CDPP v Choong [2025] VCC 1274

1. Firstly, the prosecution case is that you came to Australia for the purpose of offending and that the criminal syndicate paid for you to do so.
2. This is disputed and the prosecution is required to prove this beyond reasonable doubt.
3. On 27 May 2023 you arrived in Australia.
4. There is no evidence of text messages, WhatsApp messages, WeChat messages between the period of 27 May 2023 and 10 September 2023 that links you to the syndicate.
5. One piece of evidence is that on 27 May 2023, immediately upon your arrival, you registered a mobile phone with the number 0415 395 805 to 'Choong Keong' with the residential address of 509 Pitt Street, Haymarket NSW 2000 which is the address of 'Wake Up! Hostel'. There is no record of you ever staying at this address which was confirmed in a witness statement of an employee of Wake Up! Hostel.[1]
6. Forensic examination of the black iPhone 11 in your possession and seized by police showed the device last used the number 0415 395 805.
7. Your defence counsel submitted you were working in Malaysia in IT but that after COVID-19 you lost your job, you worked in your parents' café and never regained the stability of employment in IT. As a result, in 2023 you migrated to Australia seeking better opportunities. You worked ad hoc, variously in construction, warehousing and food delivery but you were seeking long term stable work. That explanation is somewhat at odds with you arriving here on a tourist visa which would not have entitled you to work.
8. In your taped record of interview, you said the person who asked you to check the status of this consignment was Lucky and that you said someone in Malaysia introduced you to Lucky and that Lucky asked you to rent postal addresses and asked you to pick up the consignment. It is not clear when you made contact with Lucky, it may have been after you arrived in Australia. You stated the person who introduced you did this to arrange some work for you because you needed money.
9. You were enrolled in an English course which was paid for by Teng Yap on 2 August 2024. You did not pass the English course and your enrolment in a diploma was cancelled. On 11 November 2023 in a WhatsApp conversation, you told Mr Ying you had a student visa for two years which cost $10,000 and then $1,500 for every three months, and that 'a boss pays it.' These arrangements followed your arrival in Australia. The inference can be drawn that these arrangements were made to secure your legal status in Australia by persons unknown. Your defence counsel submitted these events are not proximate to the date of your arrival here.
10. Having considered the evidence, I am not satisfied it is sufficient to be satisfied beyond reasonable doubt that you came to Australia with the purpose of offending.
11. The second issue in dispute is the prosecution seeks to draw an inference that you had knowledge the consignment comprised of border-controlled drugs, as opposed to being reckless to that fact. It is conceded you did not know the quantity or specific drug type.
12. This is also in dispute and the prosecution is required to prove this beyond reasonable doubt.
13. The evidence relied on by the prosecution in respect of this knowledge is threefold:
14. Firstly, the conversations between you and 'Lucky 7' and you and 'Hou' in relation to the charged consignment, and in particular, messages sent by you which indicated you knew there was a risk involved in collecting the consignment. The relevant text messages on 4 May and 5 May 2024 include Hou texting you to 'be careful,' and 'good luck to you', and you texting to 'pray for the best of luck.'
15. Secondly, other misconduct evidence demonstrates that between 25 June 2023 and 27 March 2024, you can be linked with two consignments which entered Australia and were found to contain drugs. The prosecution relies on evidence of additional consignments linked to text messages on your phone as evidence of the extent of the criminal syndicate you were a part of and your role in the syndicate.
16. Thirdly, communications between you and various persons regarding drugs of dependence and the sale of drugs of dependence, as outlined in the summary of the prosecution opening at paragraph [48]. It was put these conversations extracted from the Apple iPhone 11 indicated your role and position within the syndicate.
17. Details of the two consignments are as follows:
18. On 25 June 2023 a consignment of drugs, which is referenced at the prosecution opening at paragraph [54], was seized by the Australian Border Force and this consignment contained heroin. This package was scheduled to be delivered to a 'T H Dong' at the address of 36A Broad Street, Cabramatta, 02 2166.[2] The prosecution rely on a link with you being a conversation you had with 'Big' on 10 September 2023 when you provided a delivery address for Mr S K Choong at 36A Broad Street, Cabramatta, New South Wales 2116. The defence submits the footnote relied on at [81] relates to you, on 10 September 2023, communicating that address. There is no communication regarding the contents of the consignment. The defence contends the connection is tenuous.
19. This communication of a relevant address a number of months after the arrival, is ambiguous but does connect you with the consignment.
20. On 27 March 2024 a consignment of Banana Boat sunscreen was examined by Australian Border Force and an incision returned a positive result for heroin. A total estimated weight of 6.7 kilograms of heroin was detected.
21. The Banana Boat consignment was addressed to Mr Wong DS, 881 Princes Highway, Springvale. Your phone number is linked to the rental of a Kennards Self Storage unit at 881 Princes Highway, Springvale, and there were messages on your iPhone from Kennards Self Storage in relation to storage fees for Wong Du.
22. In a conversation with 'Big' on WhatsApp on 27 October 2023 you provided Big with an address of 881 Princes Highway, Springvale, a phone number ending in 741, an email address of sin43438 and a consignee name of 'Tommy.' Messages on your iPhone 7 Plus from Prime Freight Service refer to you as 'Tommy.'
23. Your defence counsel noted the drug in that consignment was heroin, not methamphetamine, and further, you maintained in your record of interview you did not know the consignment contained drugs.
24. At least one of the phones seized from your residence was subscribed to a false identity.
25. You admitted the email address of sin43438 was yours.
26. The connection between yourself and the March 2024 Banana Boat heroin consignment is strong.
27. Taking into count the combination of evidence, namely, the text exchanges between yourself and Hou and Lucky, your connection to the consignments in both June 2023 and March 2024 and the conversations detailed in paragraph [48] in the prosecution opening from your Apple iPhone 11, I am satisfied there is sufficient evidence to be satisfied beyond reasonable doubt you were aware the consignment to which you have pleaded guilty in this case did contain a border- controlled drug.
28. I accept you were not aware of the type of drug or the weight.

