R v Pinyosap, Surachai [2014] NSWDC 349

District Court New South Wales

Medium Neutral Citation: R v Pinyosap, Surachai [2014] NSWDC 349 Hearing dates: Friday 28 February 2014 Date of orders: 28 February 2014 Decision date: 28 February 2014 Jurisdiction: Criminal Before: Tupman DCJ Decision: Convicted and sentenced to a term of imprisonment of seven years, with a non-parole period of four and a half years. Catchwords: CRIMINAL LAW – Sentence for Importing Commercial Quantity of Heroin – 1.939kgs Pure Heroin – Life Imprisonment Maximum Penalty – Courier – Gambling Debt – Early Guilty Plea. Legislation Cited: Crimes Act, 1914 – s16A Criminal Code Act 1995 – s307.1 Category: Sentence Parties: The Commonwealth Crown Surachai Pinyosap Representation: Counsel:

Solicitors: Ms. Armstrong (DPP solicitor) Mr. Marr (Solicitor) File Number(s): 2013/155003

SENTENCE 1. HER HONOUR: The offender is before me for sentence following his plea of guilty in the Local Court to one count contrary to s 307.1 of the Criminal Code namely, that on 19 May 2013 he imported a commercial quantity of the drug heroin into Australia. Brought under that section this offence carries a maximum penalty of life imprisonment. The sentence for this matter must be in accordance with the relevant provision of the Crimes Act, 1900 and, specifically, the provisions of s 16A must be addressed. 2. The offender is a Thai national who has been a long term resident in Australia, living in Sydney. He is now 26 and was about to turn 26 when he committed this offence. He travelled to Bangkok in early May 2013 and returned on 19 May 2013 on a flight arriving from Bangkok into Sydney Airport. On his incoming passenger card he indicated that he was not carrying any prohibited goods, including illicit drugs. He had two suitcases, which were examined by Customs, who identified an off-white powder concealed inside the inner lining of both which tested presumptively for heroin. 3. The Australian Federal Police then attended the airport and arrested the offender. They conducted an interview with him shortly afterwards in which he admitted that he was importing illegal drugs into Australia in these two suitcases. Specifically in the record of interview he told police that he was in debt for an amount of about $110,000 to various people as a result of his excessive gambling which had become a problem. He told police that in particular he owed a significant amount to a person he named. He said that in January 2013 he had done a similar trip to Thailand at the request of this person and brought back suitcases which he knew contained drugs and then handed them over to an unknown man at his home. This, he said, was at the request of the person who had loaned him a significant amount of money and he undertook the trip to reduce the debt he had to that person. He said that the same person approached him before May 2013 to do a similar trip. 4. I accept from his evidence that the suitcases were delivered to him in Bangkok the day before he left to come home and he knew there were drugs inside, although he did not see them and he did not know specifically either what the drugs were or the quantity of them. The bags were heavier than they ought to have been however and it alerted him to the fact that there was something concealed inside. 5. He told police in the interview that this person to whom he owed money had paid for his air tickets and had sent him a sum of somewhere between $2,000 and $5,000 whilst he was in Thailand for spending money. His expectation was that he would take the bags to his house where someone would find and take delivery of them. He told police that he expected to receive $80,000 in return for undertaking this trip, which I accept he intended to use to repay some of the accumulated gambling debt. 6. I accept, from reading some parts of the record of interview and evidence both from the offender and his partner, that he had tried some other methods to repay the debt before taking this second trip, including considering selling the apartment in which he lived with his partner and child and which they had bought about 18 months previously. He realised however that the net gain would only be $10,000, which was not sufficient to repay the debt. 7. I also accept that for about a month or so before he took this trip in May 2013 there had been pressure brought to bear on both him and his partner, including some threats made to them either by or on behalf of those to whom he owed the money. In particular I accept that a person attended the house in which he lived and threatened his partner and child, and that threats had been made to him as well that he and his family would be hurt if he did not repay the money. None of this amounts to duress of the type that would be a defence, but I accept from the content of his record of interview with the police, supported as it is by the evidence he has given and that of his partner, that these threats were in fact made. I accept that he took them seriously and that was in the mix of events, which motivated him to take this trip, knowing that he would be importing drugs. 