby [1977] 1 NSWLR 594, R v Hayes [1984] 1NSWLR 740 CASES CITED: Wong v The Queen (2001) 207 CLR 584 Pham [2005] NSWCCA R v Qutami 2007 NSWCCA 353 Power v The Queen 131 (1974) CLR 623 PARTIES: Regina Quang Het Tran FILE NUMBER(S): 06/11/0386 SOLICITORS: Crown: Mr Nicoll Accused: Mr Neild Sentence 1 HIS HONOUR: Quang Het Tran is described by his niece as a loving and caring husband to her aunt and a devoted father to his son. He, willingly, she says, "Helps out with the cooking and cleaning and always has time for his family. He is supportive and ready to offer help to any family member when in need or in trouble". 2 Yet on 12 August 2005, he imported into Australia $600,000 worth of heroin concealed in the lining of a suitcase and two hard covered books. The total weight of the pure heroin was 861 grams. 3 Today, this forty-six year old Australian citizen of Vietnamese origin, is to be held accountable for his serious criminal offending. 4 As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence, before this Court, committed by this offender, harming this community, see R v Gladeu [1999] SCR 688 at [80]. 5 My initial task requires an assessment of the objective criminality of this offence before the Court. I will also need to have regard to matters personal to the offender, principally those set out in s 16A of the Crimes Act 1914 (Cwlth). 6 The starting point for such assessments requires the sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and to the offender. My fact finding task has been circumscribed in this case, in that the parties have tendered an agreed set of facts, to which I shall shortly return. It is sufficient at this point that I remind the Court, a judge is not party to any agreement in respect of the facts tendered before him or her. The tender of agreed facts does not relieve the judge from his fact finding responsibility. It simply limits the material from which those facts may be found. To the extent if it be the case, the facts as agreed do not reflect the actual events that occurred, it must remembered that the Court can only find facts from the evidence placed before it. 7 As I said, this is an offence against the laws of the Commonwealth. Section 16A of the Crimes Act 1914 (Cwlth). Requires the sentencing Court to take into account a number of specific matters. The 16A matters have the advantage of providing a useful checklist of matters relevant to sentencing. Where a term of imprisonment greater than three years is to be imposed, as indeed one must be in this case - the length of the non-parole period must be determined. 8 What weight needs to be given to all these matters against the imperative that all sentencing should have as its primary focus, the protection of the community will also need to be determined. See R v Cuthbert (1967) 2 NSWR 329, R v Rushby [1977] 1 NSWLR 594, R v Hayes [1984] 1NSWLR 740. Facts: 9 Mr Tran arrived at the Kingsford Smith Airport on the morning of 12 August 2005. He was returning from Ho Chi Minh city. Travelling with him were his wife and son. He claimed to have travelled to Vietnam to see his mother, as he believed she had had a stroke. He had made three trips back to Vietnam leave as is 2003 (report of Anita Duffy). This, it would seem, was his fourth trip. 10 The defence case is that he owes his sister a sum of money which he thinks is between $30,000.00 and $40,000.00 as a result of her funding his trips to Vietnam. At the time of arrest, Tran told the police he was on Centrelink benefits. Upon his arrival, Customs became interested in two hard covered books. When questioned about the books, the offender claimed they belonged to a friend named, Minh. He claimed not to know the last name of Minh, even though Minh was an older man who had befriended him when he was a young teenager learning to work on the fishing boats. 11 Tran claims to have always felt indebted to the man for teaching him skills needed on the fishing boats. Tran claims three hours before the scheduled departure, Minh arrived at the Ho Chi Minh airport with a suitcase full of books. Minh said that the offender's family had told him where to find Tran. 12 The account given was that Minh arrived with a suitcase full of books. There is nothing in the agreed facts that assists me in finding whether the contaminated suitcase was placed in the plane's hold or stored as cabin baggage. There is nothing in the facts which assists me in knowing whether the contaminated bag or suitcase was the only suitcase the offender brought into the country or whether there were other bags. 13 It seems likely there may have been more than one suitcase because his family was with him. Nor have I been assisted in the statement of facts as to the full contents of the contaminated suitcase. For instance, he claims that the suitcase was "full of books", yet only two books appeared to have been the subject of interest. 