1. You were born in February 1975 in Malaysia and are now 50 years old. Your counsel submitted you came from a loving family. You are the eldest of three siblings and have a younger sister and brother. Your parents now run a café.
2. Your schooling was uneventful, you made friends easily, enjoyed sport and completed Year 12.
3. Your counsel submitted you undertook vocational training in IT majoring in computer hardware systems.
4. You previously had one significant long-term relationship of nine years. You married your wife in 2014 before divorcing in 2017. You do not have any children.
5. Prior to COVID-19 you had stable employment and a strong social circle and had friends with families and children. This changed during COVID in a variety of ways but especially concerning your employment as you lost your job. You worked in the family café but were not able to regain a sense of stability in terms of your employment in the IT sector.
6. You arrived in Australia in 2023 to secure better work and arrived on a sub-class 600 tourist visa before applying for a student visa to undertake English language studies.
7. You faced some cultural and language barriers in Australia and had feelings of isolation in the absence of family and friends.
8. You have no significant health concerns.

1. The prosecution submits having regard to the seriousness of the offence, the objective gravity and importance of deterrence, the only appropriate sentence is imprisonment with a non-parole period.
2. The maximum penalty of life imprisonment connotes the inherent seriousness of the offence.
3. The prosecution submits your offending is objectively very serious because of your role, being integral and trusted within the syndicate. You were enlisted to facilitate the delivery and collection of the consignment in Australia and assist with clearance through customs. There were five separate acts relied on in support of this, namely, you acted as the point of contact for the shipper in Thailand and freight forwarding company in Australia, you assisted in preparation of documentation regarding the consignment, you liaised with the freight forwarding company in Australia regarding release and collection, you made payments for the release of the consignment and you drove from Melbourne to Sydney to attempt collection and liaised with other members of the syndicate in relation to collection.
4. I have found you were aware the consignment contained drugs. You admitted you were to be paid $5,000.
5. The prosecution submitted you had high moral culpability as an active and trusted participant in the syndicate. It was submitted this was not an isolated or spontaneous act and you must have understood the gravity of your conduct. The misconduct evidence and communication about drugs is relevant to the Court's assessment of your role in the offending and state of mind.
6. Your defence counsel submitted the factors relevant to assessment of the gravity of your offending were the quantity of drugs, your role, the reward received and your mental state. He submitted this offending occurred in the context of a level of financial stress, social isolation and a level of helplessness that what you had come here to achieve had not been realised.
7. Whilst the amount of drugs involved, 12.91 times the commercial quantity threshold is relevant, it was submitted it is not the principal or determinative factor when sentencing, the relevance is reduced as you were not aware of the type or quantity of drugs.
8. It was submitted you took steps over a period of under three weeks to arrange for the release of a single consignment into the community with others in relation to the consignment's entry into Australia, communicating with and making payments to the freight company Summit Global Logistics in relation to the consignment and travelling to Sydney and attempting to collect the consignment in Sydney.
9. Your counsel accepted your role in attempting to facilitate the delivery and collection of the consignment was a necessary step along the path towards methamphetamine entering the community.
10. You were the one most likely to be detected by police and this reflects your lack of seniority albeit your role was necessary in the importation chain.
11. You were going to be paid $5,000 which you did not receive.
12. Counsel submitted you were reckless, that what you were attempting to possess was a border-controlled drug, but I have found the evidence was sufficient to be satisfied beyond reasonable doubt you were aware the consignment contained drugs.
13. Your counsel submitted you were charged with attempting to possess a single consignment, and although there is reference to uncharged acts, he cautioned that the court is required to sentence you on the basis of the single consignment.
14. Your plea of guilty was entered at the earliest opportunity.
15. You have no prior criminal history.
16. Your counsel submitted this is your first time in custody. It is particularly burdensome as you are separated from friends and family in Malaysia. You have regular phone contact with your sister but not your brother. Your parents are aware of your situation but find contact with you too hard. You feel very isolated.
17. Your limited English precludes your social interaction as well as engagement in courses and rehabilitative programs. You have experienced a low mood and have struggled to adapt. In custody you have adopted a routine and have worked in the laundry department and are now in the timber department. You have enrolled in an English course and are motivated to gain new skills.
18. Your counsel submitted you have positive prospects for rehabilitation as you have been deterred by both the legal process, your remand and prospect of further imprisonment. You have strong family support in Malaysia and a strong work record there. You have no mental health or drug or alcohol issues, no prior criminal history and you are using your time in custody productively.
19. Your counsel submitted the principle sentencing purpose was general deterrence rather than specific deterrence.

