R v Teng

"Do you think this is possible? This car is from a rental company. Is it possible that type of thing can be installed inside to monitor our conversation? Is this possible? What is your opinion?"

11 In the course of the afternoon of 14 April 2003 a conversation took place between you and Lee about places for "delivery". In the course of the conversation you said that you would "pick up the stuff" with another person who was called Peter. You said to Lee, "Then Peter is off. You are supposed to give it to Charlie, however, you can't do it within one day so you take your girlfriend home". It is apparent from a consideration of the totality of the discussions in question that the reference to the "girlfriend" is a coded reference to the heroin which you expected to be delivered to you. The prosecution asserts that "Peter" is your co-accused, Lam, and that "Charlie" is an unknown third person to whom the heroin was to be given.

12 In a further recorded conversation that afternoon you said to Lee, "So you need to give your girlfriend to Charlie and then Charlie will take your girlfriend away. Then that is the end of our business. Right. What happened after that is not our business." You said, "I will meet Charlie first." Lee asked you whether Charlie had a car. He asked, "So just to put the girlfriend in Peter's car to Charlie's car. Is it right? With so much stuff how can they carry?" Your response to this was, "Six bags each bag". You then said, "One person can carry it. Two people can carry. Someone needs to help. Do you understand?"

13 You arrived in Geelong shortly after 4.00 pm that day and were observed to be parked near to Griffins Gully Jetty in Geelong. There, a conversation between you and the person alleged to be Lee took place whereby you observed that there was "nothing around" and that "it's just like carrying the fishing stuff". You said, "Pretend like people fishing". This was in the context of a discussion with him about cameras being installed in many public places in Melbourne but not at the place at which you were then situated. Soon after that you and Lee registered at the Comfort Inn Eastern Sands Motel. Thereafter you and Lee were observed commencing a trip to Lorne and arriving at the Grand Pacific Hotel in Lorne at approximately 7.45 pm. During that journey a conversation was recorded between you and the person alleged to be Lee although it is apparent that Lee did most of the talking. The conversation included a number of matters which demonstrate your joint understanding of the danger associated with the plan and the nature of the enterprise in which you were engaged. The Tarago with you and Lee in it was then seen travelling to Wye River and then returning to Geelong where you stayed overnight at the Eastern Sands Motor Inn.

14 The next morning, 15 April 2003, you and Lee commenced a journey towards Lorne. Upon arrival at Lorne you entered the offices of a real estate agent. You advised the real estate agent that you were seeking accommodation in Lorne for approximately one week. You were advised that accommodation could be provided for only two nights but you said that you wanted a longer time. Soon thereafter the listening device in the Tarago recorded you as saying, "I think two days will still be alright, we'll just pay a little extra. One extra day is fine". In the course of that conversation you and the person alleged to be Lee, discussed possible ways in which you would deal with "the girlfriend". Shortly before 1.00 pm that day, you and Lee were seen in the Tarago at a car park near Anglesea.

15 That afternoon, local residents in the Wye River area observed a large ship travelling unusually close to the shoreline.

16 In the course of that afternoon you and Lee inspected premises in Geelong with an estate agent and paid a deposit in respect of the rental thereof.

17 Later that afternoon the person alleged to be Lee, had this telephone conversation with a person the prosecution alleges to be Lam. "If your girlfriend is late for three hours, don't go to get it. It's just my suggestion. It's up to you whether to listen to me or not. If it is late for two or three hours, you had better not to get it. That is an indication that something goes wrong. This is my advice; however you can't tell anyone that I had giving you this advice. Just an advice to you. It's none of my business. If it is late for two or three hours, do please not to go get it. Yes, they know it. If the appointment was for six o'clock and then it arrives at nine, then you'd better not go. You won't get anything. They won't care about you. As your friend, I'm advising you this. If it is late for two or three hours that means they are in trouble. Being in business like ours is very sensitive. Please bear this in mind. It won't hurt you. However it is up to you, you can give it a try if you want. Once it is late, do not go. If they ask you to come at a specific time, then stick to it. If the appointment time was at ten, then you ask them to come at twelve ... Therefore, you have to be very careful. You can't afford to fall even just for once. Once means eternity. I am telling you this for the sake of you once it is late, don't go to pick it up no matter whom the person is. You can do anything if your life is saved. If you are kept in prison, you are dead ... If the time has passed, don't go to get it." It is apparent that this conversation took place in your presence in the Tarago.

