Ban Joo Teoh v The Queen
[2018] VSCA 27
•19 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0226
| BAN JOO TEOH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 February 2018 |
| DATE OF JUDGMENT: | 19 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 27 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Teoh (Unreported, County Court of Victoria, Judge Dean, 5 December 2016) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Attempt to possess a marketable quantity of methamphetamine – Trafficking a marketable quantity of methamphetamine – Late guilty plea – Total effective sentence of 9 years’ imprisonment – Non-parole period of 7 years’ imprisonment – Whether judge took into account adverse factor not proved beyond reasonable doubt – Whether sentence manifestly excessive – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J R Cass with Ms N Adey | Victoria Legal Aid |
| For the Respondent | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
TATE JA:
On 15 February 2018 I made an order granting the applicant, Ban Joo Teoh (‘Teoh’), leave to appeal against sentence. I indicated that I would shortly provide reasons in support of that order. These are those reasons.
Teoh pleaded guilty to one charge of attempting to possess a marketable quantity of methamphetamine and one charge of trafficking a marketable quantity of methamphetamine. He was sentenced on 5 December 2016 as follows:[1]
[1]DPP (Cth) v Teoh (Unreported, County Court of Victoria, Judge Dean, 5 December 2016) (‘Sentencing reasons’).
Charge Offence Maximum penalty Sentence Cumulation 1 Attempt to possess a marketable quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) s 11.1(1)] 25 years’ imprisonment 5 years and 6 months’ imprisonment 2 years 2 Traffick a marketable quantity of a controlled drug [Criminal Code (Cth) s 302.3(1)] 25 years’ imprisonment 7 years’ imprisonment Base Total effective sentence 9 years’ imprisonment Non-parole period 7 years Pre-sentence detention 452 days S 6AAA statement 11 years’ imprisonment with a non-parole period of 9 years Other relevant orders Forfeiture by consent of $15,000 proceeds of crime
Teoh seeks to appeal this sentence on the basis of two grounds:
1.The judge erred by taking into account an adverse factor not proven beyond reasonable doubt.
2.The individual sentence on charge 2, the total effective sentence, and non-parole period are each manifestly excessive. In particular, the judge gave too much weight to denunciation, protection of the community and general deterrence, and insufficient weight to the personal circumstances and rehabilitation prospects of the applicant.
At the hearing of the application for leave to appeal, it was foreshadowed on behalf of Teoh that leave would be sought for a third ground of appeal to be added alleging specific error with respect to an alleged mischaracterisation of the applicant’s prospects of rehabilitation. After discussion, I indicated that I considered that the issue could be properly ventilated under the umbrella of ground 2, the ground of manifest excess.
Circumstances of the offending
On 30 August 2015, Ho Pan Yip (‘Yip’) landed at Perth Airport and was detected importing methamphetamine into Australia via cognac bottles. Yip was granted entry on a tourist visa. A telephone intercept revealed a number of phone calls with Teoh in which arrangements were made for Yip to deliver one of the cognac bottles to Teoh.
On 11 September 2015, Yip was arrested outside Teoh’s home in Footscray in possession of the bottle. The substance removed from the cognac bottle was found to contain methamphetamine of a purity of 46.3 per cent. The quantity of pure methamphetamine was 673.5 grams.
Following Yip’s apprehension, a search warrant was executed at Teoh’s premises. The following items were located at his premises:
·a toiletry bag containing multiple clip-seal bags containing 860 grams of a crystalline substance;
·a Samsung box containing multiple clip-seal bags, in turn containing 4.7 grams of a crystalline substance;
·$15,000 in cash; and
·other items of drug paraphernalia.
The 864.7 grams of crystalline substances were found to contain 659.5 grams of pure methamphetamine.
Teoh initially denied the offending. He pleaded guilty after a contested committal and after he was committed for trial. The plea was entered after Yip pleaded guilty and agreed to give evidence against Teoh.
The judge’s reasons
In considering the charges against Teoh, the judge noted that while Teoh’s guilty plea was not an early one, it avoided the necessity of a trial and indicated a degree of remorse, which was taken into account in mitigation of sentence.[2] Teoh also had no prior convictions, subsequent convictions or outstanding charges.[3]
[2]Ibid [4].
