R (Cth) v Tran [2014] NSWDC 197

District Court New South Wales

Medium Neutral Citation: R (Cth) v Tran [2014] NSWDC 197 Hearing dates: 10/07/2014 Decision date: 18 July 2014 Jurisdiction: Criminal Before: S Norrish QC Decision: Term of imprisonment of 6 years and 9 months with a non-parole period of 4 years and 4 months. Catchwords: Criminal - sentence, import border controlled drug heroin, marketable quantity, role - courier. Legislation Cited: Crimes Act 1914 (Cth) Criminal Code Cases Cited: Wong v The Queen (2007) 207 CLR 484 De La Rosa v R [2010] NSWCCA 194 Veen (No 2) v The Queen (1988) 164 CLR 465 Lee v R [2006] NSWCCA 136 Hili and Jones v The Queen [2010] HCA 45 Bugmy v The Queen (1990) 169 CLR 525 Power v The Queen (1974) 131 CLR 632 Mirza v R [2007] NSWCCA 257 Huynh v R [2008] NSWCCA 16 Category: Sentence Parties: Director of Public Prosecutions (Cth) Ngoc Huong Tran - offender Representation: Director of Public Prosecutions (Cth) Mr B Clark - offender File Number(s): 2013/00262888

sentence 1HIS HONOUR: Ngoc Huong Tran appears today for sentence in relation to an offence to which she pleaded guilty at the Magistrate's Court alleging she, on 29 August 2013 at Mascot imported a substance, the substance being a border controlled drug, namely heroin, and the quantity imported being a marketable quantity contrary to s 307.2(1) of the Criminal Code. 2The prisoner continued her plea of guilty in relation to this offence in this Court. The maximum penalty for the offence is twenty-five years imprisonment and/or a fine of $850,000. I have told the prisoner in advance of details of what the sentence will be. It is always my practice, except in matters of sensitive security circumstances, to tell prisoners in advance what the penalty is. 3The facts in relation to this matter are on one view of it straight forward and simple and it goes without saying in this jurisdiction at least, that is the New South Wales District Court, the Court sees many cases of a similar nature. The prisoner, who is a native of Vietnam and a citizen of Vietnam, had been a resident in Australia since, as I understand it, approximately 2008 or 2009, not as a "resident" as such but as an accompanying person to her daughter who is studying in Victoria. She travelled from Australia on this occasion to take part in the importation of heroin. The circumstances of her involving herself in this offence on her account are that she developed what could be called a gambling habit shortly after she arrived in Australia, in part out of isolation and loneliness. She developed gambling debts, which ultimately totalled approximately $18,000. She claimed that people that she knew, associated with these gambling debts in order to forgive the debt, either persuaded her, or perhaps pressured her, into agreeing to travel to Vietnam to bring back substances into Australia. 4The prisoner has not given evidence in this Court. Although I do not reject all the history that has been given by the prisoner, I reject the history given by the prisoner that she did not know that she was bringing heroin back into the country, that she believed that what she was bringing back into the country was something more benign, or less sinister. I understand the point she makes that she ran the risk, if detected in Vietnam, of possession of the heroin that she brought into the country. She faced the possibility of the death penalty there. But it is quite clear that she took the risks that were inherent in committing this crime, as is self-evident by her attempt to bring the drugs into the country, that is Australia, in my view well knowing that there were severe penalties for that crime. 5On 29 August 2013 she arrived in Australia on a Vietnam Airlines flight. She was the subject of attention from Customs Officers, and a narcotic detector dog was able to detect the presence of border controlled drugs on her in the sense that the dog gave a positive reaction to the offender. When asked if she had anything between her legs she said "No". Then she removed a black coloured plastic bag concealed within the groin area of her clothing. When asked what it was, after a caution had been administered, she said, "I don't know". The black coloured black plastic bag contained 85 blue coloured rubber coated pellets, measuring approximately 3 centimetres in length and 1.5 centimetres in width. I must say, in passing, I have seen a number of cases where in fact similar pellets have been ingested and have been recovered from importers after hospital treatment. 6Concealed within the pellets were approximately 356 grams of white coloured compressed heroin in powder form. A caution was further administered to the prisoner and she removed one white coloured tape package, again concealed within the groin area of her clothing. She again said she did not know what was in it - that is the package - but what was in it were four smaller packages, and concealed within the smaller packages were approximately 394 grams of white coloured compressed heroin in powder form. The material was weighed and the total weight of the material containing heroin was 597.9 grams. Having regard to the average purity of the material that was tested, ranging between 60.1% and 60.39%, the net weight is calculated to be, and not disputed, as 370.9 grams. Under Commonwealth law the prisoner is to be sentenced on the basis that that is relevant quantity. 