18 Subsequent to this telephone conversation, a discussion took place between you and the person the prosecution contends is Lee, as follows. You said, "He should know the time". Lee said, "If he has told you the time, then he should know. They should stop along the shore and get the speed boat to carry it on shore. Once they get there, from where they are, the speed boat will fly over to your girlfriend's house. That should be the way they do things". You said, "They should be able to see, the blue probably ... ". Lee interrupted you and said, "They will use the speed boat to fly over the stuff for you. I suppose that is the way they do things."

19 You and Lee returned to Melbourne in the late afternoon of that day. The same day Lam hired a blue Ford Focus four door motor car from Europcar Rentals in South Melbourne. Contact with Europcar Rentals was arranged by the concierge at Crown Casino. At 6.00 pm that evening the real estate agent who had shown you and Lee through the premises in Geelong earlier in the day received a telephone call from a person who called imself "Andy" saying that he wanted to move into the property that night. He was advised by her that it was not possible to take occupation of the rental property at that time of night. The prosecution contends that the person who made that call was Lee. Soon thereafter you and Lee entered the Tarago van and began a journey towards Geelong.

20 At 7.02 pm the following conversation occurred between you and the person alleged to be Lee:

" ... Will they have time to wait for you? The man who makes the delivery".

I told them not to ... Don't have to be there, go straight down there. The man we called Peter ...

Will the stuff be too high? Can it be loaded in this type of car?

Yes, it can be carried in this type of car. What type of car did you rent for him? Isn't his car to be used to carry the stuff? And so only your car is to be used to carry the stuff?

21 Furthermore, in the course of this journey the listening device installed in the Tarago recorded the following conversation. Lee: "Aren't we going to do the business at this critical time? Did they say what time?" You, Teng: "Seven to eight o'clock". Lee: "No, I mean the girlfriend". You, Teng: "Yes, seven to eight o'clock".

22 Shortly before 8.00 pm you and Lee were observed in the Tarago van at Griffins Gully Jetty, Geelong.

23 At 8.03 pm the listening device recorded the following passage of conversation between you and the person alleged to be Lee. The prosecution contends that the conversation took place in the context of Lam having failed to communicate with you and Lee in the course of the evening:

Now give the guy on top a call telling him you can't find him. And see what they have to say. They are the only people that can get through him. Tell them that you can't find your boyfriend. How can I expect to pick up your girlfriend. They will understand.

Didn't go there to pick up the stuff, they will know what happened isn't it?

Tell him that your boyfriend's phone is not on. How can I pick up your friend? ... Was it switched off?

Are the people on top also feeling nervous? Did he say, if we can't we can't. (Laughing). Did he say we can't?

Tell the people on top. It might be possible that he's there already. They know ... for sure.

He should leave the phone on. The phone was on for about four minutes or eight minutes. Two gaps will be eight minutes. It is good if you can't say anything ... I will go back if there is no girlfriend. It's none of my business ... Is he there now? Did he say he is? Is Peter's phone on? If they can't get through him, how will they know he's there already? Fuck ... maybe ... it is a joke. He can't do things this way. The crippled person. Causing trouble to us. If I were the boss, I will fire him. One hundred and fifty kilos ... Two, does he have two? ...

"Come into the ocean, stop in the middle of the ocean, with a speedboat, carrying it onshore, after the speedboat carries it onshore, pass it on to you and then the speedboat will return. It must be the right road ... there is no other way ... The question is will he be there. I hope he is there ... The fishing place is the place to meet you right? Going down for your girlfriend ...

He knows it earlier. He knows the stuff will come today. He knows it much earlier. He knew it this morning that the stuff would arrive. Did he tell you? ... He knew it this morning that the stuff would arrive today ... You said previously that his car was not here, now you say he is here now ... If he's brave, he would have come to meet me before. I tell you, the more I think about it the angrier I become. Such a coward, why should I turn up on the beach? Such a coward. I'm helping you instead of him. Such a bad guy. Why should I help such a person? You go and pick up your girlfriend and give it to me. Why should I accompany you to the beach? Yes the trip to the beach is the most dangerous one. Fuck, we are helping him yet he doesn't appreciate it. Once it is picked up from the beach then it is none of our business anymore. Then it is safe.

24 Soon after this a further conversation took place between you and the person the prosecution asserts to be Lee. Clearly this discussion related to the continuing difficulty in communication that he experienced with the person the prosecution alleges is Lam who was referred to by you as Peter.

Cancelled? Why did he not tell us if it had been cancelled? Why would not the man on top inform us if it had been cancelled?

Yes it cannot be cancelled therefore here we are. Did he tell you that it has been cancelled when you rang him a while ago?

No the message has not been received. In the beginning ...

Whom did you speak to? To Peter or the other party? Who said it cannot be done?

Who said it cannot be done? The phone call from the top. Did Peter tell you this? What happened today?