1. Section 16A(1) of the Crimes Act (Cth) requires the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) of the Crimes Act (Cth) details a range of matters the court must take into account which are relevant and known to the court. Section 17A of the Crimes Act (Cth) is a restriction on imposing sentences and requires that the court to consider when imposing imprisonment that no other sentence other than imprisonment is appropriate in all the circumstances of the case.
2. It is not disputed that the only appropriate sentence is a term of imprisonment with a non-parole period.
3. The difficulties detecting this type of offending and the social harm caused by the importation and distribution of illegal drugs on Australian society, means the principles of general deterrence, denunciation and punishment are primary considerations in sentencing offences for an attempted importation of border-controlled drugs.
4. I turn to the factors in s16A(2).

Section 16(2)(a) - Nature and circumstances of the offence

1. As noted, the amount of methamphetamine 9.688 kg in the consignment was 12.91 times the commercial quantity threshold of .75 kg.
2. In Lieu v The Queen[3] the Court of Appeal referred to the seriousness of the offending as being informed by a range of factors. These include the role of the offender, the position of the offender in the drug trafficking hierarchy, the nature and extent of the offender's involvement in the enterprise and the amount of drugs involved.
3. In Nguyen v The Queen; Phommalysack v The Queen,[4] the Court of Appeal summarised the sentencing considerations to be taken into account in drug importation cases of this kind as follows:

1. The criminality of an offender must be assessed by consideration of

the involvement of the offender in the steps taken to effect the

importation. Where it is capable of being discerned, the role played

by the offender is of great importance in assessing the objective

2. Problems may emerge when a sentencing court attempts to categorise

the role of the offender in the drug enterprise, as in many cases the full

nature and extent of the enterprise is unlikely to be known by the

3. It is the criminality involved in the importation which must be

identified. The fact that another person may be characterised as the

'mastermind' does not mean that a person who was responsible for

managing the importation into Australia is properly described as having only a middle level of responsibility.

