Regina v James Gey-Houn Ra

COUNSEL : Mr D Dalton - Crown Mr M Allnutt - Applicant S E O'Connor ( Crown) Jack Rigg (Applicant) SOLICITORS :

CATCHWORDS : Sentence appeal - Drug importation - Heroin - More than commercial quantity - Applicant more than mere courier - Not necessary to identify precise nature of applicant's involvement in criminal enterprise - Plea of guilty - Appropriate discount in Commonealth case - Detailed comparison of instant case with another different case unhelpful LEGISLATION CITED : Crimes Act 1914 (Commonwealth). Regina v Wong and Leung (1998) 48 NSWLR 340 Queen v Olbrich (1999) 199 CLR 270 CASES CITED: Regina v Wong and Leung (2000) NSWCCA 169 Wong v The Queen; Leung v The Queen (2001) HCA 67; (2001) 76 ALJR 79 R v Gallagher (1991) 23 NSWLR 220 Siganto v The Queen (1998) 194 CLR 656 DECISION : Leave to appeal granted; Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60275/01

SPIGELMAN CJ O'KEEFE J SIMPSON J

13 JUNE 2002 REGINA v JAMES GEY-HOUN RA Judgment 1 SPIGELMAN CJ: I invite O'Keefe J to deliver the first judgment. 2 O'KEEFE J: This is an application by James Gey-Houn Ra (the applicant) for leave to appeal against a sentence of fifteen years imprisonment with a non-parole period of ten years imposed in the District Court by Judge Freeman (the judge) on 23 April 2001. The sentence followed a plea of guilty to an offence of knowingly being concerned with the importation of a quantity of heroin into Australia. 3 The quantity imported was a gross weight of ten kilograms, which on analysis was shown to contain 5.689 kilograms of pure heroin. A commercial quantity of heroin is 1.5 kilograms. Thus the amount imported was slightly in excess of five times the minimum commercial quantity. The street value was in excess of $A11 million. The maximum penalty for the offence is imprisonment for life. 4 The grounds of appeal are that the sentence was manifestly excessive and that the sentencing procedure involved errors in that:

(a) the judge was in error in finding that the applicant did not fit the profile of offender dealt with in the guideline judgment of R v Wong and Leung (1998) 48 NSWLR 340;

(b) the applicant should have been dealt with on a basis analogous to that of a courier, albeit perhaps not a "mere courier";