So the message you received now is that it has been cancelled, is that right?

No, no. I requested it to be cancelled, but they said it cannot be cancelled. Later on, I speak to Peter and ask to co-operate. Then he said it is okay ... and to wait there.

25 Soon after this conversation took place the Tarago was observed to be travelling south-west along the Great Ocean Road and then to be stationary at Boggaley Creek.

26 At that time the Pong Su was observed to be between 500 metres to 1.5 kilometres from the shore line at Boggaley Creek.

27 At 9.47 pm you and Lee were observed standing next to the Tarago in Lorne. You then drove to the Grand Pacific Hotel. Lee entered the Grand Pacific Hotel carrying two cases. The Tarago then travelled towards Apollo Bay with you as the sole occupant. Lee remained at the hotel. At 10.10 pm police observed a blue Ford Focus four door motor car travelling along the Great Ocean Road in the vicinity of Boggaley Creek. Its horn was heard to sound and the brake lights were seen to be illuminated. A few minutes later the Tarago, driven by you, was observed to do a U-turn to the west of Boggaley Creek. At 10.15 pm the two vehicles, the Tarago and the blue Ford Focus, were observed parked together in the roadside car park at Boggaley Creek.

28 At the same time, the Pong Su was situated just offshore and was clearly visible.

29 Soon thereafter you departed the area in the Tarago and returned to the Grand Pacific Hotel. The Ford Focus remained at the scene. You were observed to be on the balcony of the Grand Pacific Hotel with Lee and using a telephone at 10.48 pm. The Tarago van driven by you and with Lee as a passenger left the Grand Pacific Hotel at 12.24 am.

30 Soon thereafter the listening device installed in the Tarago recorded the following conversation. You, Teng, said, "What? I'll call you. You come down to wait." The man the prosecution alleges is Lee said, "The boat is down there". You said, "Car". Lee said, "Police car. Can't see it clearly. No, I've not seen it. How can I tell?" The person the prosecution alleges is Lam said, "Yeah, yeah. What is the situation? He dare not carry the stuff. I'm exhausted, fuck, they won't carry them together. One is dead, do you know? Hello, one is dead, do you know? Okay, okay, speak slowly. The stuffs are too heavy. No-one dares to take them, too heavy to pull up the hill, you know? Up the road, dare not carry them now. We can just carry as much as we can ... one is dead on the beach. One is dead, one is dead, the other party. Yes, one of the two people from the other party is dead. I'm not swinging. I'm holding the phone stably and speaking to you. Okay? I tell you, I will tell the people to come down to get as much as we can. You know what I mean? Okay? One is dead ... okay ... not enough people to carry the stuff. It is impossible ... up the hill. All together, two people from the other party, two people here and me. Five people altogether."

31 There can be no doubt that the five people who were referred to in this conversation were the deceased man, the accused Wong, you, Lee and the speaker who the prosecution contends is Lam.

32 Soon thereafter, the Tarago van arrived back at the Grand Pacific Hotel where you and Lee were observed entering the hotel. Some time thereafter, the blue Ford Focus was observed to be travelling towards Colac. Observations of the Tarago van made by Federal Police in the Grand Pacific Hotel car park revealed two packages wrapped in blue coloured wrapping with netting. These were observed to be in the rear compartment. At 6.55 am, Lee was observed by police to enter the Tarago and drive out of the car park. You joined Lee at the front of the hotel and the vehicle set off towards Lorne.

33 The Tarago van was intercepted by police almost immediately thereafter and a search of the van revealed that the two large packages located in the rear of the van contained 72 blocks of compressed heroin in each package. Each package had a total weight of approximately 26 kilograms.

34 The next day a deceased Asian man was found on the beach hidden under kelp near an inflatable dinghy. The accused man, Ta Song Wong was found hiding in bushland near Boggaley Creek later the next day.

35 Subsequent searches of the Boggaley Creek area by Federal Police revealed that another three packages similar to the two packages recovered in the Tarago at the time of your arrest were hidden in bush near the beach.

36 The prosecution case is that Wong arrived at the Victorian shoreline from the ship in the inflatable dinghy which was found at Boggaley Creek, with the deceased man and the heroin some of which was seized subsequently in the Tarago vehicle, and some of which was recovered later in the bush. A number of items of property were found upon Wong at the time of his arrest. In particular, a GPS device was in his possession. It is this GPS which later analysis established had been operating in the vicinity of Geelong at 7.26 pm on 2 April 2003, near the Sundowner Hotel where you were a guest at the relevant time. On 6 April 2003, the GPS device was activated in the Boggaley Creek area between 3.11 pm and 3.19 pm. The recorded data matches your known movements in early April. Furthermore, Wong was found to have a pair of Nikon binoculars which were identical to those purchased by Lam in your presence from the shop in Geelong on 31 March 2003.

