Chea Siang Lim and Wai Hong Tee appear for sentence after pleading guilty in the Local Court to one count of possessing a commercial quantity of border controlled drug, recording 102.66 kilograms pure of methamphetamine contrary to section 307.5(1) of the Criminal Code (Cth).
The maximum penalty for the offence is life imprisonment and or a fine of $1.35 million.
[2]
Facts
The parties presented an agreed statement of facts that can be summarised as follows.
On 23 December 2016 Tee was driving a white Nissan Pulsar in Riverwood, Lim was driving a silver Nissan Pulsar in convoy with Tee.
At 9.25am police intercepted a telephone call between the offenders. They discussed how many boxes each vehicle could take, estimating that a box could take 25 but that they need to take 80. Lim suggested that the car could not take that much and they would need to go Tee's house to divide it. Tee told Lim he should have asked for a larger hire car.
At 9.31am police intercepted a further telephone call between the offenders. Tee told Lim to try to get two parking spaces adjacent to each other.
At 9.33am police intercepted a further telephone call between the offenders. They discussed Lim taking 80 and expecting 128 'cents' and meeting at level 4 of a shopping centre car park. They discussed dividing what they had near Woolworths or later at Tee's house. Police believe the reference to 128 'cents' to be code for 128 kilograms of drugs.
Regina (Cth) v Chea Siang Lim; Regina [2018] NSWDC 44 | Case summary | Zoe
At 11.28am police intercepted a further telephone call between the offenders. They discussed their concerns about being followed while they were driving.
At 12.41pm police intercepted a further telephone call between the offenders. They discussed having three boxes each and at that Lim needed to take 80 out of that. Tee sought an assurance that all of the stuff was the same, which Lim agreed implying that each box weighed the same. Tee expressed concern that the meeting place chosen by Lim was dangerous because there was no clear escape route.
At approximately 1pm Australian Federal Police officers stopped both vehicles in Riverwood Plaza car park. Police located three Kennards storage boxes in the boot of each vehicle. Each box contained a large number of clip seal bags containing methamphetamine.
Forensic testing revealed that the total weight of the drug to be 128.02 kilograms with a pure weight of 102.66 kilograms. The estimated street value of the drugs was approximately $88.5 million dollars.
The offenders were arrested and cautioned.
When Tee was questioned about the content of the boxes before the boot of his vehicle was opened he replied, "I don't know". When asked a second time he said, "Oh ice". A search of his personal belongings located a Malaysian passport, three bundles of $100 notes totalling $15,000 and nine mobile telephone handsets.
Mr Tee participated in a record of interview on 23 December 2016 and made the following admissions. He received the ice from a Malaysian male known as 'Adidas'. Tee and Lim met Adidas at an underground car park of an apartment building at Campsie where they transferred the six boxes from a blue BMW X5 driven by Adidas to the vehicles driven by them. He first met Adidas at about 1 December 2016. He was told he could make some easy money by taking the drugs to a location and handing them to someone else. He expected to receive $5000 for which he had received a number of payments of $500 into his bank account. He was also given $15,000 by Adidas of which he was expected to hand over $10,000 to the person he was meeting. He was to purchase backpacks to put the drugs into and await instructions by telephone. Mr Tee and Mr Lim drove to the Riverwood Plaza with the drugs to await instructions.
When Mr Lim was questioned about the content of the boxes before the boot of his vehicle was opened he replied, "ice". A search of his personal belongings located six mobile telephone handsets, two additional SIM cards and $1300 in cash.
Mr Lim participated in a record of interview on 23 December 2016 and made the following admissions. He came to Australia for the purpose of earning money by handing over packages pursuant to an agreement with people in Malaysia. When he had the boxes he had to wait for a call. The people in Malaysia paid for his ticket to Australia. He suspected that the content of the packages were illegal. He expected to receive $200 for each package delivered. He hired a rental car and was told to go to Campsie to pick up the packages. He was doing the work to help support his family in Malaysia, including his disabled younger brother.
The offenders were charged and remanded in custody.
