Chan v The Queen; Tan v The Queen [2014] VSCA 301

41 The circumstances of Chan's offending differ significantly from the circumstances of Tan's offending. The sentencing judge was satisfied that Tan was in effect a courier engaged by a drug syndicate to take delivery in Australia of the TNT parcel. When Tan did not respond to telephone calls after his arrival due to his arrest the co-offender Chan was despatched from Malaysia to establish what had occurred and to take delivery of the TNT parcel and the UPS parcel.

42 His Honour found that to perform this role Chan must have been a trusted intermediary of a drug syndicate and did not accept that his role was akin to that of the co-offender Tan. In particular, his Honour noted that Chan had previously visited Melbourne between 22 May 2012 and 25 May 2012 and that it had been conceded on behalf of Chan that this was for a purpose related to the importation of heroin. Though both Tan and Chan participated in conduct closely associated with the importation of heroin into Australia for profit, in the case of Chan, the conduct concerned both parcels totalling almost half a kilogram of heroin.[19]

43 In reference to Chan's personal circumstances, his Honour said:

1. Chuan-Wei Chan, you were born in Malaysia on 26 October 1984 and you are now aged 29. You are married and have one child now aged three. You were educated to year 12 level in Penang. After leaving school you worked in a variety of occupations until joining the Guang Ming daily local newspaper as a sales representative. You had been employed by that organisation for seven years prior to your arrest. It was submitted on your behalf that you also became involved in this offending by reason of gambling debts in the sum of $100,000 and that you were to be paid $6000 for your role. I do not accept this explanation for your offending, but it is also not possible for me to determine the extent to which you expected to profit from your role in the importation of a substantial quantity of heroin with a wholesale value of approximately $500,000. You are an educated person and plainly you must have expected to profit substantially from your offending.
2. I have received in evidence a psychological report of Mr Jeffrey Cummins, a consulting and forensic psychologist, in relation to your background and psychological profile. Mr Cummins saw you at the MRC on one occasion on 8 November 2013, approximately 18 months after your arrest. Based on your statements to him he concluded that you suffered from gambling addiction at the time of your offending. He also concluded that you suffered from anxiety and depression. Whilst your offending may have occurred in this context, in my opinion your offending was motivated by the substantial profits to be realised from the importation of heroin and you were well aware of the seriousness of your conduct. I accept that you are now, to some extent, remorseful for your offending.
3. Your family visited you in 2012 and 2013 and so whilst you were isolated from them it would appear that they have the means to visit you here in Australia. As I have already observed, you were a trusted intermediary in a drug syndicate and any assessment of your prospects for rehabilitation must be guarded.

44 It is evident that the circumstances of Chan's offending are significantly more serious than the circumstances relating to Tan.

45 Counsel for Chan submits that the sentencing judge failed to give adequate weight to the remorse shown by Chan in a letter he wrote to the Court in which he indicated his remorse and regret.

46 It is correct to say that his Honour did not specifically mention the letter from Chan which was provided to the Court at the plea hearing, but it does not follow that his Honour did not take the letter into account. During the plea, there was considerable discussion between counsel and his Honour about the contents of the letter. It was frankly acknowledged that the letter was motivated by self-interest. Further, his Honour had evidently considered the contents of the letter when he noted there did not seem to be a great deal of acknowledgment of the extreme seriousness of the offending, save for a statement of remorse and regret expressed in the first paragraph of the letter.

47 Given these remarks, and taking into account the engagement between counsel and the sentencing judge during the plea hearing, there seems to us to be no basis for saying the sentencing judge failed, in his instinctive synthesis, to give adequate weight to the statement of remorse made by the applicant in the letter.

48 Counsel for Chan submitted that Chan's plea of guilty should be regarded as a 'relatively early plea to an appropriate indictment' despite being made on the first day of trial. In substance, it was submitted that Chan ran a contested committal to aid resolution of the matter; and that there were ongoing discussions in the months leading up to the trial, which culminated in a plea 'to an appropriate indictment', namely a plea to the attempt to possess charges (but not to two alternative charges of importing a marketable quantity of a border-control drug). The plea was entered on 5 August 2013, the day Chan's trial was listed to commence. A detailed history was set out in an outline of submissions relied on at the plea hearing. Counsel for Chan and the sentencing judge engaged in discussion about when and in what circumstances the plea of guilty was made to the charges of both counts of attempted possession.

49 In his sentencing remarks, the sentencing judge did not accept that the plea could be described as 'relatively early' but did accept it was of utilitarian value, avoiding the necessity for a trial and demonstrated remorse. Further, his Honour specifically states he had taken the plea into account in Chan's favour in mitigation of sentence.[20] There is nothing to suggest that the mitigating circumstances of the plea received insufficient weight. Despite the detailed history which had led up to the making of the plea, it was open for the sentencing judge to decline to accept the characterisation of the guilty plea as a 'relatively early' plea.

