Loh v R

[2013] NSWCCA 339

Court of Criminal Appeal (NSW)|2013-12-12|Before: Ward JA, Harrison J, Hulme J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2013-12-12

Before

Ward JA, Harrison J, Hulme J

Catchwords

Phanith v R [2009] NSWCCA 274 Jimmy v R [2010] NSWCCA 60
(2010) 77 NSWLR 540 McMullen v R [2013] NSWCCA 261 Cases Cited: Muldrock v The Queen [2011] HCA 39
244 CLR 120 R v Way [2004] NSWCCA 131

Source

Original judgment source is linked above.

Catchwords

Phanith v R [2009] NSWCCA 274 Jimmy v R [2010] NSWCCA 60(2010) 77 NSWLR 540 McMullen v R [2013] NSWCCA 261 Cases Cited: Muldrock v The Queen [2011] HCA 39244 CLR 120 R v Way [2004] NSWCCA 131

Judgment (12 paragraphs)

[1]

Judgment 1WARD JA: I agree with the reasons of R A Hulme J and the orders he proposes. 2HARRISON J: I also agree. 3R A HULME J: Lawrence Yong Loh ("the applicant") applies for leave to appeal against a 14 year sentence imposed upon him by his Honour Judge Bennett SC in the District Court at Sydney on 28 October 2010. The applicant had pleaded guilty to an offence of supplying heroin in excess of a large commercial quantity. That is an offence contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW) and the maximum penalty prescribed is imprisonment for life and/or a fine of 5000 penalty units. In sentencing him for that offence, the judge took into account at the applicant's request a further offence listed on a Form 1 document of dealing with property suspected to be the proceeds of crime, namely $7000. 4The grounds of appeal are that the judge had erroneous regard to the prescription of a standard non-parole period and that the sentence was manifestly excessive because of a lesser sentence imposed upon a co-offender.

[2]

Facts 5There was no dispute about the summary of the facts contained in the sentencing judgment. I draw the following from that source. 6On 16 January 2009, the applicant and a man named Chuan Tat Kho were under physical surveillance as they left a rented room in Chatswood and made their way to a café in the city. At the café the applicant sat at a table on the footpath whilst Kho went inside and made a purchase. Another co-offender, Chin Lai Tan came to the café and joined the applicant at the table. Tan had a trolley case with him which he placed on the ground beside him. Kho joined the other two at the table. After about ten minutes, the three stood up and Kho took the case and wheeled it towards George Street followed by Tan and the applicant. Kho hailed a taxi whilst the applicant and Tan appeared to converse. A taxi stopped and Kho lifted the case into the boot and then he and the applicant entered the taxi while Tan walked away. 7Police stopped the taxi a short time later and arrested the applicant and Kho. Tan was not arrested at that point but was apprehended at Sydney Airport the following day as he was about to leave Australia. 8The trolley case was secured with a combination lock, the number for which was given to the police by the applicant. The applicant gave evidence of having been provided with the combination by Tan at the time the case was delivered to him. Inside the case was 13.999 kilograms of white powder which was found to contain heroin at a purity of 70 per cent. The large commercial quantity for heroin is one kilogram. 9There was evidence before the judge that when broken down into ultimate street deals, the drug had an estimated value in the range of $14,500,000 to $20,300,000. 10When police executed a search warrant at the apartment where the applicant was living they found paraphernalia consistent with the repackaging of heroin. This consisted of clip seal bags and latex gloves. The applicant's evidence was that he had purchased these items as he was told that the drugs were already contained in bags which might break and need to be repackaged. 11The applicant's evidence was that he came to Australia from Singapore to assist in this crime. He said that he intended to pass on the trolley bag knowing that it contained drugs which he knew was heroin. He was to make $30,000 in cash and an additional $10,000 was provided to him for expenses. He said that before coming to Australia he was suffering stress because he was in debt in the sum of $150,000 which he had borrowed to assist his brother and family with medical treatment. He was desperate to get money to repay that loan. He said that he was retained to take delivery of the drugs from Tan and then to pass them on to other people in accordance with instructions to be received by telephone. 12Between 1 and 16 January 2009, when the applicant was arrested, there were 43 recorded telephone connections between the phones used by Tan and the applicant.

[8]

Sentencing of Kho 34The evidence before Berman DCJ was that Kho and the applicant had travelled from Chatswood to the café in the city on the morning of 16 January 2009. Tan arrived with the suitcase and sat at a table and spoke with the applicant. CCTV footage indicated that Kho appeared to be "relatively uninterested in the conversation which was occurring". After the offenders had consumed a drink they stood up and it was at this point that Kho took the suitcase, hailed a taxi, and put the suitcase in the boot. 35Berman DCJ noted that there was telephone contact between the applicant and Tan in the days leading up to the meeting but no known contact involving Kho. 36There was an issue as to precisely when Kho learnt that there was to be a supply of drugs on 16 January. The judge was not prepared to accept on the balance of probabilities that he only became aware immediately before the transaction took place. Similarly he was not prepared to conclude beyond reasonable doubt that he was aware of the proposed transaction at the time he came to Australia. In the end his Honour concluded that Kho became aware of the transaction "some indeterminate time before 16 January". 37Berman DCJ noted that it was "notorious that those high up in the drug supply hierarchy try to avoid physical possession of drugs, preferring foot soldiers to take the risks associated with moving drugs from one place to another". He concluded: For those reasons I will sentence Mr Kho on the basis that he was less involved in this matter than Loh and Tan and lower down the drug supply hierarchy than those two men". 38Kho was 38 years of age at the time of sentence and had no prior convictions. He was found to be a hard and industrious worker in Singapore and had assumed many responsibilities involving his family. It was accepted that he came to Australia for a holiday. 39The judge had regard to Kho's industriousness whilst in custody; he was studying and had completed various courses and was planning for his release. The judge also took into account that serving a sentence in a foreign country involved a level of hardship. This included that Kho had, through his actions, deprived his parents of the assistance that he use to provide for them. 40Finally his Honour referred to the principle of parity and had regard to the sentences imposed by Bennett DCJ on the applicant and Tan.

Loh v R

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (3)

Cases Cited (7)

Cited By (2)