Mr Tee is 25 years of age and was 24 at the time of the offences. He does not have a record of convictions in Australia. Mr Lim is 26 years of age and was 25 at the time of the offence. He does not have a record of previous convictions in Australia. At the time of the offences the offenders were living together in Peakhurst. The offenders do not have family in Australia.
[3]
Pre-Sentence Reports
The Court received pre-sentence reports for each offender, the contents of which can be summarised as follows.
Mr Tee has been housed to date at Metropolitan Remand and Reception Centre at Silverwater Correctional Centre (MRRC). He has not been the subject of any misconduct charges. He has been working in the Technology Unit since 30 December 2016 and is described as polite and hardworking. Mr Tee entered Australia in April 2016 on a tourist visa which has expired.
Mr Tee comes from a single parent home with two older siblings. He has had no contact with his father since he was a child. He has maintained telephone contact with his mother in Malaysia whilst in custody. He left school in Malaysia to assist in the financial support of his family. He came to Australia in search of work as a fruit picker and did so for four months prior to the commission of the offence.
Mr Tee had significant gambling debts in Malaysia and committed the offences for financial gain. He agreed with the facts at first denying that he knew he was dealing in illicit drugs. He understood that the offence would have a serious impact on the Australian community and told the author of the pre-sentence report that he committed the offence in order to pay his gambling debts and to provide financial assistance for his mother. He accepted responsibility for his actions and did not attempt to justify his behaviour. He was assessed as a low risk of reoffending, unsuitable for community service work and unlikely to benefit from supervision.
Mr Lim has been housed to date at the MRRC at Silverwater Correctional Centre. He has not been the subject of any misconduct charges. He has been working in the Technology Unit since 30 December 2016 and is described as polite and a good worker. Mr Lim entered Australia in September 2016 on a tourist visa which has expired.
Mr Lim's younger brother in Malaysia is disabled and unable to work. He has maintained telephone contact with his parents who remain supportive of him. He left school to assist his family and was employed in the building industry. At the time of the offence he was employed in the building industry in Australia. He had gambling debts in Malaysia and was responsible for his father's gambling debts which he was unable to quantify.He was offered financial incentive to commit the offence. He agreed with the facts and stated that he knew what he had done was bad. He committed the offence to pay off gambling debts because his younger brother was unable to work. He did not justify his offending and accepted responsibility for his behaviour. He was assessed as a medium to low risk of reoffending, unsuitable for community service work and unlikely to benefit from supervision.
[4]
Mr Tee's Case on Sentence
Mr Tee gave evidence before me. He was not cross-examined.
Mr Tee prepared a letter of apology to the Court in Mandarin that was translated and tendered. He was from a single parent family with an older sister and an older brother. His mother supported them when they were young. He left school to find work and his siblings now support his mother. She had a fall and hurt her knee and has required an operation and is no longer able to work.
Mr Tee came to Australia looking for work in renovations or removals. He saw an advertisement on Facebook looking for workers to undertake fruit picking and packing in orchards. He worked at orchards for a number of months.
He regretted the offence because of the trouble he has brought to Australia and the worry he has caused to his family. He has seen his family once but they are not in a financial position to travel.
Mr Tee has gambling debts in Malaysia. On his release to custody he wants to find work in a phone shop or in auto parts. He has taken some English lessons whilst in custody but his English is still poor.
His letter to the Court was consistent with his evidence.
The Court also received letters from Mr Tee's aunt and his mother. They confirmed that he has conveyed remorse to them for his actions.
Mr Tee also tendered certificates for completion of a number of bible study courses.
[5]
Mr Lim's Case on Sentence
Mr Lim gave evidence before me and was cross-examined.
Mr Lim prepared a letter of apology to the Court in Mandarin which was translated and tendered. Mr Lim's immediate family consists of his parents and disabled younger brother. His father sells vegetables and his mother is a housewife. Since he was young his family has experienced financial difficulty. His father had a gambling problem and his family often borrowed money from relatives to support them.
