(2010) A Crim R 106
R v Shi [2004] NSWCCA 135
The Queen v Pham [2015] HCA 39
Source
Original judgment source is linked above.
Catchwords
(2010) A Crim R 106
R v Shi [2004] NSWCCA 135
The Queen v Pham [2015] HCA 39
Judgment (4 paragraphs)
[1]
Solicitors:
Kingston Fox Lawyers (for the offender)
File Number(s): 2021/00032675
[2]
SENTENCE - EX TEMPORE REVISED
In January 2021 a parcel addressed to "Chiew Kok Aun" was intercepted by border control authorities. It had come from Malaysia. It contained 186.27 grams of pure heroin. The heroin was removed, and the parcel reconstructed. It was then taken by police undercover operative disguised as a delivery person to the address in Burwood.
The woman who answered the door said that she was not the nominated person but that it could be her housemate. A short time later Chan Kiat Chew, the offender, came out, and handed over his identification unprompted. He spoke to the delivery person/undercover operative and said, "That's me, it's a spelling mistake." He took delivery of the parcel.
Soon after he was arrested. He was taken to Burwood police station and provided with a Mandarin-speaking interpreter. Initial denials were soon followed by admissions. He told police that he had received previous parcels from a friend and was aware they contained white powder. On those occasions he had been asked to open the parcels, take out the packages inside and weigh the contents. He was then asked to give the packages to another person by placing them in a red toolbox for collection. He said he possibly suspected the parcels sent to him contained drugs. He said he did so to earn money.
During a subsequent search of his premises a red toolbox containing 123 grams of powder was found. That powder was later found to be methylamphetamine. The offender accepted that it was product from a previous parcel that was awaiting collection.
Police made enquiries in relation to a bankcard (under a different name) held in his wallet. Those enquiries indicated that the offender had made 39 deposits to various bank accounts totalling $223,650. During his interview with police the offender admitted that he had received money from people and deposited them as instructed. He received $500 for each exchange.
When he was before the Local Court Chew accepted responsibility for each of the matters. It was agreed that two matters would come to this Court for sentence. They are:
1. the attempt to possess a marketable quantity of unlawfully imported controlled drugs: ss11.1(1) and 307.6(1) Criminal Code Act 1995 (Cth), maximum penalty 25 years imprisonment, and
2. supply prohibited drug: s 25(1) Drug Misuse and Trafficking Act 1985 (NSW), maximum penalty 15 years imprisonment.
It was also agreed that an offence of deal with the proceeds of crime over $100,000 would be dealt with on a s 16BA Schedule, Crimes Act 1914 (Cth) when I sentenced him for the attempt possess marketable quantity offence. That offence, if dealt with separately, carries a maximum penalty of three years imprisonment.
Before the Court today a fresh indictment was presented to correct procedural errors. Mr Chew entered guilty pleas that were consistent with that indicated in the Local Court. He also asked that I take into account the matter on s 16BA Schedule. I will do so. I do not sentence for the matter on the schedule but it does operate to increase the sentence for the offence to which it relates. It does warrant an increase in the sentence particularly in relation to the need for specific deterrence and retribution as explained in the guideline judgment of the New South Wales Court of Criminal Appeal; which is accepted applies to Commonwealth sentencing. As the schedule matter helped inform me about his background and prior activity, I have to be careful not to double count matters in aggravation revealed by it.
The pleas of guilty have a number of benefits. So far as the New South Wales matter is concerned, I must reduce the otherwise appropriate sentence by 25% to reflect its utilitarian value: s 25D Crimes (Sentencing Procedure) Act 1999. So far as the Commonwealth matter is concerned a similar reduction to reflect the utilitarian value of the plea is required and will be made. There must be some accumulation of sentences, but I will take care that that process does not to undermine or erode the benefits given. The plea of guilty also has other benefits to the offender to which I will refer later.
