R v Tan [2005] VSCA 54

2 On 8 February 2002 the applicant, Chin Poh Tan, who is now aged 47, pleaded guilty to a presentment containing four counts, namely, two counts (counts 1 and 3) of possessing not less than a commercial quantity (20,347 and 36,588 tablets respectively) of a prohibited import namely 3,4 methylenedioxymethamphetamine (MDMA or ecstasy) contrary to s.233(1)(ca) of the Customs Act 1901 (Cth), one count (count 2) of possessing not less than a trafficable quantity (2,986 tablets) of the same drug contrary to the above provision of the Customs Act and one count (count 4) of trafficking not less than a commercial quantity of that drug contrary to s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981 ("the drug Act"). The presentment alleged that the offences were committed on 10 March 2000. The maximum custodial sentence prescribed for the offences charged by counts 1 and 3 is life imprisonment and for the other offences in question is 25 years' imprisonment. After hearing a plea in mitigation on 18 October 2002, the learned sentencing judge sentenced the applicant on 17 December 2002 to the following terms of imprisonment: on count 1 - eight years; on count 2 - four years; and on count 3 - eight years. His Honour ordered that the sentence on each count commence on 17 December 2002 and that the non-parole period in relation to these counts be six years. In relation to count 4, the sole State offence, the applicant was sentenced to 12 years' imprisonment with a non-parole period of nine years' imprisonment and it was ordered that this sentence also commence on 17 December 2002. No order as to cumulation was made in respect of count 4, and thus, the total effective sentence imposed on the applicant was 12 years' imprisonment with a minimum term of nine years' imprisonment before being eligible for parole. His Honour declared that a period of 1,013 days be reckoned as already served, thereby taking into account that the applicant had been in custody since his arrest on 10 March 2000. It is convenient to note at this point that on 27 July 2001 the applicant's co-offender Siew Kim Lee

("Lee"), to whom I will again refer, was sentenced by the same judge to five years' imprisonment with a non-parole period of three years in respect of one count of unlawful possession of ecstasy tablets (being the same tablets as were the subject of the above count 2) contrary to s.233B(1)(ca) of the Customs Act.

3 By notice filed on 23 December 2002 the applicant sought leave to appeal against sentence on three stated grounds. This application was dismissed on 29 August 2003 by a single judge of this Court, but the applicant elected under s.582 of the Crimes Act 1958 to have his application for leave determined by a Bench of three judges of this Court. On 29 October 2004 the Registrar granted the applicant leave to add a further three grounds to his notice of application of 23 December 2002. The applicant also filed on that date an application for extension of time within which to lodge a notice of application for leave to appeal against conviction, but this proposed course was not pursued so that nothing further needs to be said in relation to it.

4 The facts giving rise to the offences are set out with some particularity in the sentencing remarks of the learned sentencing judge and it is only necessary to mention the following aspects of them. As from about early February 2000, officers of the National Crime Authority kept the applicant and Lee under surveillance. They effectively made contact with Lee on 9 February 2000 through a registered informant, "Abe", who entered into discussions with Lee regarding his purchasing ecstasy tablets from Lee. Eventually, on 9 March 2000, Lee met Abe and "Anna", a Victoria Police Covert Operative, at an hotel in Fitzroy, Melbourne ("the Fitzroy hotel"). Lee agreed to sell 20,000 ecstasy tablets to Abe for $400,000. The tablets were to be delivered to Abe on the following day at a public open car park in Carlton. On 10 March 2000, the applicant parked a rented Holden Barina sedan ("the Barina") in that car park and, taking a shopping bag with him from the car, crossed the road adjacent to the car park and entered the passenger side of Lee's Honda motor car. Lee was seated in the driver's seat. Lee and the applicant then drove the Honda to the Fitzroy hotel. Lee entered the hotel and met with Abe and Anna. Meanwhile, the applicant drove the Honda to Flemington, parking it on the road. Lee left the hotel with Anna and Abe and directed them to the Barina, which was parked in the Carlton car park, telling them that 20,000 ecstasy tablets were inside it. Essentially, Lee gave them access to the tablets after Anna produced $400,000 to Lee. Almost immediately after that, the police arrested Lee and found 20,347 ecstasy tablets in the Barina. These tablets were the subject of count 1. Shortly thereafter, the police arrested the applicant who was seated in the Honda which was parked in Flemington. Officers found in the car 2,986 ecstasy tablets. These tablets were the subject of count 2. After his arrest, police officers executed a search warrant at the applicant's premises at Gisborne where they found a further 36,588 ecstasy tablets, which were the subject of count 3.

