4 Accordingly, estimates of value of the heroin concerned are of no great weight. It is quite apparent that the final street value of an importation of heroin can vary greatly according to a number of factors including the availability of the drug at the time and the manner in which it is cut down, as well as a number of other circumstances. The legislation in question sets out the way in which a matter subject to the Customs Act 1901 ought to proceed by way of sentencing principles. In the case before me, the real matter of substance is that the quantity of pure heroin which you imported into Australia was far in excess of the amount of 1.5 kilograms defined by the Act as being a commercial quantity.
5 It is apparent that the importing operation was a well-planned, well-financed, complex, international drug smuggling operation. The planning involved the placing of three men into Australia in the weeks prior to the arrival of the Pong Su which was carrying the heroin. The plan involved an arrangement for the ship to rendezvous with a shore party comprising Kiam-Fah Teng and persons known as Yau Kim Lam and Chin Kwang Lee.
6 Many of the facts about your involvement in the venture are unclear. It is not clear precisely when you boarded the Pong Su. Records seized from the ship reveal that on 13 to 14 March 2003 just over 5,000 tonnes of sand were loaded onto the Pong Su at Yantai, a port on the coast of China. However, having loaded the sand at Yantai, instead of proceeding directly to Indonesia, the Pong Su diverted to a place called Jae Mae Do in North Korea. It arrived there on 15 March 2003. Documents later located on the ship indicate that there were 30 crew members "all Korean" on board the vessel at the time the Pong Su loaded the feldspar in Yantai. The business records of the ship demonstrate that after departing Jae Mae Do on 15 March 2003, communications from the ship stated that the master was then reporting 32 crew instead of the 30 which had left Yantai. A later communication sent from the ship stated, "Crew 32/all Korean, healthy". By the time of the arrival of the ship in Djakarta on 28 March 2003 documentation provided to the Indonesian authorities established that the master was claiming that there were 32 crew members on board the vessel.
7 The prosecution case is that you and the deceased man boarded the ship on 15 March 2003 at Jae Mae Do in North Korea for the purpose of carrying out the importation of heroin into Australia.
8 You have instructed your counsel that you boarded the Pong Su in Yantai in China and that at the time you had no knowledge of the existence of the heroin. Whatever is the truth about when you boarded the ship, it is apparent that you then travelled to Australia on the ship over an extended period of time. At some stage 150 kilograms of heroin were loaded onto the ship. The prosecution contends that the heroin was most likely loaded onto the ship in North Korea and at Jae Mae Do. You have instructed your counsel that parcels, which as I understand, you say you believed at the time to be electrical goods, were loaded onto the ship in Djakarta. Whatever the truth of this, there is no doubt that it was you who along with the deceased man physically imported the heroin into Australia and that you knew at the time that you were importing a very large quantity of the narcotic.
9 The prosecution argues that the complex and risky nature of the operation leads to the inevitable conclusion that you knew exactly what you were expected to do and what substance was involved. The heroin which was imported into Australia is inextricably and physically connected to you. All five packages which were found by police upon Australian soil were wrapped in the same distinctive manner. They were approximately the same physical size. Each was tied with rubber tubing straps and the purity of heroin was similar across all five packages. Your fingerprints and those of the deceased were found on one of the packages found in the possession of Lee and Teng and on packages of heroin located in the bush some time later. The fact that your fingerprints were found internally within the packaging of the heroin indicates that you handled the packages at a time earlier than when they were completely packaged and prior to them being wrapped in several other waterproof layers. Through your counsel you stated that this occurred soon before your disembarkation from the ship. Nevertheless, the fact is that you took part in packing the heroin and it is argued by the prosecution that you were well aware of exactly what role you were performing. Clearly, you were engaged in the exercise of waterproofing the heroin and at that time you must have known the nature of the activity in which you were to be engaged.
10 After landing upon the shore you buried the deceased man. The dinghy was inoperable and you had no means of returning to the ship.
11 You were arrested by police on 17 April 2003, hiding in dense shrub above Boggaley Creek. You did not volunteer yourself to the police; you had to be found by them. When arrested you had in your possession approximately $1,000 and a variety of pieces of equipment including a GPS which had previously been in the possession of Teng and Lam. You told police that your name was Ta Song Wong. You were not in possession of a passport or any other identification documents. No documents that related to any person named Ta Song Wong were ever located on board the Pong Su. In Djakarta a crew list of the Pong Su containing 32 names had been provided to Indonesian authorities. By the time the ship arrived in Sydney under the arrest of the Australian Navy, there were 30 persons on board. With the exception of two names, the 30 people arrested in Sydney corresponded to the crew list provided to the Indonesian authorities. One of those names was Kim Sung Bom, said by the ship's record to have been born on 6 March 1962 and whose occupation was that of a deck rating. The prosecution argues that it is likely that you are the person referred to in that list as Bom. However, when the ship was searched in Sydney no document relating to either of these two people was found on board. There is thus no independent evidence to confirm your identity. I cannot be satisfied beyond reasonable doubt that you are the person referred to as Bom in the ship's records.