I am not sentencing Chew for anything to do with the importation, but I have to keep in mind that attempted possession still carries the same maximum penalty: s307.6(1) Criminal Code (Cth). A Court in matters such as this should focus on; the circumstances in which the person attempted to come into possession of the drug, what they intended to do with the drug and their involvement in any overall transaction.
The degree of involvement or role is always important. I take into account the factors helpfully set out by Johnson J in R v Nguyen [2010] NSWCCA 238;(2010) A Crim R 106 at [72]. I only sentence for these matters, but it is accepted, as the offender himself admitted, that his offending was part of a course of conduct. In this matter it is clear that by the time this parcel arrived he was well aware that what he was doing was illegal; as the parcels being delivered to his home contained a powder and he is not an ignorant man. He was either reckless in the extreme or being wilfully blind as to what was occurring or, as I strongly suspect, aware that the substance that he was being asked to handle was an illicit drug.
Given the amounts of money he was receiving for these transactions he conceded in the evidence today that the only thing the items could be was illicit drugs. Although he weighed the powder in the parcels, he was not aware of their purity and it would appear from all the material before me, ignorant as to other aspects of the drug trade.
An offence is no less serious just because the drugs were intercepted. Neither he nor his principals knew there had been an interception. But one measure of seriousness of the criminality of an offence is the harm, injury, loss or damage. That harm was avoided by careful police and border force work. As a result, circumstances that can lead to an increased sentence was not present in this matter.
His role involved no sophistication, but as the Crown point out the operation was sophisticated. The amount involved is always important in matters such as this. It was 186 grams, which is well below the 1.5-kilogram limit but well over the 2 gram minimum limit for drugs of a marketable quantity.
Chew was making a profit from his actions. He accepted that for each delivery and for this delivery he would have expected $500: Agreed facts at [5]. He chose to involve himself for financial reasons. He chose to engage, as he must have known by the time this parcel arrived, in a process which would have resulted in the distribution of border-controlled drugs in the community. And although he is a Malaysian national, he, in his evidence today, frankly accepted that he was aware that to involve himself in the drug trade is regarded as a very serious crime in Malaysia and would equally be regarded as a very serious crime in this country.
He took the risk. He intended to get a reward. His role was subsidiary but without people such as Chew drug distribution networks would simply collapse: R v Shi [2004] NSWCCA 135. This means that in common with most such matters his offending was committed without regard for community safety and that he chose to involve himself in organised criminal activity. He, however, was the person chosen by others to take the risks so that they could make substantial profits. While he was rewarded for his actions his share of the possible profits from this transaction was a relatively modest one.
So far as the New South Wales offences are concerned all the evidence before me that whilst the proceeds of the previous delivery were as yet uncollected, his role was to hold those drugs on behalf of whoever came to collect them. Quantity is one measure of the seriousness of such offending; so is his role as a store person. There is no evidence that he knew the exact quantity or purity but have regard to the amount, being 123 grams. The weight range in New South Wales that determines the penalty for an offence of this nature is between 5 grams and 250 grams.
I have regard to the maximum penalties. They are important guides to the exercise of my sentencing discretion. For the Commonwealth offence it 25 years imprisonment. For the New South Wales offence, it is 15 years. I do not need to, and do not feel it necessary, to fix on some notional range by comparison with other matters. I am obliged to set out all of the matters that I take into account and that have been put before me and synthesise them into appropriate sentences for both matters and also consider the total sentence for the two matters before me. Every sentencing exercise is individual.
The offender has no criminal antecedents in Australia and no Malaysian antecedents were put before me. I treat him as a person of otherwise good character. And it would seem from all the material before me that until he chose to involve himself in this offending, he was a person of good character. Past behaviour is one measure of future behaviour. All the material before me indicates that when he has served his sentence and if he can get appropriate assistance inside and outside custody, it is unlikely he will reoffend.
