R v Ho Thien Chuong PHAM [2011] NSWDC 74

District Court New South Wales

Medium Neutral Citation: R v Ho Thien Chuong PHAM [2011] NSWDC 74 Decision date: 14 July 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Non-parole period of 9 years 6 months. Balance of term of 4 years Catchwords: CRIMINAL LAW - sentence- supply large commercial quantity of prohibited drug - maximum penalty of life imprisonment - plea of guilty at earliest opportunity - thirty kilograms of cocaine - falls within middle of range of objective seriousness - financial pressure - drug issues - pre-sentence report - no relevant criminal history - courier with no higher engagement in supplying the drug - special circumstances for adjusting the normal ratio between non-parole period and the balance of the term Legislation Cited: Drug Misuse and Trafficking Act 1985 s 25(2) Cases Cited: Elmir v The Queen (2009) 193 A Crim R 87 Stevens v The Queen [2007] NSWCCA 252 The Queen v Olbrich (1999) 199 CLR 270 Category: Sentence Parties: Regina Ho Thien Chuong Pham Representation: Mr S Wilkinson for Mr Pham Mr Vautin for the Director of Public Prosecutions File Number(s): 2010/225740

SENTENCE 1. I am sentencing a young man who had financial problems including a drug debt. He resorted to an illegal venture to relieve his problem. But the illegal venture which he resorted to was a crime carrying a maximum sentence of life imprisonment. 2. The crime is called supplying a large commercial quantity of a prohibited drug. It is an offence against s 25(2) of the Drug Misuse and Trafficking Act 1985. As I said, Parliament regards this crime as so serious that it has fixed a maximum penalty of life imprisonment. 3. Another indication of how serious Parliament regards this offence as being is that it has also fixed a standard non-parole period of fifteen years imprisonment for the crime. 4. It is important for a judge in sentencing someone to briefly set out what happened to bring about the charges against the person. 5. In this case I should add that Mr Pham has pleaded guilty to the charge and he pleaded guilty at the earliest opportunity which he had available to him. 6. In June last year Australian Federal Police detected a shipment of some 240 kilograms of cocaine which had been brought into Australia from Mexico. It was located in Victoria. Police removed all the cocaine and replaced the drug with what is described as an inert substance of similar appearance. Police tracked the shipment to New South Wales. They arrested a person in New South Wales on 4 July 2010. Mr Pham was not regarded as being involved in the importation of the cocaine at all or in the transportation of the substitute into New South Wales. 7. However on 6 July 2010 an undercover police officer contacted Mr Pham on his mobile phone. They reached an arrangement for the police officer to deliver thirty kilograms of the substitute substance for cocaine. They agreed to meet at Botany. Police were observing this transaction. They saw Mr Pham driving with another man, Mr Nguyen. The undercover police officer who was posing as the person delivering the supposed cocaine confirmed with Mr Pham that they were present. 8. What the police saw was Mr Nguyen go to the rear of the police officer's car. Mr Nguyen spoke to the officer. Mr Pham then drove over and parked next to that car. The transaction was confirmed by an earlier arrangement. The officer opened the boot of the car. Inside were two identical large plastic bags described in the facts as " one inside the other containing a total of thirty kilograms of the substituted cocaine in thirty, one kilogram packets ." 9. Mr Nguyen appeared to look inside and inspect the contents. He lifted it up and then put it back down again. He walked to the back of the car that Mr Pham was in and tapped the boot. The boot opened and Mr Nguyen returned to the other car and lifted the bag containing the thirty kilograms of substituted cocaine from the officer's car. 10. At that stage all three men - the undercover officer who was posing as one of the criminals, Mr Nguyen and Mr Pham - were arrested. When the car that Mr Pham was in was searched police found the mobile phone which he had used to communicate with the undercover police officer. 11. Mr Pham agreed to be interviewed by the police. He told the police that he had met a man in a coffee shop some six months before and was provided with a mobile phone and told to follow instructions and " you will get paid ". He expected to be paid "$1,000 per one kilo handled ". Within the week before he was arrested he received some instructions as to what to do. He was never told how many kilograms he was to collect. 12. Asked how he got mixed up in this sort of criminal activity he answered that he " just fell short ". By that he meant he fell short financially. When that happened he asked people around him for help. This is how he came into contact with the person who supplied him with the mobile phone and was told that he could earn money when he received instructions. He had had some employment with his brother who conducted a lawn mowing business and he was earning about $450 a week, but he needed more money than that. 13. It was, as he acknowledged, just about the money so far as he was concerned. There was no point in not following the instructions he was given over the telephone. He was asked the obvious question about what he thought he was being paid a $1,000 a kilogram for. He said that it " could be anything I would say or it could just be instruction ". He acknowledged that he thought it was something " illegal ". 14. Although he had received the mobile phone some six months beforehand, activity so far as this specific transaction was concerned had not started until about a week beforehand. There were some prior arrangements which had been cancelled. In other words the arrangement or the crime that I am sentencing him for occurred or was in the state of being prepared over about a week before Mr Pham was arrested. 