CDirector of Public Prosecutions v Aw
[2015] VCC 1493
•22 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01750
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHEE LOONG AW |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2015 | |
DATE OF SENTENCE: | 22 October 2015 | |
CASE MAY BE CITED AS: | CDPP v Aw | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1493 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of importing a commercial quantity of cocaine – 39 year old offender from Singapore with no prior criminal history – not upper echelons of system of importation which was established by another or others, but played an important role in ensuring that drugs were delivered and collected in Australia for total reward of $20,000 – good prospects of rehabilitation.
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence 7 years with a non-parole period of 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth DPP | Mr J Dickie | Office of the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr D Glynn | Mr Rowan Slattery, Doogue O’Brien George |
HER HONOUR:
1 Chee Loong Aw, you have pleaded guilty to one charge of importing a commercial quantity of a border-controlled drug, cocaine. This offence carries a maximum penalty of life imprisonment.
2 The circumstances of your offending are summarised in the Prosecution Opening, Exhibit “A”. Pursuant to arrangements with others in Malaysia, you helped facilitate the delivery of packages from Malaysia to the suite of an office at 365 Little Collins Street, Melbourne. This was a “virtual office” run by a company called Ewave Global Pty Ltd (“Ewave”). It provided a Melbourne address for numerous businesses where, amongst other things, parcels could be delivered. From 30 April 2013, Ewave provided a parcel collection service for a Malaysian company, Ansly Hardware. This was done at the behest of a “Mr Giovanni” who purported to be the representative of that company. On 28 November 2013, you arrived from Malaysia, and Mr Giovanni advised Ewave that you would be handling the affairs of Ansly Hardware in future. From that date, you replaced Mr Giovanni in dealing with the representative of Ewave in relation to the collection of parcels. You left Australia on 20 February 2014 and returned on 31 March 2014. Shortly thereafter, on 4 April 2014, a consignment arrived in Australia addressed to Ansly Hardware at Ewave’s suite. It contained three boxes, each of which contained two hydraulic jacks. Concealed inside the jacks was powder with a total weight of 2,762.5 grams. Of this, about 2,189 grams was pure cocaine. On the following day, 5 April 2014, a second consignment arrived in Australia from Malaysia. It was addressed to the same suite at Ewave and comprised one box, which contained one hydraulic cylinder. Inside the cylinder was powder weighing 959.7 grams, of which about 759.1 grams was pure cocaine.
3 On 9 April 2014, Customs transferred the consignments to the Australian Federal Police, who then undertook a controlled delivery of the second consignment.
4 You had contacted Ewave’s representative on 4 April 2014 to advise that you were back in Australia and were expecting the arrival of parcels. Subsequently, you provided a contact mobile telephone number for yourself. This number had been subscribed to in a false name, “Jack Chen”, on 8 April 2014.
5 On 15 April 2014, Australian Federal Police contacted the Ewave representative, telling her to text you to say that a parcel had arrived and asking if you could collect it the following day. The following day, police delivered the second consignment, after having substituted the cocaine with an inert powder. You ultimately arranged that you would come to Ewave’s premises before 2pm to collect it. In the interim, there were a series of telephone calls between you, on the “Jack Chen” mobile phone, and an unidentified man in Malaysia, during which the anticipated delivery was discussed. All of these calls were intercepted by police.
6 It is plain from the intercepted calls that you were to be paid $5,000 for each box delivered, a total of $20,000. Pursuant to instructions from the unknown man in Malaysia, you were told to get another person, Felix, to collect the parcel and you were told to take it and put it in one of the rooms of an Ascot Vale house, where you were staying. You subsequently contacted Felix Ye, met up with him, advised the Ewave representative that a person called “Steven” would be coming to collect the package and, soon thereafter, Felix Ye, identifying himself as Steven, collected the second consignment, while you waited downstairs.
7 The consignment was subsequently transported by taxi to the house where you were staying in Ascot Vale. You left the second consignment in a spare room of the house, and, in the company of a Mr Lui and Mr Ye, went to a factory leased by Mr Lui. Police arrived at the factory and executed a search warrant. Amongst other things, they found cutting equipment and large spanners, which would have been suitable for the purpose of opening the parcel and dismantling the hydraulic cylinder. A search warrant was subsequently executed at the Ascot Vale address, where the unopened second consignment was found in an unoccupied bedroom where you had left it.
8 On 16 April 2004, you were interviewed by police. You admitted that, in the past, you had been to the suite at Ewave to collect parcels sent from Malaysia and that you had been expecting a delivery of boxes. You also agreed that you had asked Felix Ye to collect an item from that address, but claimed that you did not know that it contained drugs.
