R v Boon Piau HONG and Teik Chai LEE

REMARKS ON SENTENCE 1I am sentencing Teik Chai Lee and Boon Piau Hong who arrived in Australia last year in order to facilitate the importation of a large amount of heroin. They are both foreign nationals and were in Australia for about a month for the purpose of arrangements to do with the importation. They have both pleaded guilty to the crime called attempting to possess a commercial quantity of a border controlled drug. It carries a maximum of life imprisonment, and is made into a crime by s 307.5(1) of the Criminal Code Act 1995. Both men have pleaded guilty to the crime, and when sentencing them in due course I will make an allowance for their pleas of guilty. Also I will date the sentences from the day they were arrested last year, on 12 May 2011. 2Before sentencing the two men I will say something about what they did. I will say something about each of them personally - their personal circumstances and lives - and I will refer to their lawyers' arguments. 3Both men arrived by the same plane, travelling together on 24 April 2011 to Sydney. They came from Malaysia via Singapore. They were searched but permitted to enter the country. Significantly, on the search at the airport Mr Hong was found to have five mobile phones and a USB thumb drive with documents relating to the export of furniture from Myanmar into Malaysia. It also had images of the furniture and a packing list. Mr Lee was found to have business cards from furniture shops in Myanmar and freight companies, as well as three mobile phones. When they were ultimately arrested, it was found that the furniture which arrived in the country contained over 40 kilograms of heroin, specifically 41.5 kilograms. The level of purity was just under 60 per cent and represented nearly 25 kilograms of pure heroin, specifically 24.69 kilograms. 4A transport company called Powerhouse Logistics received an email via Mr Hong. It gave instructions for the splitting of the consignment of furniture - which had arrived by then - into two parts. One part was to be delivered to a unit in Blacktown where the two men had rented an apartment. The other was to be delivered to a second-hand furniture shop in Blacktown. Powerhouse Logistics got a further email from Mr Lee itemising the furniture to be delivered to each address. 5Mr Hong started to make contact with an unknown person in Malaysia. He was called Ah Long. They discussed the arrival of the furniture. Mr Hong was instructed by Ah Long to supply a sample to somebody else. Mr Hong arranged for labour assistance to move the furniture, and updated Ah Long in Malaysia about the status of the transport arrangements for the furniture. 6The men were being monitored by surveillance by the Federal Police. Somehow Mr Hong and Mr Lee came to realise that they were being observed. They made reference to it in their telephone conversations, which were also being monitored. At one stage Mr Hong told Mr Lee to change his phone card. In one of the calls to them from Ah Long in Malaysia, Mr Hong updated him about the situation and he also asked Ah Long what to do about the unit that they had rented, and to which those items of furniture containing the drugs had been arranged to be delivered. Ah Long advised them to stay away from the unit. 7Mr Hong conveyed to Mr Lee instructions to keep alert. Ah Long gave Mr Hong advice about not panicking and Mr Hong advised Ah Long to allow them to send the consignment to Melbourne in Mr Lee's name. Mr Hong told Ah Long a little later that he had arranged to crush all the mobile phones except one. At one stage Mr Hong spoke to someone in Myanmar referred to as "wife", and told her that the police were following him and he needed to be careful. He asked this person if she had taken the money and she said she would go and take it at that point. Mr Hong had a conversation with Ah Long again about renting another property, that he had enough to buy five kilograms and that he would arrange for Mr Lee to catch a train go the unit to sort things out. 8Ah Long emphasised that it was important to get everything out of the unit. Ah Long told Mr Hong to throw the phones down the toilet, to squash them and to organise more phones. The last instruction he told to Mr Lee. Mr Hong confirmed to Ah Long that he had done that, and Ah Long instructed Mr Hong to contact someone unspecified in the morning. He said he would arrange a time for them to quit, and they should do their best in the meantime. Mr Hong asked for more funds and expressed concern about his name being used and being on the Customs form. He said they would catch a bus down to Melbourne. 9They moved into accommodation in the city. The police called on them in the early hours of 12 May 2011 and arrested them. They found, amongst other things, a set of scales and some plastic gloves and clip seal bags, and a drill. Mr Lee declined the opportunity to be interviewed. Mr Hong agreed to be interviewed. He said that he had been paid by someone to travel to Myanmar to pay for and oversee the packing of a container of furniture, to be shipped from Myanmar to Malaysia. 10Neither man has any criminal history in Australia and they are both Malaysian citizens. 11Turning to their personal lives, Mr Hong is a single man and Mr Lee has a wife and three daughters. Included amongst the exhibits are birth certificates for the girls who are quite young and photographs of his wife and family. 