Chew gave evidence today. He told me of his reasons for coming to Australia and of his attempts to gain refugee status. He told me that he had worked as a gyprocker and was able to work and look after himself in the community. There is evidence before me that while he had few friends, he did have some, and maintained contact with family members in Malaysia. The death of an uncle about the time of this offending is regarded by him, and Mr Noyeaux, the psychologist who spoke to him, as an important stressor on his life. So too is his loneliness and his inability to have much to do with the local community. It would appear his English is very limited. He is a Mandarin speaker. All proceedings today were conducted with the assistance of a Mandarin interpreter.
Chew has applied for refugee status because gambling debts in Malaysia have caused him to fear for his life and for family. He told me of the stresses placed on him; as he did his psychologist Mr Noyeaux. He is 25 years old. He has been in Australia since 2006. There are no underlying problems with alcohol or other drugs. It would appear his motivation for engaging in this offence was primarily financial. During the COVID lockdowns he lost full-time employment. He could only work one day a week; if that. He was offered an opportunity to make easy money and he took it. He was not, as I understand it, qualified for any form of relief such as social security or other COVID related assistance.
During his time in Australia, he had been depressed and anxious for several reasons. Those reasons are set out in the report of Mr Noyeaux. He speaks of the offender's stress, anxiety and depression. Mr Noyeaux's diagnosis is that Chew has a major depressive disorder, separation anxiety disorder and abandonment disorder. It is hard from reading the report, some portions of which were redacted, to fully understand the extent to which any or all of those matters were operating at the time of the offending. It could be that each matter arose during of them his time in custody since his arrest on 4 February 2021.
I am prepared however to accept that given his history and background that he was depressed, anxious and felt abandoned at or about the time of his offending. The matters raised and his evidence today helped me understand his state of mind and why he took the opportunity to make the financial rewards that were offered to him for engagement in the two offences for sentence and the matter on the s 16BA.
Those conditions would have been enhanced or exacerbated by his time in prison. The community should not underestimate the impact of prison on any person, but where a person has limited English and, few friends in the community, isolation has a greater impact on them than those who have been part of this community all of their lives.
Chew will need psychological help when he is in custody and on his return to the community. I will have a copy of Mr Noyeaux's report sent with the warrant to Corrective Services NSW.
Chew accepted responsibility on arrest, after short prevarication. He is contrite and has been cooperative. He has assisted and shown some willingness to facilitate the course of justice. He feels guilt for the impact on his family of his crimes. He shows little understanding of the impact of drug crimes on the community but accepts that he was stupid to get involved.
There are two matters for sentence today and two sentencing regimes with different but similar purpose must be considered: s 16A Crimes Act 1914 and s 3A Crimes (Sentencing Procedure) Act 1999 NSW. Some matters do overlap because when sentencing for the attempt to possess I have taken into account it was part of a course of conduct: s 16A(2)(c) Crimes Act 1914. It seems obvious the methylamphetamine in the red box (the drugs, the subject of the State matter) were the product of an earlier collection or delivery to Mr Chew's address. Nevertheless, they are discrete offences.
In fixing the total sentence I consider the principles of totality. Individual sentences must be fixed for each offence and total sentence should be just and appropriate to the offending behaviour. There is a need here for supervision on parole and primarily to ensure that he continues to get the psychiatric assistance needed and for reintegration into the community which he will need given the impact of custody.
Chew has served his sentence during the COVID pandemic. He gave evidence he has been in lockdown for, many times, totalling many months of the sentence served. I have heard similar evidence from many prisoners. Access to visits, access to programs and access to work is restricted. Prisoners who have no control over their own lives must obey Corrective Services NSW directives. As a consequence, they are often locked down at short notice and often have difficulty accessing programs or even getting out of their cells. Tragically, it looks like that situation will continue.
Although prisoners serving New South Wales sentences are entitled to the possibility of early release that possibility is not afforded to Federal prisoners, although I note no New South Wales prisoners have had the benefit of those emergency provisions. Again, I do not ignore the impact of gaol in the pandemic and for someone serving their sentence harder than a notional English speaking national with underlying psychological problem. COVID adds another stressor that tragically cannot be avoid but must be taken into account on sentence.
