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District Court 1 February 2008

R v Bun, Soeun

[2008] NSWDC 138

Drugs
CRIMINAL LAW SENTENCE HEOIN CONCEALED INTERNALLY WHOLESALE VALUE $35K+ CLAIMED GAMBLING DEBT $!0K FORGIVEN

Citation: R v Bun, Soeun [2008] NSWDC 138
Court: District Court of New South Wales
Date: 1 February 2008
Judge(s): Nicholson SC DCJ

Background

The offender, a 42-year-old Cambodian national holding permanent residency in Australia as a former refugee, arrived at Sydney Kingsford-Smith Airport on 30 July 2007 on a return flight from Phnom Penh via Bangkok. A Customs officer selected her for examination, having noted this was her fourth trip to Cambodia within twelve months and that she was unemployed. She had purchased the return ticket at a cost of $1,405 despite receiving government benefits since 1988.

Following a frisk search that revealed nothing, the offender consented to an internal examination. A CT scan at St George Hospital confirmed she had concealed a packet of heroin admixture internally. The packet, which contained 166 grams of admixture with a purity of 72 percent (equivalent to 120.1 grams of pure heroin), was recovered approximately ten and a half hours after her arrival.

The offender gave an account to police and later in court that she had incurred a gambling debt of $10,000 to an unidentified Vietnamese man, who later threatened harm to her children unless she agreed to import drugs. She said her debt would be forgiven in exchange for the importation. The sentencing judge found her account deliberately vague and inconsistent in significant respects, and concluded she was not frank with the court.

  • What sentence was appropriate for importing a marketable quantity of a border controlled drug (heroin) contrary to s 307.2(1) of the Criminal Code (Cth)?
  • How should the objective seriousness of the offence be assessed, including the offender's role as a courier?
  • What weight should be given to the offender's subjective circumstances, including her claimed coercion by debt, her status as a refugee and pensioner, and her personal history?
  • What non-parole period was appropriate where a term of imprisonment exceeding three years was required?

Decision

The court assessed the objective criminality of the offence as serious. Heroin must be imported into Australia, and those who perform that role, including couriers, form an indispensable link in the drug trafficking chain. The wholesale value of the seizure was estimated at between $35,000 and $52,000, with a street value potentially as high as $420,000. The court noted that internal concealment reflects deliberate and calculated planning.

On the offender's subjective case, the court accepted that she occupied a low-level role as a courier and was not a principal in the drug trade. Her claimed coercion by debt and threats to her children was given some weight, but the court found she had been deliberately vague in her account and was not fully cooperative with police. The court was satisfied she knowingly agreed to import contraband and that the trip to Cambodia was itself part of the reward offered to her.

The court took into account the offender's personal circumstances: her age, her background as a Cambodian refugee, her status as a pensioner, and the fact that she had seven children (one living with her, and four in foster care with little contact maintained). These matters moderated the sentence to some extent, though the court emphasised that general deterrence carries significant weight in drug importation cases.

Reviewing comparable sentencing outcomes from the Court of Criminal Appeal and from unreported District Court decisions, the court arrived at a sentence of five and a half years imprisonment with a non-parole period of three years and three months.

Orders Made

  • The offender was convicted of importing a marketable quantity of heroin contrary to s 307.2(1) of the Criminal Code (Cth), the importation occurring on 30 July 2007 at Mascot.
  • Sentenced to five and a half years imprisonment, commencing 30 July 2007 and expiring 29 January 2013.
  • Non-parole period set at three years and three months, expiring 29 October 2010.
  • The court noted that, on the advice of the Crown prosecutor, the Commonwealth Attorney-General was required to release the offender on 29 October 2010.

Key Takeaways

  • The District Court confirmed that even low-level drug couriers occupy an essential role in the drug trafficking chain, and that internal concealment of heroin reflects a degree of planning that elevates objective seriousness.
  • A claimed coercion by debt and threats to family members may be considered in mitigation, but vagueness and lack of frankness in giving evidence will limit the weight the sentencing court assigns to such an account.
  • Where an offender imports heroin of this quantity and purity, general deterrence operates as a significant sentencing consideration, notwithstanding personal hardship or a low-level role in the criminal enterprise.
  • Sentencing for Commonwealth drug importation offences requires compliance with s 16A of the Crimes Act 1914 (Cth), and the court noted that s 16(3) of that provision is frequently overlooked by sentencing courts.
  • Comparable cases reviewed by the court produced head sentences ranging from five to eight years for quantities between 108 and 700 grams of heroin, providing a sentencing range against which this outcome can be contextualised.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.2(1) (importing a marketable quantity of a border controlled drug)
- Crimes Act 1914 (Cth), s 16A

Cases:
- R v Huynh [2008] NSWCCA 16
- R v Pham [2005] NSWCCA 314
- R v Dang [2004] NSWCCA
- R v Hendricks (2001) 125 A Crim R 303
- R v Le [2006] NSWCCA 136
- R v Nhut Thi Hong Ho (unreported, District Court of NSW, Berman DCJ)
- R v Phong Linh Nguyen (unreported, District Court of NSW, Hock DCJ)
- R v Trung Ta Pham (unreported, District Court of NSW, Nicholson DCJ)