37 The prosecution submits that you should be sentenced in this matter on the basis that you aided and abetted the importation of approximately 125 kilograms of heroin into Australia. The heroin that was seized from the Tarago driven by you and the heroin found subsequently at Boggaley Creek was subjected to analysis by way of random sampling. The total bulk weight of the contents of the packages found to contain heroin amounted to 123.32 kilograms. Within that bulk heroin there was, on average, a purity that amounted to a total of 82.29 kilograms of pure heroin.

38 As is apparent from the decided authorities, the issue of the value of such heroin is not a matter which should weigh heavily in my considerations. There is evidence before me from a statement provided by Federal Agent Buxton that such an amount of bulk heroin broken down to "street deals" of approximately 10% purity would be in the region of $160M. On the other hand, Mr Georgiou contends that the value of the heroin in question might be less than half that estimated by Mr Buxton. In Tsolacos v R[1] Winneke P said in relation to the Drugs, Poisons and Controlled Substances Act 1981 (Vic):[2]

"For the purposes of identifying the gravity of the offence and thus ascertaining the appropriate sentence, the legislation places emphasis on quantities of drugs trafficked and not on values, which, as this case itself shows, can vary according to the circumstances in which the drug is trafficked. I do not believe that the learned judge was deflected from this issue by assumptions as to value made by a police officer and which were contained in a written document that had been put before him. In my view the critical issue with which his Honour was concerned was the fact that the trafficking was in an amount of 900 grams, a fact which was conceded by the applicant. In my view his Honour was concerned to impose a sentence based on the size of the operation which in turn was reflected in the amount of drugs trafficked."

39 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 quantity of pure heroin of which you aided and abetted the importation, was far in excess of the amount of 1.5 kilograms defined by the Act as a commercial quantity.

40 The prosecution submits that the amount of heroin imported, the nature of the operation associated with that importation, and the surrounding circumstances are such that the importation of heroin in question is the most serious example of this type of crime known to have occurred in Victoria. It is submitted that the nature and extent of the operation is such that it can be concluded that the operation was complex and well-planned and that you comprised an important part of the operation and were important to the success of the importation. That planning, it is submitted, involved an arrangement to rendezvous with a large ship at a predetermined location in circumstances of a high level of secrecy. The prosecution submits that you entered Australia for the sole purpose of assisting with the importation of the heroin and that your activity from the time of your arrival to the time of your arrest was focussed on the commission of the offence. The prosecution contends that your "passable English" and your part as the hirer and driver of the Tarago van which eventually was involved in the removal of some of the imported heroin from Boggaley Creek were a significant assistance to the commission of the offence. The prosecution relies upon the listening device conversations between you and the person it alleges to be Lee, which conversations it submits, demonstrate that you were involved in the planning of the removal of the heroin from Boggaley Creek and which demonstrate your knowledge that you were dealing with 150 kilograms of heroin and multiple packages. It is submitted that the conversations establish that you had knowledge of the nature of the material to be imported and its quantity.

41 The prosecution relies upon evidence which demonstrates that you, together with Lam and Lee, used a multiplicity of mobile telephones, connected in false names, in the period leading up to and at the time of the importation offence occurring at Boggaley Creek. It is submitted that the evidence of the use of various telephones, which were opened in false names, and with SIM cards being transferred between them, was designed to ensure that conversations were carried out in a way that would preserve secrecy and reduce the possibility of disclosure. It is submitted, and to my mind correctly so, that the operation was thus a sophisticated and well planned one.

42 In relation to your part in the hierarchy of people involved in the commission of this offence it is submitted by the prosecution that you were neither at the lowest end of the hierarchy, nor were you involved as a principal or financier of the operation.

43 Nevertheless, the prosecution contends that the evidence is that you acted with a high degree of authority and responsibility. You were in a position of sufficient credibility to be entrusted to be in possession of an immensely valuable importation of narcotic goods. That is clearly so. The prosecution relies upon the evidence to demonstrate that you had direct contact by telephone with those people who were at the head of the organisation that arranged for the importation to occur. Likewise that is clearly so.

44 On the other hand, Mr Georgiou of Counsel contends on your behalf that you operated at a relatively low level in the criminal hierarchy. He submits that regard needs to be had to the conduct relevant to the offence of aiding and abetting the importation. In that context, he submits that the relevant conduct is that you, as pre-arranged, went down to the beach at Boggaley Creek in order to receive the heroin. You received one of the packages and carried it back up to your car. The second package was carried to your car by another person who was also there and you then returned to the Grand Pacific Hotel.

