Citation: R v Anh Thai PHAM [2013] NSWDC 166
Court: District Court of New South Wales
Date: 19 June 2013
Judge: Cogswell SC DCJ
Background
The offender, a 41-year-old Vietnamese-born man living in Hinchinbrook with his teenage son, was charged after a joint Australian Federal Police and Australian Crime Commission operation led investigators to his home in July 2012. Officers executing a search warrant found a locked metal chest under his bed containing just over 19 kilograms of methylamphetamine at 76 to 77 per cent purity. They also found $4,000 cash and, separately, 37 capsules of methoxymethamphetamine in his jacket pocket.
The offender's account, accepted for sentencing purposes, was that he had agreed to store the chest for an acquaintance for approximately two months in exchange for the $4,000 payment. He said he did not know the combination lock and had never opened the chest. The statement of facts prepared by police accepted that his role was no greater than that of a "warehouser."
The offender pleaded guilty at the earliest opportunity to supplying a large commercial quantity of methylamphetamine, an offence carrying a maximum of life imprisonment and a standard non-parole period of 15 years under the Drug Misuse and Trafficking Act 1985. A separate supply offence involving the methoxymethamphetamine capsules was taken into account on a Form 1 (a procedure under which a court sentences an offender on one charge while formally acknowledging additional related offences).
Legal Issues
- How serious was the offence objectively, given the very large quantity and high purity of the drug, weighed against the offender's limited warehousing role?
- What discount applied for the early guilty plea?
- Were there special circumstances justifying a departure from the standard 75:25 ratio between the non-parole period and the balance of the sentence?
- What weight should be given to the offender's personal circumstances, including his clean record, steady employment, family ties, and low assessed risk of reoffending?
Decision
Cogswell SC DCJ assessed the offence as falling in the middle of the range of objective seriousness. The quantity was almost 20 times the large commercial quantity threshold, and the purity was very high, giving the drugs a wholesale value estimated between $3 million and $5.8 million. However, the offender's role was limited: he was a warehouser only, with no involvement in transporting or dealing the drugs, and he stored them for two months in exchange for a flat payment of $4,000.
The judge set a starting sentence of 18 years imprisonment before discount. Applying a 25 per cent reduction for the early guilty plea, which the prosecution did not contest, produced a figure of 13.5 years. His Honour rounded this down to 13 years as the head sentence.
On the question of special circumstances, his Honour accepted that the lengthy custodial term, the fact it was the offender's first time in gaol, and the need for adequate supervision on parole each justified reducing the non-parole period below the standard 75 per cent. The non-parole period was set at 9 years rather than the approximately 10 years that the standard ratio would have produced.
The offender's personal circumstances attracted significant mitigating weight. He had no criminal record, held steady employment in a bakery, maintained a close relationship with his son, showed genuine remorse, and was assessed by a psychologist as presenting a low risk of reoffending with reasonably good prospects of rehabilitation.
Orders Made
- Convicted of supplying a large commercial quantity of methylamphetamine
- Head sentence of 13 years imprisonment, commencing 25 July 2012
- Non-parole period of 9 years, expiring 24 July 2021 (first date of parole eligibility)
- Balance of term of 4 years, expiring 24 July 2025
- Form 1 offence (supply of methoxymethamphetamine) taken into account
- Drug destruction order made under s 39P of the Drug Misuse and Trafficking Act 1985
- Forfeiture order made in respect of the $4,000 cash (proceeds of crime)
Key Takeaways
- A warehousing role, while treated as a serious form of participation in drug supply, can nonetheless place an offender's culpability toward the middle rather than the upper end of objective seriousness, particularly where there is no evidence of involvement in transportation or distribution.
- Where an offender pleads guilty at the earliest opportunity to a charge of supplying a large commercial quantity of a prohibited drug, a 25 per cent sentence discount is appropriate and was accepted without contest by the prosecution in this case.
- Under the High Court's approach in Muldrock v The Queen (2011) 120 CLR 120, the standard non-parole period of 15 years for this offence is one factor in the sentencing exercise, not a starting point or a determinative benchmark.
- Special circumstances justifying a departure from the standard 75:25 head sentence-to-non-parole-period ratio can arise from a combination of factors, including the length of the custodial term, the offender experiencing their first period of imprisonment, and the desirability of supervised parole.
- Positive personal characteristics, including a clean criminal record, stable employment history, family responsibilities, expressed remorse, and a psychologist's assessment of low reoffending risk, carry real mitigating weight even in cases involving very large quantities of high-purity drugs.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 39P
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 120 CLR 120
- Ayik v R [2013] NSWCCA 119
- R v El Helou [2010] NSWCCA 111; (2010) 267 ALR 734
- R v Mahmud [2010] NSWCCA 219
- MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44
- R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462
- Robinson v R [2012] NSWCCA 26