He did not finish school so that he could go to work and help to support his family. He worked at a hairdresser for two years and then in auto part shop for three years. At the age of 20 he left home and went to work in Singapore. He would return home each Lunar New Year.
He was offered the opportunity to come to Australia and earn money after incurring gambling debts. He was approached out the front of a gambling venue and asked if he wanted to earn money. The people that sent him to Australia paid for his airline ticket.
He gave evidence that he did not know what was in the boxes at the time that he was arrested. He gave evidence that he heard the police say it was ice before asking him the question. He gave evidence that he did not know that it was ice in the boxes.
He gave evidence that he was distraught as a result of the offence. He felt that he had done a lot of harm to Australia and feels guilty and sorry. He committed the offence to help his family and knew that he was taking a risk.
He understands that the offence has had a significant effect on his family and feels sorry for them. His family cannot afford to visit him in Australia and his mother has to care for his brother.
When he is released from custody he intends to go back to work in renovations. He has done that work for five years in Singapore. He has no intention to involve himself in drugs again.
In cross-examination Mr Lim accepted that he had told the police that the boxes contained ice. He denied knowing that they contained ice at the time. He did not suspect the boxes contained ice but had overheard that said. He did not believe there were drugs of any kind in the boot. He knew that what was in the boot was illegal because he was making quick money. He did not suspect it was drugs but something like cigarettes or alcohol.
After a brief discussion with his counsel Mr Lim accepted in cross-examination that it was possible that the boxes contained drugs, that he had turned his mind to that possibility and that he continue with the venture anyway.
Having regard to the agreed facts I do not accept Mr Lim's evidence that he had no knowledge of the drugs in the boot or that he was merely reckless as to the presence of the drugs in the boot. The telephone intercepts revealed the significance of the weight of the substance being carried was 128 kilograms and that it had to be divided so that the offenders would take away 80 kilograms. Mr Lim told Mr Tee that "it was all the same stuff" (from which infer that he had examined the content of the boxes) and that the boxes all weighed the same.
At the time of his apprehension Mr Lim was carrying six mobile telephone handsets and made a spontaneous admission that the boxes in the boot of his vehicle contained ice. Further, in my view, Mr Lim's demeanour in the witness box indicated that he was trying to minimise his role in the offence by giving the evidence that he did. Having regard to all the evidence I am satisfied beyond reasonable doubt that Mr Lim knew that the boxes being carried by the offenders contained methamphetamine or ice.
Mr Lim's evidence was consistent with his letter of apology. Mr Lim also tendered a letter from his mother and documents confirming his brother's disability. Mr Lim's mother confirms that the offender is very remorseful and that he has told her he has accepted responsibility for his actions. Mr Lim also tendered completion certificates for bible study courses completed in custody.
[6]
Sentencing Principles
I must have regard to Part 1B of the Crimes Act (Cth) (1914) in passing this sentence and in particular the matters provided for by s 16A of that Act.
A Court determining a sentence in respect of person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in s 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of the factors in s 16A(2) of the Act is not exhaustive and the common law principles apply to the sentencing of Federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].
[7]
Objective Seriousness
The facts of the offence indicate that the offenders acted as more than mere couriers. They collected the drugs in vehicles that were rented by Mr Lim. They were tasked with dividing the drugs packing them into backpacks for on-supply. I would infer from the content of the telephone intercepts that it was intended that the drugs would be divided among a number of recipients.
The offence involved some planning including discussions between the offenders and others, clandestine meetings, the rental of vehicles and the purchase of backpacks. The offence was committed for financial gain. The offenders were towards the lower end of the hierarchy.
The amount of drugs at 102.66 kilograms pure is very substantial. The commercial quantity of methamphetamine is 750 grams and the amount of the drug was about 136 times that quantity.
[8]
General Deterrence
General deterrence is a fundamental consideration in possessing commercial quantities of drugs. The sentence must be of such a severity to deter others from engaging in such activities. The sentence must signal to would be offenders that the financial rewards will be neutralised by the risk of severe punishment. The type of offence must attract a custodial sentence otherwise interests of general deterrence are not served.
