District Court New South Wales Medium Neutral Citation: R v NGUYEN [2011] NSWDC 142 Hearing dates: 6-9, 14 & 15 June 2011 Decision date: 09 September 2011 Jurisdiction: Criminal Before: Tupman DCJ Decision: Sentenced to an overall term of imprisonment of five years commencing on 5 September 2010 and expiring on 4 September 2015 with a non-parole period of two and a half years commencing on 5 September 2010 and expiring on 4 March 2013 Catchwords: CRIMINAL LAW – Sentence – Import commercial quantity of precursor (pseudoephedrine) - S307.11 Criminal Code Act 1995 – Convicted after trial – Duress defence not accepted as defence but evidence available on sentence in mitigation – 55 year old illiterate Australian/Vietnamese woman refugee - Poker machine gambling addiction, large debt to loan sharks – Importation to extinguish debt - No prior convictions – Mild intellectual disability - Strong subjective case Legislation Cited: Criminal Code Act 1995 s307.11(1) Crimes Act 1914 s16A Category: Sentence Parties: Regina (Cth) Toai Thi NGUYEN Representation: Commonwealth Director of Public Prosecutions P Townsend - offender File Number(s): 2010/00295783 Judgment 1 The offender is before me for sentence after she was convicted at trial by a jury on one charge, being count two in an indictment dated 14 March 2011. 2The offender was arraigned before that jury on 6 June 2011 on two counts. The first was a count that she imported the marketable quantity of a drug heroin into Sydney on 5 September. 3The second count was the offence before me, namely that she imported the commercial quantity of pseudoephedrine into Australia at Sydney on 5 September 2010, intending herself to use it or believing that another person intended to use it to manufacture a controlled drug. That is an offence contrary to s 307.11 (1) of the Criminal Code Act 1995 and as such carries a maximum penalty of twenty-five years imprisonment. 4The trial on these two counts ran for five days before me with a jury and on 15 June the jury returned a verdict of not guilty on count one and guilty on count two. As such I must sentence the offender on the charge of importing a commercial quantity of pseudoephedrine in accordance with Pt 1B of the Crimes Act 1914 and particularly taking into account the provisions of 16A of that Act. 5The facts are to be gleaned from the evidence before the jury at trial. Most of the circumstances giving rise to the offence were not in dispute. The issue raised by the accused was a defence of duress, which the jury clearly did not accept. The evidence she gave however at trial under oath is available to consider as a circumstance of mitigation if accepted. The jury's verdict does not mean that her evidence must be rejected about the circumstances in which she committed the offence, but rather that the jury did not accept that it amounted to a defence of duress. 6The Crown accepts for this sentence that the evidence called to establish duress at trial, although unsuccessful as a defence, is capable of amounting to a circumstance of mitigation on this sentence and being accepted on the balance of probabilities. 7The offence occurred on 5 September 2010, when the offender arrived back in Australia on a flight from Vietnam. When her suitcases were examined by Customs, one of them was found to contain thirteen packets of Asian food items. Ultimately these packets were opened and examined and found to contain a powdered substance, which when analysed was pseudoephedrine. In total these food packets contained 16.28 kilograms of powder, which represented 10.6876 kilograms of pure pseudoephedrine. Pseudoephedrine is a precursor most commonly used in the manufacture of prohibited drugs either methylamphetamine, methamphetamine or methcathinone. The offender was arrested at the airport and has remained in custody bail refused since her arrest on 5 September, 2010. 8None of these basic facts was in dispute during the trial and in fact the offender conceded that she knew there was something illegal about the food packets although I accept she did not know exactly what was inside. She conceded that she knew that it was probably drugs that she was bringing back. 9The offender gave evidence at trial that she came to be involved in this offence because she owed a substantial amount of money to loan sharks in the Cabramatta area because of a gambling debt she had accumulated. She gave this evidence under oath, it is on its face logical and there is no evidence to contradict it. I accept it to be the case. 10I accept therefore from her evidence that the offender lived in Canley Heights in the Cabramatta area and in about 2003 started to go to the Star City Casino to gamble, for reasons that I will set out soon. She stopped going there after a while, but by the time this offence occurred she had started to go to the St John's Park Bowling Club in Cabramatta. 11As will become clear from other findings when considering her subjective case, I accept that the offender has had a very sad and impoverished life, has never worked in paid employment, is of very low intelligence and is essentially illiterate in both English and Vietnamese. 12I accept that during a low point in her life in 2003, she became friends with some local Vietnamese women in the Cabramatta area and started to go with them to the Start City Casino to gamble. Initially she used small amounts of money that she obtained from her children, but then as she started to lose more and became more addicted, she started to obtain money from friends for gambling and from loan sharks. Her adult children found out and organised to repay what was then a debt of $28,000. 