DPP v Qui [2018] VCC 692

3 Your tickets had been booked at the same time and through the same travel agency, six days earlier. Visas to visit Australia had been issued, a day apart, just days before that. Each of you had with you vouchers in your names for the same two-day tour to Philip Island and the Great Ocean Road.

4 Although you were seated apart from each other on the flight, when you landed at Melbourne International Airport, you joined up after you had disembarked and were seen walking through the concourse together to Customs and Immigration.

5 Neither of you went to the baggage carousel and collected the suitcases that you had checked in. You each walked straight thorough, with only your

carry-on luggage. Each of you was directed to submit to inspection of your travel documents and luggage by Australian Border Force officials. Although the inspections took place at separate benches, you were seen at times gesturing to each other. Nothing of interest was found on either of you and after the inspections concluded, you waited for each other and went out into the public arrivals area together.

6 The suitcase checked in by you had been collected by a third passenger on the flight, Nicholas Kavvadas. He had checked in two suitcases as his luggage onto the same flight. One was identical to the suitcase checked in by you, the other identical to the suitcase checked in by Mr Ng, except that Mr Kavvadas' suitcases did not have padlocks on them and yours and Mr Ng's did. His suitcases weighed 20 kilograms in total. Yours and Ng's, as I have noted, weighed 28 kilograms each. Yours each had an airline "heavy" tag as part of the luggage labelling affixed to the handles of the suitcases at the time of check-in. His did not.

7 Mr Kavvadas was also directed to submit to travel documentation and baggage inspection. On enquiry, he said the two suitcases that he had were his.

8 Australian Border Force officials soon ascertained the two suitcases which

Mr Kavvadas had collected from the carousel contained heroin.

9 The suitcases were full, literally full of heroin. Later examination revealed the one checked in by you had 64 packages, weighing 22.6 kilograms of bulk powder and 16.3 kilograms of pure heroin. The one checked in by Mr Ng had 60 packages, 21.9 kilograms of bulk powder and 13.4 kilograms pure heroin. Between the two suitcases therefore there were 124 packages, 48.68 kilograms of bulk powder, of which 29.695 kilograms was pure heroin. The wholesale value is estimated to be between $11.43 and $15.24m and the street value between $79.4 and $117.59m.

10 Upon discovering the heroin in the suitcases, Australian Border Force officials went immediately to the public arrivals area of the airport, where they located you and Mr Ng in the Optus shop. You both agreed to go back into the arrivals hall, where you were each shown the suitcases that you had checked in, but not collected.

11 Each of you denied ownership of the suitcases checked in in your names. You, Mr Qui, denied having packed the suitcase and any knowledge of its contents.

12 All three of you were charged with importation of a commercial quantity of a border controlled drug.

13 You were remanded in custody, where you have remained ever since.

Mr Kavvadas has already pleaded guilty and has been sentenced. You, Mr Qui, and Mr Ng were committed for trial on a straight hand-up brief and both at that stage indicated your intentions to plead not guilty.

14 On the morning your trial was due to commence you, Mr Qui, entered a plea of guilty to the charge. Mr Ng maintained his not guilty plea and was ultimately convicted by a jury of the charge.

15 Although your plea was adjourned until the conclusion of Mr Ng's trial, in anticipation that, if he was convicted, I would hear both pleas and sentence you both at the same time, Mr Ng's lawyers have since sought an adjournment so that he can be psychologically assessed. All parties agreed that it was not necessary to await the result of the psychological testing of Mr Ng and the presentation of his plea submissions before proceeding to sentence you.

16 You are entitled to the utilitarian benefits of your plea of guilty. You have saved the time and expense of a trial and have, albeit belatedly, shown a willingness to facilitate the course of justice.

17 It was submitted by your counsel, Mr Tovey, that your plea could be taken as an expression of contrition for the offending. I disagree. The case against you was overwhelming. Apart from your plea of guilty, there is nothing to indicate any contrition. You have not otherwise cooperated with the authorities, provided any information in relation to others involved in the scheme, or been prepared to give evidence against your co-offenders. Of course you are not to be penalised for having, up until the morning of trial, exercised your right to plead not guilty and put the Crown to proof. You are not to be penalised because there is no evidence of remorse. But you do not get an additional reduction in your sentence by reason of your guilty plea or any other conduct indicating contrition or remorse, in the sense those words are used in Barbaro and Zirilli.[1]

18 You come before the court as a man now 39 years of age, 37 at the time of the commission of the offence, at the time of arrest. You are a man of mature years and you are facing a lengthy term of imprisonment and you have been in prison since your remand for the first time in your life.

19 This is a very serious charge. The maximum sentence for importation of a commercial quantity of a border controlled drug into Australia is life imprisonment. That is one measure of the seriousness with which Parliament and the community regards such an offence. The harm, the untold harm that drugs such as heroin do to our community in terms of the destruction of lives of those who are addicts, the destruction of the lives of the families around them, the impact on the people who are the victims of the crimes they commit in order to support their habits and the crimes committed by those who seek to profit in this pernicious trade are well-known and documented. It is clear that any sentence imposed must reflect that and stand as a deterrent to anyone who thinks that they can lend themselves to such a trade, to do so.