7The antecedents produced by the Crown are very brief and they state that the prisoner is the mother of two children. I understand from the other material available to me that she is separated from her husband who resides in Vietnam, as does one of her children. The prisoner was not employed at the time of the commission of the offence and apparently had not been employed for some period of time. She held a "student guardian visa", which is valid until the end of this month. The antecedents said that the prisoner had no identifiable means of financial, or known social or family support in Australia. I interpose to point out that there is other material from the histories given by the prisoner that she has a male partner who has supported her that lives in Victoria. But he did not give evidence in these proceedings. She also apparently has relatives with whom her daughter currently resides as she continues her studies in Victoria. 8The prisoner had no prior convictions in New South Wales or elsewhere in Australia. I am led to believe that she has no prior convictions in Vietnam. I point out that many people in the position of this prisoner, bringing prohibited drugs into this country in the manner in which these drugs were brought into the country, have no prior criminal convictions. One of the attractions of persons such as this prisoner being recruited for this particular purpose with no prior criminal convictions is the misguided belief that the absence of convictions will mean an absence of official interest. 9I have some evidence from a Federal Agent that the "street value" of the heroin is calculated to be - based upon a particular figure supplied in the statement - between $370,900 and $432,717. This is based upon an assumption that street level heroin is sold normally at a purity between 20% to 30%. It seems to me, with respect, noting the calculations that have been used, that the range of value might be somewhat narrow given the variables that are involved. I discussed this with the learned Crown Prosecutor and learned counsel for the prisoner. I appreciate of course the reality is the true street value of the drugs may be less, perhaps substantially less than the minimum amount. This is really a matter of speculation. But I take into account the estimate, bearing in mind of course it is not at odds, nor was it suggested to be at odds, with general figures that are available from time to time in this Court in criminal trials and other sentence matters in relation to the same border controlled drug. 10The wholesale value of the heroin seizure, which seems to me the more reliable figure, and again was not the subject of specific objection, is $169,632, based upon calculations of a value per 350 gram block price. The seizure equates to 1.71 times 350 gram blocks of impure heroin. I have done a number of cases in recent years involving the supply of "blocks" of heroin of 350 grams. The calculation seems to accord with evidence that has been given without dispute in other criminal trials. It goes without saying, and it is acknowledged obviously through the submissions of learned counsel for the prisoner, that the heroin brought into the country by the prisoner was of significant value. It certainly is of a value - if sold on - to cover the expenses that were inherent in the recruitment of the prisoner. As I understand the matter her airfare was paid for, although I have no details of whether she was given any living expenses, bearing in mind of course she has family in Vietnam, to which I will refer in a moment. Of course, there is the issue of the $18,000 debt that she claims. 11I have a pre-sentence report from the Department of Corrective Services, Community Corrections Division. It states that the prisoner first travelled to Australia in August 2008 on a guardian visa, according to the history she has given. Her daughter was permitted to continue her education in Melbourne. The daughter is now 17 years. I take it thus that the daughter came to Australia either to start high school, or just before starting high school. The report confirms the presence of an aunt, as she is described, in Victoria, suggesting family connection in that State. The prisoner has a son aged 14 years who resides in Vietnam with the prisoner's ex-husband. Both of her parents, she said, experience ongoing physical health difficulties, and I accept from the evidence available, both the history given by the prisoner, and the contents of exhibit 2, which is a translated summary of medical records that are in the Vietnamese language, that particularly her father has significant health difficulties. I was provided with photographs of him in the care of what I take to be the brother of the prisoner. The father has suffered an aneurism of the right mid brain. He was first treated for that in 2005, and he has what appears from the photographs and the other material, a disability similar to the effect of a severe stroke. 12I accept as a general proposition within the Vietnamese community that a child with a sick parent would feel an obligation to care for and provide for that parent. This is an obligation of course that falls to us in Australia, not of Vietnamese heritage as well. But I also bear in mind in terms of what was said to be the responsibility of the prisoner, that she has six other siblings, five siblings live in Vietnam, one sibling lives in the United States. One of her siblings is in fact the full time carer for her father. She left Vietnam after he suffered the aneurism to come to this country in any event. 13The prisoner apparently has had no financial means of support for a number of years, beyond perhaps what she may have earned from gambling. Thus, the reality is that the prisoner's father, and her mother for that matter, would appear not realistically to be in any way financially dependent upon her. In fact, there is ample evidence from her own case that there are other people who can take that responsibility on in her absence. 