I am indebted to Ms Brain, Counsel appearing for the Commonwealth Director of Public Prosecutions and defence counsel, Mr Fitzgerald, for their written and oral submissions. They addressed all relevant issues and I trust this judgment has done justice to them.
Ms Brain made the point that by the time he received the transaction, the parcel, the subject of the matter for sentence, he well knew illicit drugs were involved. I matter I have found proved beyond reasonable doubt.
So far as Mr Fitzgerald is concerned, he points to the low-level role which I accept and while his acceptance that one off payments of $500 were not insubstantial, they were not the sort of substantial profits that principals make from such operations. He said Chew's involvement was primarily based on financial need, not greed. That may be true, but it cannot, as he accepts, provide any excuse for involvement in crimes carrying maximum penalties of 25 years and 15 years respectively.
The Commonwealth Director provided a table of comparative cases. The consistent application of principle must always be considered. The guidance offered by appellate Courts for other decisions is always welcome. They provide some yardstick or help but sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precise but the same as in past case or cases: The Queen v Pham [2015] HCA 39; (2015) 256 CLR at [47].
Synthesising all these matters. Mr Chew came to this country to work and hopefully stay. The COVID pandemic meant that his capacity to earn an income and support himself was limited substantially. He was not, as I understand it, have access to any alternative form of income other than work. He was suffering financial strain. He was suffering other emotional and psychological stresses. He was given an opportunity to make easy money. He took a substantial risk for relatively modest reward. He is now in custody far from home. He has few local contacts and is a non-English speaker who is particularly isolated and even more isolated because of the COVID pandemic.
He must receive sentences appropriate to his offending and his personal circumstances. In both matters heavy penalties are generally imposed because of the need to attempt to deter others from making the mistakes, the seriously criminal mistakes, made by Chew.
Drug distribution in our community has serious consequences. Those serious consequences, social and economic, are reflected in the maximum penalties provided. Chew has reasonable prospects for the future if given assistance it seems reoffending is unlikely. The matters raised on his behalf require a degree of sympathy be accorded to him. Ultimately, however, there must be custodial sentences. I take into account the pleas of guilty. There is a need for accumulation. The sentences reflect discounts of 25%.
In order to be as transparent as possible I will first impose the State sentence. It will be a fixed term. That fixed term reflects the minimum term in custody required for an offence of this nature and the offender's subjective case. I have not added a parole period because any parole would be subsumed by the Commonwealth matter.
[3]
Orders
For the State matter there will be fixed term of one year and six months. It will date from 4 February 2021.
The Commonwealth matter will start nine months later - on 3 November 2021. There will be a sentence of three years and four months imprisonment. The non-parole period is shorter than would ordinarily be the case where I sentence him for this matter to take into account the accumulation on the earlier sentence. I fix a non-parole period of one year and nine months. That will commence on 4 November 2021 and end on 3 August 2023, on which date subject to s 19AL Crimes Act 1914, you are to be released to parole. The balance of the term of the sentence of one year and seven months will commence 4 August 2023 and that means that it will end on 3 March 2025.
I make an order, pursuant to section 18(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW), that the Apple iPhone 11 Pro Max, IMEI 353916105398531 is forfeited to the Commonwealth.
A copy of the report of Karl Noyeaux (exhibit 1) is to be forwarded with the warrant to Corrective Services.
Mr Chew there are two matters for sentence. The total effective sentence is one of four years and one month. The minimum period in custody is two years and six months. The period of parole is one year and seven months. Those sentences are made up in the following way.
For the State matter a fixed term which equates for the minimum term of the sentence of one year and six months which starts on the day you went into custody, 4 February 2021. The Commonwealth sentence is one of three years and four months with a minimum sentence of one year and nine months. The non-parole period for the Commonwealth sentence is one year and nine months which commences on 4 November 2021 and ends on 3 August 2023 on which date you will released to parole. That is subject to Commonwealth provision s 19AL. The balance of the sentence is one year and seven months and that will commence on 4 August 2023 and the total sentence will expire on 3 March 2025
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 August 2022