20 You are a Malaysian national and apparently without any criminal history there. After leaving school after the equivalent of Year 8 at the age of 14, I was told you have worked all your life in a variety of semi-skilled jobs and most recently after training as a cook, running your own small noodle dish stall at various markets around Kuala Lumpur.

21 You have no family here and speak limited English. Since your remand you have worked upon improving your English and obtained employment within the prison as a cook. Your time in custody will be more isolated by reason of your limited English and the absence a family or friends in this country. I take that into account as a hardship which operates to reduce or mitigate the harshness of the sentence otherwise appropriate.

22 Your role in the offending is, of course, that of courier. It was not put by the prosecution that you had any role other than that.

23 It was put by Mr Tovey on your behalf that the suitcase was locked and no key to it was found in your possession. It was said you did not pack the suitcase and whilst reckless as to the nature of its contents, you were not aware of the quantity of heroin in it, nor, it was put, that were you aware that there was nothing in the suitcase, other than the heroin. Mr Tovey submitted your role was to do no more than check the suitcase in at Kuala Lumpur airport and to leave it for somebody else involved in the operation to collect it from the baggage carousel and on-deliver it. None of that, in my view, is of particular mitigatory significance. What you did and did not do is entirely consistent with the role of courier. It is an important, trusted, facilitating role and must be punished accordingly.

24 Denunciation, just punishment and general deterrence are therefore clearly significant sentencing factors.

25 Mr Tovey also submitted that you did not receive further enrichment other than the trip itself and some spending money. Whilst there is no evidence of any actual benefit other than a free flight to Australia and the spending money, the inescapable inference is that you did this for gain. I am not prepared to find affirmatively in your favour that the only benefit you stood to gain was a free four-day holiday in Australia with some spending money. Of course I cannot make any affirmative finding adverse to you as to how much you stood to gain.

26 Mr Tovey submitted that your sentence should be less that that imposed on

Mr Kavvadas, because the quantity of heroin that you imported was half that imported by him. That is of course because Mr Kavvadas had collected Mr Ng's suitcase as well as yours. That is, that your culpability was to be measured by the weight of the heroin in your suitcase and compared favourably therefore with Mr Kavvadas' culpability, which was to be measured by the quantity of heroin in both suitcases. Whilst the quantity of heroin which you as courier imported was that contained in the suitcase imported by you and the weight of the drug imported is relevant to the assessment to the gravity of the offending, the weight of the drug is not the sole or determinative factor in assessing relative roles or culpability, or determining sentence.

27 The role and culpability of all three of you, Kavvadas, Ng and yourself, must be assessed in the context of the larger operation. True it is, Mr Kavvadas collected two suitcases full of heroin, being the two suitcases that you and Mr Ng individually checked in. You and Ng checked in together, or a minute apart, one after another at the same Malaysian Airlines check-in counter in Kuala Lumpur. On disembarkation at Tullamarine, you paired up and walked into the arrivals hall together. You waited for each other after the original baggage inspection and went into the public arrivals area of Melbourne international airport together. You were together in the Optus shop when approached by Australian Border Force officials shortly after that. You gave the same hotel address as your address in Melbourne on your arriving passenger card. You were booked to take the two-day tour together and to return to Kuala Lumpur on the same flight on 16 February 2017. In my view again, the inference is inescapable that you knew that you were part of a larger operation and that your co-traveller and co-offender, Mr Ng, was also a courier.

28 The co-offender, Mr Kavvadas, made full admissions from the time your suitcase was opened in the baggage inspection area and the heroin was revealed. He indicated his intention to plead guilty at the first opportunity and made good on that promise. He was sentenced by His Honour Judge Montgomery on 16 October last year to nine years' imprisonment, with a non-parole period of five years and nine months. His Honour declared that but for his plea of guilty, Mr Kavvadas would have received a sentence of 13 years, with a non-parole period of 10.

29 There are some common features and some differences between your circumstances and those of Mr Kavvadas.

• You both come before the court as first offenders. Whilst that is clearly a significant factor for both of you, it must also be borne in mind that absence of convictions is very often a precondition for selection to play the role of courier. Hence, as in white collar crime, absence of previous convictions, if it enables the offender to be in a position where he can commit the offence, does not carry as much weight as it otherwise might.

• You both pleaded guilty. Mr Kavvadas made full admissions from the outset and pleaded guilty at the first opportunity. By contrast, you denied complicity and maintained that denial until the first day of trial. His plea of guilty therefore is entitled to greater weight.

• Mr Kavvadas was 20 years old at the time of the offending and sentencing. He was entitled to be treated as a young offender, who by law, is entitled to have his prospects for rehabilitation encouraged and given greater weight in sentencing. You on the other hand, are a man of mature years, 37 at the time, 39 now. You cannot call youth and immaturity in aid.