14It was not submitted, I hasten to say, that the circumstances of her parents, or even her children, created any exceptional, or even special circumstances relevant to the sentencing exercise. But I accept that such responsibility as she may have for her father, such responsibility as she obviously must have for her children, is a relevant matter in this sentencing exercise, but not such as to substantially diminish what would otherwise be the appropriate sentence. It goes without saying, of course, that the prisoner agreed to do what she did in the full knowledge that she had responsibilities for both her parents and her children, but chose to pursue the course that she did. 15The prisoner apparently in Vietnam had little employment, was largely involved in household duties, and I have referred to the history that she gave to the Community Corrections Service of gambling debts. There is of course - and not the subject of particular comment in the submissions of either Crown or defence - the glaring fact, as it might be relevant to the assessment of her gambling difficulties, that in the history she gave to the psychologist, whose report I will refer to in a moment, she claimed that she had actually stopped gambling in 2011. As we know from the facts this offence was committed in August 2013. 16Accepting that she did have the gambling debt, accepting that forgiveness of the gambling debt was a reason for her to commit the offence, I see nothing in her own version of events of any temporal connection between the pressures of the gambling debt and the commission of the offence. On her own version of events there is a gap of almost two years, or perhaps greater than two years, between the cessation of her gambling and her trip to Vietnam. 17Be that as it may, in terms of her attitude to the offending in the report prepared by Community Corrections, I have already noted the fact that she denied that she was smuggling heroin. The report says she "minimised her culpability for her offending", and "externalised blame on unknown persons to whom she was allegedly in debt". 18She claimed to the Community Corrections Officer that she was "desperate", which may be true, but was also "tricked" into importing the heroin. She claimed that the substance she concealed was "Western medicine". This I have a great deal of difficulty accepting. In fact, in all the circumstances of the matter, cannot accept. 19I do not accept that she would agree, if it be true, to go to Vietnam on this one occasion in forgiveness of an $18,000 debt, simply for the purposes of returning to this country concealing "Western medicine" on her person. In any event when one looks at the character of the items that she had apparently hidden within her clothing in her groin area, one might have thought that the character of the containers and the material that was on her person, would not necessarily speak of "Western medicine". 20I hasten to say, in fairness that, in the context of clearly dealing with a person who is not perfect she will, notwithstanding overwhelming evidence to the contrary or in the face of overwhelming evidence, seek to minimise or diminish their responsibility for their actions. This is in many respects a perfectly understandable reaction for a person facing serious consequences. Its relevance in this matter is not to punish her additionally for not being frank about her knowledge of what she is involved in at the time. But that is the case here. 21She certainly has made no attempt to assist the authorities by providing details of any meaningful character as to the people who recruited her in Australia, or the people with whom she associated in Vietnam who provided her with the heroin, but it is a matter that is relevant to the assessment of her "contrition", or her remorseful regret for her involvement in this offence. 22She certainly is sorry for herself. That is a perfectly human reaction of course. Her plea of 'guilty' does imply, on her part, some contrition and responsibility for her actions. But ultimately it is a matter of little moment on the issue of contrition when she continues to maintain what, in my mind, is an unacceptable account of her knowledge of what she involved herself in. 23She most probably will be the subject of deportation, given the fact that her current visa expires on 31 July 2014, on character grounds arising out of her conviction for this matter. 24The Community Corrections Officer reiterated in the assessment that it was difficult to elicit salient information regarding historic factors that may have contributed to her offending behaviour. She minimised her responsibility for her offending behaviour. It notes that she maintained that she had not held employment whilst in Australia and was under financial duress, and that she had "no alternative" but to engage in offending to repay her debt. 25If this be a serious assertion made on her part in these proceedings, although it was not specifically articulated by her counsel, I cannot accept that as correct. It is noted from material that is not questioned in submission, but is not certified in the report from the Community Corrections that the prisoner had the financial capacity to make 13 return trips to Vietnam since 2010. Her visa requirements stipulate that she must reside with her daughter in Melbourne to continue to be a resident in Australia. 26Now of course I do not draw a conclusion that she has made 13 trips to Vietnam to import drugs into Australia. That would be quite unfair. However, her financial circumstances, as explained to the Community Corrections officer it can fairly said, are in accord with the financial difficulties that she identifies as contributing to her current difficulties. I hasten to say that I am prepared to accept that gambling debts have contributed to her agreement to commit this offence. But I cannot conclude, nor was it reasonably suggested, that she was under form of duress or that she was under form of pressure that effectively compelled her to commit the crime that she has committed. 