(c) inadequate significance was given to the utilitarian benefit derived from the applicant's plea of guilty. 5 There was an agreed statement of facts. These and the judge's findings reveal that the heroin was concealed in four ornamental stone columns which had been consigned from Hong Kong in four crates. The consignment had been addressed to "Jee Hoon Rae" at 1/71 Wentworth Road, Strathfield. The judge found that the name of the consignee was a "slender subterfuge" in that the applicant sought, albeit unsuccessfully, to use a pseudonym. The address to which the narcotics were laster delivered to the applicant appeared to be premises in respect of which he had occupation and control. 6 The heroin arrived in Australia on 19 July 2000. The consignment notes showed the contents of the four crates in which the drugs were concealed to be stone columns. However, x-ray examination revealed packages inside each of the four columns. As a consequence, they were dismantled and each was found to contain packages of heroin wrapped in clear plastic. Controlled delivery samples of heroin were placed in the columns. 7 On 21 July 2000 police placed a listening device in one of the stone columns and the signal was thereafter lawfully monitored, as were telephone conversations by and to the applicant, which were intercepted pursuant to appropriate warrants. The electronic surveillance revealed that the applicant contacted a number of freight forwarders with a view to ascertaining their procedure for the removal of imported goods from storage, in the course of which he inquired about the delivery of the goods to his "home" at Strathfield as soon as possible. 8 In each case he sought to arrange for the payment of the freight forwarder in cash. In one instance (Sydney Express Couriers), when asked how quickly he wanted the goods delivered, he said that he needed to speak to his "business partner". He then put the phone down and after some conversation, came back with a further question. He was informed by a number of the freight forwarders that cash was not an acceptable method of payment. 9 In a conversation with another freight forwarder (DHL Express) the applicant told the phone operator that he had received a fax from Hong Kong concerning the shipment. When he was asked from whom the fax had come, he sought confirmation from somebody who was apparently with him, and then merely replied that the fax had come from Hong Kong. 10 The applicant also contacted the airline which had air freighted the columns and their concealed narcotics to Australia. He inquired about "his consignment", and said it was "urgent" as he "needed (them) for his job". Finally, the applicant contacted yet another freight forwarder and again sought to make arrangements for payment in cash, even going to the extent of asking if he could go to the office to pay the cash, and then have the goods delivered as "they were important for his business". 11 The applicant made further contact with the air freight company, using a false name, and stating that he was a business partner of the consignee Jee Hoon Rae. 12 During the course of the days that followed the importation of the drugs, the applicant contacted a person referred to as Dong, and asked him to collect the columns from Mascot. He offered Dong $400 - $500 to do this, but Dong was unable to do so because of the demands of his work. Dong appears to be a false name and the person in question could not be traced. 13 The applicant then telephoned another male, who was using a telephone service in the name of Tran Wang. The applicant and Wang had a conversation concerning the importation in the course of which several code words were used to conceal the nature of the goods, which were the subject of discussion. Tran Wang has not been able to be found, and is believed to be a false identity. 14 On 26 July 2000 a male, using the name Danny Wong, telephoned the applicant and they discussed the importation. In the course of this discussion the applicant talked of options for getting other people to pick up the consignment. It was apparent from this conversation that the applicant knew what was involved in the importation, was anxious to conceal his association with the criminal enterprise, and to interpose somebody between the arranging of delivery and the ultimate delivery. 15 On 27 July 2000 the applicant attended at the office of a Mascot customs broker. There he handed an authority in the name of Jee Hoon Rae to an employee of the customs broker, and paid $715.25 in cash for the delivery of the columns to the Strathfield address, shown as the address of the applicant. The applicant indicated to the customs broker that he would be at the premises waiting for the delivery. 16 The columns, still containing the controlled delivery samples of heroin, were delivered to the applicant's address at 1/71 Wentworth Road, Strathfield. The applicant, using the false name of Jee Hoon Rae, signed a receipt for the consigned goods, and had them placed inside unit 1. 17 The electronic surveillance established that on 28 July 2000 the applicant was involved in removing the columns from the wooden crates and removing some of the narcotics from the columns. In the course of so doing, the applicant confirmed to a confederate that "Everything is all beautiful and everything ready to take". 18 The work of recovery of the narcotics continued on 29 July 2000 in the course of which the applicants said that he was "bored" and words to the effect that removing the narcotics was, in effect, beneath him, and was a matter for others, whom he described as "the idiots". The physical work of removal was the role of the labourer, whereas, as the judge held, he, the applicant, saw his role as supervisory or managerial. 19 In the early hours of the morning the applicant discovered the concealed listening device, which was then discarded. It was later found on a vacant allotment some several blocks removed from the premises to which the columns had been delivered. 20 Later the same morning, when a search warrant was executed in the presence of the applicant at the Wentworth Road premises, the four stone columns were located in a bedroom, whilst the controlled delivery samples of the heroin were found in a kitchen cupboard, and in the refrigerator. The samples had been cut and then resealed. The crates were located in the backyard of the premises. 21 The applicant was cautioned, but after a short conversation, declined to participate in a formal record of interview. The estimated street value of the heroin imported was $A11,378,000. 22 The judge found that over a period of four days the applicant made considerable effort to effect delivery of the narcotics. His attempts, finally successful, to pay in cash, were clearly intended to cover his trail, as were his attempts to interpose somebody between him and the arranging of the delivery. The judge held that the applicant was of the view that the mechanical disassembly of the columns and the removal of the heroin was "beneath him and his role in the overall importation". 23 He then found that the applicant was "not ... a mere courier". The fact that the applicant gave no evidence and gave no assistance to the investigating officers meant that it was not possible to be precise as to the applicant's position in the hierarchy involved in the overall criminal enterprise. However, the judge held that: "The prisoner was not a mere courier. He was a willing participant. He was in the position of being able to attempt at least to recruit others to do the donkey work. He was fully aware, as his conversations intercepted indicate, of precisely the nature of the task in which he was engaged. He was a serious and important player ... " 24 In determining the proper sentence, it is appropriate to bear in mind what was said by the High Court in The Queen v Olbrich (1999) 199 CLR 270. Gleeson CJ, Gaudron, Hayne and Callinan JJ said: "We do not accept the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process" (supra at 277)

and: "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 ... 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 from that imposed on another. In that context the 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. But this was not such a case. 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." (supra at 279)