13They made her promise that she would never gamble again and at their request she signed an authorisation to ban herself from the Casino. She remained free of this gambling addiction for some years I accept and kept her promise, but relapsed in 2008. More probably than not I accept this was because of stressors that then arose when her husband returned to live with the family after being released from prison. 14At that stage she teamed up with friends again from the area and started to gamble on poker machines at the St John's Park Bowling Club in Cabramatta, quickly becoming addicted again to gambling and eventually she ran up a debt of $25,000 by borrowing from the loan sharks. With the sort of interest of which the court is aware these people charge, this added up to a debt of $40,000. She had no way of repaying it as she did not work and survived on Social Security benefits. On this occasion she did not want to ask her children for help because she had promised not to gamble and had she asked for help they would have discovered that she had recommenced her gambling. 15I accept that at about this time people associated with the loan sharks started to make contact with her, threatening first of all that they would tell her children if she did not repay the debts and that they then started to threaten her that she and her family would be harmed if she did not repay the debts. The threats escalated and ultimately she was offered an opportunity to extinguish the debt if she made the trip to Vietnam and brought something back. 16She acknowledged in her evidence that she knew she would be bringing back something illegal, probably drugs, but did not know exactly what. She was given $5,000 for the airfare from these loan sharks, but gambled it away in a forlorn attempt to win enough money to repay the loan and thus avoid the trip to Vietnam. Inevitably she did not win but lost all of that $5,000. 17At this time her father became ill in Vietnam and she was required to visit him. For that reason she was able to get money from her adult son for the airfare and left on 28 July 2010, in part to visit her father in Vietnam, but also knowing that she would be bringing back something unlawful in order to extinguish her debt to the loan sharks. 18In fact she spent some time with her family in Vietnam, but just before she was due to leave she was contacted by a person and told to come to a place in Saigon just before she was due to board her plane. She did so, met the person, ultimately went to a hotel to meet them and there was given a second suitcase which contained packets of food stuffs. She repacked them into her own suitcase she told the jury because they were loosely packed. 19I accept that before embarking on the trip back to Australia with these packets, she tried to extricate herself from the offence and told the person that she did not want to go. I accept that she was frightened about the consequences of being caught, generally indicating that she knew she was engaging in some form of illegality. I accept that the person in the hotel room threatened her again including, more probably than not, by placing a gun against her head and threatening to shoot her. She then went along with the agreement. 20She told the jury, and I accept, that she felt that her children back in Australia would be at risk because of the threats unless she went ahead with her agreement. She then imported her suitcase containing the packets of food stuffs back into Australia. She did not know exactly what was inside the food packets, but knew that it was illegal, probably drugs. 21The jury clearly by their verdict rejected her assertion that she had no alternative but to do what she did. But their verdict does not necessarily indicate that they rejected her evidence about the surrounding circumstances. As I have said I accept on the balance of probabilities that in fact she committed the offence for the reasons she said. 22There was no evidence from which the jury could have found that she herself was going to use the pseudoephedrine to manufacture a prohibited drug and therefore the verdict of guilty must mean that they inferred, in all of the circumstances, that she believed that another person intended to use it for that purpose. There was in fact no evidence that she was to gain anything from this offence other than the extinguishment of her gambling debt. There was absolutely no evidence to suggest that she herself was in any other way involved in this or any other drug syndicate or any other criminality. 23She was at the time a fifty-five year old illiterate Vietnamese woman, illiterate in both her own language and English. She had never been to school, she had never worked and as is now clear she has an IQ of 61, thus being mildly mentally retarded. All of that, apart from the actual IQ level was before the jury. There was not one jot of evidence to suggest that she herself would ever have been capable of either using these drugs to manufacture anything herself, nor to make them available to anybody else. She was it seems to me, clearly in the role of courier and therefore at the very bottom of the rung in terms of any drug syndicate. 