Koh v R

Findings of the Sentencing Judge Concerning the Objective Seriousness of the Offence and the Relevance of the Standard Non-Parole Period 82Each of the grounds of appeal raise, in one way or another, findings made by the sentencing Judge concerning the objective seriousness of the offence. It is appropriate to set out a number of these findings, before moving to consider the challenges made to the sentence. 83Her Honour observed that, in assessing the objective seriousness of the offence, "one material factor but by no means the determinative factor" was the quantity of drug involved (ROS25). Located inside Unit E15 was 2,272.612 kilograms of 100% pure MDP2P, a quantity which her Honour observed "can only be described as staggering" (ROS25). The amount involved was more than 4,000 times the large commercial quantity of 500 grams. 84The sentencing Judge noted with respect to the quantity, potential profit and likely harm involved (ROS26): "A forensic chemist has estimated that the total amount of MDMA that could be made from this amount of MDP2P is about 2454 kilograms of pure MDMA powder. The total street value of that amount of MDMA is conservatively estimated at approximately $500 million. The extent of the legal profit potentially involved was enormous. The potential harm to the community by the distribution of MDMA had it been manufactured would have been correspondingly significant. It is fortunate that police recovered the drug before that could happen. A matter to be taken into account is the fact that the Crown has conceded that it cannot prove beyond reasonable doubt that the offender knew the precise quantity of MDP2P that would be stored in E15. However it has to be recognised that the purpose of renting the premises of the size of E15 was to accommodate a substantial and bulky quantity of drugs." 85Her Honour noted the competing submissions concerning the role of the Applicant (ROS26-27): "A significant factor in the determination of the objective seriousness of the matter is the role of the offender and his level of participation in the offence. On behalf of the Crown it has been contended that the offender could not be described as a mere 'warehouser' of the drugs and that although he was by no means on the available evidence to be regarded as at or near the top of the hierarchy in this syndicate run organisation he was further up than a mere warehouser. On behalf of the offender it is submitted that the offender was at the lowest level of the drug hierarchy, indeed the offender was not even a warehouser of drugs because it was Li and not the offender who retained the key, and there is no proof that Koh went back to the premises after they were rented from Mr Hoyle." 86Submissions were made by the Crown and the Applicant in the District Court concerning the relevance and use of the Victorian sentence imposed on 12 November 2007. It was common ground that the Victorian and New South Wales offences were overlapping, so that a degree of concurrency was appropriate with regard to be had, as well, to totality. 87The sentencing Judge assessed the role and participation of the Applicant in the offence in the following way (ROS28-30): "It seems to me that in assessing the role of the offender and his level of participation in the offence it is necessary to pay close attention as to what it can be proved the offender actually did. In that regard the evidence establishes the following: · The offender arrived in Australia on 11 December 2006. That afternoon he and Li went to the Department of Fair Trading at Hurstville where Koh, with Li assisting, filled out a business registration form in the name of Glory Trading Company. The application was made in Koh's name and signed by him as Director of the Glory Trading Company. Incorrect addresses were supplied. A mobile number was supplied. A phone utilising that number was located in the Camry in which Li had driven to Victoria. It was Li and not Koh who paid the $137.00 registration fee. It can be inferred that the purpose of the registration of the business name was to feign legitimacy to the lessor of the factory premises which were intended to be used to store the prohibited drugs. · On 12 December 2006 the offender Koh, together with Li, organised and provided the factory unit in which the drugs were subsequently stored. In that regard it was Li who rang Mr Hoyle and inquired about the size and costs of the factory units. Shortly after the offender and Li attended the factory unit of E15 where Li spoke with Mr Hoyle about rental of the 9.1 metre wide and 12 metre deep factory unit. It was Mr Li who paid Mr Hoyle $2100 in cash for the rental. The key for the unit was collected by Li on 15 December 2006 when Li handed over to Mr Hoyle a piece of paper containing the business name Glory Trading Company, the name James Koh and the mobile number which was the same number that had been placed on the business