27This brings me to the psychological report that was tendered on behalf of the prisoner. This document is based upon material briefed to the psychologist, the full extent of which I do not know, and the account given by the prisoner. The learned Crown Prosecutor in her helpful written submissions points out, without me now having to cite authority, that Courts will approach histories contained within medical and psychological reports prepared for court based upon the representations of a prisoner with caution and circumspection, particularly when the relevant history has not been subject to any form of test. In using my words I obviously paraphrase the greater eloquence of the expression of Judges of the Court of Criminal Appeal. This is clearly a matter of common sense. As I say, much of her background is unremarkable and I rely upon many of the matters that she has told the Community Corrections and the psychologist in my fact finding, including matters relating to the circumstances of her family and the like. 28The psychological report however is somewhat deficient in material respects. Firstly, the psychologist, who I would have felt was primarily retained to undertake the relevant psychometric testing that psychologists are trained to undertake, did not undertake any psychometric tests. When one reads the report, what one has, aided I assume by other information provided to the psychologist, perhaps from the Crown brief, perhaps from other sources, is an account of relevant events emanating from the version given by the prisoner. Of course, in that respect, there is an absence of substantial corroboration of many of the matters to which the prisoner refers. I have already made comments upon the aspects of the history provided by the prisoner that I accept. I have already made findings in relation to the objective facts and the subjective circumstances of the prisoner that include, as I have said earlier, acceptance of a number of the matters that the prisoner has asserted to various people. 29The psychologist seeks to comment upon the "degree of contrition". Frankly, I do not have any reason essentially to doubt the essence of what the psychologist concludes, but the psychologist does not express any particular qualification that would permit me to conclude that he was better qualified than I to measure the contrition of the prisoner. Particularly as I now sit with the benefit of the conduct of the proceedings to their completion. 30I accept, so far as it goes, that the prisoner is "anxious" in custody and that she has found prison life difficult. This would follow for a person who has never been in custody before. I accept that she has difficulties with communication because her English is limited. By the time she is released I would imagine her English will be somewhat improved. There are a number of Vietnamese people in custody of her sex with whom she can communicate, I have no doubt. Many of them have been sentenced in this Court. There are claims in the report of previous episodes of clinical depression and an opinion expressed by the psychologist that the offender is "currently depressed." I do not know what those words particularly mean. The psychologist is not qualified, in the context of what the psychologist has undertaken by way of examination and by reason of his academic qualifications, to make a medical diagnosis of a "major depression." But if he is endeavouring to express the opinion, which he should have expressed more clearly, that she "depressed" as a reaction to her current circumstances, I accept that to be so. 31She told the psychologist, I note, that she understands that heroin would be dangerous to people and that she was "very frightened by it". But that is of little moment here in the circumstances where she continues to claim no knowledge of the fact that she was bringing heroin back into the country. 32There is an assessment of risk factors for reoffending. These are somewhat self-evident from the history given by her to this Court and to the psychologist. She has no criminal history, which is a relevant matter to take into account. However the claim by the psychologist that she "does not appear to have anti-social associates" does not seem to fairly take into account the associates who recruited her to travel to Vietnam, whose real identities we do not know. She is said to not demonstrate "anti-social attitudes" during the interview. This I accept to be the case, but what weight I can give to what she exhibited during the interview in the context to the wider facts is another issue. It is thought that she did not appear to have anti-social personality traits. One of the matters that are identified as "lower risk anti-social personality traits" include "excitement seeking, risk taking, dishonesty, impulsiveness and aggresivity" (sic). 33It might be fairly said that her involvement in this offence involved a considerable degree of risk taking and there was a degree of dishonesty in her reaction to her assessment by Customs. There has been, in my view, some dishonesty on her part in explaining her involvement in this offence, or her knowledge of what she brought into the country. But I am prepared to accept ultimately that generally speaking she does not have anti-social personality traits. 