The offender pleaded guilty on 23 April 2017 to a charge of take part in a supply of prohibited drug of greater than large commercial quantity, namely, 67.477 kilograms of methylamphetamine, pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 ("DMTA"), and s 29 of the DMTA. The maximum penalty proscribed for the offence is life imprisonment and/or a fine of 5000 penalty units. There is a Standard Non-Parole Period proscribed of 15 years imprisonment.
The offence occurred between 9 November 2015 and 2 December 2015. The offender was one of a number of Malaysian citizens involved in a drug trafficking operation in Australia. Three co-offenders have already been sentenced, and the offender is to be sentenced along with two other co‑offenders, Chung Keat Chong and Chee Hui Tiew.
[2]
The sentence hearing
The sentence hearing took place on 23 November 2018. Exhibit A was a co‑offender bundle which comprised the Indictments, Agreed Statements of Fact, criminal antecedents, if any, of each of the co-offenders. It also contained the Remarks on Sentence in respect of Chin Hung Ho and Kam Fee Seong, together with the transcript of sentence in the Magistrate's Court of a further co-offender, Yoke Yee Hoh. Those remarks will be referred to below as they are relevant to the application of principles of parity in the sentencing process.
The Crown Sentence Summary became Ex B. It included an Agreed Statement of Facts which may be summarised as follows.
In October 2015, police began a controlled operation to investigate a Malaysian controlled syndicate involved in trafficking methylamphetamine, operating in Australia. The operation involved a civil participant.
The offender arrived in Australia from Malaysia on 25 October 2015. He first stayed on the Gold Coast and then flew to Sydney where he resided in premises at Burwood with the co-offender Chee Hui Tiew.
On 27 November 2015, the co-offender Tiew delivered two boxes of shelves containing methylamphetamine to the civil participant, who delivered them to the co-offender Ho at premises at Fairfield. On 1 December 2015, police executed a search warrant at those premises and seized 5.904 kilograms of methylamphetamine which had been extracted by the co-offender Ho from the wax blocks of shelves.
On 1 December 2015, police also executed a search warrant at the Burwood residence. They located there 12 boxes of the same appearance as the two other boxes. The 12 boxes contained shelves of the same appearance as those impregnated with methylamphetamine that had been seized at Fairfield. Analysis found that the shelves contained a combined total of 60.125 kilograms of pure methylamphetamine.
The offender was at the residence when police executed the search and attempted to flee by jumping from the balcony of the residence onto an adjoining neighbour's balcony. After being spoken to by police, he was arrested shortly thereafter. The amount of $2,150.00 was located in the premises in $50 notes.
The offender participated in an ERISP interview and agreed that on arrest, the offender knew that there were 14 boxes in the unit with drugs. He stated that two had been taken out by his friend and that he did not know what type of drug was contained in the boxes. The offender made the following further admissions:
He was offered $5000 to "take care of the thing", and he stayed at the house;
He did not receive any money however, but his food was paid for.
The offender stated that he only touched the boxes when they were moved from the factory to the apartment (this was consistent with the forensic evidence).
When his friend left with the two boxes, he did not go with him.
He met the co-offender Tiew in the Westfield Mall after he translated for him; they became friends and Tiew offered him a room and a job.
The sum of $2,150.00 was his personal cash.
The offender was shown a surveillance photograph of a male at the location where the two boxes were delivered to the civil participant. The offender agreed that he was depicted in that photograph.
The offender's role was one of storeman to the boxes containing the drugs, at times when the co-offender Tiew was not present at the residence. At the times that Tiew was not present, the offender was in constructive but not actual possession of the drugs.
The offender offered to plead to the charge in its present form by letter emailed to the Prosecution on 3 April 2018.
Exhibit B also contained a statement by Detective Sergeant Michael Van Eyk, purporting to be an expert opinion as to the price guide for methylamphetamine in New South Wales for the year 2015. In his opinion, a kilogram of methylamphetamine would be sold at that time for between $120,000 and $200,000.
The offender had no criminal antecedents.
[3]
The offender's evidence
The offender relied on a bundle of documents which became Ex 1.1 to 1.14. He also tendered a number of certificates he had obtained in custody relating to spiritual training (Ex 2).
Exhibit 1.1 was a report from Mr Patrick Sheehan, psychologist, dated 3 September 2018. He described the offender as a 31 year old Malaysian man of diminutive stature and slight build. Through an interpreter, the author recorded a family history. The offender was the second of six children and his parents separated when he was aged between 8 and 10 years. His father had lived in Singapore and he maintained contact with him, often staying with his father in Singapore during school holidays. His mother re-partnered when he was aged 11. He moved to live with his father at age 15. His wider family were aware of his current circumstances and he spoke with family members by phone on a regular basis.
