R v Yim & Ors [2012] VSC 325

Supreme Court of Victoria|2012-08-03|Before: T. FORREST J

CRIMINAL LAW - Sentence - Importing a commercial quantity of a border controlled drug - 20 years' imprisonment with a minimum non-parole period of 16 years - 19 years' imprisonment with a minimum non-parole period of 15 years - Attempting to possess a commercial quantity of a border controlled drug - Very young offender - 11 years' imprisonment with a minimum non-parole period of 6 years 6 months

1 On 18 June 2011, the Passat Breeze departed from Brazil, sailing via Hong Kong to the port of Melbourne, arriving on 15 August 2011. The Bill of Lading demonstrates that eight crates were loaded in Brazil, ostensibly containing eight Tramontina brand lawn mowers.

2 X-ray examination at the Melbourne Container Examination facility suggested some unusual characteristics relating to these eight crates. Further examinations were carried out. Twenty-nine small wooden boxes were found and within them were 271 individually packaged one kilogram blocks of cocaine. When analysed, this translated to 207.6 kilograms of pure cocaine. The estimated value of this cocaine is enormous: $59.62 million wholesale and nearly $173 million at street level assuming a 30% purity.

3 Both you, Mr Lau, and you, Mr Yim, have pleaded guilty to importing a commercial quantity of a border controlled drug contrary to sub-section 307.1(1) of the Criminal Code (Cth). You, Mr Yung, have pleaded guilty to attempting to possess 60 kilograms of the cocaine mix (approximately 45.6 kilograms pure) contrary to sub-sections 11.1(1) and 307.5(1) of the Code.

4 Federal Police substituted an inert substance for the 271 parcels of cocaine and a controlled delivery was then conducted. The eight crates in a container were transported to a storage facility in West Melbourne on 22 August 2011. On 26 August 2011 the container was transported to Tradewinds Removalists and Storage in Laverton North. The container was unpacked to the extent that the eight large crates were removed by Tradewinds employees, acting under instructions from you, Mr Yim.

5 Between 13 and 15 September 2011, two large storage units were rented at Kennards Self Storage in Port Melbourne. Four of the crates were transported to Kennards from Tradewinds on 15 September.

6 At Kennards, you, Mr Yim, unpacked some of the substituted cocaine blocks and placed them into cardboard boxes.

7 On the evening of 15 September, you, Mr Yim, went to a small park in the Docklands area. You met Mr Yung there and left for him a key to one of the Kennards storage units. Mr Yung picked up the key, travelled to Kennards and placed 60 blocks of substituted cocaine into a red suitcase. You, Mr Yim, had set these blocks aside from the larger amount and had placed them in cardboard boxes. You, Mr Yung took the red suitcase to an apartment in Melbourne. You were inspecting its contents when police entered and arrested you. AU$229 100 was found in a suitcase in that room, as was the key to the Kennards storage unit.

8 This provides the barest factual background to the cocaine importation. It is necessary for me to examine the evidence in a little more detail in order to explain my conclusions over your respective roles in dealing with this shipment of cocaine.

9 I shall deal firstly with Mr Yim and Mr Lau. Mr Yim, you spent ten days in Brazil between 13 and 23 June 2011. As I have said, the shipment departed on 18 June 2011. You are normally resident in Hong Kong. You arrived in Melbourne on 3 August 2011. You attended Tradewinds on 4 August and enquired about the cost of storing goods there.

10 You attended at JAS Forwarding Worldwide Limited (a freight service provider) in Tullamarine on about 4 or 5 August. You produced the original Bill of Lading which contained the name Bayside Hire Pty Ltd as the consignee. You purported to be a representative of Bayside Hire and requested that the delivery address be changed to Tradewinds. JAS complied with this request.

11 You then attended Tradewinds again on 8 August and paid $800 for storage of the contents of your container.

12 JAS notified you of the imminent arrival of the container on 11 August 2011. You provided JAS with documentation to facilitate the release of the container. As I have said earlier, the container arrived on 15 August.

13 You paid JAS roughly $9 900 for their services. By 26 August, the container was received by Tradewinds in storage organised by you. You then left the country on 29 August and remained overseas until 9 September 2011. Mr Lau, you arrived in Australia on 8 September 2011.

14 Mr Yim, you organised the rental of the Kennards storage units on 13 September 2011 and the transport of four of the crates from Tradewinds on 15 September. You then unpacked some of the cocaine blocks and placed them into cardboard boxes. At least some of this unpacking was so that the purchasers, represented by Mr Yung, could access the amount of cocaine they had agreed to purchase. You, as I have already observed, then passed to Mr Yung the key to the Kennards unit in which these cardboard boxes were stored.