34She denied any alcohol or illicit substance dependency. This is no consolation to this Court or to the community that she would be prepared to bring heroin into this country when she knows it is dangerous and she herself is not dependent upon it. She has given a history of her father's violence towards her mother and matters of domestic discord that have had some effect upon her, but there is absolutely no evidence, even in the psychologist's report at its highest, of any personality disorder or any mental illness or any condition suffered by the offender which is consequent to her upbringing and absolutely no evidence is available to the Court of any matter that arises out of consideration of the issues that were summarised in the judgment of Chief Judge at Common Law in the decision of De La Rosa, [2010] NSWCCA 194, a Commonwealth sentencing matter where the Court of Criminal Appeal considered, amongst many other matters, the general principles to be applied in dealing with a prisoner claiming to suffer from a mental illness or disability causally connected to the offending. 35It is suggested by the psychologist that there is a pattern of poor decision making in this matter, particularly by reference to her involvement in gambling and subsequent matters. That may well be so but plenty of people have committed crimes as a result of poor decision making. The psychologist opines upon her prospects of rehabilitation and notes the confidence of the prisoner that she would not return to gambling. I cannot conclude one way or the other whether she would return to that. But if she is telling the truth about gambling only to 2011, well that may be some evidence to support the fact that she may not return to gambling. This will be a matter for her to address in Vietnam, not in Australia. 36The psychologist formed the view that she was a satisfactory historian. It was expressed by the psychologist that in his opinion she had "mood disorder, major depressive disorder of mild severity" using what he described as the diagnostic criteria of DSM 4-TR. I am familiar with DSM 4-TR and related publications, I have an earlier edition of that Diagnostic Manual in my chambers. I accept that she has from her symptoms that are consistent with that assessment. But whether that is a diagnosis of that condition at this time is difficult to conclude if one cannot be entirely confident of the history given by the prisoner. In any event, there is no suggestion of any prior treatment for mental health disorder. If she is suffering any depression at the present time, as I said, it must be reactive to her circumstances. I have noted all that he said about her anxiety and related matters. 37He did not elicit symptoms of the disorder that he describes as "pathological gambling" and thus, so far as it may be relevant, no diagnosis exists even within his report of a condition that might make the gambling of the prisoner in some way relevant to the assessment of the objective seriousness of the offending. In any event, the Crown very correctly has pointed to the authority of the Court of Criminal Appeal in the decision of Lee [2006] NSWCCA 136 and particularly in the judgment of Latham J therein, that dispensed with any claim of mitigation arising out of dependency upon gambling in circumstances such as this particular case. 38The psychologist noted her anxiety of being separated from her parents, from her children and her family. This I accept. This is a natural reaction, it is not a matter of any pathology or of any particular significance for sentencing purposes. The psychologist reflects upon the success of her daughter in Australia and the contribution to her offending of her financial circumstances, both her financial obligations to her parents and arising out of her gambling. This may be so but offers no mitigation for the offending with which I am concerned. 39I have been taken to some very limited statistics from the Judicial Commission's database for sentences imposed between 2009 and 2013 for the offences that are covered by this particular provision with which I am concerned. They demonstrate a range of penalty between 12 months imprisonment, for which there is just one case; up to 12 years imprisonment, for which there is just one case. Mindful of what has been said in the Crown's submission about discounts in Commonwealth sentencing and the discretion to provide a discount in accordance with the usual practice in New South Wales, I assume, for the purposes of whatever weight I can give to the statistics, that the vast majority of the sentences that are reflected therein involve some discount of varying character to recognise the facilitation of the course of justice by the prisoner. In that regard I have had full regard to the learned Crown's very helpful written submissions on this matter. 40Without having to reiterate in chapter and verse what the Crown says about this aspect of the matter, the Crown acknowledges, as it does in all of his matters, that there is a discretion to afford to a Commonwealth sentencing exercise, the discretion that is given to provide a discrete discount to recognise aspects of the plea of guilty. This is not contrary to the general principles set out by the High Court in Markarian from 2005. It is not contrary to what the High Court said when striking down guideline judgments for Commonwealth sentencing matters in the High Court decision of Wong. In this particular matter, noting all that the Crown has put, even though it submitted - ultimately half-heartedly - that the discount should be modest given the plea of guilty being entered within months of charging, being entered at the Local Court and being committed for sentence, I propose to provide the prisoner with a discount of 25% upon the otherwise appropriate sentence to recognise the facilitation of the course of justice by the prisoner. 