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District Court 21 September 2007

R v Truong The Pham

[2007] NSWDC 210

Drugs
CRIMINAL LAW SENTENCING COMMONWEALTH IMPORTING BORDER CONTROLLED SUBSTANCE CARRIED INTERNALLY 110 GRAMS HEROIN

Citation: R v Truong The Pham [2007] NSWDC 210
Court: District Court of New South Wales
Date: 21 September 2007
Judge(s): Nicholson SC DCJ

Background

The offender, a 43-year-old Vietnamese-born Australian citizen, was intercepted by Australian Customs Service officers at Sydney Kingsford-Smith Airport on 26 February 2007 upon his return from Ho Chi Minh City. A CAT scan conducted at St George Hospital revealed four condoms concealed internally, containing 168.5 grams of admixture. That admixture was found to consist of 65 percent pure heroin, equating to 110 grams of pure heroin.

The offender initially told Customs officers he had travelled to Vietnam to visit his hospitalised mother. He later admitted, in a taped record of interview in June 2007, that he had accumulated a gambling debt of approximately $20,000 to a man named Khan and had agreed to carry contraband into Australia in order to satisfy that debt. Khan arranged and paid for his airfares. The offender was monitored by Khan's criminal associates during his time in Vietnam.

The 110 grams of heroin was assessed by experts as representing between 1,833 and 2,750 street deals, with a street value of between $92,000 and $191,000 and a wholesale value of approximately $50,000. The court noted the offender's eventual cooperation with police, including participation in a photo identification process, though he was unable to identify Khan or provide information that advanced the investigation.

  • What was the appropriate sentence for importing a marketable quantity of a border controlled drug (heroin) under s 307.2(1) of the Commonwealth Criminal Code, which carries a maximum penalty of 25 years?
  • How should the objective criminality of the offence be assessed, particularly given the quantity involved fell at the lower end of the trafficable range?
  • What weight should be given to the offender's subjective circumstances, including his gambling debt, the recruitment by a third party, his cooperation with police, and his personal background as a Vietnamese refugee?
  • What non-parole period was appropriate given the mandatory requirement under the Crimes Act 1914 (Cth) (s 16A) to set a non-parole period for sentences exceeding three years?

Decision

Nicholson SC DCJ assessed the objective criminality of the offence as serious, while acknowledging it fell at the lower end of the trafficable quantity range. The court accepted that the offender had been recruited to carry the drugs as a means of satisfying a gambling debt, reducing his culpability somewhat compared to an organiser, but noted he had agreed to the arrangement before departing for Vietnam and had knowingly concealed drugs within his body to deceive Customs officials.

The court considered the offender's subjective circumstances, including his difficult financial position, his status as a Vietnamese refugee, his family responsibilities, and his eventual cooperation with police. However, the court was not satisfied that cooperation warranted a significant sentencing discount because the offender was unable to provide information that materially advanced any investigation.

Deterrence, both general and specific, was treated as a significant sentencing consideration. The court observed that importing heroin is an offence that necessarily feeds the drug trafficking chain and causes widespread harm to the community, and that sentences must reflect that harm regardless of the relative position of an individual courier within the criminal enterprise.

Comparing the case to a similar matter involving 108 grams of heroin before another judge of the District Court, the court arrived at a head sentence of five years with a non-parole period of three years, to be served from the date of arrest on 26 February 2007. The court also noted at the conclusion of proceedings that the offender's mother had died on 9 September 2007, and directed that those responsible for his welfare in custody assess him for depression.

Orders Made

  • The offender was convicted of importing a marketable quantity of a border controlled drug (heroin), contrary to s 307.2(1) of the Commonwealth Criminal Code.
  • Sentenced to a total term of five years imprisonment.
  • Non-parole period of three years, commencing 26 February 2007 and expiring 25 February 2010.
  • Overall sentence to expire 25 February 2012.
  • The Crown advised that, under Commonwealth legislation, the offender would be released at the expiry of the non-parole period (sentences under 10 years), subject to a two-year parole period with conditions.

Key Takeaways

  • The District Court confirmed that internal drug couriers who knowingly conceal heroin within their bodies to evade Customs face substantial head sentences, even where the quantity falls at the lower end of the trafficable range and the offender's role was that of a recruited courier rather than an organiser.
  • A gambling debt used as leverage to recruit an offender into drug importation reduced culpability to a degree but did not displace the fundamental seriousness of the offence, particularly where the offender agreed to the arrangement prior to departing Australia.
  • Cooperation with police carried limited mitigating weight where the offender was unable to identify co-offenders or provide information that advanced the investigation in any material way.
  • Under s 16A of the Crimes Act 1914 (Cth), a sentencing court imposing more than three years imprisonment must set a non-parole period; for Commonwealth sentences under 10 years, release at the expiry of the non-parole period is automatic under Commonwealth legislation, unlike the position under New South Wales State law.
  • General and specific deterrence were identified as primary sentencing considerations for offences of this kind, consistent with the principles in R v Cuthbert, R v Rushby, and R v Hayes, with community protection treated as the overriding focus of the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, s 307.2(1) (importing a marketable quantity of a border controlled drug)
- Crimes Act 1914 (Cth), s 16A (sentencing considerations for Commonwealth offences)

Cases
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes (1984) 1 NSWLR 740
- Gladue v The Queen [1999] 1 SCR 688 (Canadian Supreme Court, cited on the general approach to sentencing)