Citation: R v Tran [2019] NSWDC 545
Court: District Court of New South Wales
Date: 15 July 2019
Judge(s): M L Williams SC DCJ
Background
The offender, a Vietnamese-born Australian permanent resident, pleaded guilty to one count of attempting to possess a border-controlled drug under s 307.5(1) of the Criminal Code (Cth). The charge related to a 12-kilogram heroin importation that occurred between 7 and 16 May 2018. The offence carries a maximum penalty of life imprisonment.
The offender's role centred on logistics and customs clearance. He drew on contacts in the removals industry, engaged a customs broker, communicated with Australian Border Force, collected the consignment from the airport, delivered it to recipients at an underground car park, and assisted in disposing of the packaging. The Crown accepted that his role fell within the lower range of objective seriousness, though the quantity of drugs involved was substantial.
The offender had no prior criminal convictions and had operated a small removalist business. By the time of sentencing he had lost that business and was facing the loss of the family home. He had been in custody since 29 May 2018.
Legal Issues
- What sentence was appropriate for an offender playing a relatively minor but nonetheless active role in a large heroin importation?
- What weight should be given to the offender's traumatic refugee background under the principles in Bugmy v The Queen?
- What discount applied for the early guilty plea, and how should that discount be calculated?
- How should general deterrence be weighed against strong personal mitigating factors, including remorse, rehabilitation prospects, and family circumstances?
Decision
His Honour found that a term of full-time custody was required and that it should commence from the date the offender entered custody, 29 May 2018. The court accepted the Crown's characterisation of the offender's role as falling within the lower range of objective seriousness. However, his Honour noted that a relatively minor role in a large importation does not automatically attract significant leniency, and that general deterrence was a very significant sentencing consideration.
The court applied a 25% discount to the sentence in recognition of the utilitarian value of the early guilty plea, consistent with the approach in Xiao v R [2018] NSWCCA 4. His Honour accepted the offender's handwritten letter of remorse as genuine, noted his participation in the EQUIPS remand program and prison chapel activities, and found that his prospects of rehabilitation were good and his risk of re-offending was low.
His Honour acknowledged the offender's profoundly difficult background. He had experienced the Vietnam War, had a father imprisoned for a decade, fled Vietnam by boat as a refugee at age 14, endured a two-week period at sea without food or fuel, and spent time in the Villawood detention centre. The court treated this history as warranting a degree of consideration under Bugmy v The Queen, while also noting that the offender had, to a significant extent, overcome that background and functioned usefully in Australian society for many years.
The court took account of the impact on the offender's wife and two children, including the imminent loss of the family home, and noted the strong family support evident in the material before it. Family and personal hardship were considered in mitigation, alongside the absence of prior convictions.
Orders Made
- The offender was convicted of the offence.
- A sentence of four years and six months' imprisonment was imposed, commencing 29 May 2018.
- A non-parole period of two years and eight months was set, expiring 28 January 2021.
Key Takeaways
- A relatively minor organisational or logistical role in a large drug importation does not, of itself, warrant significant leniency; general deterrence remains a weighty sentencing consideration where substantial quantities of border-controlled drugs are involved.
- Under Bugmy v The Queen, a background of profound deprivation and trauma can properly be taken into account in mitigation even where the offender has subsequently functioned effectively in society.
- The District Court applied a 25% discount for an early guilty plea in accordance with the New South Wales Court of Criminal Appeal's guidance in Xiao v R [2018] NSWCCA 4.
- Genuine remorse, low re-offending risk, good rehabilitation prospects, an absence of prior convictions, and strong family support can each operate as mitigating factors in federal drug sentencing, but must be weighed against the objective gravity of the offending.
- Awareness of the illicit nature of the goods, even if that awareness developed partway through the offender's involvement rather than at the outset, remained a relevant circumstance of the offending.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), s 307.5(1)
- Crimes Act 1914 (Cth), Part 1B
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Xiao v R [2018] NSWCCA 4
- R v Qutami (2001) 127 A Crim R 369
- R v Niketic [2002] NSWCCA 425