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District Court 14 July 2011

R v Ho Thien Chuong PHAM

[2011] NSWDC 74

Drugs
CRIMINAL LAW SENTENCE MAXIMUM PENALTY OF LIFE IMPRISONMENT PLEA OF GUILTY AT EARLIEST OPPORTUNITY THIRTY KILOGRAMS OF COCAINE FINANCIAL PRESSURE

Citation: R v Ho Thien Chuong PHAM [2011] NSWDC 74
Court: District Court of New South Wales
Date: 14 July 2011
Judge(s): Cogswell SC DCJ

Background

The offender was a 26-year-old man of Vietnamese background who had fallen into financial difficulty, including drug-related debt. He came into contact with an unknown person who gave him a mobile phone and instructions to collect a drug shipment, with payment promised at $1,000 per kilogram handled. He understood the activity was illegal but claimed not to have known the exact nature or quantity of the substance involved.

In July 2010, Australian Federal Police, who had already intercepted a 240-kilogram cocaine shipment and replaced its contents with an inert substitute, used an undercover officer to arrange a delivery to the offender. The offender and a co-accused attended a location at Botany, where the co-accused lifted a bag containing 30 one-kilogram packets of the substitute substance from the officer's vehicle. Both men were arrested at the scene.

The offender was charged with supplying a large commercial quantity of a prohibited drug under section 25(2) of the Drug Misuse and Trafficking Act 1985, an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. He pleaded guilty at the earliest available opportunity.

  • What sentence was appropriate for supplying a large commercial quantity of cocaine (30 kilograms), having regard to the statutory maximum, the standard non-parole period, and the objective seriousness of the offence?
  • What weight should be given to the offender's role as a courier with no apparent higher involvement in the drug supply chain?
  • How should the early guilty plea affect the sentence?
  • Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the balance of the term?

Decision

Cogswell SC DCJ assessed the objective seriousness of the offence as falling within the middle of the range. Thirty kilograms is a substantial quantity of cocaine, carrying a street value in the millions, and Parliament's designation of a life imprisonment maximum and a 15-year standard non-parole period reflected the gravity with which such offences are treated. The court drew on two Court of Criminal Appeal decisions (Elmir and Stevens) in which sentences for lesser quantities were upheld, using those as guideposts.

On the offender's personal circumstances, the court accepted evidence from the offender's brother and the Probation and Parole Service pre-sentence report. The offender had a difficult upbringing, limited education, and a history of drug and alcohol abuse from an early age. His juvenile criminal history was not treated as a relevant prior record. His role was characterised as that of a low-level courier with no higher engagement in the supply chain, which moderated the objective seriousness somewhat, though it did not diminish it significantly.

The court assessed the appropriate head sentence at 18 years imprisonment. Applying a 25 percent discount for the early guilty plea, this was reduced to 13 and a half years. The court accepted that special circumstances existed to justify a shorter non-parole period than the statutory norm, reducing it from approximately 10 years and one month to nine and a half years, to allow adequate time for rehabilitation and supervised reintegration into the community.

Orders Made

  • Non-parole period of nine and a half years imprisonment, commencing 6 July 2010 and expiring 5 January 2020.
  • Additional term of four years imprisonment, commencing 6 January 2020 and expiring 5 January 2024.
  • Total sentence: 13 and a half years imprisonment.
  • Earliest eligible parole date: 5 January 2020.

Key Takeaways

  • The District Court placed a 30-kilogram cocaine supply offence in the middle of the range of objective seriousness, resulting in a pre-discount head sentence of 18 years against a statutory maximum of life imprisonment.
  • A 25 percent reduction applied to reflect a guilty plea entered at the earliest available opportunity, bringing the sentence to 13 and a half years.
  • Where an offender's role is limited to that of a courier with no demonstrated involvement in organising or financing the supply chain, that lower-level participation is a relevant mitigating factor, though it does not remove the offence from the most serious category.
  • Special circumstances justified departing from the standard non-parole period ratio, with the court reducing the non-parole period to nine and a half years to accommodate rehabilitation needs and gradual reintegration.
  • Personal hardship, including financial pressure, drug dependency, and a troubled background, informed the sentencing exercise as subjective factors, though they did not alter the fundamental seriousness of the offence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Elmir v The Queen (2009) 193 A Crim R 87
- Stevens v The Queen [2007] NSWCCA 252
- The Queen v Olbrich (1999) 199 CLR 270