[3]Ibid [5].
In considering Teoh’s criminality, the judge found that Teoh was ‘engaged in the business of drug trafficking for profit’ and stated that he was ‘satisfied that [Teoh] occupied a senior and trusted position in a criminal organisation involved in that activity’.[4] He made that finding on the basis of the evidence located at Teoh’s premises and the telephone intercepts that revealed Teoh was in contact with a person in China who was also engaged in drug importation. Further, the judge stated ‘in all probability, you were also in contact in Melbourne with a person or persons capable of extracting the methamphetamine from the contents of the bottle Yip was to deliver to you’.[5]
[4]Ibid [17].
[5]Ibid [16].
After describing the offending, the judge highlighted the relevant sentencing principles as follows:
The sentencing principles applicable to a case such as this are well established. The sentence that I impose must be calculated to deter you and others from engaging in this criminal activity. Controlled and border controlled drugs cause incalculable damage to our society, and that society must be protected from people like you. You must also be punished for your offending. The quantities of pure methamphetamine in this case are significant, and the profit you sought from your criminal conduct would no doubt have been, correspondingly, significant.[6]
[6]Ibid [18].
The judge then considered Teoh’s personal circumstances, including that Teoh was in Australia on a student visa at the time of the offending; that he would be isolated from his family in Malaysia while in prison; and would be deported on his release.[7] The judge was of the view that Teoh was remorseful ‘to some degree’ but he was cautious about Teoh’s prospects for rehabilitation. He said:
I accept that you are to some degree remorseful for your offending, but any assessment of your prospects for rehabilitation must be approached with a degree of caution. You were an important member of an organisation engaged in very serious criminal activity, and your participation was at a trusted level.[8]
[7]Ibid [21]–[22].
[8]Ibid [23].
The judge had regard to the sentence imposed on Yip and the principle of parity when imposing the sentence. Specifically, he considered that Yip held an inferior role in the criminal organisation, was youthful, and had agreed to assist authorities. Yip had pleaded guilty to an offence with a maximum penalty of life imprisonment in relation to the importation of 1.35 kg of pure methamphetamine.[9] Yip was sentenced by the same judge to seven years and six months’ imprisonment with a non-parole period of five years and six months’ imprisonment for one charge of importing a commercial quantity of a border controlled drug.[10]
Ground 1 — Taking into account an adverse factor
[9]Ibid [25].
[10]DPP (Cth) v Yip (Unreported, County Court of Victoria, Judge Dean, 2 December 2016). Yip was granted leave to appeal on a ground of manifest excess by Ashley JA, but the appeal was dismissed by Kyrou and Hansen JJA. See Yip v The Queen [2017] VSCA 231.
This Court, in R v Storey,[11] made it clear that, when sentencing an offender, a judge ‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt’.[12] This standard of proof was considered by the High Court in R v Olbrich[13] and in Weininger v The Queen,[14] in relation to the role of drug offenders in importation charges. In those cases, the High Court distinguished between the requirement for a judge to be satisfied beyond reasonable doubt of those factors that are adverse to the accused and the ability of the judge to sentence on the basis of the balance of probabilities with respect to factors that the accused has relied on in mitigation.
[11]R v Storey [1998] 1 VR 359.
[12]Ibid 369 (emphasis in original).
[13](1999) 199 CLR 270.
[14](2003) 212 CLR 629.
Teoh submitted that the judge considered that he had the capacity to contact someone who could extract methamphetamine from the imported cognac bottle and took this into account in an adverse way when it was not a fact proved beyond reasonable doubt.[15] He submitted that his role in the organisation was therefore wrongly characterised as that of a ‘senior and trusted [officer] in a criminal organisation involved in [the] activity’ of trafficking for profit.[16] He also submitted that, during the discussion on the plea, the judge described Teoh as being ‘the Australian manager’ of the operation when he said, addressing Teoh’s counsel:
Your client’s, on one view, the Australian agent for Mr —for the fat man. Or the Australian manager, the offshore manager, if you like. He’s at a pretty senior level, I think your client.[17]
[15]Sentencing reasons [16]. See [11] above. Initially it was submitted that the judge had erroneously considered as an adverse factor that Teoh himself had the capacity to extract methamphetamine from the cognac bottle when there was no evidence to support that. However, at the hearing it was acknowledged that the judge only remarked that Teoh was in all probability in contact with someone who had the capacity to extract methamphetamine from the cognac bottle. Leave was given for Teoh to file a revised written case.