4. Although the weight of the drug imported is not the principal factor to

be considered when fixing sentence, the size of the importation is a

relevant factor and has increased significance when the offender is

1. These cases also stand for the proposition that involvement of importation at any level must attract a significant sentence otherwise the principle of general deterrence is not met.
2. The weight of drugs is a significant aspect of your case. Your counsel submitted the weight went to the objective gravity of your offending but has lesser relevance to play when the type and quantity of the drugs is not known.
3. As noted, the prosecution submit your offending is objectively very serious because of your role, being integral and trusted within the syndicate as you were enlisted to facilitate the delivery and collection of the consignment in Australia and assist with clearance through customs.
4. Your counsel has submitted your temporal role is confined to a period just shy of three weeks and conceded your role in attempting to facilitate the delivery and collection of the consignment was a necessary step along the path towards the methamphetamine entering the community.
5. It is difficult to accurately characterise your precise role in the drug enterprise. I take into account the following undisputed facts:
6. You took a number of separate steps to arrange for the delivery and collection of the drugs consignment in Australia.
7. On 18 April 2024 you had contact with Ellie Daraphan from Thailand via WhatsApp, and a phone call answering to the name 'Danny Wong' about the 'sample shoes' and provided your phone number and email address.
8. On 19 April 2024 you had a WhatsApp communication with Hou concerning amendment of the consignment delivery documents.
9. Over two days, 18 and 19 April 2024, you had communication on the 'Line' application with Lucky 7 under the name 'Dino' confirming information on the shipping documents. The value in the document was amended to reflect Australian dollars rather than Baht. Lucky indicated he would communicate with 'Boss'. You refer to Lucky 7 as 'Boss'.
10. You emailed Summit Global Logistics under the email sin43438 about the consignment and attached an authority to act from Wong Du Sheng together with a driver's licence in that name bearing your photograph.
11. Between 20 and 24 April 2024 you were in contact with Lucky 7 using the name 'Dino' regarding the arrival of the consignment in Australia and collection.
12. On 23 April 2024 you transferred $1,448.45 to Summit Global Logistics for freight forwarding fees.
13. On 25 April 2024 you provided Lucky 7 with the receipt and Lucky 7 wanted to know where you were and you replied, 'Melbourne, Melbourne. Not yet departed. There, still not yet cleared.'
14. On 26 April 2024 the consignment was intercepted by Australian Border Force. It was addressed to 'Consignee Mr Danny Wong.'
15. On 3 May 2024 Summit Global Logistics emailed you at sin43438 email address organising for the collection of the consignment from a Sydney warehouse on 6 May 2024.
16. You had WhatsApp conversations with Hou on 4 and 5 May and checked into two different hotels in New South Wales, in Panania and Pyrmont, on your way to Sydney. You arrived at Summit Global Logistics on 6 May 2024 to collect the consignment using the name Danny Wong and phone number ending 741. You had a further conversation with Hou on WhatsApp advising the 'stuff was loaded to a wrong truck! They will deliver to Melbourne later!'.
17. Between 6 and 8 May 2024 you remained in contact with Lucky 7 about collection using the name 'Dino'. On 8 May 2024 you left an audio message for Lucky 7. 'Will arrive tomorrow. Tomorrow, about noon tomorrow, it will arrive here Melbourne.' You paid $700 to Summit Global Logistics for freight forwarding fees and sent a copy of the receipt to Lucky 7.
18. You were arrested on 9 May 2024, and two iPhones were seized.
19. I accept you were being directed and instructed by others as is evident from the text exchanges.
20. There was a degree of planning involved, and you used numerous false identification details to avoid detection, including a false driver's licence and two mobile phones, with one registered under another name.
21. Although you are being sentenced for a charge of attempted possession, I take into account the above steps with respect to your involvement in the overall transaction.
22. Your role was above courier; you played an active role and had to take many separate steps to effect delivery and collection of the consignment. It is not easy to simply characterise your role, however, in my view you were at mid-point of the chain, however, like a person who bring drugs in a suitcase to Australia, you faced the greatest risk of detection. It appears you were the sole person responsible for physically collecting the consignment in Australia. The amount you were to receive of $5,000 was minute compared with the potential value of the drugs seized.
23. Your counsel submitted you were in the middle of the spectrum, not at the lowest or the upper echelons of the syndicate regarding the importation.
24. I am of the view, because of the complex nature of your role, you bear high moral culpability, you were a middle-ranked player, and your offending is objectively very serious.

Section 16(2)(g) - Plea of guilty

1. Your plea of guilty reflects your contrition or remorse.
2. You have pleaded guilty at the earliest reasonable opportunity prior to a committal hearing, and this is not in dispute.
3. Your plea has the utilitarian benefit for the community of avoiding a committal, trial and the requirement for witnesses to give evidence.
4. You also participated in a taped record of interview rather than maintaining a right to silence. It was put by your counsel in mitigation that you answered questions against your interest.
5. Your early plea of guilty entitles you to a substantial discount in sentence.

Section 16(2)(m) - Character, antecedents, age, means and physical or mental condition

1. I take into account your prior good record.
2. I note in Nguyen v The Queen; Phommalysack v The Queen, it was stated that 'prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.'
3. I take into account your previous work history, your family background and your good health.
4. The prosecution submitted the burdensome nature of your imprisonment should be given limited weight because their position is you came to Australia for the purposes of offending. I have not found this to be the case, and I accept imprisonment is more burdensome for you. You do not speak English well and are separated from family and friends. You are isolated in custody.
5. Your counsel referred to the likelihood of your deportation at the conclusion of your sentence, and that relevant to your circumstances, the prospect of deportation renders imprisonment more onerous.
6. It was further submitted by your counsel it is unknown whether you will be granted parole or be held in immigration detention, and this uncertainty adds to the burden of your imprisonment.
7. I take these into account regarding the effect of imprisonment on you in sentencing you.