registration form and which was used by a phone found in the Camry in which Li was driving on 18 December 2006. There is no evidence that Koh was present on the occasion of the 15th. · It appears that the red shipping container containing the drugs was delivered after the 15 December with one witness placing the delivery on or about the 18 December 2006, that is the day that Koh and Li travelled to Victoria. Although a number of Asian males were seen unloading the boxes from the container and standing near a van there is no evidence identifying Koh as one of those men. There is no evidence then that Koh attended the factory unit after he participated in organising the rental of it on 12 December 2006. It is apparent from that statement of what the offender did that his was an integral part in the registration of the business name and the organising and providing of the premises. As the agreed facts state he participated knowing that those premises would be used to store MDP2P and in contemplation that the MDP2P would be supplied by someone in the syndicate. The participation in the subject offence was limited to a period extending over a matter of days. It is apparent from the description of the events that Li played a superior role to that of Koh for it appears to have been with his assistance and at his direction that the business registration form was filled out. It was Li who paid for that registration, it was Li who spoke to Mr Hoyle and it was Li who went back to the storage premises to obtain the key for the unit. It was Li who provided Mr Koh's name to Mr Hoyle." 88The sentencing Judge recorded the Applicant's account concerning his participation in the offence, including the statement that there was a need to finance the treatment of his wife's progressive ovarian cancer. 89Her Honour referred to an aspect of Mr Howard's report, and then continued with respect to the Applicant's account (ROS31-32): "Accepting Mr Howard's assessment as to Mr Koh's deficits in abstract problem solving and reasoning that are often associated with below average intelligence, there are some difficulties in assessing the veracity of the account given by the offender concerning his involvement in the offence. The offender did not provide sworn evidence about his participation. He was not, however, required for cross-examination on his affidavit, although that affidavit did not address those matters which are contained in the record of Mr Howard, which were said to have led to his involvement in the offence. No concrete details of the circumstances leading to the offender's involvement have been placed before me. The offender's brother provided a general reference, again not addressing any particular matter said to relate to the offender's involvement such as to the offender's wife's ovarian cancer." 90The sentencing Judge referred to differing accounts provided, at different times, by the Applicant with respect to the amount of money he was to make from the enterprise. The figure given by the Applicant varied from $2,000.00 to $5,000.00, as well as various sums in between those two figures. Having noted the unsatisfactory nature of this aspect, her Honour proceeded to find that the Applicant's motive was clearly a financial one (ROS32-33): "It is clear however that the offender's motive was a financial one. He was not himself a drug user. It is apparent from the whole of the circumstances that this was a large commercial enterprise involving an enormous amount of drugs, and enormous potential profit. That said, the objectively established facts are silent about the offender's participation above and beyond that of his role set out above. There is no evidence, for example, that he was an entrepreneur who conceived of the enterprise, or that he was to share in the profits of the sale of the precursor, or the sale of any drugs that may have been produced from that precursor." 91The sentencing Judge was prepared to accept, as his Honour Judge Kelly had in the Victorian County Court, that the Applicant "was a person who by reason of events in his life, and by reason of his lack of education and intelligence, was vulnerable to being used in the criminal undertaking of others" (ROS33). 92Her Honour found that the Applicant "was a subordinate of Li" and that the Applicant "acted at the direction of Li" (ROS34). Her Honour accepted that the Victorian offence confirmed that the Applicant's "participation and role was that of a person at the lower end of the hierarchy of this major criminal enterprise, even though little is known of the structure of that enterprise, and of its participants, including as to the man in Malaysia" (ROS34). 