24That finding about her role however of course does not diminish the serious nature of the offence. It is a very large quantity of this precursor, 10.6 kilograms, significantly more than the commercial quantity for that drug. I accept from evidence tendered at sentence that this quantity of pseudoephedrine would be capable of manufacturing between 4.9 and 7.9 kilograms of methamphetamine which is the drug otherwise known as ice and that in those quantities, the wholesale value would range from about $1.25 million to just under $2 million, with the street value being correspondingly much higher. They are significant quantities and significant amounts of money capable of being made from this particular importation of pseudoephedrine. As I have said there is no evidence to suggest that she herself was ever to be involved in any of that aspect of this drug manufacture, nor was ever to earn anything more than the extinguishment of her gambling debt. 25This precursor I accept is also capable of producing the drug methylamphetamine and methcathinone. All of these three drugs are now very frequently used and abused within the community. They cause considerable problems, particularly as seen in these courts very frequently including violence associated with the use of methamphetamine. People become addicted to these drugs very quickly. They are also the drugs of choice for manufacture by organised criminal gangs within our community to fund their activities. These are amongst the reasons, taken together with the maximum penalty of twenty-five years imprisonment, that this offence is properly to be regarded as a very serious offence. 26Objectively however, her role in it is very much at the bottom. Because of the seriousness of the offence the sentence should where otherwise appropriate, send a message of general deterrence. It should be recognised in the community that even those who merely allow themselves to be used as drug couriers or drug mules should expect, for offences of this seriousness, a period of full time imprisonment for some years. 27The general deterrence aspect for this sentence it seems to me is somewhat tempered because of her intellectual/mental retardation to the extent that her intellectual circumstances make her a poor vehicle to reflect general deterrence in the community. Only a prison term would suffice however, despite the fact that she is not a person significantly involved in drug trafficking. 28I now turn to the subjective circumstances surrounding this offender, which I am also required to consider pursuant to s 16A. The offender is a person with no prior criminal record, which she is entitled to have taken into account as a mitigating factor, albeit tempered in relation to drug importation offences because of the way in which people of prior good character become involved, often used by those higher up in the chain to deflect the attention of the authorities and to make success more likely. However it is a mitigating factor which I take into account. It is a real factor here because she was fifty-five at the time and had never, despite a very troubled background, been in trouble previously. 29As I have said I accept that she committed this offence in order to meet a gambling debt. I accept more probably than not that at the time she was in fact addicted to gambling. This does not provide an excuse for her offending behaviour, but does explain the circumstances in which she committed the offence and is also relevant on an assessment of her prospects of rehabilitation. I accept from her own evidence and the evidence given by her son that she became addicted very quickly, and that she started gambling to alleviate pressures in her life and to deal with what I accept to have been an ongoing state of depression for at least the last eight to ten years if not longer. 30Her life story is actually quite remarkable, set out as it is in some detail in the statement provided by her son, and referred to further in his sworn evidence. It bears some analysis. She was born the eldest of ten into a fishing family in rural Vietnam. She has never been to school, has no formal education at all and has never worked in paid employment. As the oldest in her family and a girl, she was required to provide domestic assistance to her younger siblings and her family generally so that her parents could continue to work on their boat and provide sustenance for their family. 31She endured hardship, poverty and some abuse in her own family and then later in the family of her husband who she married at the age of twenty-one. Her husband escaped from Vietnam in the 1980s without her and their three children at that stage and came to Australia. What she did not know is that in Australia he had married another woman and had another family. She escaped from Vietnam in 1985 with her two older daughters in a dangerous and leaky boat and eventually came to a refugee camp in Malaysia. She had not been permitted by her in-laws to take her oldest child, her son, with her. She had to leave him behind in Vietnam. 32It was when she was in the refugee camp that she discovered that her husband, who she was trying to find in Australia, had in fact married another woman and had another family. She suffered loneliness and depression in the refugee camp, but ultimately and perhaps somewhat bizarrely, was sponsored by her husband to come to Australia with the two daughters and arrived in 1988. 