AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 14 February 2019

R v Lieu

[2019] NSWDC 555

Drugs

Citation: R v Lieu [2019] NSWDC 555
Court: District Court of New South Wales
Date: 14 February 2019
Judge(s): Neilson DCJ

Background

The offender, a 79-year-old Vietnamese-Australian woman, was sentenced after pleading guilty to intentionally importing pseudoephedrine (a Tier 1 good under the Customs Act 1901) into Australia at Sydney International Airport on 3 July 2014. She arrived on a flight from Ho Chi Minh City carrying just over 4 kilograms of pseudoephedrine (approximately 2.856 kg pure weight) concealed in bath salt sachets and a cosmetic container with a false bottom.

The offender was apprehended and interviewed at the airport but was released without charge. Almost four years passed before she was served with a court attendance notice in April 2018. The court proceedings thereafter moved swiftly, with the offender pleading guilty in August 2018 and being committed for sentence to the District Court.

The offender had one prior conviction: a 2003 importation of heroin, for which she served a six-year sentence with a three-year non-parole period. She suffered from a range of physical conditions and significant psychiatric illness, including depression and anxiety linked to traumatic childhood experiences during the Vietnam War.

  • What was the appropriate head sentence for the offence, having regard to the nature and circumstances of the importation?
  • What discount applied for an early guilty plea?
  • Whether the four-year unexplained delay between apprehension and charge warranted a reduction in sentence.
  • Whether the offender's age (79 years), physical health, psychiatric history, and the hardship of custody justified a wholly suspended sentence.
  • Whether specific and general deterrence retained their usual weight in the circumstances.
  • Whether an intensive correction order or home detention was an appropriate alternative to full-time custody.

Decision

Neilson DCJ characterised the offender as a low-level courier who knew she was carrying something unlawful but whose precise knowledge of the substance was not established on the evidence. His Honour rejected the Crown's submission that the offender had actively organised the smuggling operation, noting there was no evidence she procured the packaging or booked her travel for the purpose of importing the drug. The requisite element of recklessness was made out, but the offender's role was at the lower end of the scale of seriousness.

The judge attached significant weight to the four-year delay between apprehension and charge. That delay was entirely unexplained and had caused the offender real hardship, prolonging the uncertainty hanging over her life. His Honour noted the courts had dealt with the matter promptly once it was charged, but the pre-charge delay was a factor that reduced the appropriate sentence.

The offender's age and health were given substantial weight. At 79 years old, with multiple physical conditions and psychiatric illness rooted in wartime trauma, incarceration would bear significantly more harshly on her than on a younger, healthier offender. His Honour found that neither specific deterrence nor general deterrence operated with full force in these circumstances, noting it would be "completely inappropriate" to impose home detention or electronic monitoring on a woman of her age.

Starting from a head sentence of two years imprisonment, Neilson DCJ applied a 25% reduction for the early guilty plea under the principles in Xiao v R [2018] NSWCCA 4, arriving at 18 months. He then exercised the power under s 20(1)(b) of the Crimes Act 1914 (Cth) to wholly suspend the sentence, releasing the offender on a two-year good behaviour recognisance of $100.

Orders Made

  • The offender was convicted of intentionally importing a prohibited Tier 1 good (pseudoephedrine) without approval.
  • Sentenced to imprisonment for one year and six months, commencing 14 February 2019.
  • Sentence wholly suspended pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).
  • The offender was released forthwith upon giving security by recognisance in the sum of $100 to be of good behaviour for a period of two years.

Key Takeaways

  • An unexplained four-year delay between apprehension and charge constituted a significant mitigating factor in sentencing, even where the courts dealt promptly with the matter once proceedings commenced.
  • A 25% discount for an early guilty plea was applied consistently with the NSW Court of Criminal Appeal's approach in Xiao v R [2018] NSWCCA 4.
  • Advanced age and poor health (physical and psychiatric) can substantially reduce the weight given to both specific and general deterrence in Commonwealth sentencing, particularly where imprisonment would bear disproportionately harshly on the offender.
  • The District Court rejected the imposition of an intensive correction order or home detention as inappropriate for a 79-year-old offender, finding those conditions inconsistent with the offender's circumstances.
  • Where a courier's precise knowledge of the substance imported is not established on the evidence, recklessness as to the nature of the goods remains sufficient for the offence, but the absence of detailed knowledge is relevant to the assessment of culpability and role.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233BAA(4)
- Crimes Act 1914 (Cth), s 20(1)(b)

Cases
- Xiao v R [2018] NSWCCA 4
- Mill v R (1988) 166 CLR 59
- R v Todd [1982] 2 NSWLR 517
- R v Achurch (2011) 216 A Crim R 152
- Pfeiffer v R [2009] NSWCCA 145
- Giourtalis v R [2013] NSWCCA 216
- R v Donald [2013] NSWCCA 238
- Sabra v R [2015] NSWCCA 38
- R v Badanjak [2004] NSWCCA 395
- R v Blanco [1999] NSWCCA 121
- R v Gay [2002] NSWCCA 6
- R v Harrison (1999) 48 A Crim R 197
- R v Liang and Li (1995) 124 FLR 350
- R v Schwabegger [1998] 4 VR 649
- R v Smith (1987) 44 SASR 587
- R v Sopher (1993) 70 A Crim R 570
- R v Tran (NSWDC, 1 June 2018, unreported)
- Bailey v DPP (1988) 62A LJR 319
- Duncan v R (1983) 47 ALR 746
- Scook v R (2008) 185 A Crim R 164
- R v King (NSWCCA, 24 February 1998, unreported)