R v Chun Keat Chong

District Court of NSW|2018-11-23

REMARKS ON SENTENCE

The offender pleaded guilty to the following two charges: 1. Sequence 3 - supply prohibited drug greater than large commercial quantity. The offence is pursuant to s 25(2) of the Drug Misuse & Trafficking Act 1985 ("DMTA") and has a maximum penalty of life imprisonment and/or a fine of 5,000 penalty units, together with a Standard Non-Parole Period of 15 years imprisonment. 2. Sequence 2 - knowingly direct activities of criminal group pursuant to s 93T(4A) of the Crimes Act 1900. The maximum penalty for that offence is 15 years imprisonment.
In addition, there is a related offence on a Certificate pursuant to s 166 of the Criminal Procedure Act 1986 of possession of a prohibited drug, namely, methylamphetamine (0.63 grams).
The offences 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, Chee Hui Tiew and Bunny Bannister.

Evidence relied on by the offender

Exhibit 1 was a psychosocial report under the hand of Ms D Castles, manager, Clyde Assessment and Referral dated 13 November 2018. The offender was interviewed by the author via audio-visual link for one hour, with the benefit of a Mandarin interpreter. The report set out that the offender was born on 13 June 1981 and was aged 37 at the time of the interview. He grew up in Ipoh, Malaysia, on a rural property. He completed secondary school and went to work in factories in Kuala Lumpur. He worked in several factories and sent most of his wage back to his extended family.
The report outlined that three years prior to the offence, the offender developed a problem with ice. Prior to that he had gambled online and at casinos. His recreational use of ice had escalated and he quickly accumulated gambling debts totalling $80,000, or the equivalent of nearly three years wages in Malaysia.
The offender informed the author that he was offered a solution from his supplier, which was to participate in the subject offences. He was also threatened when he was unsure about being involved and said he had no choice.
The offender has had little contact with his family since being in custody and is significantly socially isolated within the prison system. Upon his return to Malaysia the offender has no idea about how to reconnect with his family who are in no position to support him. The author noted that it appears "they may have rejected him for his crime and dishonouring the family". Exhibit 2 comprised a number of certificates the offender has obtained whilst on remand concerning various bible studies. Exhibit 3 is a letter from Pastor Gary Ring of Long Bay Correctional Complex Chaplain's office dated 23 November 2018 confirming the offender's regular attendance at bible study and stating that he has shown genuine remorse for his criminal behaviour.
Exhibit 4 is a handwritten letter from the offender to the court dated 21 November 2018. In it he expresses his remorse for the crimes that he has committed and takes full responsibility for his poor decision making. The offender states that he has had to reflect over the last three years in custody on his past life of drug use and self-centred behaviour. During that time he had been separated from his family in Malaysia and his father had died. He accepted the consequences for his actions and asked for mercy in his sentence.