15 It is apparent from intercepted telephone conversations that your role, Mr Lau, was to oversee Mr Yim's "hands on" activities, instruct him as to the unpacking and repacking of the cocaine into smaller amounts, liaise with the purchaser/s as to the collection of the cocaine, and to keep the Hong Kong organisation responsible for the importation informed of relevant events.

16 The following summary of your telephone contacts in this period is, I consider, sufficient to illustrate the nature of the relationship between you, Mr Lau and you, Mr Yim, within the drug smuggling organisation.

11 September 2011 - In response to Lau's enquiry, Yim stated he would rent out that place tomorrow. This was a reference to Kennards.
12 September 2011 - Yim advised Lau that he needed $1,000 to put towards the rental. Lau advised him this was no problem.

In the same conversation, Yim told Lau that he was 90% sure he was being followed. Lau told Yim there was no way out for either of them.

Later, in the evening of 12 September, Lau told Yim that he had talked to "them" (I interpret this to be the organisation based in Hong Kong that was responsible for the importation. This organisation is sometimes referred to in the material as "the company"). Lau said he had reported Yim's belief that he was being followed. He then said that he had told them "our people are taking up the work are prepared to accept anything that happens and they will keep going ...". Yim replied, "We won't say that we don't want the coke, right? We have already taken our money, right. We have to be responsible to others and do everything". Lau responded, "Yes, you can't just wind it up, right". There was further similar conversation and Yim said, "What he taught doesn't work ... he told me to break it up separately. Fuck it's much better to break at one go right".

I interpret this latter remark as a statement by Yim to Lau that it was more prudent to break the total cargo into smaller amounts for purchasers in one exercise, rather than over a number of exercises.

On 13 September, after inspecting storage space at Kennards, Yim spoke again by telephone to Lau. He advised that he would need $2 000 on hand and that the storage would cost $800 per month. He said they "may have to rent two, one big, one small. When it's done put it in the small one. Then give the key to your side and ask them to do it themselves".

In this part of the conversation, I conclude that Yim is proposing to break the cocaine into smaller amounts and put the initial amount to be collected into the smaller storage area where it awaited collection by the purchaser. This is in fact what ultimately occurred. The purchasers are referred to by Yim as your (Lau's) side.

Just before midnight on 13 September, Yim and Lau spoke again about storage issues. Yim appeared to have responsibility for decisions made at this part of the process.

Lau: "This means you are going to rent a big one for work, and a small one to put things in".

Later in the same conversation, Yim: "I will pick up twice. Break half first and then the other half".

The initial four crates were delivered the day after, being 14 September.

At about 1.30pm on 14 September, Yim again spoke with Lau. He said, "I will go down to the warehouse tomorrow afternoon. I will do the seventy-one first". Later in that conversation, Lau said: "... yes, seventy-one pieces and I will get someone to pick them up first, after that one hundred, one hundred".

It will be recalled that there were 271 individual one kilogram packages of cocaine mix.

Yim continued to suspect surveillance and at about 1.30am on 15 September, in a conversation with an unknown male, he said that things might be going slightly wrong and gave instructions about dividing up a share of money to his family "in case something happens".
At 10.41am on 15 September, Lau advised Yim there had been a change: break "one hundred first, then seventy-one, then one hundred again". A little later at 2.49pm, Yim told Lau the boxes had arrived at Kennards. Lau told Yim to start work now, turn his phone off and not to turn it back on until 5.00pm. There were two calls before this time in which Yim initially said he could not find what he was looking for, but subsequently located it. Lau gave him directions as to where he should look.
At about 6.25pm on 15 September, Lau advised Yim by telephone that there had been a change of plan: "Tonight they take 60 only". He instructed Yim to separate 60 and put it aside in the smaller room. Lau advised Yim to turn on all his phones and that someone would contact him for the key to the smaller storage room. They discussed places for the collection of the key.
At 6.35pm, Yim is recorded as telling Lau that it is all done. Lau told Yim to turn all his phones on. Yim mentioned that he had left behind (presumably at the Kennards storage unit) a phone given to him by "the company". Lau told Yim to go and get it. Lau then instructed Yim to organise a place to meet in order to exchange the key and the access code to the smaller unit.

Thereafter, telephone calls or SMS messages record Lau and Yim conversing about anticipated contact between the purchaser and Yim and the actual contact between the purchaser (an unknown male) and Yim in which arrangements are made for Yim to pass the key to the purchaser's "boy". At 9.06pm, Yim spoke to an unknown male and gave him details of the smaller Kennards storage room and how to access it. By 9.36pm, an SMS message from the unknown male to Yim stated that "he found it. He found it".