12 Nevertheless, as I have said, it is clear that you and the deceased man were the importers of the heroin into Australia. It is clear that you each played a significant role in the importation in that you undertook the last vital step in transferring the heroin from the ship to the shore. It is clear that Lam was the shore-based person who was to receive the heroin from you and the deceased person. You were found with an orange Nokia telephone and two SIM cards. In the days preceding the events at Boggaley Creek there had been communications between a telephone service operated by Lam and one of the services later to have been found in your possession. The telephone found in your possession had received calls on 8 April 2003 through the Geraldton mobile tower at a time when the Pong Su was a short distance from that tower. It also received calls on 14, 16 and 17 April whilst you were undoubtedly in possession of it. A telephone service that Lam had used contained in the directory the name of Bom which name was associated with a telephone number being one of the two services located in your possession. It should be observed that the deceased man died from drowning. The prosecution argues that the fact that you had possession of the Nokia telephone, and the fact that the delivery of the heroin took place in the absence of the deceased, suggests that you played no lesser role than the deceased person in the importation of the heroin. Mr Lewis of counsel argues that in circumstances where the dinghy overturned it is apparent that the telephone must have been waterproofed in some way and that it cannot be concluded that you were in possession of the phone before the dinghy overturned and the deceased met his death. Thus he contends that it is equally open that the deceased had the phone prior to its coming into your possession. Indeed he informs me that your instructions to him are that you found the phone on the beach. I am unable to determine who had possession of the phone at the time the telephone calls were made. There is no doubt however that in the course of the following hours you used the phone to contact the ship.
13 As stated above, the fact that your fingerprints appeared upon the internal wrapping of some of the packages and the whole context in which the importation took place makes it clear that you had an understanding of the nature of the cargo and the magnitude of your role. Your role involved the most dangerous part of the importation venture. You were involved in the launching of the dinghy off the Pong Su into the open ocean and the travelling of the dinghy to shore in rough weather conditions. Clearly you were aware of the loading of the packs of heroin into the dinghy. It was you who tried to disguise the death of the deceased by covering him up with rocks and kelp. It is contended by the prosecution that you were kept in a position of trust by those arranging the importation, not only due to the valuable nature of the cargo but because of what you knew about the organisation of the venture and your capacity to deal as you did with Lam on shore. I am unable however to determine whether it was you or the deceased or both of you who had the capacity to deal with Lam
14 It is beyond argument that after delivery of the heroin you were intending to return to the ship with the deceased and then to leave Australia. That is clear because you had with you no documentation, clothing or other possessions which would demonstrate any intention to stay in Australia. The ship remained in the vicinity of Boggaley Creek until almost midday on 16 April 2003, thus evidencing the fact that it was expected that you would return. You had no previous relationship with this country. Your sole purpose for entering Australia was to commit the offence.
15 On this basis the prosecution submits that you played an integral role in the operation and that you were entrusted with the role of ensuring that an immensely valuable cargo of heroin would be delivered into Australia. Your counsel contends that you were "simply the person who delivered the drugs" and that you "inevitably" fall into a lower category in hierarchy than Lam, Teng and Lee. He contends that the fact that the ship left without you demonstrates that you were "expendable". I do not accept this argument. You were on shore by soon after midnight. The ship did not depart until midday. The evidence is that people on the ship were seen looking towards the area in which you were with binoculars. The ship was at serious risk of arrest. It can not be said that it departed the area with alacrity thus abandoning an expendable person.
16 Your counsel has told me of your instructions to him. You have told him that you were born in China in an area adjacent to North Korea. Your father was a carpenter whom you believed to be a Chinese citizen but of Korean descent. Your mother was Korean but born in China. You were ten years of age when your parents died and you were educated at a local school until that age. Thereafter you were taken care of by neighbours but became itinerant. You made your living by collecting wood from the mountains. You were born on 10 October 1965. I am told that you collected wood from the mountains and burnt it into charcoal and then sold the charcoal. Subsequently, in your late teenage years, you worked as a porter at a train station and later for a construction company. You went to Beijing to seek work. There it is said you met a man whom you knew as Chui. You have instructed your counsel that Chui is the deceased man. Chui and you met at a market in Beijing and he was generous towards you, giving you food and money. You were offered a sum of 100,000 yuan, which at the time Mr Lewis tells me, equated to about A$16,000. You say you were to be paid that sum to help Chui bring electrical equipment to Australia. That sum of money amounted to riches beyond your imagination. Mr Lewis argues that it was this that "lured" and "tricked" you into joining the enterprise.
