The offender pleaded guilty to a charge of supply prohibited drug greater than a 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 5,000 penalty units. There is a Standard Non‑Parole Period proscribed of 15 years imprisonment.
The offence occurred in October 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 further co-offenders, Chung Keat Chong and Bunny Bannister.
[2]
The sentence hearing
The sentence hearing took place on 17 January 2019. The Crown Sentence Summary became Ex A. It included an Agreed Statement of Facts, which may be summarised as follows.
The offender arrived in Australia on 8 May 2015. He first stayed on the Gold Coast and then travelled to Sydney between 10 and 12 May 2015, whereupon he resided at premises in Burwood with the co-offender Bannister. The offender was contacted by a police informant who arranged to meet him on 21 November 2015 at Lansvale. On that occasion, a conversation took place in which the offender asked the informant whether he was "out here because you owe people money?", to which the informant answered, "Yes". The offender told the informant that he also owed money and that he had been in Australia for some months. He then said:
"The container arrived last month and the clothing have been moved to my place and I've watched it for the entire month and there is nothing going on …
It will probably take around three to four trips to clear the stock. It is better to clear it off quickly then it will be pay day …"
The informant said:
"So the person who arrives first at the next meeting will check and see if the place is safe?"
The offender said:
"Of course not. I will be the one transporting the thing so I will be the one in danger and the opposite will apply if you're the one that has to transport it, you'll be the one in danger."
On 27 November 2015, the offender met the informant at Lansvale and transferred two boxes from his vehicle to the informant's vehicle. The offender told the informant:
"These two boxes are for testing. There will be more the next trip. It should take two trips to transfer the other boxes."
The boxes contained shelving impregnated with methylamphetamine.
The two boxes were seized following execution of a search warrant at premises in Fairfield. A total of 5.904 kilograms of methylamphetamine had been extracted from the wax blocks of shelves by a co-offender named Ho. In addition to the methylamphetamine that had been processed, police also seized wax blocks that had yet to be processed and on analysis, were found to contain 1.448 kilograms of pure methylamphetamine.
On 1 December 2015, police executed a search warrant at the offender's premises at Burwood. 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 arrested on 1 December 2015. Upon being searched, he was found to have three mobile phones and $1,400.00 in his wallet.
The offender participated in an ERISP interview in which he made certain admissions relating to the 12 boxes. At the time, he had been sharing premises with Bunny Bannister and was paid $100 for delivering the two boxes.
The offender told police that he did not know what was inside the boxes, that they were sealed and they were heavy. He had been told to be careful as they could be easily damaged.
On 28 July 2015 a business name, "Harbour Progress", was registered in the offender's name, with the address for service of documents being the same premises in Burwood. Warehouse premises at St Marys were leased by Harbour Progress from 20 September 2015 at a rental of $3,300.00 per month. A bank account was also established in the name of Harbour Progress on 29 July 2015. Over a period of two weeks, a total of $61,000.00 was deposited into that account, however, within two days, $60,000.00 of that money was withdrawn.
On 5 November 2015 a container load of flat packed furniture was delivered to the warehouse. Following a search on 2 December 2015, police discovered a large number of boxes of flat packed furniture located within the premises, however, no drugs were discovered.
It is an Agreed Fact that the offender knew the storage and supply of that methylamphetamine was undertaken for commercial gain by the syndicate based in Malaysia.
The matter was listed for trial on 23 April 2018 at the Sydney District Court, and on 26 April 2018 the offender entered a plea of guilty, and the matter was listed for sentence. As at the date of the sentence hearing, the offender had been in custody for 3 years, one month, two weeks and 3 days.
Exhibit A also included a statement of Detective Sergeant Michael Van Eyk, setting out a price guide for the sale of methylamphetamine in New South Wales in the year 2015. The guide for 1 kg of methylamphetamine was between $120,000 and $200,000.
Exhibit B on sentence hearing was the co-offender bundle which comprised the Indictments, Agreed Statements of Fact, criminal antecedents, if any, of each of the co-offenders.
As will become apparent, the drug trafficking operation was significantly wider than the events described above, which involved the offender, and involved the transportation of large quantities of drugs within Australia. It is clear that the offender had no part to play in that wider trafficking operation.
Exhibit B 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.