14 The prosecution can hardly complain in those circumstances if it fails to prove any specified role for the accused. I am left only with what appears to be self serving statements from an offender made to the police and to Ms Robilliard, a forensic psychologist retained by the defence. 15 The Crown's submission is that, "In the absence of contrary evidence from the offender, the offender is to be regarded as a principal". 16 In the recorded conversation between Tran and the officers of the AFP, Tran puts forward a version suggesting ignorance, trust of Minh, and himself being an unsuspecting courier. 17 The contraband was apparently skilfully concealed behind a wall of black plastic, located around the sides of the suitcase. Behind the black plastic were packages covered with aluminium foil, all held in place by a double sided yellow tape. There were five separate clear plastic bags concealed in that way. The agreed facts says this about the books, "Deconstruction of the front and back covers of both books revealed three layers of cardboard sheeting together with a thin white piece of paper which was affixed to a sheet of silver foil. In each case, the cavity contained inside each cover revealed two plastic bags containing an amount of loose off-white powder which was covered by numerous layers of clear plastic cling film, containing amounts of brown, granular material believed to be coffee. A total of eight plastic bags containing a loose off-white powder were removed from the two books." 18 I am assuming the coffee was there to deceive dogs smelling suitcases. 19 The combined bulk weight of powder from all three items was 1680 grams. Purity of samples tested from the books ranged from 71.8 to 75.8 per cent pure heroin. The purity of heroin from the five packets of the suitcase range from 33.4 per cent to 69.8 per cent. Those variations of purity between heroin contained in the suitcase and the books suggests that the heroin found in the suitcase has a different origin from the heroin found in the books. As earlier remarked, the total weight of pure heroin has been put at 861.1 grams. Objective Criminality: 20 I come then to the objective criminality. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively, the criminality exhibited in this offence against the criminality of offences of a similar kind that the Court is aware of. It is in this way that the seriousness of the criminality of these offences can be evaluated. The objective criminality quite clearly must have an important impact upon the overall sentencing result. The objective criminality related to importing comes from the impact of the drugs in their distribution into the Australian community. 21 Drugs such as heroin can lead to, create, or sustain drug addicts. Drug addicts are human being whose capacity to function, whose capacity to feel human is smothered to a greater or a lesser extent by any addiction they may experience. And that is the real essence of the criminal harm done by importers of drugs. That is, in a greater or a lesser way, they are contributing to the disenabling of their fellow human beings in the community into which they import the drugs. 22 Associated with drug addiction are other forms of crime, such as armed robbery, break, enter and steal. That is, crimes related to a loss of economic gain arising to victims of property, whose own productive efforts have secured that property for them. Associated with those other crimes are trauma, emotional and psychological damage to the victims. Spending of money on drugs by addicts without corresponding productivity by those who import drugs, amounts to a monumental transference of wealth to unscrupulous persons without any corresponding economic gain for the community. 23 At any level then, drug dealing is a criminal conduct. At the font of all that drug dealing is the importation of the drugs into this community. 24 There can be little doubt that the quantity of heroin imported, was imported for the purpose of on-supply to one or more persons. Given the background of this offender, I cannot be satisfied he is a principal, although on the account he gave to Ms Robilliard, he may well have had a motive for seeking $40,000. But motive and importation alone are insufficient to satisfy me beyond reasonable doubt that he was a principal. 25 I am satisfied beyond reasonable doubt, in part by his plea, and in part by the presence of heroin from two sources in the importation, that he was well aware when he left Vietnam that he was importing heroin into Australia. 26 I am satisfied he had at least one person to whom he was delivering the heroin. And as I said, that was for the purpose of on-supplying to others. 27 While the offender claimed to be in debt to the tune of $30,000 or $40,000, I do not regard the Crown as establishing that any of that money was used to finance the purchase of the heroin. 28 His claim is, the decision to bring the items containing the contraband was made in Vietnam at two stages. The first one he agreed to bring in the books and the second when he agreed to bring in the suitcase. That is at a time before he got to the airport and at a time when he was at the airport. 