[16]Sentencing reasons [17]. See [11] above.
[17]Transcript of Plea, R v Teoh (County Court of Victoria, 16-00789, Judge Dean, 28 November 2016), 27.
The judge also commented:
Once can never be precise about these things, but your client’s a senior member of an organisation engaged in the importation of this drug into Australia.[18]
[18]Ibid 28.
Teoh submitted that the judge ‘over-reached’ in these comments as he could not be satisfied of their truth beyond reasonable doubt and yet they informed his Honour’s sentencing disposition. He submitted that the facts which Teoh accepted, as recited in the prosecution opening, only went so far as to establish that Teoh provided a ‘warehouse service’ as part of the criminal operation.
At the hearing of the application for leave to appeal, the Crown submitted that it was apparent that Teoh occupied a serious trusted position as an intermediary in the drug trafficking operation and that is all that was remarked upon by the judge. However, the Crown conceded that, in accordance with the threshold for leave, it was reasonably arguable that the judge overstated the role occupied by Teoh.
Ground 2 — Manifest excess
Teoh submitted that the sentence imposed on charge 2 is disproportionate and manifestly excessive, resulting in the imposition of a total effective sentence and non-parole period outside the range of sentences reasonably open to the judge. He submitted that the trafficking charge lacked features common to more serious trafficking charges, including that there was no evidence that the offending occurred over an extended duration (there are no ‘between dates’); there was no direct evidence of a sophisticated or planned business operation; no direct evidence that Teoh had a high-level of participation or supervisory role; there were no scales found at Teoh’s premises, nor record books; Teoh had not come to Australia with the purpose of trafficking; and Teoh had not engaged in any such activities prior to being charged.
Teoh submitted that several mitigating factors were present including that he was 30 at the time of offending and rehabilitation was highly relevant; he pleaded guilty; he had an otherwise unblemished record; he had a strong work ethic and history; he had family support; he would suffer isolation from his family in custody; and he had demonstrated significant remorse. He submitted that, in those circumstances, the observation made by the judge that ‘a degree of caution’ was required in assessing Teoh’s prospects of rehabilitation was unsupported. He submitted that the judge wrongly assessed his prospects of rehabilitation because of the erroneous finding (about which he complains in ground 1) that he was an important member of a criminal organisation participating at a trusted level when it was not established that he had had that role or discharged supervisory responsibilities.
Teoh relied on a table of cases where, he submitted, the offending was more serious but the offender received comparable sentences.[19] Ultimately, Teoh submitted that the judge gave too much weight to deterrence and the probability that Teoh could contact someone capable of extracting methamphetamine from the cognac and gave insufficient weight to his personal mitigating factors.
[19]For example, Nguyen v The Queen [2010] NSWCCA 132; DPP (Cth) v Thai (2014) 242 A Crim R 173.
In particular, Teoh submitted that a non-parole period representing 77 per cent of the total effective sentence is manifestly excessive.
The Crown argued that general deterrence was correctly applied as the principal sentencing purpose and that the general question of personal good character carried lesser weight in that context. It also submitted that specific deterrence assumed some significance given Teoh’s role in the enterprise. Overall, the judge correctly referred to and gave appropriate weight to the objective seriousness of the offending and the personal matters in mitigation. In particular, the Crown submitted that the sentence on charge 2 cannot be considered manifestly excessive given the maximum penalty, the quantity of drugs found on his premises, the $15,000 cash and drug paraphernalia also found on the premises, and the wholesale value of the gross weight of drugs seized.
In relation to the total effective sentence, the Crown submitted that, given the charges involved discrete offending, the degree of cumulation between the charges was modest. It submitted that Teoh’s role in the trafficking was pivotal to the success of the business in Australia and that he was motivated by the desire for profit or financial gain.
The Crown accepted, however, at the hearing of the application for leave to appeal, that there was a connection between the basis of Teoh’s complaint on ground 2 and the complaint he made on ground 1. It accepted that it was appropriate for leave to appeal to be granted on both grounds.
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