17 You have instructed Mr Lewis that you were taken on to the Pong Su by Chui in Yantai on the afternoon of 14 March 2003. You have instructed your counsel that the packages which turned out to be the drugs, did not arrive until the ship moored off Djakarta, when a boat came alongside the ship and two large boxes were loaded onto the ship. Those boxes were taken up to the cabin in which you and Chui were housed, and they remained there in that state until shortly before they were to be disembarked at which time you were asked to wrap them so that they would be waterproof. You say that you and Chui did that with materials that were supplied to you. You do not say by whom. Chui had always told you that they were "electrical parts". You instruct that you understood them to be valuable, but at that stage you did not understand them to be drugs. Subsequently, after you questioned Chui, he told you that what was in the boxes was in fact heroin. Precisely when you say this occurred was not stated to me. Nevertheless it is stated that you were thousands of miles from your home and dependent upon Chui. It is said by your counsel that it is in those circumstances only, that you knowingly joined the scheme to bring the drugs into Australia, thus becoming guilty of importation of them.
18 It should be observed that the above story is bereft of any real detail. I am not told when Chui induced you to engage in the voyage or whether any precise details of the nature of the voyage were provided by him to you. I am not told how or where it was that Chui intended to import "electrical goods" into Australia, nor what it was that you were expected to do to assist with the importation of the "electrical goods" in exchange for the sum of 100,000 yuan. This sum is said to be an amount of "riches beyond" your imagination. No detail as to what documents were used to gain your entry to the ship, or to Djakarta has been supplied. You did not give evidence before me.
19 It should be further observed that the story now advanced before the Court from the Bar table varies somewhat from other statements made by you. You were interviewed by police soon after your arrest, and whilst I recognise that you were in a reduced and tired state, to the extent that police did terminate the interview, you nevertheless denied any involvement in heroin importation. More significantly you were interviewed by the Homicide Squad some days later. You told police that you were "a worker" on a ship, the name of which was unknown to you. You said that when you got to Australia your "friend", Chui asked you to take an item ashore. You said the ship stopped near the shore. You said you got into a small boat with your friend Chui. You said he "arranged the boat". You said you had met him in the "beginning of the year". You had met him only "twice". No mention was made in this statement of the nature of the "item" you brought to shore.
20 In essence, therefore, your version of events is that in effect you are an itinerant worker, with no real skills, who met up with Chui on two occasions, and that you were offered what was to you a very substantial sum of money, to travel on a ship and help Chui deliver electrical goods. This version is implausible in the extreme.
21 The drug importing operation which took place in this case was a carefully planned and sophisticated operation. Clearly someone had been in Australia in March of 2003 to establish a false cover story for the trip by being in touch with legitimate freight forwarders of motor cars. Sophisticated forged documents came into existence to enable Lee and Lam to enter Australia and conduct their affairs here. Substantial sums of money were spent in relation to the ship's voyage including fuel costs of US$75,000 and the costs of the change of flag. Well planned and devious use of telephones took place. Forged contract documents referring to a fictitious chartering company, KIMTO were brought into existence and used, as were fictitious business cards. Those responsible for this importation engaged in careful, and expensive planning for the enterprise. Undoubtedly the heroin was of immense value. Yet on your version, the operation was put at risk by bringing someone who was not known to anybody, beyond two meetings with Chiu, to undertake a voyage to Australia via Djakarta, and then to engage in the most perilous part of the venture, the transfer of the heroin from the ship to those persons awaiting the arrival of the valuable cargo. Put in the context of all that is known about the venture, I consider it highly improbable that your explanation of your role, unsupported in any way by the evidence or by any document, is the truth.
22 That said however, and as much as I do not accept the explanation of your role as proffered by you as mitigatory, I must be satisfied beyond reasonable doubt as to any matter which I find against you.
23 In this regard it is necessary for me to consider the evidence of your place in the hierarchy. In R v Olbrich[2] Gleeson CJ, Gaudron, Hayne and Callinan JJ in relation to the identification of the involvement of the accused person in a crime related to importation said:[3]