29 There is nothing in the agreed facts pointing to findings more adverse to him than these. Put another way, the Crown has not proved beyond reasonable doubt, Tran left Australia for the purpose of importing heroin. In those circumstances, his criminality is limited to such arrangements as he made in Vietnam pursuant to an intention he then held to import heroin into Australia. 30 At the end of the day, there is insufficient evidence to prove the offender was the prime mover or one of the prime mover in the enterprise. Given that I have come to a view that the heroin comes from two sources, it may well be that there were two people who had invited him to import heroin into Australia. Again, I cannot be satisfied beyond reasonable doubt about that. But I just raise it to dismiss it as an aggravating fact. 31 The size of the heroin at 861 grams is certainly well above the trafficable amount. I have referred to its wholesale value at $600,000. That is not just a measure of the unearned transfer of wealth but also a measure of the potential widespread distribution of the harmful effects of this drug into the community. 32 I take note that heroin is a drug of high addiction as distinct from other drugs that the Court might be concerned with, of lesser addictive and harmful impact upon those who take it. Its effect upon those who abuse it is rightly regard as pernicious. Planning: 33 I am satisfied that there was a level of planning undertaken, firstly, by those who oversighted the importation and secondly, insofar as the books were concerned, by this offender. 34 I am also satisfied that the offender was intended to receive the benefit of the planning related to the concealment of the drugs. In particular, the care and skill taken to conceal the heroin with a view to avoid detection, is a significant feature of this offender's criminality. It must be understood of course that the monumental centre of the criminality is the actual import into Australia. 35 In Wong v The Queen (2001) 207 CLR 584, the majority observed at para [64], "In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include, the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task, the latter that stern punishment will be warranted in almost every case". 36 As to the question of deterrence, that must be reviewed in the light of submissions made by the defence but that principle in Wong must be a matter that guides me in sentencing. Subjective features, family dynamics, social background: 37 Tran is a forty-six year old man of Vietnamese origin. Born in Southern Vietnam, he was the youngest of six children. His father was killed by the communist regime, seven days after he was born. In those circumstances, he obviously never knew his father. 38 Thereafter, his mother while running a small rice selling business, also cared for her family. She remarried when Tran was five but that relationship ended four years later. By this time, there were two new siblings born into the family. Tran reports his mother as now being in frail health. She is blind. He claimed as a reason for travelling to Vietnam his belief she had sustained a stroke. 39 In Australia, his wife has one child, a teenage boy. Tran married in 1989. The son was born in 1993. The family lived with a nephew and his wife in Fairfield. There are apparently tensions in the family regarding his involvement in this drug importation. Education, work skills, employment: 40 Tran's formal education is virtually nonexistent. He appears to have completed his first two years of primary school. He is unable to read or write in Vietnamese or English. He can only offer himself on the labour market as an unskilled worker. 41 It is unclear why his schooling is so limited and was stopped at such an early age. Initially, he assisted his mother in the family rice selling business. In 1980, he arrived as a refugee, having earlier escaped by boat with an uncle to Thailand. Another uncle was living in Australia. The offender made his way from Thailand to Australia to live with that other uncle. He has held a number of unskilled labouring jobs, at a foundry in Chester Hill; at a factory in Bankstown making trolleys and shelving; on the process line of a soft drinks factory; sewing work in another factory at Fairfield; and then casual sewing work at home. His last paid employment appears to have been as a poultry process worker in 2005. Physical health: 42 As a child, he suffered epilepsy. While that ailment has apparently abated, he claims speech problems as a legacy of his epilepsy. The problem becomes particularly apparent when he is excited or upset. He has trouble finding words and stutters. Currently, he experiences asthma, which is controlled by medication. There is no problem with illicit drug abuse. Mental health: 43 There is no diagnosed psychiatric illness. However, the offender presented to Ms Robilliard with tearfulness. Ms Robilliard, when interviewing