41I appreciate of course that the Crown case is overwhelming and the proof of guilt of the prisoner at trial would be a very easy task indeed. But that having been said, there may well have been matters for a jury to consider in light of her insistence that she believed that she was carrying something other than a border controlled drug. 42In terms of the evidence that is available, I have, naturally reflecting upon what I have said thus far, had regard to all the material that has been presented by the parties. The Crown prepared very helpful written submissions. The structure of the submission by learned counsel for the prisoner appeared to respond to the character of the submissions that were provided by the Crown, and to be frank, there is almost nothing within the Crown's written submissions with which there could be any dispute whatsoever. 43So far as the defence submissions are concerned, it was submitted that she was a vulnerable person because of her financial difficulties. It was submitted too, that she should be sentenced as a person who was "no more than a courier", although it was acknowledged by learned counsel for the prisoner, who skilfully represented her interests, that of course she had a substantial role in the importation of the border controlled drugs. 44I interpose to say the Crown conceded that she may be identified as a "courier", but the Crown submits, and it was acknowledged by counsel for the prisoner and is acknowledged by this Court, that ultimately, in the context of this issue, as it was discussed by the High Court in Olbrich, she was the principal importer. She was the person who brought the drugs into the country. I accept of course, in the context of all the evidence, that I could not be satisfied beyond reasonable doubt that she financed this venture. I accept, at the very least, that it is a reasonable possibility that she was recruited for a relatively modest sum, although when one adds up $18,000 and the cost of the travel, one reaches a figure of almost $20,000 for drugs that had a wholesale value of close $170,000. Thus she was to be generously rewarded in that sense. 45Having said that, I accept she is not the person who was the architect of this importation. There is no evidence enrichment on her part. No evidence of any substantial means of support that might have financed this importation. Although, of course, I am very mindful too of what a former Chief Judge at Common Law said once about the fact that courts do not have an intimate knowledge of the structure of syndicates that import drugs and courts should be very cautious to come to ready conclusions about what a particular person's role was in a particular "organisation." I do not even know if there is an organisation involved. I am not involved in the importation of heroin from Vietnam and no evidence is before me as to what is going on in Vietnam. What I do know, as is self-evident from the work of this Court particularly, many people are coming back from Vietnam, who are resident in Australia or citizens in Australia, bringing heroin back into the country, having left this country to go to Vietnam for that very purpose. Clearly there is a great deal of heroin coming out of Vietnam. Just as there is a great deal of crystal methamphetamine coming out of China. 46I accept from the bar table, as I must given that the counsel for the accused is a man of high reputation, that the prisoner has not informed her children of the situation. I accept that the prisoner did struggle and make sacrifices to further her daughter's education. We had a discussion about the success of young people coming from other countries with limited English, a success that leaves those of us with modest educational achievements almost agog with disbelief. I wish her daughter well. But the truth is that the prisoner has not been able to tell her children of her current situation. This will increase her isolation. 47I have already made comments about what is the situation so far as her family is concerned. Her counsel referred to her responsibility for her parents, but I have already made the point that she was not in any position to provide much support, even before she got involved in this particular affair. I accept she has limited English and will have some difficulties in custody, and I have taken that into account. In assessing the sentence, her circumstances of custody will be somewhat different than others who have connection at a greater level here in Australia or who have better English skills than she. 48It must be noted, of course, that as is often said of people who come from foreign countries only for the purposes of importing drugs, that they must understand that they run the risk, if detected, of spending their time in custody facing these difficulties. Ultimately, it is a matter of little significance in the sentencing discretion. 49With regard to the Crown's submissions, the oral submissions were brief. To return to the written submissions and also to acknowledge some of the legal responsibilities I have, I note of course that the prisoner is to be sentenced in accordance with Pt 1B Crimes Act 1914 (CTH). Of particular importance, although a number of provisions are important within that Part of the Act, is the need to impose a sentence which is severity appropriate in all the circumstances of the case. The supposed "checklist" has been the subject of much discussion since the provision was introduced. It has been slightly amended over a period of time. There are cases such as Paull and El Kaharni dating back to 1990 and 1991, which confirm the fact that the failure to refer to general deterrence in the legislation did not mean that general deterrence was not a relevant factor in sentencing. 