15. Another important aspect of sentencing an offender is to have regard to personal information about the person that the judge is sentencing. I have several sources for this information. Mr S Wilkinson of counsel who appeared for Mr Pham called Mr Pham's brother, Van Dung Pham. 16. They were both born in Saigon. They are half-brothers with the same mother. They came to Australia as young men. The relationship between Mr Pham, whom I am sentencing, and his then stepfather when they moved to Australia was not good. Mr Pham's brother described the father as being bad-tempered and impatient with Mr Pham and yelling at him a lot. This affected his progress at school. It affected his ability to read and write. He found it difficult at school and the relationship with his stepfather meant that he was unable to concentrate on his studies. 17. He ran away from home at some stage and left school in Year 8. He had some trouble in his early years and became involved with the Juvenile Justice system. But he then enrolled in TAFE and moved back home with his mother and stepfather and things were more settled. He had intermittent work. He got some shift work at Coles but the shift work left him tired and depressed and he asked to change it but it could not be changed so he left his job and was unemployed for six months. 18. In the meantime he had married in 2007. The relationship was very good for some years but then Mr Pham lost his job and became depressed. He could not find a better job, his brother said, because of his lack of education. This affected his marriage. He became under financial pressure and his marriage became under pressure. He had borrowed apparently up to $15,000. He started drinking heavily and became involved in drugs again. He had formerly been involved in drugs as a young man. Some of the drugs which Mr Pham's brother later found out Mr Pham had been using included crystal methylamphetamine, known as ice. 19. The brothers are some five years apart. Mr Pham's brother said Mr Pham feels very bad about what he has done and very sorry that he had hurt members of his family and the people around him. He said his brother wants to be a better person. His brother has completed his Year 10 at TAFE many years ago and now wants to try for his HSC. Mr Pham's brother is prepared to re-employ him in his lawn mowing business when Mr Pham is released from custody. 20. Cross-examined by Mr Vautin, who appeared for the Director of Public Prosecutions, Mr Pham's brother acknowledged that Mr Pham had never asked him for a loan or other assistance. 21. The other source of information I have about Mr Pham is a pre-sentence report prepared by the Probation and Parole Service. The pre-sentence report has a helpful summary in the following terms: " Mr Pham is a twenty-five year old man, who has apparently not been in trouble with the law for many years prior to the current offence. He admitted to heavy drug and alcohol abuse prior to being charged, and it appears he has a limited understanding of the impact of his offending on the victims and the community." The report had detailed some of the information which Mr Pham's brother had provided me and noted specifically that Mr Pham had started drinking alcohol when he was fourteen years of age. Also from the same age he started using cannabis, heroin, crystalmeth, amphetamines and crack cocaine. He was keen to participate in gaol based drug and alcohol programs. The report noted that Mr Pham " portrayed himself as being at a low level in drug supply hierarchy, and said he perceived his offence as not having any victims, Mr Pham advised that, he didn't believe there were any victims of his drug supply offence which would indicate that he has little remorse towards the commission of this offence." 22. Mr Pham, as I said, is now twenty-six. He has a criminal record but it comprises offences only committed when he was under eighteen. There are some drug offences and goods in custody offences which were dealt with by the Children's Court some ten years ago and a more recent traffic offence. I do not regard those previous convictions as being an aggravating factor so far as my sentencing of Mr Pham is concerned. 23. Mr Pham was arrested, as I said, when the offence was detected on 6 July 2010 and the sentence should date from then. 24.Mr Wilkinson also tendered material which indicated that in December 2002 Mr Pham had secured himself a certificate from the Institute of Automotive Mechanical Engineers in the automotive mechanical light vehicle division and financial information in the form of tax assessments which indicated his income over several years. 25. Mr Wilkinson emphasised his client's ethic of hard work and the fact that his client was inhibited by his lack of education because of the family circumstances when he was growing up. He urged me not to find that the quantity of the drug is an overwhelming factor. He needed to make that submission because the amount of the drug which equals a large commercial quantity is one kilogram. Hence the amount of this drug - although it was substituted at the stage that Mr Pham was dealing with it - was some thirty times the large commercial quantity. 26. Mr Wilkinson argued that the offence, so far as the standard non-parole period was concerned, should be regarded as being below the middle of the range of objective seriousness. He depicted his client as being an underling who was facilitating the process in accordance with instructions. He referred to the record of interview as the source for that proposition. He said that his client's role was devoid of sophistication. His job was to collect and transfer the drugs. His client was not engaged in any planning or organisation and did not know what the substance was. He was simply, Mr Wilkinson described, a cog in the wheel and at the bottom of the hierarchy. This can be illustrated by the fact that his role occurred in a McDonalds car park. 27. Mr Wilkinson acknowledged that his client was driven by financial gain, including to settle debts for his drug problem. His involvement was relatively short. He acknowledged that the quantity of drugs plays a part in assessing where it lies in the range of objective seriousness, but that I must not lose sight of his client's role, which brings the offence below the middle of the range. He reminded me of what the High Court had said in The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 279 ([19]) that I must " bear steadily in mind the offence for which the offender is to be sentenced ". There are, the High Court said, " different levels of culpability ". 