33As I have said she is illiterate in both Vietnamese and in English and because of that was never able to learn English. Her husband continued to live with his new wife, but also visited her and their children. She regarded herself as still married to him and not long afterwards gave birth to their fourth child in 1989, a son. Her husband was violent towards her and often drank to excess. It was a difficult time for her in Australia. 34She moved into a refuge on occasions, but was located by him. She was eventually able to sponsor her older son to come to Australia from Vietnam. She moved with her family to Melbourne to get away from her husband and that is where her son joined her. She then discovered that her husband had been sent to prison and was due to be released. He asked for her help and she moved with the children to Sydney so he could have a place to live on his release. He drank heavily again and there was resurgence of the abuse which existed in the past. He came and went from the home until he was again sent to prison in 2003 for a period of years. 35She was living with her children in Sydney at the time, but they were adults by then. She was lonely and depressed and somewhat isolated. That is when she befriended the local people in the Cabramatta area and started to gamble, a situation to which I have already referred. 36After her husband was released, he again came to live with her and their children from time to time and at other times not. She has not ever ended her marriage because she believed she is still in love with her husband and still in a marriage with him. I accept from the evidence of the psychologist who has seen her for the purpose of this sentence, Ms Robilliard, that she is a simple and probably mildly mentally retarded individual with an IQ of 61, that is the lowest 1% of the population in terms of intelligence. I accept that this means she is a concrete thinker who was easily persuaded and manipulated. I accept that this explains more probably than not why she has remained in the situation she has over the years. 37She plans to return to her family home on her release from custody and probably her husband will be there as well. That is an issue that causes some concern in relation to an assessment of her prospect of rehabilitation. Fortunately, so will her adult children live there. That is a positive in terms of her prospects of rehabilitation. 38Her younger son I accept, suffers from a form of mental illness, as I understand it depression, for which he receives a disability pension. She had been his carer before her arrest. I accept that he is adversely affected during her incarceration, even though and albeit that her husband has moved back into the home to take over that role. That impact on her younger son however is not of sufficient seriousness to amount to a factor which would reduce the sentence from what is the appropriate level otherwise. 39I accept that the offender suffers a degree of depression and anxiety and more probably than not, this has been an ongoing situation for a number of years, at least for the last ten years and possibly even longer, because of her life circumstances. I accept more probably than not, that her gambling addiction and ultimately indebtedness had a real connection to her depression and anxiety. She gambled it seems to me, to provide some respite or relief from what was otherwise a fairly boring and impoverished life. 40Where she has excelled however, despite all of this, is in the raising of her four children, which she has done more or less without any assistance. They are now adults aged between twenty-one and thirty-two. As I have said there was a very full and helpful history provided by her older son, who gave sworn evidence in support of that statement. The Crown did not cross-examine him and accepts the truth of those matters in that statement. It sets out what is a very bleak life lead by this offender and one in which she has been, at least on the face of it, very badly treated by her husband over the years. In large part I accept this evidence from the offender's son and have made findings based on it,. 41During this whole time however, she has continued to provide excellent care for her children, to the extent that the three older children are successful members of the community, all well educated, in full time employment, with apparently happy successful lives and who do not engage in any criminal behaviour. That she has been able to achieve that in her very impoverished circumstances is quite remarkable. All of her children remain available to provide support for her. Her older children have done so in the past in relation to repayment of her gambling debt. They did not know that she was gambling again because she promised she would not. 42It seems to me that in the future, once she is released from custody, it is likely that they will keep a somewhat closer eye on her. It is unlikely that she will succumb to this gambling addiction again, although as with any true addiction, a relapse is always a possibility. She was, however, able to remain free of it for a number of years after her children intervened in 2003. I accept that she is well motivated to do so again and particularly, because of the depths that it has lead her to on this occasion, she is likely to remain free of gambling in the future. 