8. Analysis of the substances found in the suitcase indicated a gross weight of 3.518 kilograms of the substance which, when analysed, was 1.939 kilograms of pure heroin. The commercial quantity of heroin for S307.1 is an amount above 1.5 kilograms. Therefore this is a very substantial quantity of heroin in its own terms, but not significantly above the bottom of the range for a commercial quantity of this drug. Nonetheless, it is a very large amount of heroin, which I accept from the agreed facts had a wholesale value of just over $739,000 and if it had reached the street for sale would have returned around $2 million. 9. This is clearly a very serious offence. The maximum penalty of life imprisonment makes that perfectly clear. In addition, the courts are only too aware of the tragedy and harm caused by drugs within the community, both to those who become addicted to them and to their families and people in the community who become the victims, particularly heroin addicts, who then commit other offences to fund that addiction. The sentence passed here must send a message to the community that significant periods of imprisonment will be the result should they decide to import drugs into the country. The cost of policing the airports and similar places, detecting these importations is significant. All of those matters require a real message of general deterrence to be incorporated into the sentence. 10. The offender comes to court with no prior criminal convictions and he is entitled to have this taken into account in assessing the appropriate penalty. However, because of his own admission of having engaged in similar conduct only five months beforehand, he is not entitled to have me regard his offence as a one-off isolated incident. 11. His role within what was no doubt some form of drug syndicate is a relevant matter to take into account in terms of assessing his criminality. He is, it seems to me, properly described as a courier. He is not a mere courier because he elected and planned to leave the country, knowing he was going to collect drugs and come back with them. That puts him slightly above the role of mere courier, but he was nonetheless a courier. He played no part in the organisation of this syndicate, made none of the plans and acted as directed. 12. I accept from the evidence before me, both from him and from hospital records, that his motivation for committing the offence was obviously for financial gain but in his case it was for financial gain in order that he could repay a debt that he had accumulated as a result of having a significant gambling addiction. Whilst this does not operate significantly as a factor of mitigation it is nonetheless a matter to take into account in assessing his moral culpability and also in terms of attempting to assess his prospects of rehabilitation. 13. I accept that from the time he was about 18 he started to gamble excessively on gaming machines. This was not helped by the fact that he was for the seven years or so before this offence working as a bar attendant at the Cabra-Vale Diggers Club in Cabramatta where his job description included bar attendant and gaming attendant. I also accept that the majority of those who had loaned him money were patrons and still are patrons of that club and it must be patently obvious to those who operate that club that there are people there taking advantage of members or staff like this offender, lending them money that they must know can never be repaid from wages of about $750 a week, charging interest at an exorbitant rate and then, as is only too frequently known to this Court, using them as couriers to bring drugs back into the country. 14. The fact that one of these people at least, and more probably than not one of those who threatened this offender and his partner is still there, still a member, still engaging in the same behaviour even after this offender has brought it to the notice of the police, is a very troubling matter. I accept however that that would appear to be what is happening and it is well known to this Court that the Cabra-Vale Diggers Club is but one of many in that part of Sydney where exactly the same thing happens every day of the week. It would be comforting to think that the licensing and gaming authorities in this State would attempt to do something to deal with these sorts of issues that are obvious and very known to the Courts and must be obvious to those who run these clubs. 15. In any event I accept that for about the last seven years the offender's gambling addiction has become worse. He borrowed more and more money. He was less able to pay it back. He continued to borrow money in order to pay back that which he owed and to gamble. Inevitably he lost when he played the gaming machines, as does everyone. He gambled at the Star City Casino, often spending a day there and sometimes five days, losing up to $5,000 a day and that was the motivator for his commission of this offence. 