45 Mr Georgiou acknowledges that you aided and abetted the importation of the entire amount of heroin (which is in the vicinity of 82 kilograms of pure heroin) by physically carrying that package from the dinghy to your rental car, and that through your presence and behaviour you encouraged the importation including that of the remaining heroin which was not placed in the Tarago. Notwithstanding the fact that Mr Georgiou concedes that you were aware that there was to be a delivery of six packages of heroin, it is submitted by him that there is no evidence that you knew the exact quantity to be imported until shortly before the importation.

46 In support of his submission that you operated at a relatively low level, Mr Georgiou relies upon the fact that you, as distinct from others, entered Australia using your own genuine passport. He submits that that reflects a lack of criminal sophistication on your part. He submits further that you operated at a level which had the greatest exposure to risk of apprehension, your being sent to Australia to assist in the collection of the heroin. He points out that the evidence is that it was you who was to have the heroin in your possession for at least a day and it was you who was to carry it in your car and transfer it to a third person. Mr Georgiou relies upon those matters in support of his argument that you were expendable to the organisation that recruited you, and that it demonstrates that you were not highly placed in the organisation hierarchy. He submits further that it is apparent from the listening device material that you would not have been able to obtain the heroin from those who brought it ashore without the involvement of the person referred to as "Peter" in the listening device transcripts, who the prosecution alleges is Lam. He submits that the listening device material demonstrates that you were in the company of the person alleged to be Lee during the important phase of the operation and that it cannot be said that you were the overseer. Rather, it is submitted on your behalf that the contrary appears to be the case.

47 As stated above, Mr Georgiou submits that the evidence does not demonstrate that you were aware of the precise quantity of heroin to be delivered, although he concedes that the evidence demonstrates that you expected a large quantity of heroin. He relies upon the listening device material which demonstrates that it was the person the Crown says is Lee who stated that the importation was to be 150 kilograms and that that was said to you only in the hours leading up to the importation. Furthermore, he argues that the evidence is that you had no capacity for independent action. He relies upon a statement made by you on the morning of the importation when you said, "I requested it to be cancelled but they said it cannot be cancelled". Mr Georgiou acknowledges that it is clear that you took directions from a person called "the boss" but that you did what you were told to do without the capacity to engage in independent action. Furthermore, he submits that your function was discrete, and that the evidence is that it was intended that once you had collected the heroin at the beach and handed it on to third parties, your role was finished. This, he submits, demonstrates that your role was at the lower end of the hierarchy.

48 Furthermore, in terms of the reward for your conduct, Mr Georgiou informs me that your instructions to him are that you received US$5,000 as expense money shortly before you came to Australia and that your belief was that you would receive approximately US$80,000 in total for your part in the importation. Mr Georgiou says that his instructions from you are that the principal reason you became involved in the crime was due to your inability to re-pay your debts together with the promise of additional money. Mr Georgiou submits that your instructions that "throughout vague utterances" you were "led to believe" that you were to receive "in the vicinity of" US$80,000 lend credibility to your instructions to him, but that in the context of the total value of the drugs that were to be imported such a sum is insignificant in all the circumstances. Mr Georgiou submits that this demonstrates that you were not to share in the profits of the importation and thus you cannot be seen to be at the top of the organisation's hierarchy with principal responsibility for the importation. It might be thought that it is surprising that you were prepared to take such grave risks for such a vague and inarticulately specified reward, but Mr Georgiou contends that it was the only way you could see out of your "debt trap".

49 A number of issues arise out of the respective contentions for the prosecution and the submissions of your counsel, Mr Georgiou, in relation to the part played by you in the commission of the offence to which you have pleaded guilty. The first is that the prosecution has relied upon evidence of your conduct leading up to the point of the importation of the heroin into Australia. Of course, it would be quite wrong to sentence you for crimes with which you are not charged[3] and you will not be so sentenced. Nevertheless, reference to your activities in the period of time leading up to the importation is necessary to determine the level of your involvement as an aider and an abetter of the importation in question. It is of assistance in endeavouring to determine if possible your place in the hierarchy of those involved in the importation. In R v Olbrich[4] 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:[5]

"Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drug; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one to that imposed on another. In that context, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. ... Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did.

There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender's criminality."