93Her Honour then stated, in a paragraph which the Applicant emphasised before this Court (ROS34): "Taking into account the matters I have set out, particularly the material matter of the enormous quantity of drugs involved, the role and participation of the offender in what was clearly a large commercial enterprise, and those circumstances directly relating to the commission of the offence, I have determined that the offence committed by the offender Koh is one which falls slightly above the mid range of objective seriousness for an offence of knowingly take part in the supply of a large commercial quantity of prohibited drugs." 94The sentencing Judge observed that, in the determination of an appropriate sentence, it was necessary to have regard not just to the objective facts surrounding the commission of the offence, but also the personal circumstances of the Applicant, to which her Honour then turned (ROS34-38). Her Honour found special circumstances in the need for an adjustment of the non-parole period in order to accommodate the partial accumulation of the sentence upon that imposed in Victoria, and hardship arising from the Applicant's imprisonment in Australia (ROS38). 95Immediately before announcing and imposing the sentence, her Honour said (in paragraphs relied upon by the Applicant in this Court) (ROS39): "The non parole period which I intend to impose is, I consider, the minimum period of imprisonment that justice requires the offender to serve having regard to all of the circumstances. The effective overall ratio is that which is specifically intended by me. I intend to backdate the commencement of the sentence to allow for that partial accumulation. As mentioned previously, the standard non parole period in the present circumstances takes its place as a guidepost or reference point, along with other matters such as the maximum penalty. The non parole period which I intend to impose is less than the standard non parole period for a s 25(2) DMTA offence by reason of: the circumstance that the offence is, having regard to those matters I mentioned above, one which is slightly above the mid range of objective seriousness; there was a plea of guilty at the earliest available opportunity; there is contrition, and there is remorse; there is accumulation of sentence."

Should an Extension of Time be Granted in this Case? 96Extensive reference has been made to the facts of the offence, the Applicant's subjective circumstances and the remarks on sentence. 97Given the nature of the application to extend time, it is appropriate to move to the grounds of appeal in a summary fashion: Abdul v R at [53]. Substantial written submissions were placed before the Court, supplemented by oral submissions at the hearing of the application. It is not necessary to recite the submissions in any detail in this judgment. Submissions of the Parties 98Ms Rigg, counsel for the Applicant, submitted that Muldrock error had occurred in this case. It was not submitted that express error had occurred in the formula of words used by the sentencing Judge. Rather, it was submitted that an examination of the sentence imposed, in the circumstances of the case, ought lead to a conclusion that the standard non-parole period had played a prescriptive or determinative role on sentence. It was submitted that the Court should conclude that it was highly likely that her Honour had utilised the standard non-parole period as a "springboard" from which she delved into the task of balancing the other factors identified: Bolt v R [2012] NSWCCA 50 at [35]. 99In support of Ground 2, it was submitted for the Applicant that, by reference to what the Applicant actually did, a finding of objective seriousness slightly above the mid-range was unsustainable. It was submitted that, despite the enormity of the quantity involved, the Applicant's involvement did not warrant that finding. 100In support of Ground 3, it was submitted that a correct assessment of relevant objective and subjective factors, paying appropriate regard to the maximum penalty and the standard non-parole period as guideposts, would lead the Court to conclude that the sentence imposed upon the Applicant was plainly unjust. 101The Crown submitted that Muldrock error had not been demonstrated in this case, and that there was no merit in any of the proposed grounds of appeal so that the application for an extension of time should be refused. The Crown pointed to the massive quantity of prohibited drug involved in the offence and such evidence identifying the actions taken by the Applicant, leading to the imposition of a sentence which was clearly open to the sentencing Judge. Determination 102I am not persuaded that Muldrock error has been demonstrated in this case. The Applicant does not contend that there is patent Muldrock error by reference to the words used by the sentencing Judge in her remarks on sentence. The approach of the sentencing Judge to the standard non-parole period involved permissible use of it as a guidepost on sentence, in a manner consistent with the decision in Muldrock. 