5 When interviewed by the police the applicant admitted having left the ecstasy tablets in the Barina, saying he expected to be paid $10 per tablet. He also admitted that he brought with him to Sydney from Singapore, on 20 February 2000, approximately 50,000 ecstasy tablets that he intended to sell in Australia. He told the police that he did this because he had financial difficulties in Singapore. The bank records obtained by the police referrable to the applicant showed that he and his wife owned a number of bank accounts in Melbourne and Singapore. Those records also showed that very large sums of cash were deposited into the applicant's Melbourne bank accounts at different times during the relevant period and that this was usually followed by withdrawals of significant sums, which were transferred into Singapore bank accounts under the applicant's control. More particularly, the records disclosed that between March 1998 and March 2000 the applicant caused over $1.5m to be transferred out of Australia to Singapore, most of which, it would seem, was deposited in bank accounts under the applicant's control. The records of the Crown Casino in Melbourne, obtained by the police, made it plain that, at the relevant time, the applicant was a "Mahogany Room Card Holder" (thus indicating that he was a large scale gambler) and that, between April 1995 and March 2000, his total gambling turnover was in excess of $1.9m and that his recorded loss for that period was almost $118,000.

6 Notwithstanding the applicant's admissions to the police, he contested the committal hearing and later argued at the voir dire hearing in the County Court that his police record of interview was inadmissible at his then forthcoming trial. On 11 July 2001, however, the record of interview was ruled admissible and, following discussions between the parties, on 8 February 2002 the applicant was arraigned on the presentment to which I have referred and, as I have noted, pleaded guilty.

Applicant's personal circumstances

7 The applicant was born in China on 14 May 1957, but later fled with his family to Singapore where, eventually, he became a citizen. He is married with three children aged 18 years, 12 years and 8 years respectively. After the applicant failed his General Certificate of Education examinations in Singapore, he took up an apprenticeship as a motor mechanic. He also completed two years of national service and later, as a qualified motor mechanic, set up his own business in that industry. It seems, however, that when the government introduced an authorised system of motor repairs, the applicant was unsuccessful in the ballot to become an authorised motor repairer and, as a consequence, suffered a marked deterioration in the profitability of his business. He purchased a flat for his family for $850,000 and in order to do that borrowed substantially and could barely afford to pay interest on the loan. Following the applicant's arrest in March 2000 the flat was sold and his family now live in government housing in Singapore. It seems that the applicant does not have a meaningful relationship with his wife, although he is close to his children. The applicant told the consultant psychiatrist who assessed him for the purpose of his plea in mitigation, Dr. Ruth Vine, and whose report dated 18 April 2002 was before his Honour, that he was uncertain whether his wife would have him back.

8 The applicant also told Dr. Vine that he not only lost considerable sums of money in Singapore because of the collapse of his business, but he also lost significant amounts gambling at the casino and at the race track and as a result of the Singapore Stock Exchange being frozen in 1990. It seems that the applicant purchased his premises in Gisborne in 1993. According to what he told Dr. Vine, he did so in the belief that his eldest daughter might require accommodation here if she failed to gain entry into the Singapore University and had to take up study in Australia. I note, however, that this explanation for the purchase of the Gisborne premises was not accepted by the learned sentencing judge.

9 In the mid-1990's, the applicant was induced to transport ecstasy tablets from Singapore to Australia in order to supplement his income and, during one of his visits here in 1996, he met Lee at the Crown Casino. Not long thereafter, he formed a liaison with her. During the subsequent four years, the applicant visited Australia three to four times per year and during his presence here cohabited with Lee. On a number of those occasions, he brought ecstasy tablets into Australia for sale. The applicant claimed to Dr. Vine that he did not understand the gravity of his offending conduct. He contended that he believed ecstasy was a party drug that was illegal in Singapore, but that he was unsure as to "its seriousness" in Australia. His Honour did not accept this explanation.