[3]
The offender's evidence
The offender tendered a report of Mr Patrick Sheehan, forensic psychologist, dated 7 November 2018 (Ex 2). Mr Sheehan had assessed the offender by audio-visual link on 7 November 2018 with the assistance of a Cantonese interpreter. He had also been qualified with the Indictment, Agreed Facts, criminal history report, custodial history, and the statement of Detective Van Eyk dated 19 April 2018.
The report outlined the offender's family history. He had been raised in a semi‑rural area in Malaysia, and was the youngest of five children. There was no familial issues with substance abuse, domestic violence, criminality or mental illness. He left school after two years of high school education and had a history of unskilled and low paying employment. In 2006 he travelled to Singapore where he worked for a period of 3 years in a laundry.
In 2014 he had been unemployed for a period of three months, during which he had gambled recklessly, acquiring a substantial gambling debt of $27,000. He had no prospect of paying that debt and was threatened and pressured to do work in Australia in order to settle the debt. The author reported that the offender was initially told that that work was to do with "a furniture business", but that the offender acknowledged that he sensed it was something illegal, but he had no idea of the seriousness of it. It was not until after he arrived in Australia that he came to understand that he was involved in the supply of methylamphetamine and he felt he had no choice but to persist in the activities as directed. The offender told the author that he was to be paid $1,000 Malaysian for every kilogram of product transacted.
The author noted that the offender was able to articulate an understanding of the implications of his involvement in this illegal activity.
The offender had no previous history of criminal activity and his involvement was not related to any personal drug abuse, but rather, to the gambling debt that he accumulated. The author was of the opinion that there may be limited rehabilitative value to the offender's time in custody.
The offender gave evidence that the matters the subject of the report of Mr Sheehan were accurate. He denied registering the business name of Harbour Progress, and gave evidence that he had no knowledge of that business. He also had no knowledge of the bank account established in the name of Harbour Progress.
The offender further gave evidence that he had no knowledge of the container of goods delivered to factory premises at St Marys, or of the trafficking of drugs throughout Australia in 4WD drive vehicles. He gave evidence as to how he accumulated his gambling debt and when he was unable to pay back the money, that he was bashed by the man who loaned him the money. That man told him he had a job for him so that he could pay the money back. The man also was "around his family place", which was a rented apartment in Kuala Lumpa. The offender therefore thought that his family may suffer violence at the hand of this man and he agreed to do the job in Australia.
Following his arrival in Australia, the offender was given money to pay expenses, including his rent, every two weeks.
He acknowledged that methylamphetamine is bad for people's health, and causes people to lose control, and mental illness. He himself had occasionally used prohibited drugs in Malaysia, however, he had learned about the effects of methylamphetamine following his arrest in Australia.
The offender gave evidence that he was very regretful and very sorry for his involvement in the distribution of the large amount of methylamphetamine in Sydney. He knew that it was wrong. Cantonese was spoken in gaol by only two officers employed by Corrective Services and therefore he found it difficult to communicate whilst in custody. He was presently working in the laundry at the MRRC five days per week. He had given up gambling and had no intention of taking drugs.
In cross-examination, the offender conceded that his family had never actually been threatened by the man to whom he owed money. He said, however, that the man was "circling" and that he was scared for his family.
He gave evidence that his family were supportive of him, however, he did not speak to his siblings, nor to his friends about his debt. He agreed that he saw the work in Australia as an easy solution to pay off his gambling debt.
In re-examination, the offender gave evidence that he could not tell police what he was involved in because he was afraid and his English was not very good. As he could not pay the money back, he was afraid his family would have been harmed. When asked whether he thought he could have spoken to police about the matter, he said "No".
[4]
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 of 67.477 kilograms 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 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. It is clear that the offender had no role to play in what has become known as "the 4WD operation". Both Tiew and the co-offender Bannister were both charged with conveying methylamphetamine from the Fairfield premises (i.e. what they had delivered to the civilian participant and had been extracted by the co-offender Ho), as well as the Burwood premises (that is the large amount of methylamphetamine waiting to be delivered and extracted).
The Crown accepted that neither co-offender had the skills to extract the methylamphetamine. The Crown submitted that the offender played a more active role than his co-offender in setting up a bank account and business name and in meeting with the civilian participant to discuss the delivery. Although at the lowest level on the chain of supply, the offender was responsible for looking after a large quantity of prohibited drugs. The Crown submitted that securing the residence to store the drugs and to watch them until they were needed for extraction was crucial to the success of the syndicate. Given the very large quantity of methylamphetamine and the offender's role, the Crown submitted that the offence was objectively serious and above the mid-range.