17 The above is sufficient to demonstrate that both you, Yim, and you, Lau, were very active participants in the importation of the cocaine shipment. It seems clear that you, Yim, were not a principal of the organisation responsible for the importation, and in fact you may have been employed on a contract basis, having been paid in advance. Your counsel suggested that it was an amount of about HK$100 000 or about AU$12 000.

18 I am not satisfied beyond reasonable doubt that you, Lau, were a principal of the organisation either, although you assumed a supervisory role of Yim's activities, you were the contact point for the purchasers of 60 parcels of the cocaine and you kept your criminal associates in Hong Kong informed of developments.

19 I consider that the roles that both of you carried out were essential to this criminal enterprise. Between you, you facilitated the "Melbourne end" of the importation. Your activities each were designed to achieve the successful storage, repackaging and distribution of the cocaine into the Australian community. Both of you must have been aware at some stage that this was a very substantial importation involving 271 separate parcels of cocaine. I have assessed your objective criminal culpability, Mr Lau, as marginally higher than Mr Yim's. You were not as active as Mr Yim, but I have concluded that although Mr Yim demonstrated some decision-making independence, ultimately he was responsible to you as you were to the "company". It is true that Yim was present in Brazil at the time the cargo was exported, but beyond that, I am unable to assess his activities there. You, Mr Lau, whilst not there in June, were there in March and May. In the absence of any evidence about the activities of either of you in Brazil, I consider that it is safer to base my conclusions on the largely objective evidence gathered by the Australian Federal Police in Melbourne.

20 I have already observed that Mr Yim's counsel asserted that he received HK$100 000 for his participation. Your counsel, Mr Lau, put from the Bar table that you were to receive HK$500 000 or about AU$60 000. There is no evidence in the materials of either of these amounts, however the conclusion is inevitable that participation in such a high risk enterprise comes at a substantial price. I am prepared to accept these amounts for the purposes of sentencing. Whilst I am satisfied that you had a supervisory role over Yim, as I have already stated I am equally satisfied that you were supervised and funded by the Hong Kong organisation. You received instructions as to how to break up the cocaine into smaller amounts and you also, at least on one occasion, needed to acquire money from "the company" in order to provide it to Yim.

21 Mr Yung, your dealings with the importation are very different and you plead guilty to a different offence, although it carries the same maximum penalty of life imprisonment. Your role was to act on behalf of the purchasers to collect the key for the Kennards facility from Yim and to attend there and take possession of the 60 packages of cocaine mix. It is clear that you were engaged by others to do so. I have referred to conversations and SMS messages between an unknown male and Yim occurring on the evening of 15 September 2011. I consider that it is clear that the unknown male was your superior in the purchasing organisation. In one SMS, he said to Lau:

"My boy is going there already. Let u know when he arrive".

22 Within 20 minutes, you had reported back to the unknown male that you had found your share of what you thought was the cocaine. Whilst you were very young at the time of the offending, 20 years old, the purchasing organisation placed significant trust in you.

23 You, Mr Yung, are normally a resident of Sydney and I consider that it is reasonable to conclude that your activities were carried out on behalf of a Sydney organisation. At paragraph 67 of the Crown opening, it is accepted that you attempted to take possession of the drugs on behalf of unknown others. It is clear that your offending occurred over a short period of time, measured in hours, rather than days or weeks. In addition to the attempted possession charge, you have agreed, pursuant to s 16BA of the Crimes Act 1914 (Cth), to admit the further offence of dealing with money reasonably suspected of being proceeds of crime in the amount of AU$229 100. This offence is contrary to sub-section 400.9 of the Criminal Code and carries with it a maximum sentence of three years' imprisonment. This money was found in your possession when you were arrested on 15 September. I consider that it is possible that these funds were in some way related to the attempted possession charge, but I am not satisfied of this beyond reasonable doubt. The substituted cocaine exchange had already occurred when you were arrested and I think it unlikely that 60 kilograms of cocaine would be the subject of a buy now, pay later arrangement. I consider that it is more likely that any financial exchange was to occur between your co-offender's principals and your principals. I propose to proceed on the basis that these funds were unrelated to the attempted possession charge. For clarity's sake, I state that I will not be treating your possession of that money as a factor that aggravates the attempted possession charge. Your possession of this money will be treated independently, however I must factor it in to the overall sentence that I impose.