16. He tried to address his gambling problems in 2011, I accept more probably than not connected with the birth of his daughter. He went to Liverpool Hospital, saw a psychologist there, was given some advice but did not pursue that advice and did not stay with the service. He seems to have given up a little too easily with the inevitable outcome that has led to his being here in the dock and in gaol for a significant period of time. 17. He recognises his addiction and I accept is now well motivated to address it. As I understand it, from seeing many similar cases in court over a number of years, gambling addictions are not easy to deal with but he requires treatment as soon as possible. His prospects of rehabilitation are entirely connected with his being able to overcome his gambling addiction. 18. In all other respects he presents to the Court as a person of good character. There are a number of excellent character references before the Court attesting to that. There is also material before the Court from his former employer indicating that he was a good worker and well liked within the workplace. 19. He, as I have said, is the father of a three year old daughter. He and his partner have been together since they were teenagers. She gave evidence in these proceedings and I found her to be an impressive witness who viewed him honestly and without rose-coloured glasses. She is prepared to wait for him but has said that there will be an ultimatum on his release from custody that if he is not able to overcome his gambling addiction then she and their daughter will not be available for him. The fact that she remains available for him, and his strong ties to her and his daughter, it seems to me increases his prospects of rehabilitation but again they are entirely connected to his ability to overcome his gambling addictions. 20. I accept from both the Liverpool Hospital records and also the report of Mr Watson-Munro that he was and probably still is depressed. It seems to me that that plays little part in the appropriate sentence for this offence however. 21. He has demonstrated remorse and contrition that started with his immediate confession to police at the airport. It is indicated too by the assistance he provided to police in relation to the organiser of his trip to Thailand. He was prepared to participate in a controlled operation and the fact that it did not occur would appear to be as a result of operational considerations and not because of any reticence on his part. The assistance is of low value I accept from the certificate before me but, nonetheless, he provided it, was prepared to continue and that is a factor that I will take into account in assessing the overall sentence. It also, in part, is evidence to support his genuine remorse and contrition and further he has given evidence under oath to that effect. 22. He pleaded guilty at the earliest opportunity indicating a real willingness to facilitate the interests of justice. If it were necessary to quantify a discount for this Commonwealth offence it seems to me that a 25% discount would be appropriate. There should also be a smallish discount, if that were necessary, to take into account the assistance to which I have already referred. 23. In terms of his other antecedents he is, as I have said, now 26. He came to live in Australia when he was, as I understand it, 12. He had lived in Thailand with his grandparents for a period before that. In all other respects I have already referred to those matters involving his character and antecedents. 24. There is no hardship to the offender's family which would properly reduce the sentence below that which is appropriate, but I accept that his partner and child will of course be adversely affected as a result of incarceration. She works but now has to shoulder the sole responsibility not only for the care of the child, but also for repayment of the mortgage. The child will also suffer from the absence of her father for the period that he remains in custody. 25. He has been in custody bail refused since his arrest, that is, since 19 May 2013 and it is appropriate that the sentence be backdated to commence from then. 26. Taking all of that into account, his role, the non-exculpatory duress, the involvement of his gambling addiction as a motivating factor and the fact of a prior good character, it seems to me that, absent any appropriate discount, a sentence of about 10 years would be called for. I am going to reduce the head sentence to seven years to take into account a substantial discount for the early plea of guilty, plus a smallish discount to reflect the assistance to authorities that he has given. I will be setting a non-parole period of four and a half years which, it seems to me, reflects the criminality involved. It allows for a significant period of supervision in the community so that he can continue to address his gambling addiction on release to parole. There are other special circumstances to reduce it below 75%, namely, that this is his first time in custody and he is a young man now still only 26. 27. For those reasons then I make the following orders. He is convicted. 28. He is sentenced to a term of imprisonment of seven years commencing on 19 May 2013 and expiring on 18 May 2020, with a non-parole period of four and a half years commencing on 19 May 2013 and expiring on 18 November 2017.