50I have had regard to the nature and circumstances of the offence. I have had regard to the maximum penalty and the yardstick it provides for fixing an appropriate sentence. I have had regard to the role of the offender and have already dealt with that matter. Of course, the Crown is quite correct to say that those who participate in the illicit drug trade at any level should expect and receive appropriately heavy sentences for the criminality which is revealed. The amount of the drugs is a relevant matter to take into account, but it is not the only determinant. It is just one of many factors to be taken into account in assessing the seriousness of the particular offending; the role of the offender, the moral culpability of the offender, all these matters are obviously also relevant to this issue. I note the quantity of the heroin in the context of the minimum quantity required to prove the offence and the maximum quantity that might be imported to satisfy the offence. 51The Crown notes that although there is no specific evidence that the offender was to receive any financial reward for her involvement in the offence (the written submissions I hasten to say refer to "his role" in the offence, which I take to be a typographical error), but it is common sense that there was a financial motive. I must say with respect that the history given by the prisoner herself clearly shows a financial motive in the manner I have already identified. 52I have already dealt with the issue of general deterrence. One need only go back to Veen No 2, the 1988 decision of the High Court to see in that judgment the identification of the purposes of sentencing, including general and personal deterrence, adequate punishment, promotion of the rehabilitation of offenders and the like. Some of those purposes of sentence now in fact form part of the statutory law of this State, in s 3A Crimes (Sentencing Procedure) Act 1999, which is of course not directly or indirectly relevant to this offending. That having been said, it is also the case in Veen No 2 that the High Court pointed out that the purposes of sentencing were 'guideposts', but sometimes in particular cases they pointed in opposing directions. 53I have taken into account the guilty plea and I have dealt with that issue. I have taken into account the need for specific deterrence, the need for adequate punishment. I have taken into account the character, antecedents and background of the prisoner. I note the absence of prior convictions, which is a matter that is relevant and is a mitigating factor. I am mindful of the number of authorities that say that it might have less weight in particular types of offending. But it is still relevant in this matter. The sentence to be imposed on an offender committing this type of offence, say, with a prior conviction for importing drugs or supplying drugs, obviously one would have thought all other things being equal, be greater than the one that I will impose. 54I have dealt with the issue of the third parties in this matter and also the issue of gambling. I have particularly cited or paraphrased the more learned and eloquent words of her Honour Latham J in the decision of Lee to which I previously referred, particularly at [32]. I note her Honour said amongst other things, "The deterrent value of sentences imposed on those who import drugs would be undermined if leniency were extended merely on the basis that an unsophisticated and compliant offender came under the sway of more unscrupulous people". 55It must be said that there are many people coming before our courts in exactly the same position as this prisoner; women, largely unattached or without other support, involving themselves in gambling, borrowing money from people that might otherwise be categorised as 'loan sharks', if they exist, and agreeing to import drugs into our country to satisfy debts that they have been encouraged to acquire. The truth of the matter is, as sad as it may be in a particular case, that such women or individuals who find themselves in that situation, must be discouraged from bringing dangerous drugs like heroin into our country simply to assuage gambling debts. 56I have had regard to the hardship to the offender's family. I accept particularly, the children of the prisoner will suffer. They will be missing their mother for a number of years and eventually the truth will come home. Imprisonment is the only appropriate sentence I can impose, pursuant to s 17A Crimes Act (Cth). I am required to fix a non-parole period. I note what the High Court said in Hili and Jones v The Queen [2010] HCA 45. The principles that relate to the fixing of non-parole periods in Commonwealth matters are as the High Court in Hili said those that have been recognised in previous decisions of the High Court such as the earlier Bugmy v The Queen (1990) 169 CLR 525 and Power v The Queen (1974) 131 CLR 623, applying the requirements of Pt 1B Crimes Act (Cth). 57I also acknowledge that I am required to fix a minimum term that reflects a severity appropriate in all the circumstances, including the objective circumstances. I am required to backdate the sentence to the date the prisoner came into custody and I must explain the sentences imposed. 58The Crown has provided a schedule of what are claimed to be comparative cases. I do not say they are not roughly comparative, but none of them are on all fours with the case with which I am concerned. I will not refer in detail to the matters in the schedule because the Crown's written submissions are an exhibit in these proceedings. 59I have had regard to other authorities as well which deal with the range of penalty that might be imposed for an offence of importing similar quantities of prohibited drugs. Some of the offences with which the cases are concerned dealt with older legislation that referred to concepts such as the "marketable quantity" and the like. One such case, for example, is Huynh [2008] NSWCCA 16, particularly the judgment of Grove J and the matters cited by him at [22] to [24]. 