The Crown submitted that in view of the late entry of the plea of guilty after negotiation led to an amended Indictment, the offender was entitled to a 10% discount on sentence.
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 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 referred to the issue of duress relied on by the offender, concerning his assault by the man to whom he owed a gambling debt and secondly, his perception that his family would be threatened with physical harm. It was submitted that the assault itself was not serious, and there was no evidence of any threat to the offender's family. Rather, the evidence was that the person was merely "circling around their premises".
The Crown relied on the Court of Criminal Appeal decision in Hernandez v R [2013] NSWCCA 51 to submit that the offender had other choices available to him rather than submit to the wishes of the person to whom he owed money from his gambling, and engage in criminal activity. The offender had not sought assistance from either his family or friends and had decided to engage in that criminal activity for his own reasons, but not out of duress.
[5]
The offender's submissions
The offender, by his Counsel, also relied on a thorough written outline of submissions. It was submitted that the total quantity of methylamphetamine and purity of that part of the drug which was at the Fairfield residence were relevant to the assessment of objective seriousness of the offence. An important determinant of the objective seriousness was, however, the role the offender played in the offence. The offender here had admitted he played the role of a delivery man and storeman for the 67.477 kgs of methylamphetamine. Two of the boxes of methylamphetamine impregnated shelving had been delivered to the civilian participant by the offender on 21 November 2015. A further 12 boxes of shelving were stored at his Burwood residence and it was conceded that he was to be paid approximately $A300 per kilogram of methylamphetamine sold.
It was submitted that there was no evidence that the offender had registered the business name "Harbour Progress", or that he had set up the bank account in the name of that business. Further, there was no evidence that the offender had any knowledge of the warehouse at St Marys which was rented, or the container of flatbed furniture which was delivered to it.
As an aggravating circumstance it was conceded that the offence was committed without regard to public safety. It was further submitted that it was inherent in the offence that there would be a level of planning and financial gain. It was submitted that "these inherent characteristics are not to be treated as aggravating factors unless such financial gain and planning is significant, that is more than might be expected in the lowest level of offending for this type of offence", relying on Wat v R [2017] NSWCCA 62 at [44].
It was submitted on behalf of the offender that he was acting under duress, having accrued a gambling debt and been assaulted by associates of the drug supply syndicate in Malaysia to repay that debt. It was further submitted that the offender and his family had been threatened with further violence and that he was concerned that if he disclosed the matter to authorities in Australia his family would be harmed in Malaysia. It was submitted that the court should have regard to the nature of the threats made and that the offender had no criminal record, and was a person of good character. It was submitted that he was unlikely to re-offend and had good prospects of rehabilitation.
It was submitted that the offender had shown remorse. He had pleaded guilty at a late stage and the offender conceded the utilitarian value of the plea entitled him to a 10% discount.
The offender submitted that Mr Sheehan had diagnosed the offender with a gambling disorder. He had not seen his family since his arrest, save for one visit from his mother, and the fact that he was unlikely to see his family for the duration of his incarceration would make custody more difficult for him than the ordinary inmate. His inability to speak English would also make his incarceration more difficult.
It was further submitted that a finding of special circumstances should be made as this was the offender's first time in custody and he had good prospects of rehabilitation.
On the issue of parity, the offender agreed with the Crown submission that the sentence of co-offenders Ho and Seong were relevant, and the written submissions set out those factors which were relevant to the sentencing of each of the co-offenders, which are referred to below.
Finally, it was submitted that whilst personal and general deterrence must play a role in sentencing, the role of specific deterrence here was tempered by the impact of duress.
In oral submissions, Counsel rehearsed the submission in respect of the offender's non-exculpatory duress. In his evidence, it was submitted that the offender had conceded matters against his own interest, and had been candid in his evidence. It was submitted that the court would accept that he was the subject of an assault arising from his gambling debts, and the clear implication for his evidence that further violence might be meted out to him and his family. It was therefore not unreasonable for him to assume that those responsible might resort to violence again. In those circumstances, it was submitted that duress had been established as a mitigating factor on sentence.
It was submitted that the offender was an honest witness in his evidence before the court. In cross-examination he accepted the evidence as to the role he played in the distribution of the imported drugs. That role was a principal factor to be taken into account in determining the objective seriousness of the offending. The quantity of drugs involved was only one factor and the court should assess the objective seriousness at being at the very bottom of the range for an offence pursuant to s 25(2) of the DMTA.