After school, the offender had completed a Diploma in hospitality management at age 21 years. He worked in the banking industry for two years, as a kitchen hand, and then in construction for a period of three or four years, before coming to Australia in 2015. He arrived on a tourist visa, but hoped to participate in study and employment in Australia. He became involved with the current criminal offences and was arrested within several weeks of his arrival.
The author noted that the offender described an absence of discrimination or judiciousness in his choice of peers, which led to him becoming involved with his co-offender Tiew.
The offender had denied any illicit drug use in Australia and the author noted there was little reason to suspect that the current offence was related to substance abuse.
Upon psychometric assessment, the offender's intellectual skills were assessed in the high-average range. The author noted that that assessment was consistent with his presentation but not his level of achievement.
The offender had acknowledged his role in the offence, however, he denied any intention to engage in criminal conduct when he travelled to Australia. Rather, the situation evolved spontaneously after he met the co-offender and was offered a place to stay. Whilst he never explicitly discussed the contents of the boxes with the co-offender, he had overheard conversations and came to an understanding that the residence was being used to store illicit substances. He had never carefully thought through the potential consequences. The author noted that the offender seriously underestimated the degree of criminality involved, but was remorseful for his conduct.
The author opined that there may be limited rehabilitative value to the offender's time in custody. In the author's opinion there were no programs that would directly address his specific needs in custody and his visa status would impede any attempts to obtain a gradual release into the community through Works Release Programs, as deportation was the likely outcome upon his release.
Exhibit 1.2 was a handwritten apology by the offender to the court for his criminal conduct. He acknowledged that he had no one to blame but himself and made no excuses for the decision he made to accept the offer of his co‑offender Tiew to stay with him. Whilst in custody, he had started to change, attending church every week and building a Christian faith. The offender expressed his remorse to the Australian community and asked for compassion and mercy in his sentencing.
Exhihits 1.3 to 1.8 included testimonials from various members of the offender's family, the prison Chaplain and a prison ministry mentor, attesting to the offender's character as a helpful, caring and kind person, who had worked hard and was respectful of his family. They reflected his remorse and sought leniency on his behalf.
Exhibits 1.9 to 1.14 contained various certificates of achievement of the offender since 2006.
[4]
The offender's submissions
Counsel for the offender submitted that the offender was 28 years at the time of the offence and had been in custody for more than 3 years since 1 December 2015. He was a Malaysian citizen with no criminal history, and had entered a plea of guilty on 23 April 2018, which was the first day of his trial, but after extensive negotiations with the prosecution. He had originally been charged with three offences, however, two were ultimately withdrawn and one offence amalgamated. Therefore it was submitted there was significant utilitarian value in his plea of guilty warranting a discount of 15% on sentence. It was submitted that having regard to the large nature of the brief, no witnesses were inconvenienced by his late plea.
It was submitted that the facts demonstrated that the offender had no association with the drug syndicate, except for the co-offender Tiew. There was no forensic evidence relied on by the Crown that the offender had handled any of the shelving. Further, he had no involvement in any of numerous telephone transcripts.
It was submitted that the offender's plea of guilty was the best evidence of his remorse. However, in his handwritten letter (Ex 1.2), he had made a heartfelt and eloquent remorse and apology to the community which the court would accept as genuine. In addition, he had expressed his remorse to family members, as referred to in their testimonials.
In his three years in custody, he had received no visits, and had nothing to do with his co-offender Tiew.
Counsel rehearsed that the offender had arrived in Australia on 25 October 2015 on a tourist visa. A short time thereafter he had moved into the apartment with Tiew and whilst he was present at Lansvale when Mr Tiew met the civil participant, there was no evidence of any contact between the offender and that person.
The offender had made a lengthy Record of Interview and had cooperated with police. During that interview he had made one misstatement concerning the incident at Lansvale. Further, the evidence established that whilst he knew there were drugs in the boxes, he did not know what drugs were involved.
Counsel submitted that the offender's motivation came from being offered $5000 to "take care of the thing". His role was clearly that of storeman and in fact it was a role of "sometimes storeman", namely, when the co-offender Tiew was not present. Otherwise the offender was free to come and go from the premises and was only required to stay there when Tiew went out.