103The Applicant's submission, in effect, is that latent Muldrock error has occurred. I do not accept this submission. As will be explained further in considering Grounds 2 and 3, the explanation for the substantial sentence imposed upon the Applicant may be found in the enormous quantity of prohibited drug involved, and the Applicant's significant role as a person imported from Malaysia to carry out what were clearly seen to be important tasks. 104In George v R [2013] NSWCCA 263, Latham J observed at [50] (with my agreement at [49]) that the detection of Muldrock error is not assisted by calling in aid metaphors such as "springboard". What is necessary is an examination of the substance of what occurred. In this case, an assessment of the magnitude of the Applicant's offence is such that the Court should reject the submission that the standard non-parole period had a prescriptive or determinative role in this case, so as to give rise to Muldrock error. 105Grounds 2 and 3 may be considered together. 106The maximum penalty and standard non-parole period for an offence are not mere formalities, but represent important yardsticks or guideposts created by the legislature for sentencing courts: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 [30]-[31]; Muldrock at 132 [27], 133 [31]; Magaming v The Queen [2013] HCA 40; 87 ALJR 1060 at 1070 [48]. 107The DMT Act involves a quantity-based regime, with maximum penalties and standard non-parole periods escalating as the amount of the relevant drug crosses from one quantity-based category into another: Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 at 122 [132]. 108There is no upper limit beyond the large commercial quantity. That category may be engaged where the quantity just exceeds the limit, or where the offence escalates to involve quantities confined only by the limits upon the capacity of a criminal syndicate to organise drugs for supply for potentially massive profits. The extent to which the quantity exceeds the threshold for the large commercial quantity is a very material consideration in assessing the objective seriousness of an offence: Paxton v R at 122 [131]-[132]; R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505 at 507 [6], 522-523 [69]. 109With respect to Commonwealth drug importation offences, it has been said that the statements by the High Court of Australia in Wong v The Queen [2001] HCA 64; 207 CLR 584 do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved, where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2010] NSWCCA 238; 205 A Crim R 106 at 127 72 and (e); Nguyen v R; Phommalysack v R [2011] VSCA 32; 31 VR 673 at 676 [2], 681-683 [33]-[34]. The enormous quantity of prohibited drug involved in this case attracts a similar approach. 110In the present case, the undisputed fact was that the quantity of the relevant prohibited drug was more than 4,000 times the threshold for the large commercial quantity, rightly described by the sentencing Judge as "staggering". Further, the undisputed fact was that that quantity of MDP2P could have been used to produce 2,454 kilograms of pure MDMA powder, with a conservative street value of $500 million. 111These undisputed facts provide a necessary context for an assessment of the gravity of the crime committed by the Applicant, and an assessment of the role which he performed in that respect. 112Although the Agreed Statement of Facts pointed to an imprecise knowledge on the part of the Applicant of the actual quantity involved, he was aware that a large factory unit was required to store the prohibited drug. He knew that a very large quantity was involved. The Applicant also knew that the truckload of drugs which he drove to Victoria on 18 December 2006 was a sample taken from Unit E15. The Applicant was also aware that those involved in this criminal enterprise had gone to the trouble of bringing him from Malaysia to Australia, to carry out certain functions associated with the enterprise. Accordingly, the Applicant had a significant appreciation of the scale of the enterprise. 113The sentencing Judge was entitled to be very cautious in approaching the Applicant's account as to how he became involved in the enterprise. The Applicant did not give evidence concerning his role in the offence. As the sentencing Judge noted, there were fluctuations in the Applicant's account, in particular with respect to the amount of money which he was to receive for services rendered. 114Further, there was no corroboration at all for the Applicant's claim that he was motivated because of a financial need to assist his wife, who suffered from ovarian cancer. The letter from the Applicant's brother tendered on sentence did not assert that this was the case. 115The Applicant pleaded guilty to the offence, thereby admitting the elements of the crime. In addition, there was an Agreed Statement of Facts placed before the sentencing Judge. Beyond that, there was the account given by the Applicant to police on different occasions, or to the psychologist who prepared a report for the sentencing proceedings. This material was to be viewed with considerable caution, given the absence of sworn evidence from the Applicant concerning these matters: R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 377 [58]-[59], 380 [79]; R v Niketic [2002] NSWCCA 425 at [4]. 