R v TA [2011] NSWDC 209

District Court New South Wales

Medium Neutral Citation: R v TA [2011] NSWDC 209 Hearing dates: 4 November 2011 Decision date: 04 November 2011 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 5 years and a head sentence of 9 years. Catchwords: CRIMINAL LAW - Sentence - Importation of heroin - Common problem of gambling Cases Cited: Hili v The Queen; Jones v The Queen [2010] HCA 45 Category: Sentence Parties: The Crown Van Hieu Ta Representation: Ms N Carroll - The Offender Director of Public Prosecutions (Cth) George Sten and Co - The Offender File Number(s): 2010/328007

SENTENCE 1HIS HONOUR: Of recent times politicians have begun paying attention to the issues surrounding gambling and, more particularly, problem gambling. There is a widespread view as to the harmlessness of gambling in most cases. If those politicians spent a week in these courts I doubt that they would be able to maintain that view. Increasingly these courts see offending directly related to the problems caused by gambling. One particular scenario is becoming commonplace, a good example of it is before me today. 2Van Hieu Ta was a gambler. He would go to the Casino and spend his money playing blackjack and the poker-machines. Of course he would lose. At the same time that he was doing this he was short of money. His business, renovating houses, was going downhill and he did not have as much work as he used to. He incurred some debts. People approached him, suggesting that they could lend money to him. He accepted their offer, but then of course he had to repay it and he learned about the high level of interest that these people, who I will accurately describe as loan sharks, required. How was he to pay back the loan? They had a way that he could do that. He could go to Vietnam and bring something back to Australia for them. 3It was in those circumstances that the offender turned up at Sydney Airport on 4 October 2010 having flown in from Vietnam. Customs officers searched his bag, realised it was heavier than it should have been when empty and later identified that the offender was carrying in that bag a quite significant quantity of heroin, just over a kilo in gross weight and 768.3 grams of pure heroin. He was arrested and has been in custody since then. 4That scenario that I have just described, loan sharks lending money to gamblers and then when the money cannot be repaid suggesting the importation of something into Australia, is, as I said, now commonplace. There needs to be a substantial component of general deterrence to the sentence that I impose upon this offender and so I trust will prove to be the case. 5The offender is fifty-one years of age. He has no prior convictions. He was born in Vietnam and educated there. He did some military service and was significantly injured during the course of it. He came to Australia. He is married and has two children, one of whom is currently doing her HSC. He has proved to be an industrious person, being employed in various occupations until he set up his own business. 6There is no explanation for him committing this offence, apart from the one I have earlier identified. He is not addicted to drugs, in fact does not use them at all. What the offender did was a cynical money-making exercise. Of course he did not precisely know what he was bringing back but he must have known it was drugs and he must have known that by doing so he would be causing a great deal of misery to those who would use the drugs he imported. 7This is a serious offence, of course. It carries a maximum penalty of twenty-five years imprisonment. Sentencing statistics relied on by Ms Carroll for the offender would tend to suggest that the courts have not quite been treating the offence as serious as the legislature would like, with the longest sentence imposed, according to those statistics, being less than half the maximum penalty. 8Notwithstanding everything I have said, the offender does have good prospects of rehabilitation. His age is the most significant factor, suggesting that finding, although there is one qualification and that is the circumstance that this offence arose from his gambling, but the offender seems committed to putting his problems behind him. 9Ms Carroll said that the offender was remorseful. Certainly he appears to be ashamed at the shame he has brought to his family, but it is less clear that he holds any remorse for the wrongfulness of what he actually did. Sometimes a plea of guilty can be demonstration of remorse, but the offender's plea of guilty came very late indeed, on the day his matter was listed for trial. There was that belated and thus limited willingness to facilitate the course of justice and so the sentence that I impose upon him will be ten per cent less than it would otherwise have been. 10The offender is depressed, as are most offenders who face the prospect of lengthy sentences of imprisonment, but the evidence would suggest that he is more depressed than most. He will do his time in custody harder than those who face the prospect of a lengthy period of imprisonment with less concern as to what is going to happen to them and what is going to happen to their family. Fortunately for the offender he is not one of those drug importers who will be serving his sentence in a country that he does not live in. His family visits him in custody and so he will not be isolated as many drug importers are. 11The offender was travelling business class. This is a curious circumstance given that the offender's motivation in committing this offence was that he was short of money and could not repay a gambling debt. When asked why he was travelling business class he said firstly that the loan sharks had bought the ticket. Then he told a different story, he said it was better for tax. Then he told yet another story, saying that he was forced to buy a business class ticket by the loan sharks. What the truth is I simply do not know, given the various explanations that the offender offered within the space of a few minutes in the witness box. Nevertheless, the only explanation for the offender committing this offence is that he was short of money. So I will sentence him on that basis. 12In other cases I have dealt with the issue as to what ratio a non-parole period should bear to the head sentence following the High Court decision of Hili v The Queen; Jones v The Queen [2010] HCA 45 . I need not repeat what I have said beyond noting that what is probably likely to happen is that the ratio will go down. It still remains the case, however, that the non-parole period represents the minimum that an offender must serve and one important factor in determining what that minimum is, is the objective gravity of the offender's conduct. Here that objective gravity was high indeed. He brought in a substantial amount of a very dangerous drug simply so that he could pay off a gambling debt that he had voluntarily acquired. 13Both Madam Crown and Ms Carroll relied on what they said were similar cases. The Crown had eight and Ms Carroll had seven. Those cases can be but a selection of decisions concerning the appropriate sentences to be imposed in cases of this kind, but together I have found that helpful. I have also had regard to the maximum penalty that the legislature has provided as indicating the seriousness with which parliament expects that the courts will view offending of this kind. 14The offender is sentenced to imprisonment. I set a non-parole period of five years to date from 4 October 2010 and a head sentence of nine years. The non-parole period will expire on 3 October 2015 on which day the offender is eligible to be released to parole. 15Mr Ta, I will explain to you what has happened. You must serve at least five years in gaol, but that dates from 4 October last year, which is when you first went to gaol, so that means that the earliest that you can be released from custody is 3 October 2015, a little less than four years from today. Once you are released from custody you will be serving a sentence in the community until 3 October 2019. Do you understand what I have said to you? 16OFFENDER: Yes, your Honour.