50 In consideration of such principles, I am satisfied on the evidence before me that you are not a person who might be seen in the light of what has been described in the cases as a "mere courier", or a "mule", who is used as the expendable conduit of carrying a drug on an airflight, or by other means of transport from one place to another. I am satisfied beyond reasonable doubt that the part played by you in aiding and abetting the importation was a significant one. It is apparent that in the period of time leading up to the delivery of the heroin to the shore at Boggaley Creek you played an active part in the preparation for the landing. There is no doubt that you knew a considerable amount about the nature of the operation. You knew that the heroin was to arrive by ship. You knew that it required to be transported from the shore and passed on to a third party. You knew that six packages required to be transported. You were active in facilitating the arrangements to hire and appropriate a vehicle, and in arranging for storage of the heroin pending its transfer to others at places which you played a part in identifying as safe. On the other hand, I accept that you were not the "mastermind" or the financier and that you were operating under instructions from other unknown persons. I accept that there is no evidence that you expected to share in the profits of the venture beyond the sum of the US$80,000 you have instructed your counsel that you were to receive for your part in the crime.

51 The prosecution contends that the listening devices reveal that you were giving instructions to Lee. Mr Georgiou on the other hand contends the opposite. Certainly Lee was more talkative than you were and revealed considerable detail of knowledge. You were more taciturn than Lee was, but nevertheless you revealed that you had knowledge of much of what was to occur. In my view, the listening device material is equivocal in that regard. Some aspects of it reveal that you were giving instructions to Lee. Other aspects appear to reveal that you were being told things by Lee. In all of the circumstances, I cannot be satisfied beyond reasonable doubt, as I must be, that you were in a higher position in the hierarchy than was Lee. That said, however, I am satisfied beyond reasonable doubt that you were entrusted to play an important role in preparation for the landing of heroin into Australia and for the transfer of the heroin to the third party. Whilst I accept that what you state to be the proposed remuneration of approximately US$80,000 is, as Mr Georgiou contends, not significant in the scale of the overall project, on any view it must be seen as a substantial reward for your services. I am satisfied beyond reasonable doubt that you may be seen as a "middleman", who although not a principal, nevertheless was entrusted with significant responsibility for the success of the importation of an extremely valuable illicit narcotic. Beyond that I am unable to be satisfied by the evidence of any other position occupied by you in the hierarchy.

52 As stated above, Mr Georgiou contends that there is no evidence that you knew the exact weight of heroin which was to be imported. He concedes that you knew that there were to be six packages delivered and that a large quantity of drug was to be imported but submits that there is no evidence, until shortly before the importation when the person whom the Crown alleges is Lee is recorded as having told you that there were 150 kilograms to be imported. Mr Georgiou relies upon a statement appearing in Wong v The Queen[6] where Gaudron, Gummow and Hayne JJ said:[7]

"The weight of a narcotic which is imported is given statutory significance for sentencing purposes by the parliament's distinguishing between the maximum sentence that might be imposed for offences involving traffickable and commercial quantities. No doubt, within both of those categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. But is weight generally the chief factor to be taken into account in fixing a sentence?

It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.

It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be said as important in fixing a sentence and distinguishing between offenders."

53 I accept that there is no evidence that until shortly prior to the importation occurring you had precise knowledge of the actual weight of the heroin to be imported. There is no evidence that you had any basis for knowing the level of purity of such heroin. However, on any view, as Mr Georgiou concedes, there can be no doubt that you knew that the quantity to be imported was substantial. You hired a Tarago van for the purpose of assisting in the importation of the heroin. You gave consideration to whether there was sufficient room in hired vehicles to carry the heroin. You knew that there were to be six packages. The evidence establishes beyond reasonable doubt that you knew well before the date of the actual importation that the heroin was to be brought to Victoria by means of a ship and there can be no doubt that you were aware in all of the circumstances that the shipment would be a substantial one. Accordingly, as the prosecution submits, the part played by you in aiding and abetting the importation of a large quantity of heroin into Australia was significant and thus your offence is serious indeed.

54 There are, however, a number of mitigating factors which I must take into account. The first of those matters is that you have pleaded guilty. Mr Georgiou relies upon that matter in two ways. First, he relies upon it as being a relevant matter under s.16A(2)(f) of the Crimes Act 1914 (Cth) as a demonstration of contrition for the offence. He also relies upon the matter as being relevant under s.16A(2)(g) of the Act. I accept the submission that the plea of guilty made by you in all the circumstances of this case is a matter of significance. Whilst it is true that the evidence against you is overwhelming, and whilst it cannot be said that your plea was entered at the first possible opportunity, nevertheless it is a matter of considerable significance that you have accepted your responsibility for the part played by you in aiding and abetting this importation of heroin. I am informed by Mr Georgiou that as long ago as August of last year you, through those advising you, indicated a preparedness to discuss with the prosecution acceptance of a degree of responsibility for the offence. The commencement of the trial before a jury is still some time away. Indeed, your plea has been entered prior to the handing down of a number of pre-trial rulings which would have affected your case.