24 I turn now to factors personal to each defendant.

25 You are now 36 years old, born and ordinarily resident in Hong Kong. You are the only child of a working class family. Your parents both still work. You completed the equivalent of our Year 10 and struggled scholastically. In 1997, you attended a TAFE college in Hobart and studied hospitality. Although you did not complete that course, you were able to gain employment back in Hong Kong as a waiter. You, I am told, were a gambler and over time accumulated debts of around HK$200 000 (about AU$24 000) to lending institutions and about HK$400 000 (about AU$48 000) from friends and family. It was put on your behalf that your participation in this offending emanated from a desire to extinguish at least part of these debts. Ms Matthews, a clinical psychologist engaged by your solicitors, offered the opinion that although not academically inclined, you are of average intelligence. She concluded that by about 2004 you were an addicted gambler and would have met the DSM-IV diagnostic criteria for pathological gambling. You are depressed, reactive to your situation.

26 You feel responsible for your parents, with whom you share a close relationship. They are at or approaching 60 years old. I accept that your incarceration in a foreign country will be more onerous, although because of the circumstances of your offending, this cannot operate heavily in your favour. I shall return to this aspect later in these remarks.

27 You expressed remorse for your actions to Ms Matthews. Other than your plea of guilty, there is no objective evidence in the material of remorse. You made a no comment record of interview and there has been no assistance given to the investigating authorities. I cannot and do not punish you or your co-offenders for this failure to offer assistance in identifying those responsible for employing you. You and others in your position should understand, however, that had this assistance been given, it would have weighed heavily in your favour. I am prepared to infer some remorse from your early plea of guilty and your assertions to Ms Matthews. You are entitled to a sentencing benefit from a utilitarian perspective. You did not contest a committal, as I say entered your plea early, and have saved the community the inconvenience and expense of a quite lengthy trial.

28 You have no prior convictions and I accept that your prospects for rehabilitation are very good. I accept that your gambling addiction provides some explanation for your offending at a relatively late age. It provides an explanation for your conduct and underlines an absence of aggravating factors such as greed or a desire to fund other criminal activity. It is not, however, in itself a mitigating factor.

29 I am unable to accord significant weight to the isolation from your family and friends that will occur during your time in custody. It would be incongruous to do so. You came to this country with one purpose - to participate in the commission of a grave criminal offence. I accept that the lengthy period of custody that I must impose will be significantly more onerous for you because of this isolation, however in the circumstances it only weighs modestly in your favour.

30 Mr Lau, your personal circumstances are similar to Mr Yim's. You are 34 years old, born and ordinarily resident in Hong Kong. Like Mr Yim, you have no prior convictions. Your parents are still alive and you have a younger sister who also lives in Hong Kong. Like Mr Yim, I consider that the lengthy sentence that I must impose will be made more onerous by your relative isolation, but for the reasons advanced, I can only accord it modest weight in your favour.

31 You were educated to high school level and since that time have been involved in the computer sales industry, working for one particular company for about ten years. You are unmarried, and like Mr Yim I accept that you also were attracted to gambling. Mr Mandy, your counsel, put on your behalf that you incurred significant gambling debts and that you were to use the money earned from your offending to pay off gambling debts. Again, there is no evidence in the material to support either your gambling indebtedness or your anticipated earnings. With reservations, I am prepared to accept the explanation offered for your conduct and the amount you anticipated earning. These, however, are only explanations and do not act to mitigate your criminality. As I have observed in Yim's case, they do, however, point away from aggravating factors such as, for example, greed.

32 I am told and accept that you have spent your time productively whilst imprisoned and, like Yim, I accept that your prospects for rehabilitation are very good. Your plea was also entered at an early stage. I am prepared to infer a measure of remorse from it and there has also been a substantial utilitarian benefit from it. I consider your position to be identical to Mr Yim's on this utilitarian aspect and I refer to the remarks I made about this a short time ago.

33 I consider the personal and mitigating factors that weigh in your favour, Mr Lau, to be roughly equivalent to Mr Yim's and I cannot draw any meaningful distinction between you insofar as they are concerned. As I have said, I regard your objective criminal culpability as slightly higher than Mr Yim and this will result in a slightly higher sentence than his.

34 Your role, as I have observed, was temporally much more limited than your co-offenders. Additionally, you attempted to possess 60 kilograms of the total cocaine mix out of 271 kilograms actually imported. I have resisted using the word "only" because 60 kilograms of cocaine mix (46.5 kilograms pure) is still, by comparison with other similar offences, a very large amount indeed. It cannot be gainsaid, however, that it is roughly 22% of the amount your co-offenders imported and are liable for sentence upon.

