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District Court 10 December 2009

R v Phuong PHAM

[2009] NSWDC 362

Drugs
CRIMINAL LAW SENTENCE SCHEDULE UNDER S 16BA BORDER CONTROLLED DRUG COCAINE COMMERCIAL QUANTITY

Citation: R v Phuong PHAM [2009] NSWDC 362
Court: District Court of New South Wales
Date: 10 December 2009
Judge(s): Berman SC DCJ

Background

The offender was a 32-year-old Canadian resident of Vietnamese origin who travelled from Canada to Australia in May 2008 as part of a sophisticated drug importation operation. The scheme involved shipping concealed narcotics inside foot spa units from overseas, with a warehouse and legitimate-looking business established as cover. Upon arrival in Sydney, Australian Customs and AFP officers detected the consignment, replaced the drugs with inert substances, and conducted a controlled delivery.

The offender played an active operational role: she liaised with overseas contacts in Canada, coordinated payments, assisted in dismantling the foot spas to retrieve the packages, delivered 15 substituted packages to an unknown person, and communicated back to Canada when problems were identified with the substituted goods. She was arrested shortly after receiving confirmation that the packages contained no drugs.

The offender pleaded guilty on the day of trial to attempting to possess a commercial quantity of cocaine (approximately 27 kg gross weight, 13 kg pure) unlawfully imported into Australia. She also asked the court to take into account, on a s 16BA schedule, a related offence of attempting to possess a commercial quantity of methylamphetamine arising from the same events.

  • What was the appropriate sentence for attempting to possess a commercial quantity of a border controlled drug (cocaine), taking into account the objective seriousness of the offending and the offender's personal circumstances?
  • What weight should be given to the scheduled methylamphetamine offence under s 16BA of the Crimes Act 1914 (Cth) when determining the head sentence?
  • How should the court balance general deterrence, the absence of prior criminal history, the guilty plea, and personal mitigating factors in fixing the non-parole period and head sentence?

Decision

The court assessed the offending as falling at the higher end of the range. The cocaine alone carried a gross weight many times exceeding the commercial quantity threshold that exposes an offender to life imprisonment, and the methylamphetamine on the schedule was similarly substantial. The estimated street value of the cocaine was between $15 million and $24 million, with the methylamphetamine adding a further estimated $8 million at street level.

The offender's role was described as significant rather than peripheral. She was not a mere courier or bystander: she managed communications with the Canadian end of the operation, handled financial arrangements, physically worked to extract the packages, and delivered 15 of them to a third party. The court found she had placed herself in a meaningful position within the criminal enterprise.

In mitigation, the court noted the guilty plea (entered on the day of trial, attracting a modest discount), the absence of prior convictions, the offender's difficult early life in Vietnam, and her motivation being financial gain rather than personal drug addiction. The court declined to reduce the sentence on account of hardship to the offender's elderly mother in Canada, finding her circumstances not exceptional given that four other siblings remained there to provide care.

General deterrence was given particular weight. The court observed that large-scale drug importation driven by financial profit requires substantial sentences to deter others who might be tempted by the prospect of gain at the expense of those ultimately supplied with the drugs. The scheduled methylamphetamine offence, though not the subject of a separate sentence, was acknowledged as independently serious and was factored into the overall sentencing exercise.

Orders Made

  • Non-parole period of seven years, commencing 19 May 2008 (the date the offender was taken into custody), expiring 18 May 2015.
  • Head sentence of eleven years.

Key Takeaways

  • The District Court treated the offender's active, multi-faceted involvement in a sophisticated importation network as placing the offending at the higher end of the objective seriousness range, even though she was not identified as the organiser of the scheme.
  • A guilty plea entered on the first day of trial attracted only a limited discount in circumstances where the case against the offender was strong and the plea was not made at an early stage.
  • Under s 16BA of the Crimes Act 1914 (Cth), a scheduled offence does not attract a separate sentence but remains relevant to the sentencing exercise on the principal count; where that scheduled offence would itself justify a lengthy custodial term, it carries real weight in determining the appropriate head sentence.
  • General deterrence carried particular significance because the offending was commercially motivated rather than addiction-driven, the court reasoning that large financial rewards create an ongoing temptation requiring substantial sentences to counteract.
  • Hardship to a family member overseas will not ordinarily reduce a sentence unless the circumstances are truly exceptional; the existence of other capable family members to provide care was treated as negating any exceptional hardship claim here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16BA (taking additional offences into account on a schedule)

Cases cited: No cases were cited in the judgment.