The offender played no part in moving the boxes or extracting drugs from the shelving. He had no contact with any person in the whole enterprise other than Tiew, and the court would not be satisfied beyond reasonable doubt that he played any part in the organisation of the Malaysian syndicate. His was a small role, having been recruited by Tiew to help, and he became involved by a situation that evolved spontaneously. In assessing the objective seriousness of the offence, the offender's role it was submitted was vastly less than any of the other co-offenders, warranting a far more lenient sentence. It was submitted that the objective seriousness of his offending was at the very lowest end of the scale.
Counsel submitted that the court would take into account the offender's subjective case as set out in Ex 1. He came from a hard-working and loving family and had no history of physical ailments, mental health or substance abuse. He was the second of six children and had been bullied as a child because of his name. Notwithstanding that he had worked from age 14 to support his study, and from age 18 to 21 had lived and studied in Singapore. All of his siblings were well established and the fact that he had no visitors in custody meant that custody for him was a very lonely experience and very isolating. Upon his discharge he could expect deportation to Malaysia, where he hoped to find employment and to start a family.
Counsel submitted that the certificates tendered on his behalf showed that he had done well in custody. He was subject to no institutional charges. His criminal conduct had demonstrated a degree of immaturity on his part, and the court would find that he had excellent prospects of rehabilitation.
It was submitted that the offender's plea of guilty, the subjective factors referred to, his profound remorse, his lack of any real knowledge of the drugs, and lack of criminal antecedents, would warrant a sentence well below that of his co-offenders. Further, it was submitted that the court would find special circumstances, given that this was his first time in custody and the lengthy sentence likely to be imposed on him. Finally, he had spent 3 years on remand and had found custody onerous because of the language difficulties he faced.
[5]
The Crown submissions
The Crown relied on a written outline of submissions in which it set out well known principles of sentencing in relation to drug supply matters. The Crown noted that the large commercial quantity of methylamphetamine was 500 grams, and that in this case, the amount supplied was 67.477 kgs, was greatly in excess of the 500 gram threshold.
The Crown also noted that the role of the offender was of paramount importance to the assessment of the objective seriousness of the offending.
The Crown set out a chronology of the drug importation operation and the various roles played by the co-offenders. The offender was at the very bottom of the chain of responsibility, and his role was characterised as being a "storeman who oversaw boxes until they needed to be delivered for extraction".
The Crown submitted that the offender was entitled to a discount on sentence for his late plea of guilty in a range of 10-15%.
Having regard to the principle of parity, the Crown set out the following sentences imposed on co-offenders, and findings made by the sentencing judge:
1. Co-offender Ho was sentenced for a 7.43 kgs of methyamphetamine extracted at the Fairfield residence and a further conspiracy charge for 5 kgs not yet extracted. Prior to the application of a 25% discount on sentence for an early plea of guilty, he was sentenced to a starting head sentence of 18 years imprisonment.
2. Co-offender Seong was sentenced for supply of 10 kgs of methylamphetamine, together with supply of 35 kgs of methylamphetamine located at the Parramatta residence. Prior to the application of a 25% discount for an early plea of guilty, he was sentenced to a starting head sentence of 14 years and 8 months.
3. Another co-offender Yoke was sentenced in the Local Court on one charge of "participate in criminal group". He received a term of 18 months imprisonment.
The Crown submitted there were no real parity considerations between Yoke and the current offender.
In his oral submissions, the Crown rehearsed that in assessing the objective seriousness of the offence, it was the role of the offender that had to be assessed. The offender's fingerprints were on the exterior of two of the boxes. Whilst the offender contended that he had randomly met Tiew in Sydney, it was significant that he had flown into the Gold Coast on his arrival in Australia, and then within a few days arrived in Sydney. That was the same pattern adopted by others engaged in the syndicate. Further, the offender was present at Lansvale when two boxes were delivered to the civilian participant. These were circumstances which clarified his role in the operation.
The court would further accept that the offender lied to the police as to the circumstances in which he came to know his co-offender Tiew. It was further submitted that the offender was not oblivious as to what was contained in the boxes.
In respect of the subjective matters, the Crown submitted that given the offender had given no sworn evidence, the matters set out in the report of the psychologist must be approached by the court with caution. Further, his letter outlining remorse should be given little weight, relying on Imbornone v R [2017] NSWCCA 144 at [57].
The Crown submitted that the only difference from the other co-offenders was that this offender had no drug debt. He had previously led a harmonious life and had no mental health or drug abuse issues. His psychometric assessment revealed him to be not unintelligent and he was not a drug abuser himself.
The Crown submitted that the offender's plea of guilty was evidence of some remorse, but that his letter of apology should be given little weight. His good character was verified by the testimonials tendered on his behalf, and he had good prospects of rehabilitation.