The applicant's argument

10 The applicant's counsel abandoned the three grounds contained in his notice filed on 23 December 2002 and sought to rely only on his new grounds. It is not necessary, however, to deal with all of counsel's arguments because, for reasons that will become apparent, I consider that the learned sentencing judge impermissibly punished the applicant twice for the offending conduct that is the subject of counts 2 and 3, once when sentencing him in respect of those counts and again when he sentenced him on count 4 for trafficking. As was recently explained by this Court in R. v. Nor[1], essentially by reference to Pearce v. The Queen[2], the rule against double punishment operates to preclude the offender being punished twice for the same criminal act. Here, possession by the applicant of the ecstasy tablets found in his car and at his Gisborne premises was the fundamental basis of the offences charged by counts 2 and 3. The same criminal acts - that is, possession of these quantities of the drug - were then relied on by the Crown to establish, by reliance on the extended definition of "traffick" in s.70 of the Drugs Act, trafficking by the applicant for the purposes of the count 4. It was said by counsel for the respondent, however, that although there was substantial overlap in the two sets of charges, the respective sets of criminal acts were not identical because counts 2 and 3 were concerned with the unlawful possession of the drug that was unlawfully imported, whereas the question of importation was irrelevant in relation to the offence created by s.71(1) of the Drugs Act that was the subject of count 4. In other words, said Mr. Armstrong for the respondent, the offence of possession for the purpose of counts 2 and 3 contained an "additional" element that was absent from the aggravated form of possession that constituted trafficking for the purposes of count 4. Consequently, it was submitted, albeit faintly, I think, that the rule against double jeopardy was not breached in this case. Attractive though such an argument might be at first blush, in my view, it cannot be accepted because, as the High Court emphasised in Pearce[3] the identification of a single act as common to two offences "may not always be straightforward" but the exercise should not be attended by "excessive subtleties and refinements". It should be approached with commonsense and "not as a matter of semantics". I consider that, as a matter of commonsense, the criminal acts of possession of ecstasy in respect of which the applicant was punished by way of the sentences imposed on counts 2 and 3 were essentially the same criminal acts that were central to count 4, which alleged that the applicant "trafficked" the drug by reason of his possession of it for sale pursuant to the definition of "traffick" in s.70. Put another way, the trafficking count essentially alleged an aggravated form of the offence of "possession" of ecstasy, while counts 2 and 3 charged him with possession simpliciter of some of the quantity of the drug he was charged with having trafficked. As such, in the circumstances, the applicant was impermissibly punished twice for the same offence. This sentencing error has, therefore, re-opened the sentencing discretion, which is now to be exercised by this Court.

11 I mention for completeness that count 4 encompassed trafficking by the applicant of 20,347 tablets of ecstasy by supplying them to "Abe". As such, in relation to this quantity, the Crown did not rely, for the purpose of count 4, on "deemed" trafficking by having possession of the drug for sale. Rather, the Crown relied on police surveillance evidence, including the evidence of "Abe", to make out that charge. Accordingly, the applicant was not exposed to double jeopardy in relation to count 1.

Re-sentencing

12 Mr. Boyce, for the applicant, contended that the sentence of 12 years' imprisonment on the trafficking count was unacceptably high in the sense that it was outside the relevant range. Counsel contended that the sentence was the highest, or one of the highest, sentences for trafficking ecstasy imposed in this jurisdiction and that, in any event, it was an unduly excessive sentence in this case given the mitigating circumstances that prevailed here, including the applicant's admissions to the police, his plea of guilty, the fact that the applicant fell to be sentenced as a person of good character and that his prospects of rehabilitation were sound.

13 It is plain enough that the sentence to be imposed on the offender must reflect the gravity of the offence and the offending conduct, but have regard also to matters personal to the offender and other mitigating circumstances, as well as to the applicable sentencing principles. Trafficking a pernicious drug like ecstasy is a very grave offence given the devastation such conduct brings about in the community, as has been recognised on many occasions by this and other senior courts in Australia. Courts have made it plain that those who engage in such criminal conduct for profit and are caught should expect to be severely punished. Furthermore, the gravity of the offence is reflected in the maximum sentence prescribed for it by Parliament.

14 The offending conduct here was also of a grave nature. As the learned sentencing judge recognised, the applicant well knew what he was doing when he pursued his criminal enterprise and his Honour rejected, as I have noted, the applicant's claim to Dr. Vine that he became caught up in the offending because he was gullible. His Honour also rightly considered the applicant to be a principal in a well-planned and sophisticated operation of considerable size. As his Honour pointed out, the applicant was able to conceal the tablets from Customs when he arrived in Australia from Singapore. Moreover, he had, for some years, a well established base in Gisborne and a reliable contact in Lee. Importantly, the applicant created a false picture of himself as a respectable person by regularly visiting this country, owning property here as well as having a large number of bank accounts. He also managed to secure a status as a serious and wealthy gambler at the Crown Casino. In conducting his criminal operation, the applicant stood to make a substantial profit if his plan succeeded. Importantly, the quantum of pure ecstasy involved in the charges in question was very large - almost 8.5 kilograms, which emphasises the scale of the operation that he conducted and the harm that would be caused to the community if he succeeded in distributing this drug. In considering the appropriate sentence to be imposed, the very important sentencing principles that operate in this case are, as the learned sentencing judge pointed out, not only general deterrence, but also condemnation of the offending conduct by the court and protection of the community.