55 There is no doubt that by your plea a considerable amount of time and inconvenience has been saved. Put together with statements made by you to psychologist, Mr Crewdson, to the effect that you suffer from guilt and recognise your "stupidity", I accept that in addition your plea does reflect an element of remorse and contrition on your part for your conduct. In addition to the utilitarian value of your plea and such contrition as it demonstrates, there is the further aspect of public policy that your plea should be seen generally as encouragement to guilty persons to plead to their crimes.[8] Taking into account the seriousness of the case against you this matter should not be underestimated. For those reasons you are entitled to a substantial and transparent discount on the sentence which I would otherwise have imposed upon you had you been found guilty at the end of what on any view would have been a long and complex trial.

56 I have been told something of your history and your circumstances. You were born on 1 January 1958 in Kuala Lumpur. You are aged 47 years. You are married, and together with your wife you have a young son who is aged six years, having been born in September 1998. Your wife lives in the United States where she is employed as a waitress, having taken up residence there in the year 2000. Your son lives in Kuala Lumpur in the care of your sister and your parents. Your family are of Chinese descent. Your father has worked most of his life as a shoe salesman and your mother was a tailor before her marriage. Your parents are elderly and in poor health. They are unaware of your present circumstances. Because of shame you have not told them of your situation. They believe that you are working in Australia. As Mr Georgiou submits, it is unlikely that you will ever see your parents again because of the sentence which must be imposed upon you. You are the youngest of four children. Your sister, who is aged 49, is married with five children of her own and in addition cares for your son. She is engaged in full-time care of the family, her husband being employed as a delivery driver.

57 I am informed by Mr Georgiou that you, being the only son in your family, have been expected to play a significant role in providing for your immediate and extended family. Your education was limited, you having undertaken eight years of schooling before leaving at the age of 15. You have been employed in retail outlets selling clothes and electrical goods. You have worked on a rubber plantation for some four or five years, initially as a labourer and then as a supervisor. I am informed that you have almost always been in employment.

58 You left Malaysia in 1985 to go to the United States in an endeavour to find better paid work and to improve your financial situation and that of your family. In the United States you obtained work with a restaurant, undertaking deliveries and waitering. You worked six days a week, many of those days for up to 12 hours and more. Your income depended upon tips and you were earning between $2,000 and $3,000 net per month with your food and board being provided by your employer. During this time you met your wife and after ten years in the United States you returned to Malaysia and married her. I am informed that during your ten year period in the United States you saved approximately US$75,000 most of which was sent back to Malaysia.

59 Upon your return to Malaysia you invested much of your savings in setting up a business as a rubber and wood agent. That business survived for four or five years but collapsed in the year 2000. Your counsel informs me that the loss of your business left you with a number of debts which caused financial pressure within your family. It was for that reason that your wife returned to the United States in order to find work which would provide a better income than she was able to earn in Malaysia. You engaged in buying and selling clothes in market stalls but at the same time you engaged in gambling which you saw as a route to solving your financial difficulties. As is often the case, the gambling exacerbated your financial difficulties. Your counsel informs me that his instructions are that you took to borrowing money and ultimately you obtained a loan in an amount of US$20,000 from a person who was described by your counsel as a "loan shark". This loan required payment of interest at 15% per month. I am informed by your counsel that you were unable to keep up with the interest and capital repayments and a proposal was put to you that would see the debt forgiven if you were to assist in what turned out to be the importation of drugs into Australia. As I have said, your counsel upon instruction from you informs that that in addition to forgiveness of the debt, you were led to believe that you would be paid approximately US$80,000 for your participation in the enterprise.

60 You have no prior convictions. A report from Mr Michael Crewdson, psychologist, who saw you at Port Phillip Prison on 31 January 2005 has been tendered before me. The report recites the history referred to above. You suffer no psychological or intellectual impairment. However, you are at present, depressed and suffering from anxiety. As stated above, you conceded to Mr Crewdson that your actions were wrong and, in your own words "stupid". In addition, a number of certificates in relation to programs undertaken by you at Port Phillip Prison were tendered before me. Those demonstrate that you have undertaken the Indo-Chinese Alcohol and Drug Education course, occupational programs, ceramics and general education in English. Those certificates demonstrate that you are enthusiastic, conscientious and positive as a student in such programs.