116The Applicant's first account to police in Victoria in December 2006 was false, including a claim that he was in Australia on holiday and did not know Li. When interviewed in October 2007, the Applicant refused to comment in relation to Li and the MDP2P. His interview in January 2010 occurred against this background of earlier deception and non-disclosure. This alone called for a most guarded approach to the Applicant's unsworn, untested and uncorroborated account. 117The subject matter of the sentencing proceedings was such that the statements of the High Court of Australia in The Queen v Olbrich [1999] HCA 54; 199 CLR 270 and Weininger v The Queen [2003] HCA 14; 212 CLR 629 were highly pertinent. 118The Applicant's involvement in the offence "had its genesis outside this country" so that it may not be possible to say, with any certainty, what exactly was done or intended by the Applicant as a person apprehended in Australia, having come to this country for the purpose of involvement in the crime: The Queen v Olbrich at 278 [16]. 119In the absence of a sworn and complete account by the Applicant concerning his actions, the persons involved overseas and in Australia associated with the relevant activities, and the nature and quantum of the reward to be obtained for his involvement in the crime, a sentencing court may not be in a position to make findings and, in particular, findings of some lesser involvement on his part, as to which he bears the onus of proof to the civil standard: The Queen v Olbrich at 279-281 [20]-[27]. 120An assessment of the Applicant's role was not to be determined by the selection of a label which might (or might not) properly attach to him (such as "warehouser" - see [85] above). The criminality involved is to be assessed by consideration of the involvement of the Applicant and the steps taken by him to commit the offence. The sentencing Judge in this case was entitled to approach the matter upon the basis that the full nature and extent of the criminal enterprise involving the Applicant was not known to the Court, so that a precise characterisation of the Applicant's role was made more difficult: Paxton v R at 122-123 [135]. 121Indeed, the concluding part of the Agreed Statement of Facts (at [69] above) bears this out. It is clear that the Applicant would be able to provide a detailed account of the enterprise if he saw fit to do so. Of course, there was no obligation to take this course. However, by not doing so, the Applicant confronted difficulties in discharging the civil onus of proof, in an effort to establish that he was a low-level functionary in the enterprise. 122In the result, her Honour made a number of generous findings concerning the Applicant (see [91]-[92] above). 123It is necessary to keep in mind a number of features of the case, which gave rise to inferences that operated adversely to the Applicant on sentence. 124Firstly, the Applicant was imported specially from Malaysia to Australia to perform a number of tasks in a period from 11 December 2006. This was a critical period when the container was to be unloaded and the process of distribution commenced, starting with the Victorian run. This is not a case of a person selected to convey a prohibited drug into Australia, as a so-called courier or "mule". The appropriate inference was that the Applicant was selected by another person or others involved in the criminal syndicate at the Malaysian end to perform important functions in Australia, and then return to Malaysia. Such a role would usually be fulfilled by a trusted individual, able to carry out these functions in a reliable way. 125It would be, to say the least, unusual for a person to be selected to travel to Australia to carry out basic functional tasks only inside Australia. 126It may be observed, as well, that the Applicant apparently did not take part in the functional role of unloading the contents of the container into Unit E15. Further, there seemed to be several persons involved in that process whom, it might be thought, could have driven the van from Sydney to Victoria. It was not necessary to import the Applicant from Malaysia to perform this basic transport role. These matters point to the Applicant's role as being more substantial than that contended for by his counsel at first instance, and in this Court. 127Secondly, immediately upon arrival in Australia, the Applicant worked with Li, in a number of ways, to register a business name, play a part in the retention of Unit E15 to hold the very large quantity of drugs and then, once again in conjunction with Li, to physically convey a shipment of the prohibited drug into Victoria. 