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District Court 8 August 2024

R (Cth) v Vongphachanh

[2024] NSWDC 431

Drugs
CRIME SENTENCE COMMERCIAL QUANTITY 2.1034KG HEROIN PLEA OF GUILTY GOOD PROSPECTS OF REHABILITATION.

Citation: R (Cth) v Vongphachanh [2024] NSWDC 431
Court: District Court of New South Wales
Date: 8 August 2024
Judge: Neilson DCJ

Background

The offender pleaded guilty to attempting to possess a border controlled drug, namely heroin, that had been unlawfully imported into Australia. The charge arose from a controlled delivery operation conducted by the Australian Federal Police in early March 2023.

An Express Mail Service consignment arrived from Thailand on 23 February 2023, addressed to a name approximating the offender's surname, at his father's residential address in Busby, NSW, and bearing the offender's own mobile phone number. Australian Border Force intercepted the package and found it contained table runners concealing 2,819.7 grams of a powdered substance, with a heroin purity of 74.6 per cent, yielding 2.1034 kilograms of pure heroin. The commercial quantity threshold for heroin is 1.5 kilograms.

The AFP replaced the heroin with an inert substance and arranged a controlled delivery. The offender attended his father's address shortly after the package was left, photographed it, communicated repeatedly with two alleged co-offenders by Facebook Messenger, picked up the consignment, and was arrested as he returned to his vehicle. On arrest, he made full and frank admissions, answered calls from others in the syndicate at the AFP's request, identified co-participants, and consented to a search of his home.

  • What head sentence was appropriate for a Commonwealth offence of attempting to possess a commercial quantity of unlawfully imported heroin, an offence carrying a maximum penalty of life imprisonment?
  • What discount should apply for the offender's early guilty plea?
  • What further discount, if any, should apply for the offender's cooperation and assistance to authorities?
  • What non-parole period was appropriate under the Crimes Act 1914 (Cth), noting that statute imposes no fixed ratio between head sentence and non-parole period?

Decision

Neilson DCJ identified a pre-discount head sentence of five years imprisonment as the appropriate starting point. The offender's role was that of a courier-level participant who was directed by others higher in the syndicate and who was to hand the consignment to a third party in Melbourne. His conduct was less involved than that of the offender in R (Cth) v Piras [2020] NSWDC 28, which the judge treated as a useful comparator.

The offender received a 25 per cent discount for his guilty plea, which the Crown conceded was appropriate. A further 10 per cent discount was allowed for his cooperation with authorities. The AFP assessed that assistance as being of medium value; the offender had not agreed to give evidence for the Crown. The combined discount of 35 per cent reduced the head sentence from five years to three years and three months.

On the question of the non-parole period, the judge noted that the Crimes Act 1914 (Cth) does not prescribe a statutory relationship between the head sentence and the non-parole period. The judge fixed a non-parole period of two years and two months, dating both the head sentence and the non-parole period from 3 March 2023, the date of arrest.

Orders Made

  • The offender was convicted of attempting to possess a border controlled drug (heroin) in a commercial quantity, contrary to Commonwealth law.
  • Head sentence of three years and three months imprisonment, commencing 3 March 2023 and expiring 2 June 2026.
  • Non-parole period of two years and two months, expiring 2 May 2025.

Key Takeaways

  • The District Court fixed a pre-discount head sentence of five years for attempted possession of just over two kilograms of pure heroin, reflecting the offender's relatively junior role as a courier within a broader syndicate.
  • A 25 per cent utilitarian discount for a guilty plea was accepted by the Crown without contest, consistent with Commonwealth sentencing principles under the Crimes Act 1914 (Cth).
  • Cooperation with authorities attracted a separate 10 per cent discount, even where the AFP assessed the assistance as only medium value and the offender had not agreed to give evidence; the combined discount reached 35 per cent.
  • Under the Crimes Act 1914 (Cth), no fixed statutory ratio governs the relationship between head sentence and non-parole period, leaving the sentencing judge with broader discretion than applies in many State matters.
  • Relevant contextual factors included the offender's behaviour at the scene, specifically surveillance-like conduct and repeated communication with alleged co-offenders, which informed the court's assessment of his knowing participation, even as a lower-level participant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)

Cases
- R (Cth) v Darley; R (Cth) v Piras [2020] NSWDC 28