61 I accept that imprisonment for you will be more difficult and isolating than for other prisoners. Your age is such that you will be of a relatively advanced age before you may be released. I accept in terms of s.16A(2)(p) of the Crimes Act that the separation from your wife and your young son will be difficult for them and, of course, difficult for you as well. Further, as Mr Georgiou contends, by reason of their age, you may well never see your parents again. You are from a foreign country and speak a foreign language and will be isolated from your culture. However, this must be a matter of limited weight. The fact is that you came here to assist in the commission of an extremely serious crime. In return for a substantial sum of money you were prepared to take the risk of apprehension. The inevitable consequence of that is that you, as you must have anticipated, will now be incarcerated in circumstances which will cause you some isolation.

62 The progress you have made in prison in terms of your studies and the fact that you have not been involved in criminal matters before, except for the matter with which I am concerned, point towards a positive prognosis for rehabilitation. In addition, I accept that taking into account the consequences which will flow from your conduct on this occasion, the prospects of your not re-offending are good. Nevertheless as well as matters personal to you such as the chances of your rehabilitation I must, amongst other things, take into account the issue of general deterrence. It is a matter of paramount significance in this case.

63 This is a serious example of a grave crime. To have been involved at the level that you were, in the largest importation of heroin ever detected in this State, and one of the largest ever detected in Australia, calls for severe punishment. The issue of general deterrence is of great significance in the determination of the appropriate sentence to be imposed upon you. Those who see fit to take the risk of playing a part in the importation of heroin into this country must have no expectation other than that the consequences of engaging in such enterprises will be severe. As the Victorian Court of Appeal said in R v Soo Su[9]

"Again and again the Courts have said that importers and traffickers of heroin will receive heavy sentences."

64 I have no doubt that that comment applies to those who aid and abet the importation of substantial quantities of heroin.

65 The importation of a large quantity of heroin in which you played a substantial facilitative role had the potential to cause grave harm to many members of our community. As Sully J said in Cheung Wai Man:[10]

"The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.

In the face of such challenges each of the institutional supports of our society has a role to play. That of the courts is to punish and deter according to law. Obviously, the courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who ... engage in drug related crime ... "

66 In my view the words of Sully J are applicable to the circumstances of this case. As I have said, the circumstances of your case are such that the issue of general deterrence is most important. This country has a vast and unprotected coastline which some foreign drug dealers may see as providing an opportunity for undetected crime. Those persons and those who assist them must know that when detected they will suffer a heavy penalty for their greed.

67 Furthermore, I am required by s.16A(1) of the Crimes Act to impose a sentence that is of a severity appropriate in all the circumstances. This together with s.16A(2)(k) of the Act requires me to ensure that you are adequately punished for the offence.

68 Clearly, and for the reasons set out above, there is no alternative other than to impose a substantial sentence of imprisonment upon you.

69 The prosecution submits that you should be sentenced to a term of life imprisonment, but that I should fix a non-parole period. On the other hand, whilst your counsel concedes that a lengthy prison sentence is inevitable in all the circumstances, a head sentence of life imprisonment is submitted by Mr Georgiou to be an inappropriate sentence.

70 Whilst I accept the thrust of the submission advanced on behalf of the prosecution that this case is without doubt a serious example of a grave offence, and that persons who are proven to have played a major part in the commission of an offence of the type before me can expect to receive condign sentences which may well require the imposition of the maximum sentence, I do not conclude in your particular circumstances that a head sentence of life imprisonment is appropriate. In fixing the head sentence, I am bound to approach the task on the basis that you might be required to serve every day of the sentence. As seriously as I regard the offence, and as significant as your part in assisting the importation of heroin into Australia was, such a head sentence would not be appropriate taking into account the part played by you in the importation in combination with matters of mitigation, including in particular your plea of guilty, by reason of which a substantial and transparent discount of your sentence is required. I have given careful consideration to this matter in particular.

71 I sentence you to 22 years' imprisonment to commence this day. I set a non-parole period of 15 years. Pursuant to s.16E of the Crimes Act I declare that you have served 679 days by way of pre-sentence detention.

72 Mr Georgiou, I ask you to explain to your client the purpose and consequences of the fixing of a non-parole period as required by s.16F(1) of the Act.

[1] 81 A Crim R 434 at 436.

[2] At 436.

[3] R v Simoni [1981] HCA 31; (1981) 147 CLR 383.

[4] [1999] HCA 54; (1999) 199 CLR 270.

[5] At 279.

[6] [2001] HCA 64; (2001) 207 CLR 584.

[7] At 609.

[8] See R v Duncan [1998] 3 VR 208 at 214-5.

[9] [1997] 1VR 1 at 73.

[10] Unreported, Court of Criminal Appeal, NSW 22 March 1991).