[6]
Determination
Section 3A of the C(SP)A sets out the purposes of sentencing as follows:
"3A The purposes for which a Court may impose a sentence on an offender are 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. The offender had come to Australia as part of a syndicate with his purpose being to import and supply large quantities of methylamphetamine within Australia. The offence here involved a large commercial quantity, namely 67.477 kgs of methylamphetamine. This was many times above the proscribed amount for a large commercial quantity, namely, 500 grams. I also take into account the role of the offender which was that of storeman substantially, however, he did lend his name to the registration of a business name to facilitate the supply, and in the name of that business. Whilst I am not satisfied beyond reasonable doubt that he registered the business name or established the bank account, his name was used to facilitate those two events. The offender also met with the civil participant and had knowledge of aspects of the importation. He was responsible for delivery of two of the packs of methylamphetamine impregnated shelving for the purpose of extraction of the drug from them. Having regard to all of those circumstances, I find that the objective seriousness of the offending here was above the mid-range for an offence pursuant to s 25(2) of the DMTA.
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 a fine of 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 10% discount on sentence in respect of his late plea, which was entered in the face of a very strong Crown case. Further, it is an aggravating factor that the offence was committed without regard to public safety, and I reject the submission made on behalf of the offender here that the offending did not go beyond "what might ordinarily be expected for a large commercial supply offence". Whilst it may be inherent in this class of offence that there is a level of planning and financial gain, those characteristics were clearly in play here in and the potential financial gain, both to the offender and other syndicate members, was significant.
Nor do I accept that the offender was acting under duress. Whilst he may have been the subject of an assault by those to whom he owed money, he made no attempt to obtain the support of his family or friends, or to alert the authorities, either in Malaysia or Australia, to what was clearly criminal conduct. The offender had clear choices available to him other than succumbing to an involvement in this criminal conduct.
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 differences in the sentencing of the two co-offenders, Ho and Seong referred to above.
In respect of the co-offender Ho, he was charged in relation to much smaller amounts of methylamphetamine. He was 59 years of age and had hoped to expunge a drug debt of $200,000. The quantity of methylamphetamine was held to be not significantly into the large commercial category, and he was a trusted and key player in the syndicate. He was also entitled to a 25% discount on sentence and a finding of special circumstances was made. It was further held that his custody would be onerous due to his age, poor health and language barrier. He was sentenced to a head sentence of 13.5 years and a non-parole period of 10 years imprisonment.
In respect of the co-offender Seong, he was 35 years of age and had hoped to expunge a gambling debt of $10,000. He, like the offender, had been diagnosed with a gambling disorder. He was sentenced in respect of two counts of supply, with one Form 1 matter. The first count was found to be within the mid-range of objective seriousness, and the second count concerning 45 kgs of methylamphetamine supplied was found to be above mid-range. He was found to suffer hardship in custody, having no visitors and language barrier, however, he was entitled to a 25% discount on sentence. The sentencing judge also found special circumstances. The co-offender had no criminal record, but had given minor assistance to authorities. He was sentenced to a head sentence of 11 years, with a non-parole period of 7 years and 10 months.
I find that the offender will suffer hardship in custody, given his language difficulties and the fact that he will, in all likelihood, have no visitors. Notwithstanding that he has been diagnosed with a gambling disorder, I am not prepared to find that special circumstances apply, given that it is his first time in custody. Given the imposition of a lengthy sentence, there will be sufficient time for him to seek rehabilitation for his gambling disorder.
Taking into account a 10% utilitarian discount on sentence, I intend to sentence the offender to a head sentence of 14 years and 6 months imprisonment and a non-parole period of 10 years and 10 months, to commence on 1 December 2015.
[7]
Orders
I make the following orders:
1. You are convicted of the charge of supply a 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 10 years and 10 months commencing on 1 December 2015 and terminating on 30 September 2026.
3. The balance of term will be from 1 October 2026 to 31 May 2030.
4. I make Orders 1.1 and 2.1 in accordance with Short Minutes of Order dated 1/3/19 as follows:
5. 0.1 Pursuant to s 18(1) cash in the approximate sum of $1480 found on the person of the Defendant on 1 December 2015 be forfeited to the State, and
6. 2.1 Grant leave pursuant to s 19(3)(a) that the property forfeited herein be disposed of forthwith.
[8]
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Decision last updated: 01 March 2019