12There is also a report from a forensic psychologist, Elle Gianvanni. She saw Mr Lee in prison. She diagnosed him with an adjustment disorder. She thought that his behaviour could be explained through the stress of duress. She based that on information provided to her by Mr Lee. He had borrowed some money within the family and was being pressured to repay it. The pressure came eventually from a man whom he knew to be a drug trafficker and he was very scared and worried but agreed to do what they said in order to settle the debt. 13He has been married for nine years and his daughters are nine, eight and four. 14I do not accept that he was acting under duress. The onus of proving that (on the balance of probabilities) is on Mr Lee. I do not accept it because it is too unreliable. It is hearsay evidence. It has not been sworn or affirmed and it has not been tested by cross-examination. 15I do accept however the letter which Mr Lee wrote to the Court apologising for his criminal behaviour. He has been participating in courses within the prison system. One of his daughters has a medical condition to do with her heart as well as a cleft lip and palate. 16Turning to Mr Hong, I have a report from Danielle Hopkins, a clinical psychologist, dated 10 April 2012. He has been in steady employment since leaving school at the age of nineteen but developed a problem with gambling. He has had difficulties controlling the problem since his early twenties. 17Mr Hong is now 31 and Mr Lee is 35. 18The report contains information about his personal background. Returning to his gambling, he accrued a substantial debt and was receiving pressure from his creditors to pay. The report said that he engaged in the offence as a means of repaying his debtors. He said to the psychologist that he was very sorry for his offending, knowing that it was bad for the community. 19Ms Hopkins expressed the opinion that his gambling was directly connected to his offending. Obviously if he stopped gambling and learned some financial skills that would reduce his chances of offending. 20Once again I do not accept that he was suffering from duress for the same reasons that I did not accept that in Mr Lee's case. However, again, I do accept his expression of remorse expressed through the psychologist. I have also read the various certificates which were the subject of exhibit 3. 21I turn now to the arguments which the lawyers for the prosecution and each of the offenders put forward. Mr Lee was represented by Mr G C Corr of counsel. He argued that his client was the subject of duress. I have already said that I reject that submission. I do accept that the offence did not involve any actual distribution of drugs into the community, as indicating that the offence is less serious than if it had involved that. 22Mr Corr argued that the objective seriousness of his client's offence is low but his subjective factors were high in weight. I do not accept either of those submissions. They are not made out by the evidence. 23I do accept that he has limited English which will impact or have its impact in custody. 24Mr Corr focused much of his attention on classifying the role of his client in accordance with some classifications contained in the judgment of McClellan CJ at CL in Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1. His Honour explains the classifications relevant to this case over 49-51 ([207-215]). His Honour grouped cases which he had reviewed into four categories. Mr Corr argued that his client's case fell in the lowest category, namely category 4 or, at worst, at the bottom of category 3. In my opinion they do not fall within category 4. Five out of seven of the cases in category 4 involved amounts less than 7½ kilograms. Even though Mr Lee had good antecedents and no prior convictions and pleaded guilty, they clearly do not fall in category 1 because I do not regard them as principals in the enterprise behind the importation of the drugs which they were attempting to facilitate. They both clearly reported to Ah Long in Malaysia and took instructions from him. 25They are probably in category 2. As I said, neither is a principal but both are essential, or played essential or vital roles. I do not think they are in category 3 either. Many of the cases in category 3 involved amounts below 7 kilograms and assistance to authorities which the present cases do not involve. 26I do agree they fall somewhere between a principal and a courier but to try to classify, in a sense, Mr Lee's behaviour and Mr Hong's behaviour into one of these groups would mean treating the Chief Judge's categories as some sort of guideline judgement which his Honour said the case was not. It also isolates one feature - namely the role of the offender - and tends to fix attention on the terms used by the Chief Judge to describe the various groups or to assist in describing the groups; terms such as "principal" and "courier". 27I find that both men were critical participants in the enterprise of importing the drugs into Australia as well as the initial stages of its intended distribution. I accept paragraph 9 of the submissions of Ms Catsanos, who appeared for the Commonwealth Director of Public Prosecutions, where she argued that the conduct constituted a serious breach of s 307.2(1). Each man was a critical participant in the intended importation. 