28. Mr Wilkinson submitted his client was involved in and engaged in isolating offending in the context of drug use. Some remorse is expressed through his brother and the pre-sentence report. His client should benefit from the maximum twenty-five per cent discount for the plea of guilty. He urged me to consider that there are special circumstances for altering the ratio between the parole period and the additional term, including his client's age and the fact that it was his first time in custody and that he needed rehabilitation for his drug problem. 29. Some of these submissions Mr Vautin agreed with. He accepted that the plea was at the earliest available opportunity and that Mr Pham is entitled to a discount of twenty-five per cent. He accepted that Mr Pham was a courier and had no higher engagement. 30. However Mr Vautin pointed out that Mr Pham was involved in a very serious transaction involving a very large commercial quantity. The street value, Mr Vautin and Mr Wilkinson agreed, was in the region of seven a half million dollars if it was distributed in individual amounts. Mr Vautin pointed out that despite being at the bottom of the hierarchy the people above Mr Pham must have put a good deal of trust in him. 31. Mr Vautin argued that the offence fell within the middle of the range of objective seriousness and that I should bear in mind the standard non-parole period, although strictly not applicable because Mr Pham had pleaded guilty. It should still be referred to or borne in mind as a reference point. I must also not overlook that the offence is regarded as so serious that it carried life imprisonment. The offence in this case involved thirty times the large commercial quantity Mr Vautin emphasised. 32. He agreed that there was no planning or organisation apart from that involved inherently in the nature of the offence. I also accept that Mr Pham's involvement was essentially on the day and in response to the telephone calls, although he had been available for this particular transaction for a week. 33. I have determined, so far as the standard non-parole period is concerned, that the offence does fall within the middle of the range of objective seriousness for offences of this kind. In my opinion no other finding is really open given that the amount involved was thirty times the large commercial quantity for this offence. However, I find that the offence falls at the lower end of the middle of the range, towards the bottom of the middle of the range of objective seriousness. That is because I accept the submissions about Mr Pham's role in the transaction which has been emphasised by Mr Wilkinson and acknowledged by Mr Vautin. 34. I have had regard to the comparative cases made available to me by the parties. In particular, I have in mind how serious Parliament regards this offence; so serious that, I repeat, it has fixed a maximum of life imprisonment for this crime. 35. Of the comparative sentences, I have had regard to two in particular, Elmir v The Queen [2009] NSWCCA 22; (2009) 193 A Crim R 87 and Stevens v The Queen [2007] NSWCCA 252. They are both decisions of the New South Wales Court of Criminal Appeal on appeal against the severity of sentences imposed for this kind of offence. In both cases the appeals were dismissed. In both cases the amounts involved were significantly less than the amount involved in Mr Pham's case. Both the primary judges, his Honour Judge Berman SC and her Honour Judge Ainslie-Wallace, were experienced sentencing judges. 36. Taking all these matters into account, with particular reference to the maximum penalty available, the standard nonparole period as a guidepost and where this lies in the range of objective seriousness, I would regard an appropriate sentence as eighteen years imprisonment for this crime. 37. However, Mr Pham has pleaded guilty at the earliest available opportunity. I would therefore discount that sentence by twenty-five per cent. So that the sentence which I regard as appropriate is thirteen and a half years imprisonment. 38. I accept Mr Wilkinson's submission that there are special circumstances for adjusting the normal ratio between a non-parole period and the balance of the term. A non-parole period for a sentence of thirteen and a half years imprisonment would normally be some ten years and one month. In this case I propose to reduce the non-parole period to nine and one-half years imprisonment. 39. I am now going to sentence you, Mr Pham. I fix a non-parole period of nine and one half years imprisonment to commence on 6 July 2010 and to expire on 5 January 2020. There will be an additional term of four years imprisonment to commence on 6 January 2020 and to expire on 5 January 2024. The earliest date on which it appears to me you will be eligible for parole is 5 January 2020. 40. Mr Pham for this serious crime I have sentenced you to thirteen and a half years gaol. That sentence commenced when you were arrested on 6 July 2010. I have fixed a non-parole period that you must stay in gaol for nine and one-half years. That expires on 5 January 2020. That date 5 January 2020 is the first date on which you will be eligible for parole. Whether you get parole or not is up to the Parole Authority who will assess you before that date. Once you are released on parole you will be still under sentence until the end of your overall sentence which expires on 5 January 2024. Do you understand? You are nodding, yes. Good luck Mr Pham. The video connection can now be switched off.