and: "Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others might have hoped to gain from his activities." (supra at 280) 25 In the present case the judge, having rejected the submission that the applicant was a mere courier, was left (as was the High Court in R v Olbrich (supra)) with a situation in which it was clear that whilst the applicant was not a mere courier, the evidence did not establish that he was the mastermind. The judge, correctly in my opinion, held that the applicant was somewhere between the two, to adopt the words of Spigelman CJ, in R v Wong and Leung (2000) NSWCCA 169 at paragraph 17, the applicant was a major participant in a very large importation. 26 His actions were pivotal to the importation and initial recovery and control of a large quantity of narcotics, which were capable of giving rise to significant human misery if put into circulation in the Australian community (see R v Wong and Leung (supra) paragraph 16). 27 The judge considered the matters set out in s 16(a) of the Crimes Act 1914 (Commonwealth). In my view he did so correctly. He determined, again in my view correctly, that exculpatory factors adverted to in s 16A(2) did not operate in favour of the applicant, except that he had pleaded guilty to the offence. This, notwithstanding what the High Court said on this topic in Wong v The Queen; Leung v The Queen (2001) HCA 67; (2001) 76 ALJR 79 at 94 per Gaudron, Gummow and Hayne JJ; (see also R v Gallagher (1991) 23 NSWLR 220 at 228 per Gleeson CJ) was appropriate to take into account as a relevant factor pursuant to s 16A(2)(g). 28 In this regard, the allocation of a discount of 10 per cent on the head sentence was appropriate (Cameron v The Queen (2002) 187 ALR 65) because of the fact that the plea was indicated only very shortly before the date fixed for hearing of the trial, was entered in the face of a very strong Crown case, in which conviction was almost inevitable, and was not indicative of, or accompanied by, either expression of contrition (s 16A(2)(f)) or any assistance to law enforcement by, for example, identifying others involved in the crime (s 16A(2)(h)). 29 In fixing the sentence the judge discounted the claim made in submissions that the applicant had an addiction problem. He was entitled to do so and in my opinion, correct in doing so. There was no direct evidence from the applicant or any other person of any drug addiction, and the circumstances relied upon by him to support such a claim were equally consistent with his setting up a possible defence in advance of the importation, against the contingency that the offence may be detected, and his involvement in the criminal enterprise exposed. 30 The evidence concerning the health of the applicant's mother was also correctly discounted because of the vagueness of the material and the absence of any evidence from her or otherwise as to the effect of any sentence on her (s 16A(2)(f)). The health of the father was also correctly discounted because of the nature of the relationship between the applicant and his father, and the lack of specificity as to any effect a significant sentence would or may have on the father (s 16A(2)(f)). 31 Furthermore, neither circumstance was of an exculpatory kind that would fall within the ambit of s 16A(2)(D) of the Crimes Act 1914 (Commonwealth). 32 The judge correctly posed the matter that he had to determine, namely, that he had to impose a sentence that was of a severity appropriate in all the circumstances of the offence (s 16A(1)), an offence in respect of which both personal and general deterrence are important. The starting point for such a sentence was the amount of the drug imported, the obviously careful pre-planning of the importation, the knowledge of the applicant, his pivotal role in recovering and controlling the imported narcotics, and his endeavours by the use of a pseudonym, code words in conversations and the attempted interposition of intermediaries to conceal his involvement. 33 These factors must be viewed against the further fact that the maximum penalty for such an offence is imprisonment for life. The discount allowed on sentence for the late plea of guilty and in the circumstances in which it was proffered was, in my opinion, appropriate, since the degree of mitigation may vary with the circumstances of a particular case (Siganto v The Queen (1998) 194 CLR 656 at 663-664); so too as regards the discount of one-third because of the absence of remissions in view of the place and the system in which the sentence is to be served (s 16G). 34 In these circumstances I am of opinion that none of the grounds relied on (as referred to above) is made out. No error is apparent in the sentencing process engaged in by the judge and having regard to the factors to which I have adverted above, I do not think that the sentence imposed was manifestly excessive. Indeed, as Sully J pointed out in the re-sentencing of Wong and Leung (supra at paragraph 20), at first instance a head sentence in the order of sixteen years at least, and a non-parole period in the order of eleven years at least, were called for in that case, even after the adjustment required by s 16G had been effected. 35 In view of the fact that the sentence in that case was imposed against a background of a triple jeopardy, a comparison of the sentence in the instant case and those imposed in Wong and Leung is not of assistance. A detailed comparison of the kind undertaken in the written submissions prepared on behalf of the applicant is, in my opinion, not an appropriate way of testing the sentence. As the High Court pointed out in R v Olbrich (supra) what a trial judge must do is determine the sentence appropriate to the particular case, and the extent of involvement of the particular person in the criminal activity the subject of the charge. 36 In any event, such a comparison does not reveal a disparity of a kind which would attract intervention by this Court. In my opinion leave to appeal should be granted, but the appeal should be dismissed. 37 SPIGELMAN CJ: I agree. 38 SIMPSON J: I agree. 39 SPIGELMAN CJ: The orders are as formulated by O'Keefe J. **********

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