Section 16(2)(n) - Rehabilitation

1. I note you are 50 years old. You have strong prospects of rehabilitation as indicated by your engagement in programs and work whilst in custody. I accept your prospects for re-offending are low. I accept your prospects for rehabilitation are strong.

1. The prosecution submitted comparable cases may provide guidance as to identification and application of relevant sentencing principles. Current sentencing practices are only one factor, not the controlling factor in the fixing of a just sentence. A court sentencing for a federal offence must have regard to sentences imposed in other states and territories. I note that every case is different and current sentencing practices is one factor relevant to the instinctive synthesis involved in sentencing.
2. The prosecution and defence provided tables of comparative cases[5] for the charge of importing a commercial quantity of a border-controlled drug.
3. In comparative cases provided by the prosecution, cases where the drugs were many multiple times the commercial threshold, as is the case here, were Obiekwe,[6] Lee[7] and Blackman & Jomaa.[8] Your counsel noted the comparable prosecution cases all involved much higher multiples of the commercial thresholds than your case.
4. In the interests of brevity, in light of the length of time and difficulties with this interpreting, I am not going to detail all of the cases that I have had regard to, but from the prosecution table of comparative cases I have had regard to Obiekwe, Lee and Blackman & Jomaa. The defence also provided a table of comparative cases, three cases where the drugs were many multiple times the commercial threshold, as is the case here. The cases I considered were Zhang,[9] Yu[10] and Shakhanov.[11]

1. In accordance with section 17A of the Crimes Act, I have considered all available sentences and am of the view no sentence other than imprisonment is appropriate in all the circumstances of the case.
2. I take into account the maximum penalty, your plea of guilty for which you are given a full discount, and the nature and circumstances of the offence and the matters put in mitigation. I note the amount was 12.91 times the commercial threshold and you were solely responsible for the delivery and collection of the consignment in Australia. In the sentencing intuitive synthesis, I take into account the objective gravity and seriousness of the offending and your role and the matters put in mitigation.
3. I impose a head sentence with a non-parole period.
4. I sentence you to 11 years' imprisonment with a non-parole period of seven years.
5. 'Non-parole period' means you must serve a term of imprisonment which is not less than the non-parole period of seven years which I have set. After that non-parole period has been served you may be able to serve that period of time in the community. You may be in immigration detention, or you may be deported. If you breach your parole, parole may be revoked, and you may be returned to prison to serve the unexpired portion of your sentence.
6. In accordance with section 19 of the Crimes Act the sentence commences today.
7. I declare the period of pre-sentence detention reckoned as served is 480 days.
8. In accordance with section 6AAA, but for your plea of guilty the sentence of imprisonment I would have imposed would be 14 years' imprisonment with a nine-year non-parole period.
9. Are there any ancillary orders sought.
10. MS HOLMES: No, Your Honour. As indicated on the last occasion, the parties are dealing with the forfeiture by consent.
11. HER HONOUR: All right, thank you. Given the time that that's taken what I might do is take a short adjournment, and Mr Cameron, you might have an opportunity to speak with your client if you wish to do so through the interpreter.
12. MR CAMERON: Thank you, Your Honour, I'll speak with him briefly and then I'll arrange a separate conversation with him and my instructor.
13. HER HONOUR: All right, thank you. I'll just briefly adjourn and then return to the next matter. Thank you.

[1] Prosecution opening at [50] referencing civilian witness statement of Pease Toal dated 10 December

[2] Summary of Prosecutions Opening for Plea, [54].

[3] [2016] VSCA 277 [41] (Lieu v The Queen).

[4] [2011] VSCA 32; (2011) 31 VR 673 (Nguyen v The Queen; Phommalysack v The Queen).

[5] Prosecution submissions, Annexure A.

[6] Obiekwe v R [2018] NSWCCA 55 (Obiekwe).

[7] Lee v The Queen [2021] NSWCCA 318 (Lee).

[8] DPP (Cth) v Blackman; DPP (Cth) v Jomaa [2014] NSWCCA 90 (Blackman & Jomaa).

[9] Zhang v The Queen [2010] NSWCCA 105 (Zhang).

[10] Yu v R [2016] NSWCCA 73 (Yu).

[11] Shakhanov v The Queen [2019] VSCA 38 (Shakhanov).