The offender's submissions

Counsel for the offender submitted that the offender was responsible for facilitating the scheme which had been devised by others whereby a number of Toyota Prada motor vehicles would be loaded with quantities of methylamphetamine in Perth and driven to Sydney. The offender played a role in "readying" the Perth end of the operation as described in the Agreed Facts. His principal responsibility was to be hiring premises in which the unloading of the quantities of drug was to take place. That responsibility extended to receiving orders from Malaysia as to where the vehicles were to be taken and unloaded and to be a point of contact for the drivers once they had departed Perth and were on route to Sydney. When one of those vehicles became stranded, suffering a flat tyre, the offender was contacted for the purpose of organising a rescue operation for that vehicle and the drugs concealed in it.
The offender conceded the Agreed Facts and by his plea, that the vehicles had arrived carrying a total of approximately 30kgs of methylamphetamine, and a fourth vehicle was imminently expected. He therefore had an expectation of being involved in the supply of an amount of 40kgs of methylamphetamine. Telephone discussions recorded by intercept indicate he was to receive $200 per kilogram if the amphetamines landed successfully at the Sydney destination.
The offender submitted that the operation could be described as sophisticated, notwithstanding that some aspects of it were not. The defence further submits that the offender played a substantial role in Australia. The written outline then characterised the role of each of the co-offenders. It was submitted that none of the roles were directly comparable and that there was little to be gained by trying to arrange them in a hierarchy. It was submitted that the role played by the offender was significantly below co-offenders Cheong and Seong, and was restricted to a delivery phase, albeit it was conceded a delivery involving more than conventionally seen by the courts in importing and distribution operations.
It was submitted that whilst the plea of guilty was entered late, it had been subject of negotiations over two weeks prior to it being entered. The savings afforded to the court and systems associated with it were in this case so substantial so as to warrant a 15% discount on sentence.
It was submitted that many of the subjective features of the various co‑offenders were common to each of them. There was a common theme in respect of gambling and drug problems and debts, leading to their recruitment into the syndicate. This offender had a harsh and relatively deprived background. General deterrence was an important factor in sentencing for drug offences, however, here it was submitted that the deprivation suffered by the offender should be given substantial weight in the sentencing process.
In his oral submissions, Counsel rehearsed his submission in respect to the principles of parity to be applied here. It was submitted that the co-offender Loon played a key role in the operation. Although the Crown equated the offender with the role of Loon, namely, "as a key operator", it was submitted that the role of the offender was that of a transport role in organising the transport of the prohibited drugs from Perth to Sydney where he was the contact person to direct the drivers to the place where they would unload the vehicles. He had received some training in Malaysia in packing the tyres. It was submitted that there was no doubt that the criminality of his conduct was below that of Loon. Similarly, it was submitted that the role of Kam Fi Seong involved material that was a level above the offender to some degree. The offender had gone to Victoria with a spare to replace the tyre on the third vehicle as an emergency, but he was otherwise based in Sydney. It was submitted that his conduct could be characterised as a supervisory role with respect to the vehicles and transport of the prohibited drugs. His motive was to satisfy his drug debt.
It was further submitted that the role of the co-offender Tiew was a little below that of the offender, or something similar. It was submitted very strongly that the co-offender Loon sat above the other offenders. Therefore, the offender's role was that of a supervisory one with a number of participants.
The offender was entitled to a utilitarian discount on sentence of 15%, notwithstanding his late plea of guilty. The court would also take into account his remorse as evidenced in Ex 1 and by his plea of guilty.

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 30kgs and an expectation of a supply of 40kgs. The Crown 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. The offender had arrived in Australia from Malaysia on 11 November 2015. On 15 November 2015, he flew to Perth and assisted a person identified as "Loke" to acquire and purchase tools for the 4-wheel drive operation.
The offender arrived back in Sydney on 20 November 2015 and was directed to lease premises for removing drugs from the 4-wheel drive vehicle tyres. On 30 November 2015 the offender was advised that a 4-wheel drive vehicle had been stranded in Victoria with a flat tyre, and he drove from Sydney to the vehicle to fit a new spare tyre. His vehicle was then used to transport the tyre with the drugs back to Sydney by a courier. The offender was then arrested on 1 December 2015.
The offender was the only offender charged with the 4-wheel drive operation. It was submitted that his role was to direct drivers and facilitate the successful transportation of the drugs to Sydney. He flew to Perth to prepare the vehicles for the trip and then returned to Sydney where he attempted to lease premises for the vehicles. His role was described as a substantial role, and on his own account he was to be paid $2,000 per vehicle for the supply of methylamphetamine. The Crown therefore submitted that given his role, the sophistication of the operation, and the amount of the prohibited drug involved, the offending was objectively serious and well above the mid-range for an offence pursuant to s 25(2) of the DMTA.
The Crown submitted that the chain of responsibility for the operation saw the syndicate members in Malaysia as being at the top of the chain, but on the next rung down were the key organisers in Australia for the two operations of which the offender was responsible for the 4-wheel operation.
The Crown submitted that the offender was entitled to a 10% discount in respect of his late plea of guilty.
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.
The Crown submitted that having regard to all of the above matters, a lengthy period of full-time imprisonment was the only appropriate sentence for the offender.
In his oral submissions, the Crown accepted that negotiations had continued for a period of two weeks prior to the plea of guilty being entered. The characterisation of the role of the offender in the operation was the major divergence point between the parties. The Crown submitted that the offender was the direct contact for the transport operation and had received training as to packing the drugs in the tyre. He had also flown to Perth and acquired tools to assist locals with the transport operations. He was described as the key contact for the 4-wheel drive operation, and when a problem arose, he was the one who was contacted. The Crown submitted that the offender was fundamental to the operation succeeding and therefore the objective seriousness of the offending was above that of the co-offender Seong.
In applying principles of parity, the Crown submitted that in the case of the co‑offender Seong, he had gambling debts which motivated his involvement, but no drug problems like the current offender. The offender would have guarded prospects of rehabilitation, although it was clear that his custody involved some hardship because of the fact that he had no visitors. The Crown did not oppose a finding of special circumstances being made and conceded that some remorse had been shown by way of his plea of guilty. The offender here had a similar subjective case to that of Seong, which should be taken into account in terms of the principles of parity. In respect of the possession of prohibited drug charge the subject of the s 166 Certificate, the Crown would not oppose the matter being dealt with pursuant to s 10A of the CSPA, namely, by way of conviction with no further penalty.