him, notes the need to interrupt her sessions because of his being tearful. It is likely he is suffering a reactive depression. Those responsible for his custody should have him assessed. Psychological testing, intellectual capacity: 44 Ms Robilliard testing suggests the offender has a performance IQ of seventy-five and a global intellectual capacity standard score of sixty-seven. If these scores were valid, he would be in a group where somewhere between ninety-five and ninety-nine percent of the population would be more intelligent than he. For my part, I cannot accept these scores as valid. His level of functioning must be significantly higher. Surely, those who know him, would have a reasonable sense of his level of functioning. It is inconceivable were he functioning at that level that he would be lent $40,000 by family members. 45 I have two character references from family members, neither of whom makes any reference to him having limited intellectual functioning. He has a working history over several years. While it is true there are periods of unemployment, he has been able to hold down work positions for more than three years. 46 While the tests are supposedly able to cope with language problems, it is impossible to tell whether there were any interpretation problems from English into Vietnamese. 47 Some allowance needs to be made for that. Further, the offender presented as tearful and distressed, at the time of testing. His mood and attitude may also have impacted upon the test results. 48 Having said that, I am prepared to regard the test results as indicative of an intellectual slowness, although not of the dimensions Ms Robilliard thought appropriate by applying a rigid correlation of the results against measuring criteria. Contrition: 49 There is little doubt the offender is sorry he was caught. He was also incarcerated and is separated from his family. That clearly is also a matter of grieving for him. These are matters causing him significant distress as witnessed by Ms Robilliard. 50 Ms Robilliard says, "He is accepting of the consequences of his actions". His plea of guilty provides some concrete evidence of that. He recognises the offence as ruining his life. There is however an absence of material suggesting any insight into the wrongfulness of his actions, other than perhaps his plea. But the strength of the Crown case against him and I have no doubt, legal advice, does not make the connection between the plea and any insight into the wrongness of his actions, a strong one. Plea of guilty: 51 It is clear his plea has advanced the interests of justice. My understanding is that he pleaded on arraignment. As a practical matter, it has freed up resources of the prosecution and defence agencies to devote to other cases. It has also, of course, saved witnesses, particularly police and customs witnesses the necessity of attending court. 52 This plea in that sense, advances the administration of justice. Likewise, it maintains confidence in the administration of justice by maintaining confidence in the Australian Custom Service and the Australian Federal Police's capacity to investigate crimes of this kind and keep the borders relatively free of illicit contraband entering Australia. 53 In those circumstances, an allowance should be made for this offender's efforts to advance the administration of justice as exemplified in his plea. Cooperation with law enforcement authorities: 54 The offender was stopped at the airport. His luggage was searched. He cooperated with law enforcement officers, whilst they lawfully apprehended and searched his bags. He answered their initial questions. However, on legal advice as was his right, he declined any further opportunity to be interviewed. 55 My own view of his answers to the questions asked of him is that they are most likely unreliable. In any event, they were entirely unhelpful to any further action by the investigators. 56 He is not to be further punished for exercising his rights to silence or for giving unreliable answers. It is simply a case of there being no further mitigation of his sentence on that account. Character: 57 The accused has not come before the law on any other prior occasion. In these sorts of cases, however, that does not attract as much mitigation of sentencing outcome as it does in other cases. But my view is that some mitigation on that account is allowable. 