28I do not find that Mr Hong travelled to Myanmar, as Ms Catsanos argued, for the purposes of dealing with the drugs. I do not accept the description of them playing a senior role in the syndicate in the sense of principal. I accept the relevance of the factors pointed out by Ms Catsanos in paragraph 11 of her written submissions (which I marked for identification 1) related to Mr Hong and paragraph 12 related to Mr Lee. 29These men were entrusted with the responsibility of managing a consignment of a very large amount of heroin which had arrived in Australia. They were responsible for its collection, transit to temporary storage and passing on to somebody else in Australia, no doubt for ultimate distribution of nearly 25 kilograms of pure heroin within the Australian community. 30It was a very large amount. I acknowledge it is far from the largest amount referred to in some of the cases. In De La Rosa some of those involved 150 kilograms but the amount was 3 or 4 times the smaller amounts referred in De La Rosa. 31I regard Mr Hong as the more senior of the two and the one who had the more important role. He had most of the important documents in his possession on arrival. He did most of the communications with Malaysia and obtained instructions and passed them on to Mr Lee. Both men themselves were junior to Ah Long in Malaysia. He had some contact with Myanmar. 32I do not accept the submission of Mr L Brasch of counsel, who appeared for Mr Hong, that there was no real substantial difference between the two. Acknowledging that the difference may not be substantial, nevertheless it was his client who was the senior of the two. I have tried to focus, as Mr Brasch correctly argued, on what his client did rather than to fix his role by reference to a label. I take into account the circumstances of his custody which Mr Brasch has drawn to my attention, his relative youth and the fact that he will have no visitors or support within Australia and his isolation from those closest to him. 33Returning briefly to Mr Corr's submission, I do not accept that his client was just a person at the end of the chain in the sense of doing the labour work. Two innocent labourers were hired for that purpose. 34I have also taken into account the factors referred to by Johnson J at [72] of R v Nguyen; R v Pham [2010] NSWCCA 238. Public deterrence is obviously a substantially important factor in sentencing offenders such as these two men. A clean criminal record is relevant but of reduced weight in this sort of case. 35Both men have facilitated the administration of justice in Australia by pleading guilty. I think it is appropriate to specify the allowance that I will make for that. It will be twenty five per cent. It is important that they are both publicly and adequately punished. It will be obviously very difficult for Mr Lee's family but that does not amount to an exceptional circumstance; all offenders who go to gaol cause some hardship or other within their close or extended family. 36I will fix a non-parole period. It is important to record my opinion that the only appropriate sentence is one of full time custody. I also should note of course that I have not taken anything in the exhibits tendered by each offender into account for the other offender. 37Given that the maximum is life imprisonment I would regard an appropriate sentence for Mr Hong as being 20 years imprisonment and for Mr Lee of being 18 years imprisonment. I propose to discount each of those sentences by 25 per cent because they have pleaded guilty. Accordingly, Mr Hong's sentence will be 15 years imprisonment and Mr Lee's sentence will be 13½ years imprisonment. I propose to fix a non-parole period for Mr Hong of 10 years imprisonment and a non-parole period for Mr Lee of 9 years imprisonment. I convict both men of the crime of attempting to possess a commercial quantity of an unlawfully imported border controlled drug. HIS HONOUR: I am now going to sentence you Mr Hong if you would stand up. 38Mr Hong, for the crime that I have convicted you of, I sentence you to 15 years imprisonment. It will date from when you were arrested on 12 May 2011. It will therefore expire in 15 years time on 11 May 2026. I fix a non-parole period that you must be in gaol of 10 years. It will also start on 12 May 2011 and it will expire on 11 May 2021. The earliest date on which you will be eligible for release is 12 May 2021. HIS HONOUR: Just have a seat Mr Hong. Ms Catsanos, is his release dependant on the State Parole Authority? Do they deal with Commonwealth offenders? CATSANOS: That's correct your Honour, yes. HIS HONOUR: Thank you. . 39Mr Hong whether or not you are released on that day on parole will depend on the Parole Authority. Have a seat 40Mr Lee, would you stand please. For the crime that I have convicted you of, I sentence you to 13 yeas and 6 months imprisonment. It started on 12 May 2011 and will expire on 11 November 2024. I fix a non-parole period of 9 years. It also started on 12 May 2011 and it will expire on 11 May 2020. The earliest date that you will be eligible for release is 12 May 2020 and that depends on the Parole Authority. 41You are nodding, do you understand, Mr Lee? Mr Hong, do you understand your sentence? You do, thank you, have a seat. HIS HONOUR: Mr Brasch, Mr Hudson, Ms Catsanos, first the mathematics, are they correct? HUDSON: Yes your Honour. BRASCH: As far as I'm concerned your Honour, yes. CATSANOS: Yes your Honour. HIS HONOUR: Are there any factual errors that I have made or even legal ones that might be able to be corrected - I'm not sure that s 43 applies but any errors that might need to be corrected? BRASCH: Not that I'm aware of your Honour. HUDSON: No your Honour. CATSANOS: No your Honour. HIS HONOUR: All right is there anything else? CATSANOS: No your Honour. HIS HONOUR: Did either of you want a word with your client, yes go ahead. BRASCH: If we may your Honour with the interpreter? HIS HONOUR: Yes. ADJOURNED