43What she did it seems to me was completely out of character for her. I accept that she is genuinely remorseful and contrite and that finding is not altered by the fact that she pleaded not guilty. As I said, she did not dispute most of the foundational evidence, but simply raised a defence of duress. I accept that she is very ashamed of having involved her children again and also for the fact that she is not available to continue to provide the care for her younger son that she has in the past. All of this means, I accept, that she has very good prosects of rehabilitation. 44Despite her good prospects of rehabilitation, nonetheless she will need some professional help on her release. It seems to me that participation in the specifically targeted Vietnamese gambling program referred to by Ms Robilliard would be useful and enhance her prospects of rehabilitation. 45I cannot let this sentence pass without making some comment about the gambling and gambling addiction that were referred to in the evidence at trial. It is well know to the Courts, and more probably than not to the community at large, that there is a significant amount of gambling addiction or problematic gambling within the community generally, but particularly within the Vietnamese community in Sydney and that these people are often manipulated and victimised by loan sharks. It is not the first time that the factual scenario seen here has come before this court generally or before this particular Judge. 46It is unfortunate in the extreme it seems to me that registered clubs, like the one referred to here, allow this sort of problematic gambling to occur to the extent that it did, particularly so as this was a case in which the offender had signed documents only a few years earlier to exclude herself from the Star City Casino. It must have been clear to those licensed premises that this offender was, as I keep saying, a fifty-five year old virtually illiterate Vietnamese woman who is mildly mentally retarded and who did not seem to be in any form of paid employment and would not have been in a position to put $25,000 through poker machines. 47That this was allowed to occur by an organisation trusted by the community of New South Wales with a licence is a matter of concern. These sorts of clubs clearly are not charities, nor nannies, but by the same token, the fact of problem gambling is well known within the community generally and specifically so within the Vietnamese community in Sydney. Merely putting up signs indicating access to gambling help lines it seems to me ought not be sufficient. 48It is one of those cases where upper limits on daily gambling amounts might well have saved this woman from the situation in which she found herself. In the absence of safeguards like that however, it seems to me that clubs such as this one owe a greater responsibility to those who they allow to play their poker machines and continually lose, and to the community generally, in order to discharge their general moral duty to the community and to those who they allow through the front doors of their premises. 49Having made those general comments then, I return to assess the appropriate sentence for this matter. It seems to me that this offender, given the subjective circumstances that surround her, is deserving of leniency and some mercy from the court. Clearly enough she committed a serious offence and must receive a prison term, but her circumstances and prior good character means that leniency can be extended, particularly as on the evidence it is unlikely that she was will re-offend, particularly if she can get some help on her release. 50I have been referred to some comparative cases. There is of course nothing identical to the circumstances that arise here. Those sentences which are towards the bottom of the range, it must always be remembered, involve significantly lower quantities of this precursor and almost invariably have arisen in circumstances where pleas of guilty were entered. That, perhaps sadly for this offender, is not the case here and she cannot have a sentence discount because of it. 51I have ultimately come to the conclusion that for all of the reasons I have set out, an overall term of imprisonment of five years is called for. The shortest non-parole period it seems to me that can be set in the circumstances is one of two and a half years. Any less than that would not reflect the objective criminality. That, however, is a non-parole period which takes into account the fact that this is her first period of imprisonment, the fact that she will experience her custody a little more harshly than might others because of her lack of English and very limited knowledge of even Vietnamese. Also, because of the need hopefully for her to receive a relatively lengthy period of supervision in the community to address the sorts of issues that gave rise to the offending behaviour in the first place. I will back date the sentence to commence on the date she went into custody, namely 5 September 2010. 52For those reasons then I make the following formal orders:- 53The offender is convicted. She is sentenced to an overall term of imprisonment of five years commencing on 5 September 2010 and expiring on 4 September 2015. There will be a non-parole period of two and a half years commencing on 5 September 2010 and expiring on 4 March 2013. I recommend that she be released to parole at the expiration of the non-parole period and that her parole be subject to supervision from the probation and parole service with special reference to counselling for her gambling addiction. ********** 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: 28 September 2011