58 As to his character, there are two references that speak of him favourably as a family man. I have already made reference to his employment history; at the time of incarceration his income stream was from unemployment benefits, as I understand it, from Centrelink. But for this offence, there is nothing to suggest that he was not other than a useful member of society, prior to August of 2005. Probable effect of sentence on family and dependents: 59 There is no evidence to the likely impact that this sentence will have upon the offender's family including his son. His son is a teenager and no doubt will miss his father and the daily paternal influence a father would supply. The offender worries about his wife. I sense some tension in the marriage related to his commission of this offence. Thus far however, it would appear his wife supports him. Obviously, she will be without her husband whilst he is in custody. Nature and severity of conditions to be imposed: 60 The offender will be incarcerated in prisons where others incarcerated with him will all be male. His liberty and decision making options will be taken from him. The housing is inhospitable, bleak, severe and uncomfortable. He will be subject to prison discipline. His limited English, age and mental capacity will see him isolated from others around him. The environment in which he is housed is likely to be dangerous. The environment is not an environment fostering rehabilitation and his rehabilitation prospects. Access to family and friends is limited to scheduled visits. Rehabilitation prospects: 61 But for whatever influence or impact imprisonment might have upon him, there is no reason to believe he is likely to offend in this way again. Deterrence: 62 There is a real issue in this case as to the Court's approach to deterrence. The defence's submission is that the offender's intellectual impairment does not make him a suitable candidate for the application of the principle of general deterrence. The case relied upon by the defence was Pham [2005] NSWCCA 314. In that case, the Court of Criminal Appeal pointed out that there were three ways in which a mental condition might mitigate a sentencing outcome: * In the assessment of the offender's moral culpability * In the assessment of the offender as a vehicle for general deterrence * In assessing the impact of a custodial sentence upon the offender. 63 I have already dealt with the first and last of those. I now turn to assess him as a vehicle for general deterrence. 64 I also note that in Pham, as in this case, the offender did not give evidence in support of the material contained in the psychological profile, see Qutami [2007] NSWCCA 353. On the basis, no expert witness was required for cross-examination, the Court of Criminal Appeal appeared to have taken the view it was open to the Court of first instance to rely upon the expert's report. Again, that situation appears to be mirrored in this case. 65 My assessment has been that the intellectual capacity of the offender is not as minimal as Ms Robilliard opines but is nonetheless significantly lower than the bulk of the general population. Against that assessment therefore, it seems to me there is scope for mitigating the sentence outcome, by mitigating to some extent the impact that general deterrence will have upon this sentence. Setting the Sentence: 66 When I balance the objective criminality as I have determined it to be, against the subjective material required of me also by s 16A of the Crimes Act 1914 Cwlth), I am of a view that an overall sentence of seven years imprisonment for this offence is appropriate. 67 Making due allowance for the subjective matters, the minimum period that is appropriate for a non-parole period, see Power v The Queen 131 (1974) CLR 623, appears to me to be one of four years and three months. Mr Tran, would you stand up please? 68 Quang Het Tran, I convict you of the offence that you, on or about 12 August 2005 at Sydney, did import into Australia, a prohibited import to which s 233B of the Customs Act (1901) apply, namely narcotic goods, consisting of a quantity of heroin being 861.1 grams which is not less than the trafficable quantity applicable to heroin. 69 I sentence you to a non-parole period of four years and three months, to date from 12 August 2005 and to expire on 11 November 2009. Your whole sentence will expire on 11 August 2012. 70 Mr Tran, what all that means is this, that for reasons that I have explained in court and to the Court, you are being sentenced to a minimum period of imprisonment of four years and three months. The sentence dates from the day you first went into prison and will finish on 11 November in the year 2009. On that date, you will be eligible to be released by the prison authorities. If you are released, your parole period will not expire until 11 August 2012. HIS HONOUR; Is his release subject to a decision of the Parole Board? NICOLL: That's my understanding, your Honour.. 71 Whether you are released or not, will be a matter for the Parole Board to determine. You will have to convince them that you have rehabilitated. The Parole Board will look at everything that you have done fromthe day you went into prison, to see what you have done to better yourself, and to make a judgment as to whether you are likely to re-offend if you go back into the community. This Court does not influence their decision. What is most likely to influence their decision is how well you get on with your rehabilitation in prison. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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