Determination

Section 3A of the CSPA 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, whose purpose was to import and supply large quantities of methylamphetamine within Australia. The offence here involved a large commercial quantity, namely, 30-40kgs of methylamphetamine. This was many times above the proscribed amount of a large commercial quantity, namely, 500 grams. The role of the offender is also important to the assessment of objective seriousness of the offending. The offender here played an active role in preparing the vehicles to travel from Perth to Sydney, and then in obtaining premises for the drugs to be unloaded. His role extended to travelling to Victoria to replace the blown tyre on the vehicle with another spare. Having regard to all of the 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.
The objective seriousness of the offence of knowingly direct activities of criminal group pursuant to s 93T(4A) of the Crimes Act 1900, may also be characterised as objectively serious. The offender clearly took instructions from those running the syndicate in Malaysia, but was responsible for directing the activities in Australia. It falls within the mid-range for an offence pursuant to s 93T(4A) of the Crimes Act 1900.
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 the maximum penalty of life imprisonment and lengthy Standard Non-Parole Period are proscribed by Parliament 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 5,000 penalty units as a guidepost in the sentencing process here, together with a Standard Non-Parole Period of 15 years imprisonment in respect of the offence pursuant to s 25(2) of the DMTA. I also take into account the maximum penalty of 15 years imprisonment in respect of the offence pursuant to s 93T(4A) of the Crimes Act 1900. 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 offences were committed without regard to public safety. 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 and financial gain, both to the offender and other syndicate members was potentially significant.
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 also have regard to the sentences delivered today in respect of the co‑offenders Tiew and Bannister, whose roles were considerably less than that of the offender.
I find that the offender will suffer hardship in custody, given his language difficulties and the fact that he has had, and will continue to have no visitors. Given that his involvement in this operation arose through his addiction to methylamphetamine and his gambling debt, and the hardship he will suffer in custody, I find that there are special circumstances established which allow for a variation of the usual ratio between head sentence and non-parole period.
Taking into account a 10% utilitarian discount on sentence, I intend to sentence the offender for the offence pursuant to s 25(2) of the DMTA to a head sentence of 15 years imprisonment with a non-parole period of 10 years.
In respect of the offence pursuant to s 93T(4A) of the Crimes Act 1900, I intend to sentence the offender to a fixed term of 5 years imprisonment, to be served concurrently with above sentence, as the offending occurred at the same time as the principal offence.
In respect of the charge on the s 166 Certificate, I intend to enter a conviction pursuant to s 10A of the CSPA, but direct no further penalty.

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, not less than 30kgs of methylamphetamine pursuant to s 25(2) of the DMTA. 2. I sentence you to a non-parole period of 10 years, commencing on 1 December 2015 and terminating on 30 November 2025. The balance of term will be 5 years from 1 December 2025 to 30 November 2030. 3. You are convicted of the charge of knowingly direct activities of criminal group pursuant to s 93T(4A) of the Crimes Act 1900. 4. I sentence you to a fixed term of 5 years imprisonment commencing on 1 December 2015 and terminating on 30 November 2020, to be served concurrently with the above sentence. 5. With respect to the charge of possession of prohibited drug on the s 166 Certificate, being 0.63 grams of methylamphetamine, I proceed to conviction without further penalty pursuant to s 10A of the CSPA.

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: 01 March 2019

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