50 The applicant, under cover of this particular of manifest excess, asserts specific error. In our view, it was open to the sentencing judge to conclude that Chan's prospects for rehabilitation must be guarded.

51 The sentencing judge found that Chan was a trusted intermediary of the drug syndicate despatched by that syndicate after Tan failed to take delivery in Australia of the TNT parcel and failed to respond to telephone calls after his arrival. Further, it was conceded on Chan's behalf that Chan visited Melbourne between 22 May 2012 and 25 May 2012 for a purpose related to the importation of heroin and that he had some previous involvement in Malaysia with the importation of the packages into Australia. Although there was no evidence that Chan himself sent the packages, it was conceded that he did offend for the 'purpose of making quick money'. It is noteworthy that the expert report of Mr Cummins, consulting psychologist, makes no reference to Chan's prospects for rehabilitation or the likelihood of his re-offending.

52 The fact that Chan had completed some TAFE educational programs whilst on remand, had not been in trouble with the authorities whilst on remand, had some family support (which was noted by the sentencing judge),[21] and had written the letter to the Court did not necessitate a more optimistic view of the applicant's

52 rehabilitative prospects. The sentencing judge was entitled to express some note of caution in assessing Chan's prospects for rehabilitation.

53 In summary, we are not persuaded by Chan's submissions that the sentencing judge did not sufficiently take into account the extent of remorse, the circumstances of entering into the plea of guilty and the applicant's prospects for rehabilitation.

54 Nevertheless, it seems to us that the individual sentences of seven years' imprisonment on each of charges 2 and 3 are manifestly excessive, having regard to the following matters:

(a) the attempts involved 16.36 per cent and 16.09 per cent respectively of the maximum weight for this category of offending;

(b) Chan pleaded guilty and avoided the necessity of a trial;

(c) the sentencing judge accepted that Chan is now to some extent remorseful for his offending;

(d) no prior convictions or court appearances were alleged;

(e) Chan was 28 years of age at the time of his sentencing and is isolated from his family in Malaysia;

(f) Chan suffers from anxiety and depression and the offending appeared to have occurred in the context of Chan suffering from a gambling addiction (though motivated by the realisation of substantial profits); and

(g) as discussed in our reasons relating to Tan, sentencing practice in Victoria and elsewhere for the quantities of heroin involved in each offence suggests that the individual sentences are excessive, even after taking into account that Chan must be sentenced as a trusted intermediary of a drug syndicate who was sent from Malaysia to Australia to deal with a problem which had arisen in relation to the importation of heroin in the TNT parcel and to collect the USP parcel.

55 Although there was some proximity in the timing of each offence and some common features, the two offences were separate and reflect separate criminality. This was properly conceded by counsel for Chan at the plea hearing. Making due allowance for the seriousness of attempting to import heroin into Australia, the need for general deterrence, and the more serious role played by Chan, we consider for the quantities involved, that the individual sentences of seven years' imprisonment imposed on each charge are manifestly excessive. In the circumstances, we would grant leave to appeal, allow the appeal and re-sentence Chan to six years on each of charges 2 and 3.

56 We do not consider however that a less severe total effective sentence is warranted having regard to Chan's total criminality. Accordingly we would order that two years and six months of the sentence on charge 3 be cumulated with the sentence on charge 2, to produce a total effective term of imprisonment of eight years and six months. We would fix a non-parole period of six years.

[1] DPP v Chan and Tan (Unreported, County Court of Victoria, Judge Dean, 25 November 2013) [7] ('Reasons for Sentence').

[2] Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3; Pham v The Queen [2014] VSCA 204 ('Pham'), [76] (Osborn JA); R v McPhee [2014] VSCA 156, [10]-[11].

[3] Hanks v The Queen [2011] VSCA 7, [22].

[4] Pham v The Queen [2014] VSCA 204, [72] (citing Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 537), [73]-[75].

[5] A marketable quantity of the border-controlled drug heroin is two grams, pursuant to sub-s 314.4(1) of the Criminal Code. A commercial quantity is 1.5 kilograms.

[12] Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32, [34] (proposition 6, citing DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 63 [261]).

[13] [2014] VSCA 204.

[14] Attachment A to the reasons in Pham [2014] VSCA 204.

[15] By Notice of Abandonment dated 4 June 2014, Chan formally abandoned ground 2 of his Application for Leave to Appeal Against Sentence.

[18] Another particular of ground 1, particular (c), was abandoned at the hearing of the Application for Leave.

[19] Reasons for Sentence, [8]-[9].