[9]
Specific Deterrence
There is some need for specific deterrence. Both offenders committed the offence for financial gain.
[10]
Other Matters
Mr Tee is presently 25 years of age. He does not have any prior convictions and no significant health concerns.
Mr Lim is presently 26 years of age. He does not have any prior convictions and has no significant health concerns.
The offenders have expressed remorse and contrition to the author of the pre-sentence report, their families and to the Court in their evidence which I accept is genuine. Remorse should be afforded slightly less weight in Mr Lim's case because in his evidence he sought to untruthfully minimise his role in the offence.
Each offender has good prospects of rehabilitation by reference to their age. I accept that each have committed the offence out of financial need. They have both expressed a desire to return to a law abiding life on their release from custody. Each has demonstrated a good work ethic and that they can be compliant with gaol routines.
The offender's pleaded guilty. For Commonwealth offences the Court must consider the offenders willingness to facilitate the course of justice and can have regard to the utilitarian value of the plea of guilty: Cameron v The Queen (2002) 209 CLR 339 at [14] and Xiaou v R [2018] NSWCCA 4 at [227]-[228]. Each offender made some admissions to the police and pleaded guilty at the first available opportunity.
I am satisfied that the offenders pleas indicate an acceptance of responsibility for their actions and were motivated by a willingness to facilitate the course of justice. The appropriate discount in each case is 25%.
Mr Tee made some admissions and cooperated with the authorities. The information provided by him was not sufficient to justify further investigation. The extent of the cooperation does not justify any additional discount.
Mr Lim made some admissions and cooperated with the authorities. The information he provided was contradictory and for the reasons I have given not entirely truthful. He is not entitled to any further discount.
I am satisfied that both offenders grew up in circumstances of poverty and that they left school to assist in the financial support of their families. Each offender had a supportive upbringing. I accept that Mr Lim's needs were on occasions not met because of the needs of his disabled brother. Each offender has been adversely impacted by gambling which I accept is reflective of its cultural significance in Malaysia.
This is a case that in my view calls for parity of sentences imposed. Whilst there are some differences in the participation of the offenders there are other differences that pull in the opposite direction. For example, that Mr Lim came to Australia for the purpose of conducting illegal activities when Mr Tee did not. In all the circumstances I am satisfied that the offenders should be treated equally.
[11]
Penalty
The offenders' conceded that a sentence of fulltime imprisonment was the only appropriate sentence.
I have had regard to s 17A(1) of the Act and I am satisfied that after having considered all other available sentence that no sentence other than imprisonment is appropriate. The reasons for that decision are that:
1. the offence committed is objectively serious,
2. there is a significant need for general deterrence and
3. there is some need for specific deterrence.
4. There is need for denunciation of the offending conduct and
5. the subjective considerations relating to the offenders are necessarily subsidiary for the duty of the Court to ensure that each is given a punishment of appropriate severity.
Wai Hong Tee you are convicted.
You are sentenced to imprisonment for 13 years and 6 months to date from 23 December 2016 and expire on 22 June 2030. I fix a non-parole period of 9 years to date from 23 December 2016 and to expire on 22 December 2025.
Chea Siang Lim you are convicted.
You are sentenced to imprisonment for 13 years and 6 months to date from 23 December 2016 and expire on 22 June 2030. I fix a non-parole period of 9 years to date from 23 December 2016 and expire on 22 December 2025.
[12]
Explanation of Sentence
I am obliged to explain to the offenders the effect of the orders I have made.
Wai Hong Tee and Chea Siang Lim the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 9 years. This means that having regard to the time you have already spent in custody you will be eligible for release on parole on 22 December 2025.
It will be a matter for the Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether there are any conditions that should apply to you whilst you are on conditional liberty upon parole after 22 December 2025. If you are released on that day you will remain on parole for a further period of 4 years and 6 months. If you were to breach you parole you may be required to return to prison to serve the balance of the term of your sentence.
[13]
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Decision last updated: 08 March 2018