15 The matters to which I have just referred are plainly matters of considerable aggravation for sentencing purposes. There are, of course, not insignificant mitigating factors that operate in the applicant's favour, all of which were pointed out by Mr. Boyce in his thorough submissions. But these factors must be assessed in the proper context. Thus, for example, although the applicant is a person of previously good character, that mitigating circumstance is of less than usual importance in a case such as the present.[4] Similarly, it is true that the applicant pleaded guilty but, as the learned sentencing judge pointed out, he did so in the context where the prosecution case bordered on the overwhelming, so that it might be said that the plea was but a recognition of the inevitable. Moreover, the applicant sought to have excluded from the evidence his admissions to the police and it is only after that attempt failed that he pleaded guilty. Nevertheless, the plea of guilty must be given due weight as facilitating the administration of justice. Importantly, in the applicant's favour, and as the learned sentencing judge accepted, the applicant's prospects of rehabilitation are reasonable and the Crown has not sought to gainsay this. It is also necessary to take into account in the applicant's favour the uncertainty and concern which he necessarily experienced due to the delay in being sentenced. However, while the applicant is in no way to be punished for pursuing his legal right, as a matter of chronology, much of the delay was caused by his endeavour to have the record of interview excluded from evidence.

16 As I have noted, Mr. Boyce argued that a head sentence of 12 years' imprisonment on count 4 is one of the highest sentences imposed in this State for trafficking ecstasy and is, in the circumstances, well outside the relevant range. In that context, counsel pointed to R. v. Carey[5] where this Court set aside the sentence of 12 years' imprisonment imposed on an offender who pleaded guilty to one count of importing a commercial quantity of ecstasy and imposed in lieu thereof a sentence of six years' imprisonment. But the relevant circumstances in that case were materially different from those applicable here. For example, in Carey the offence in question was an isolated occurrence and was engaged in by a person rendered vulnerable by his circumstances and who, when apprehended, repented of his offending and gave considerable assistance to the authorities in their endeavour to apprehend those who took advantage of his susceptibility. Further, the amount of pure ecstasy involved in Carey was less than one-quarter of that applicable here. Importantly, the learned President noted in that case[6] that it would be wrong for the sentencing court to proceed on the basis that the level of criminality involved in the sense of importing ecstasy was to be regarded as less than that involved in the importation of heroin.

17 In all the circumstances, particularly having regard to the scale and sophistication of the criminal operation conducted by the applicant and the very large quantity of the drug involved, but having due regard to the mitigating factors that operate in this case, I consider it was open to his Honour to impose a stern penalty on count 4. I would re-sentence the applicant on that count to 11 years' imprisonment and order that a minimum term of 8 years be served by the applicant before he is to become eligible for parole. Clearly, there is no fixed ratio between the head sentence and the non-parole period and it is very much a matter of discretion for the sentencing court (albeit one to be exercised judicially). I think that in this case nine years is the minimum time that justice requires that the applicant serve in prison before becoming eligible for parole.[7]

18 Notwithstanding the material overlap between the criminal conduct charged by counts 2 and 3 and that charged by count 4, I would, in the circumstances of this case, order that a conviction be recorded in respect of counts 2 and 3 but I would not impose a sentence in relation to them. I am also of the view that the offence charged by count 1, and the applicant's offending conduct on which that count is based, are very serious. Accordingly, I would re-sentence the applicant on that count to eight years' imprisonment with a non-parole period of six years. I would order, however, that this sentence be served concurrently upon the sentence imposed on count 4.

19 To reiterate, I would grant the applicant leave to appeal against sentence, treat the appeal as having been heard instanter and set aside the sentences imposed by his Honour. I would re-sentence the applicant to 11 years' imprisonment on count 4 with a non-parole period of 8 years. I would also order that the applicant be convicted on counts 2 and 3 but impose no sentence in respect of them. I would further re-sentence the applicant to 8 years' imprisonment on count 1 with a non-parole period of 6 years and order that this sentence be served concurrently with the

sentence imposed on count 4, thereby producing a total effective sentence of 11 years' imprisonment with a non-parole period of 8 years.

At a glance

Court

Decision date

Before

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Judgment (4 paragraphs)

Parties