9 You were charged by police following your interview and remanded in custody. On 24 September 2015, shortly before your County Court trial was due to commence on 28 September 2015, you indicated an intention to plead guilty to the charge. The charge to which you have pleaded guilty is one rolled-up charge encompassing the two consignments of drugs from Malaysia.
10 Mr Aw, this is a very serious offence, as indicated by the maximum penalty of life imprisonment. The total weight of cocaine involved was 2.94 kilograms, well in excess of a commercial quantity, which is 2 kilograms. The cocaine was worth between $1.2 million to $1.5 million wholesale, or between $2.9 million and $3.9 million if sold at street value. Whilst I cannot infer that you knew of these values, it is plain from the intercepted phone calls between yourself and the unknown man in Malaysia that you must have appreciated that the consignments contained a substantial quantity of drugs and that they would be worth a great deal of money. There is no evidence that you were to be involved in onselling the drugs or were to obtain money from any such sales, However, I am satisfied that your involvement in the offending was motivated by financial gain, namely the agreed receipt of $20,000 (or $5,000 per package), there being three packages in the first consignment and one package in the second consignment.
11 In sentencing for this offence, this Court must denounce your conduct and emphasis must be placed upon general deterrence and just punishment. These illegal importation rackets can be difficult to detect, and illicit drugs are a scourge on our society and do enormous harm. They are injurious to the health of users. Addiction to illicit drugs creates a practical and financial burden on our health care system. They are destructive of family and other relationships. They impact upon users’ ability to function as a contributing member of society, and they add to the crime rate. There is no suggestion that you were a drug addict and, to be involved in this evil trade for profit, is something which must not be tolerated. A strong message must go out to those who are minded to engage in such activity that they will meet with appropriate punishment. Your counsel has conceded that there is no sentence appropriate for this grave offending other than a term of imprisonment and that term must be of a length sufficient to reflect the gravity of the offence.
12 In sentencing you, I take into account that your role was not in the upper echelons of the hierarchy of this well-planned importation of a commercial quantity of drugs. The system for the receipt of parcels at the suite of Ewave was well established before you took over from “Mr Giovanni” and there is no evidence that you were involved in despatching the drugs from Malaysia or had an entrepreneurial role with the expectation of significant profits from the sale of cocaine. As I have said, your payment was to be a finite one of $20,000. However, you are not at the very lowest echelon of the system.
13 I am satisfied beyond reasonable doubt that, when you returned to Australia on 31 March 2014, you did so with the specific intention of carrying out the role of facilitating the delivery and receipt of the cocaine in the two consignments. It is trite to say that, were it not for people like you, who are prepared to liaise with the likes of the Ewave employee to ensure that the parcels could be picked up so that drug traffickers could ply their trade, then the latter would have no success. You were essential to the success of the illicit trade by liaising with the Ewave employee to ensure collection of the drugs and reporting back to and receiving instructions from the unknown man in Malaysia, as well as arranging the transportation and placement of the second consignment in the spare room at the house where you were staying. Although you also arranged for Felix Ye to actually collect the consignment from the Ewave suite, I accept that you did this on specific instructions from the unknown man in Malaysia, who telephoned you very regularly with directions about what was to be done in relation to the consignment.
14 In a plea on your behalf by Mr Glynn, the Court was told that you are presently aged thirty-nine years, having been born in Malaysia into a family of 10 children. When you were quite young, your family moved to Singapore and that is where you grew up. Apparently the rest of your family are law-abiding, but, when you were only about eleven years of age, you had some conflict with your parents, after which you left school and left home and fended for yourself for many years. You obtained a job working for a motor mechanic for a time and then trained with the Singapore Army for two and a half years in order to obtain citizenship of Singapore. Following that, you returned to work for the mechanic for a time and then obtained a stevedoring job and, then, work in the construction industry from 2007 onwards. Apparently, in 2013, the company for whom you worked had a downturn in the availability of work and, from September 2013, you found yourself without employment. It was in this context that you were approached about setting up the Australian end of a Malaysian business. Mr Glynn stated that, when you first came to Australia in November 2013, you did not realise that the business involved importing illicit drugs, but, soon after arrival, that fact became apparent to you. It is clear that you were well aware of what was involved when you returned on 31 March 2014 and, shortly thereafter, liaised with the Ewave representative concerning the arrival of parcels from Malaysia.