128The Applicant may be characterised as a vital participant, fulfilling multifaceted functions, in the seven-day period before he and Li were arrested on 18 December 2006. 129Thirdly, it is true that the Applicant's name was used for certain purposes in connection with these activities. However, it was expected that the Applicant would be in Australia for a limited time only, before returning overseas. It was not intended (and the Applicant did not expect) that he would remain in Australia for any length of time. 130Fourthly, the Avis rental vehicles, rented by the Applicant and Li, were to be returned to Sydney on 20 or 21 December 2006. The appropriate inference was that, after delivering the substantial quantity of the prohibited drug to its destination in Victoria, the two men would return to Sydney where the contents of Unit E15 remained for distribution. 131The New South Wales offence involved a massive quantity of prohibited drug, with the potential to cause a very great deal of harm both individually and socially: R v Calcutt at 524 [73]. This quantity would have entered the drug market, with corresponding massive profits for the syndicate involved, were it not for the good fortune (for the community) that the Applicant and Li were detected and the contents of Unit E15 seized by police. 132The Applicant was motivated by financial gain. The Applicant was not a drug user. His different accounts concerning the alleged quantum of his profit did not assist him in demonstrating a small expected gain only. The Applicant's account concerning the need for funds for his wife was entirely uncorroborated. A strong inference was available, which the Applicant did not rebut, that substantial financial reward would flow to a person specially imported from overseas to assist in this enterprise, although no precise finding could be made as to the size of the profit he expected to make. 133Her Honour's acceptance of some parts of the Applicant's account does not greatly assist him on this application. Indeed, her Honour's willingness to take those matters into account in the Applicant's favour serves to explain why an even more substantial sentence was not imposed in this case. 134Consideration of the quantity of drug involved, taken with the Applicant's activities in Australia as an imported member of the syndicate, clearly warranted the finding of objective seriousness made by the sentencing Judge. 135There is no merit in Ground 2. 136The sentencing Judge had regard to all relevant circumstances, including totality and the sentence imposed in Victoria in 2007. 137General deterrence and specific deterrence were significant factors on sentence. In the context of drug importation offences, courts have said that the difficulty of detecting such offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence, and that stern punishment will be warranted in almost every case: Wong v The Queen at 607-608 [64]; R v Nguyen at 12772. These principles have similar application to this case. 138The sentence to be imposed in a case such as this must also signal to would-be drug suppliers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment (R v Nguyen at 12772), with involvement at any level to attract a significant sentence, otherwise the need for general deterrence will not be served (R v Nguyen at 12772). 139Her Honour's approach to sentence was thorough, measured and restrained. In the circumstances of the case, the sentence imposed was both open and appropriate. 140There is no merit in the claim of manifest excess advanced in Ground 3.

Conclusion 141The application for extension of time in this case does not involve a delay of the order seen by this Court in other applications based upon alleged Muldrock error. Further, as counsel for the Applicant observed, at least one aspect of the matter has occurred relatively recently, with Li being sentenced by her Honour on 10 August 2012, and with that sentence itself being the subject of an application for leave to appeal to this Court. 142The explanation for the delay on the part of the Applicant may be found in his desire to take advantage of the decision in Muldrock. On his own account, the sentence imposed appears to have been less than he expected (see [7] above). No satisfactory explanation has been advanced for the delay in appellate proceedings based upon Grounds 2 and 3. 143The grounds of appeal lack merit. No error has been demonstrated. Even if it had been, and taking into account the further evidence adduced in this Court concerning the Applicant's custodial progress, no lesser sentence is warranted under s.6(3) Criminal Appeal Act 1912. In these circumstances, an extension of time should not be granted. 144The application for extension of time to seek leave to appeal against sentence should be refused. 145LATHAM J: I agree with Johnson J.

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