In opposing a finding of special circumstances, the Crown conceded that this was the offender's first time in custody, that he would suffer some hardship by way of his language difficulties, however, he had no need for drug and alcohol rehabilitation. Any appropriate sentence would be so lengthy that the statutory ratio would be sufficient. It was the Crown case that the objective seriousness of the offending could not be assessed at the lowest end of the scale because of the quantity of methylamphetamine involved.
[6]
Submission in reply on behalf of the offender
Counsel for the offender submitted that the court would have regard to the remorse expressed by the offender. Further, in assessing his role, the court would have regard to the thousands of telephone intercepts involved in the police operation, which the Crown conceded showed no involvement of the offender at all. Other than the co-offender Tiew, he had no contact with anyone else involved. Notwithstanding that he first arrived at the Gold Coast, there was no evidence that he was involved in the syndicate and his ultimate role was a confined one.
[7]
Determination
Section 3A of the C(SP)A sets out the purposes of sentencing as follows:
"(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and the community."
The objective seriousness of the offence pursuant to s 25(2) of the DMTA has to be assessed in all of the circumstances surrounding the offending. I am not satisfied the offender came to Australia as part of the syndicate with his purpose being to import and supply large quantities of methylamphetamine here in Australia. Whilst the offence here involved a large commercial quantity, namely 67.477 kgs of methylamphetamine, which was many times above the proscribed amount for a large commercial quantity, namely, 500 grams, the role of the offender in this case was of storeman only as to the 12 boxes stored in premises that he shared with the co-offender Tiew. I accept that he was also at Lansvale when two of the boxes were supplied to the civilian participant by Tiew, however, I am not satisfied that the offender had any contact with the civil participant or any other person involved in the distribution of the drugs.
I accept the Crown's submission that the offender was at the bottom of the chain of responsibility by comparison to other co-offenders. Having regard to all of the circumstances, I find that the objective seriousness of the offending by the offender here for an offence pursuant to s 25(2) of the DMTA was below the mid-range for such an offence. Because of the amount of prohibited drugs involved overall, it was not at the very lowest end of the range, but rather, in the low range, but towards the middle of that low range. It still constituted serious offending.
General deterrence is clearly important in sentencing for drug supply matters. A clear message must be sent to like-minded members in the community that there are maximum penalties of life imprisonment and lengthy sentences and non-parole periods for such offences, and the court will impose lengthy prison sentences in appropriate matters. Specific deterrence is also important here.
I have taken into account the maximum penalty of a life sentence and/or 5000 penalty units as a guidepost in the sentencing process here, together with the Standard Non-Parole Period of 15 years imprisonment. I further find that the offender is entitled to a 15% discount on sentence in respect of his plea of guilty, notwithstanding that it was entered in the face of a very strong Crown case.
The principle of parity in sentencing applies here. It is based on equal justice, that requires like to be treated alike but that, if there are relevant differences, due allowance should be made for them - see Le v R [2017] NSWCCA 26.
The principle of parity requires sentences to be imposed on co-offenders for the same or similar offences which do not give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence, or give the appearance that justice has not been done - see Lowe v R (1984) 154 CLR 606. Here, there are significant differences in the sentencing of the two co-offenders, Ho and Seong referred to above, and that of the other co‑offenders being sentenced at the same time as the offender.
I accept that the offender is remorseful for his criminal conduct, both by his plea of guilty and his letter of remorse. He will also suffer hardship in custody, due to the language difficulties and having no visitors.
I take into account the offender's good character, and his lack of any criminal antecedents. While the matters recorded by Mr Sheehan in Ex 1 must be approached with some caution, I accept the offender's family history set out therein, and also find he will suffer hardship in custody by virtue of language difficulties and an absence of visitors. He will no doubt be deported at the conclusion of his sentence and has prospects of resuming a productive life in Malaysia.
Taking into account a 15% utilitarian discount on sentence, I intend to sentence the offender to a head sentence of 6 years and 6 months imprisonment, and a non-parole period of 4 years and 10 months imprisonment.
[8]
Orders
I make the following orders:
1. You are convicted of the charge of supply prohibited drug greater than a large commercial quantity, namely, 67.477 kgs of methylamphetamine pursuant to s 25(2) of the DMTA.
2. I sentence you to a non-parole period of 4 years and 10 months commencing on 1 December 2015 and terminating on 30 September 2020.
3. The balance of the term will be from 1 October 2020 and expiring on 31 May 2022.
[9]
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Decision last updated: 01 March 2019