Citation: R v Nhu Thi Hong HO, R v Thanh Nhu HO [2007] NSWDC 27
Court: District Court of New South Wales
Date: 22 February 2007
Judge(s): Berman SC DCJ
Background
Two sisters were sentenced together after each attempted to import heroin into Australia concealed in shoes worn on the same flight from Vietnam to Sydney. The quantities discovered were 556 grams (purity 64.4–77.7%, net 393 grams) and 596.5 grams (purity 38.6–43.3%, net 236 grams) respectively.
Both sisters said they agreed to carry the drugs because they owed comparatively small debts, between $7,000 and $7,900, to an acquaintance who applied pressure when repayment was demanded. Neither had any prior criminal history in Australia or Vietnam, and both were married mothers of two young children. One sister had been pregnant at the time of the offence, gave birth while in custody, and spent only twenty-four hours with her newborn before being returned to prison.
Both offenders pleaded guilty at an early stage and declined to assist authorities in identifying those who had recruited them. The Crown and defence agreed they were mere couriers with no independent capacity to source or distribute heroin.
Legal Issues
- What was the appropriate head sentence and non-parole period for each offender, having regard to the objective seriousness of importing a marketable quantity of a border controlled drug (heroin)?
- What weight should be given to mitigating factors, including early guilty pleas, prior good character, expressions of remorse, financial pressure or duress (limited), and hardship to dependent children?
- Whether family hardship reached the threshold of "exceptional" so as to justify a substantial reduction in sentence.
- Whether the standard non-parole period ratio (60–66% of head sentence in federal matters) should be varied, and if so, how.
- Whether any differentiation in sentence between the two co-offenders was warranted.
Decision
The court accepted that both offenders were couriers acting under financial pressure, with no independent role in the supply chain. However, it rejected any suggestion that this pressure amounted to anything more than a modest mitigating factor. The court emphasised that sentences for drug couriers must carry a strong deterrent element, particularly because people who fall into debt to criminal associates face a foreseeable risk of being recruited to commit offences exactly of this kind.
Family hardship was acknowledged as real and significant. The court heard emotional evidence from the twelve-year-old daughter of one offender and from the other's husband about the consequences of the separation. The court accepted this would make custody harder for both women. However, counsel for both offenders properly conceded that the hardship did not reach the level of "exceptional" required by Court of Criminal Appeal authority for a substantial sentence reduction. The court gave weight to hardship in a different way: by reducing the non-parole period to half the head sentence, departing from the usual federal ratio of 60–66%.
The court rejected the proposition, drawn from some authorities, that prior good character deserves little weight for drug couriers merely because couriers are often chosen for their clean records. It interpreted those decisions as a caution against treating good character as more mitigating than it might otherwise be, not as a reason to disregard it altogether.
Additional mitigating considerations included the early guilty pleas, limited English proficiency (which the court found would make custody harder), good prospects of rehabilitation, and no history of personal drug use. No differentiation was drawn between the two sisters on sentence, as counsel accepted their objective and subjective circumstances were materially identical.
Orders Made
- Each offender sentenced to a head sentence of six years imprisonment, commencing 29 September 2006 and expiring 28 September 2012.
- Non-parole period of three years, expiring 28 September 2009.
- Upon expiration of the non-parole period, each offender to be released to parole, subject to conditions, for the remainder of the sentence.
Key Takeaways
- The District Court confirmed that financial pressure from a creditor recruiting a debtor as a drug courier is a mitigating factor of limited weight only, and that substantial deterrent sentences remain necessary to discourage others from taking that path.
- Family hardship, including separation from young children and the particular circumstance of a mother giving birth in custody, was found relevant to sentencing but did not reach the threshold of "exceptional" required for a substantial sentence reduction under Court of Criminal Appeal authority.
- Where family hardship falls short of exceptional, a court may still give it effect by adjusting the non-parole period to head sentence ratio, in this case reducing the non-parole period to 50% of the head sentence rather than the usual federal range of 60–66%.
- Prior good character is not to be treated as irrelevant for drug couriers simply because couriers are commonly recruited for their clean records; the sentencing court found those authorities counsel caution rather than outright disregard of character evidence.
- Declining to cooperate with authorities after arrest does not expose an offender to a longer sentence, though it may sit in some tension with expressed remorse.
Legislation and Cases Referenced
Legislation:
- The offences involved importation of a border controlled drug (heroin) in a marketable quantity under Commonwealth law (specific Act not cited in the judgment).
Cases:
- No specific cases were cited by name in the judgment. The court referred generally to Court of Criminal Appeal authority on the "exceptional hardship" threshold and to decisions concerning the weight of prior good character for drug couriers.