• Mr Kavvadas has family here, prospects of visits in custody and an expectation of family support on release. You have no family here and will be isolated by language and absence of family visits whilst in custody. You will be deported on release. You apparently have a similar expectation of family support on return to Malaysia as Mr Kavvadas has on release from imprisonment here. As I have already said, I take your isolation in custody into account. That said, you must have come here knowing that if caught in Australia, you would face a lengthy term of imprisonment, in this country, without family support and with your limited language. That may, however, be seen to be a better alternative than the consequences, had you been caught in your own country.

• Mr Kavvadas explained his offending by reason of a history of gambling and drug use. He told authorities that he had been promised $50,000 to perform the role he did. Neither gambling nor substance abuse are mitigating factors. They can do no more than explain the offending. Whilst you have advanced no explanation for your reason for offending and there is no evidence of any particular amount that you were offered, or stood to gain, as I have already found, the inescapable inference is that you undertook this role for gain and again greater than the free

four-day trip to Australia with some spending money and a two-day tour to Victoria's tourist highlights.

• Mr Kavvadas had sought, since his arrest, to acknowledge and address his substance abuse and gambling. This was properly taken into account by His Honour Judge Montgomery as evidence of remorse, because he was acknowledging the role they played in his decision to involve himself in the venture and to preparedness to address those underlying causes. More importantly, it enabled positive findings about his prospects for rehabilitation and the weight to be given to encouraging those prospects in a young offender to be made. Nothing was put to me as to any underlying motivation, apart from gain, or the inference of gain. Nothing therefore was put to support an argument that your prospects for rehabilitation were enhanced by efforts to address the underlying or motivating causes for your offending. There is, therefore, no evidentiary foundation for structuring a sentence to encourage rehabilitation already underway, as there was for Mr Kavvadas.

• Mr Kavvadas' role was to collect the suitcases from the carousel, take them through Customs and then deliver them, or retain possession of them until they were collected from him. Your role was to check your suitcase in, so it could be collected from the carousel by the next person in the chain. You came to Australia for that purpose. Mr Kavvadas went to Kuala Lumpur and returned to Australia for his purpose. I see no material difference in roles that would place you lower in the hierarchy, or indicate a lesser culpability, justifying a lesser sentence for you. You received the suitcase from somebody else, checked it into the flight as your luggage so it could be collected by somebody else. Mr Kavvadas was, as it turns out, that somebody else. His role was to collect the suitcase, to facilitate its collection by or delivery to the next person in the chain. In that sense, you were each both a collector and a deliverer.

• A commercial quantity of heroin is 1.5 kilograms. Your suitcase contained 16.3 kilograms pure, already over ten times a commercial quantity. Although Mr Kavvadas had 29.6 kilograms pure, almost double that in the two suitcases, for the reasons I have expressed, that bare arithmetical comparison matters little.

• Mr Kavvadas admitted he went to Kuala Lumpur in order to play the role he did in bringing the heroin into Australia. He admitted he was actually aware, or believed the substance he was to collect from the luggage carousel, was heroin. You came to Australia in order to play the role you did in bringing the heroin into Australia. Your state of mind in respect of the nature of the substance imported was said to be reckless, not intentional, that is, that you were aware that there was a substantial risk that the substance was heroin. There is no difference in the respective states of mind in relation the nature of the substance, in my view, which would justify a lesser sentence for you by reason of that.

30 I have been provided with a number of cases and a table of what the Commonwealth relies on as comparable cases. As acknowledged both by

Mr Barry and Mr Tovey, each case must be dealt with by its own facts and circumstances. There is ample authority to support the sensible submissions. Here, as was acknowledged, the sentence imposed on Mr Kavvadas is the most useful yardstick.

31 For the reasons I have already canvassed, Mr Kavvadas is entitled to greater weight being given to his early guilty plea, his youth, his prospects for rehabilitation and encouraging those prospects. I see no basis for distinguishing between roles. The difference in quantity is, in my view, of little moment, given the amount by which the weight of heroin in your suitcase alone exceeded the commercial quantity, that is, by a multiplier of ten. It is well in excess of the minimum weight to constitute a commercial quantity and the statements of principle about the commercial aspects of an importation of that size and of the need for deterrence and punishment, are as apposite for 16 kilograms of pure heroin as they are for 30 kilograms.

32 Assessing the combination of matters as best I can, I am of the clear view that your sentence should exceed that yardstick of the sentence imposed on

34 On the charge of importation of a commercial quantity of heroin, to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of 11 years and I direct that you are to serve seven years before being eligible for parole.

35 But for your plea of guilty, I would have sentenced you to 13 years' imprisonment and directed you to serve nine years before being eligible for parole.

36 I declare that you have spent 457 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

39 HER HONOUR: Do the orders I have pronounced correctly reflect what I said I wanted to do?

[1] Barbaro**;** Zirilli [2012] VSCA 288.