15 In sentencing you, I take into account that you pleaded guilty to the offence. This was a late plea, entered only the week before the charge was listed for trial. However, I accept Mr Glynn’s submission that, after he became briefed in your matter, he ensured that all of the recordings of the intercepted phone calls were made available for you to listen to whilst you were in custody. By this process, you appreciated the full strength of the prosecution case against you. Although transcripts of the calls had been in the material served upon you, your English is imperfect. You offered to plead guilty to the charge of importing a commercial quantity of cocaine, whereas at a slightly earlier time, you had indicated that you were prepared to plead to a lesser charge of possession of a marketable quantity of cocaine. I accept that, by your plea of guilty, you have facilitated the course of justice and should receive some discount on the sentence which, otherwise, would have been imposed. I note that, when interviewed, you denied knowing that there were drugs in the parcel, albeit that you made certain admissions concerning your use of phones, your contact with the Ewave representative in relation to the expected arrival of parcels and the fact that you had asked Felix Ye to collect the second consignment from the Ewave suite. However, there is no material before the Court which would enable me to characterise your plea as a remorseful one.
16 I take into account that you have no prior criminal history alleged against you, although the higher courts have indicated that prior good character in offences of this type is generally to be given less weight as a mitigating factor than in relation to other types of offences. You have been in custody since the date of your arrest on 16 April 2014. This has been a lonely and isolating experience, as you do not have any friends or family in Australia, have had no visitors and have far from perfect English, resulting in communication difficulties. Although it must be said that, if a foreigner comes to Australia for the purpose of committing an offence punishable by imprisonment, then such isolation in custody is a foreseeable consequence of that action. I accept that you have utilised your time in custody as best you can to try to improve your English, as well as taking a variety of courses via Kangan TAFE in such things as cleaning and safe work practices. Certificates for such courses were tendered as Exhibit “1”. Also, you have been working as a kitchen billet in your unit. Doing the best I can on the limited material available to me, in the light of your previous good work history and lack of criminal history, I consider that your prospects of rehabilitation are probably good.
17 In arriving at the sentence which I intend to impose, I have taken into account such of the factors in s16A of the Crimes Act as are known to me. I have also factored in that you spent some three weeks in custody under very onerous conditions following the riots at the Metropolitan Remand Centre in June this year. Even though you were not implicated in the riots, you suffered consequences of having very little time out of your cell for three weeks following the riots, as well as the loss of clothing and other possessions which have not been recovered.
18 Mr Aw, your offending is such that the only appropriate sentence is one of imprisonment and the sentence must be of such a severity as to reflect the gravity of the crime and also to deter others from engaging in illicit drug activities of this nature and, to impose just punishment for the offending. I have had regard to sentences imposed in other cases of offences of importing a commercial quantity of a border-controlled drug but, at best, these can only be a yardstick by which to examine my proposed sentence. Obviously, the quantity of drugs involved and the circumstances of the offending conduct vary greatly in each case. Ultimately, a judge must apply the relevant legal principles, as revealed in those other sentences, to ensure consistency in sentencing.
19 Would you stand up please, Mr Aw?
20 On one charge of importing a commercial quantity of a border-controlled drug, you are convicted and sentenced to serve seven years’ imprisonment commencing today.
21 Pursuant to s19AB of the Crimes Act 1914, I fix a non-parole period of four years.
22 I declare a period of pre-sentence detention of 554 days to be time reckoned as already served under the sentence imposed this day.
23 Mr Aw, pursuant to s6AAA of the Sentencing Act (Vic), I state that, had it not been for your plea of guilty, the sentence imposed would have been eight and a half years with a non-parole period of five years.
24 Mr Aw, I must explain to you that the sentence which has been passed upon you today involves you serving a term of imprisonment which is not less than the non-parole period of four years which I have set. After the non-parole period has been served, if a Parole Order is made, you will serve a period of time in the community, called a parole period, in order to complete serving the balance of your sentence. If a Parole Order is made, that order will be subject to conditions. If, without reasonable excuse, you fail to fulfil the conditions of your parole, you may well have your Parole Order revoked, which means that you would return to prison. Alternatively, there may be other more onerous conditions imposed for the balance of your parole period. If you commit another offence punishable by imprisonment whilst on parole, your Parole Order will be revoked and you will be returned to prison to serve the unexpired period of your sentence.
25 Pursuant to s48 Proceeds of Crimes Act 2002 (Cth), I order the forfeiture to the Commonwealth of one Apple iPhone4 and $1,836 in Australian currency. Pursuant to s58(2) of the Act, I direct that the Official Trustee execute any deed or instrument in the name of any person who owns or has an estate interest or right in the said property and to do any act or thing necessary to give validity and operation to any such deed or instrument, as may be necessary or convenient for giving effect to this forfeiture order.
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