35 At the time of your offending, you were 20 years and six months of age. Your childhood and adolescence were difficult. You were born in Sydney but your mother left home and returned to China when you were three. Your Chinese-born father did his best for you, but you experienced little emotional warmth from him. He remarried twice and fathered four more children. Your father was a taxi driver who, by dint of hard work, was able to send you to Trinity Grammar in Sydney for your secondary schooling. You satisfactorily completed Year 11, but had to withdraw from Year 12 as your father could no longer afford private school fees. He is now in receipt of a disability pension, having suffered hepatitis and liver cancer. I am told by Mr Boulten SC, your counsel, that these conditions have been successfully treated.

36 You left school early in 2009, which would have been your Year 12 year. You commenced a hairdressing apprenticeship, but discontinued it after six months. You then worked at a McDonald's restaurant for a time whilst doing a business course at a TAFE. You returned to hairdressing and then enrolled in HSC at Ultimo TAFE. At about this time, you were ejected from the family home. I understand that this may have been the product of your stepmother's insistence. This occurred in early 2011. You stayed with friends and acquaintances over the next few months. I am told that you fell in with other young men involved in the Sydney "club scene" and commenced to use cocaine and ecstasy (MDMA). I infer that it was in this context that you met those who engaged you to take possession on their behalf of the imported cocaine mix.

37 You have been in custody since your arrest on 15 September 2011, although not all of the time you have served so far has been on remand for these offences. At the Melbourne Magistrates' Court on 6 June 2011, you were dealt with for two State offences of negligently dealing with the proceeds of crime (contrary to s 194(4) Crimes Act 1958 (Vic)). These offences were committed on 15 August 2011 and 7 September 2011 and involved the sums of $230 500 and $250 000 respectively. You were sentenced in total to six months' imprisonment. These are not prior convictions but are relevant matters nonetheless.

38 The single most compelling factor in your favour is your youth. At the time of offending, you were only a couple of years out of school and only a few months out of home.

39 In discussion with counsel, I commented that in my experience I had not encountered a very young offender involved in drug offending on this scale. I invited counsel to forward me any examples of sentencing an offender of about your age in offences of a similar scale. Neither their researches or mine were able to locate any such sentences in this country. I was provided by the prosecution with a useful comparative table of sentences imposed in broadly similar offences. Most offenders were in their 30s or 40s. Phommylsack,[1] Ung,[2] To[3] and Sparos[4] were about 25.

40 I have reached the conclusion that your prospects for rehabilitation are bright. You have done well so far in custody, immersing yourself in educational courses and involving yourself in productive day to day activities. I am prepared to infer some contrition or remorse from your plea of guilty and you are entitled to benefit for your early plea.

41 Whilst there is much to be said on your behalf, the fact remains that you have committed a very serious offence and I am required to impose a sentence that is of a severity appropriate in all the circumstances of the case. The sentence must ensure that you are adequately punished for your actions and be capable of deterring both you and others from similar conduct. I am required to and do take into account matters favourable to you, particularly your youth. I have moderated the maximum sentence I would otherwise impose because of it and I will impose a lesser minimum non-parole term than otherwise I would have for the same reason.

43 The cocaine importation for which I am about to sentence you, Yim and you, Lau, is one of the largest ever detected by our authorities. You, Yung, attempted to possess a significant portion of it. While all of you were acting on the part of others superior to you in your organisations, your participation was active and essential to those organisations. Our Parliament has laid down condign penalties for offences of this nature, not just to punish those caught by the authorities, but to deter others.

44 The sentencing principle of general deterrence must be given substantial weight in this sentencing exercise. I do not think it is necessary to accord any additional weight to the sentencing factor of specific deterrence. None of you have criminal histories and all of you have genuine prospects of rehabilitation.

45 I have been referred to and am required to take account of recent sentencing practices for this type of large scale offending. They reflect the community's expectation that this type of offending will attract heavy sentences and it is my duty to impose long terms of imprisonment upon you all.

• Pak Lau, I sentence you to 20 years' imprisonment. I fix a non-parole period of 16 years.

• Yiu Yim, I sentence you to 19 years' imprisonment. I fix a minimum non-parole period of 15 years.

• Samuel Yung, I sentence you to 11 years' imprisonment. I fix a minimum non-parole period of six years and six months.

46 In the case of Messrs Lau and Yim I declare that 323 days not including today have been served by way of presentence detention. In the case of Mr Yung I declare that 141 days not including today have been served by way of presentence detention.

47 For these Commonwealth offences I do not propose to make a formal s 6AAA Sentencing Act 1991 declaration, as required under State law. I indicate however that I have moderated the head sentences and minimum terms by approximately 20% to reflect each defendant's early plea of guilty.

[1] Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32.

[2] R v Heeng Ung [2000] NSWCCA 195.

[4] R v Sparos [2011] NSWDC 187.

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