60There is the case of Mirza [2007] NSWCCA 257, there is the judgment in the matter of Lee itself that I earlier cited, which elicits the principles relating to sentencing offenders with claimed gambling addictions. I have sentenced a very similar offender in the matter of Nguyen, a decision I gave on 10 December 2009, in which I surveyed a number of the decisions, some of which I have quoted already. I have had regard to the statistics. I note the general range of penalty that the statistics may indicate, although I am mindful too, of what Spigelman J said in 1998 as to the deficiencies of statistics other than providing a very general guide for a range of sentences. 61In any event, the conclusion I have reached, having regard to the objective circumstances and the relevant subjective circumstances, weighing all matters as I am required to, is that the starting point for any sentence to be imposed upon this prisoner should be nine years' imprisonment. The prisoner is entitled, as I said, to a discrete discount of 25%. My calculation is that the sentence to be imposed thus should be six years and nine months. 62I have given close consideration to the fixing of the non-parole period. I am mindful of the fact that the prisoner almost certainly will be deported. That will to some extent defeat the purpose of parole supervision in her case. I am mindful also of the fact that even if she was released to the community, the major matter that would need to be addressed by the parole authorities, one might have thought, in the absence of drug dependency, would be the issues of her associations, her gambling propensity and her financial circumstances. But in the context of the character of her incarceration, her isolation to some extent because of language difficulties and the like, having regard to the fact that this is her first time in custody, I have determined - bearing in mind I am required to fix a non-parole period in accordance with the general principles that apply in the sentencing of a minimum term for any prisoner, that the non-parole period in this matter should be four years and four months. 63The prisoner may be released to parole at the end of that non-parole period, that will be a matter for the New South Wales Parole Authority in consultation with the Commonwealth authorities. She may spend some little time in detention prior to deportation and the like. These are all matters over which I have no control. All I can do is fix the minimum period of time that she will be required to remain in custody. 64If you could stand up, please, ma'am. In relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment of six years and nine months. That term of imprisonment will date from 29 August 2013 and on my calculation, subject to correction by counsel, the prison sentence will expire on 28 August 2020. 65In your case I fix a non-parole period of four years and four months. That shall commence on 29 August 2013 and expire on 28 December 2017. At that date you will be eligible for release to parole. It will be a matter, as I said, for the relevant authorities to determine whether you should be released to parole. If you are released to parole and permitted to enter the Australian community, you will be subject to the direction of the relevant Authority in the given state where you live. As to your conditions of freedom, such as where you shall reside, what courses you need to undertake, and if your parole is revoked you may be returned to custody. You may take a seat. 66There is just one final matter I need to deal with, and I omitted to refer to it in the context of dealing with the Crown's very helpful submissions. It concerns the Crown's oral submissions. They were very brief, of course, because the written submissions are so thorough, and as I said, very little to comment critically of in relation to those documents. But I do not accept the Crown's specific oral submission that the fact that the particular prisoner left the country to pay off gambling debts as a reason for committing the crime was itself a matter that increased the objective seriousness of the offending. 67I am mindful of authority which I have read over the last week when I have had a chance, being involved in many other cases including a trial, where it has been held by superior courts to be an aggravating factor that a person specifically plans to leave the country to commit an offence by coming back into the country bringing drugs. But the element of this matter that seems to me not to be pertinent to that issue is that the offender did so to pay off gambling debts rather than for clear profit. I have taken into account the fact that the prisoner, on her own account, left the country in order to obtain what she imported back into the country as a relevant factor as the authorities otherwise require me to do. 68Any technical matters, Madam Crown? 69POCH: Your Honour, if your Honour can make an order for the destruction of the drugs. 70HIS HONOUR: I would have hoped they were destroyed months ago. 71POCH: Yes, they are. 72HIS HONOUR: Just for the purposes of the technicality of the sentencing, and this should be placed on the record, I have expressed the sentence in accordance with what I understand to be the Commonwealth method of expressing the sentence. The order of the Court, however, is expressed in terms of what the Crimes (Sentencing Procedure) Act says. I have sentenced the prisoner to a non-parole period of four years four months, and the balance of the sentence is two years five months, expiring on 25 May 2020. That's the way the order is recorded, but in fact I have expressed it in accordance with what I understand to be the terms of s 19AB or BA of the Commonwealth Crimes Act. Right you can go.