CDirector of Public Prosecutions v Cheng
[2023] VCC 1715
•15 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02440
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| POH AUN CHENG |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2023 | |
DATE OF SENTENCE: | 15 September 2023 | |
CASE MAY BE CITED AS: | CDPP v Cheng | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1715 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms A. Martin | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Anderson | James Dowsley & Associates |
HER HONOUR:
1Poh Aun Cheng, you have pleaded guilty to one charge of attempting to possess a commercial quantity of unlawfully imported border controlled drug, contrary to the Criminal Code.
Circumstances of offending
2The circumstances of your offending are outlined in the prosecution opening of 19 July 2023 and I sentence you on that basis.
3On 30 January 2020, you travelled from Kuala Lumpur in Malaysia, and arrived in Sydney on a tourist visa, subsequently applying for a protection visa. When that was refused you applied for and were granted a bridging visa. You travelled to Australia to work for, and at the direction, of an individual by the name of Sam. This work included making arrangements for the warehousing of the first of four importation of tiles.
4It is the prosecution case that the first three importations of tiles were ‘dry run’ consignments in preparation for the importation of the border controlled drugs in the fourth consignment. The prosecution does not allege that you were aware of that fact at the time of your involvement in the first importation or the second and third consignments. The prosecution opening details these consignments to place the charged importation into its proper context. The heroin was located in the fourth importation.
5As for the relevant background, on a date prior to 29 April 2021, you made enquiries with various people about leasing a Pascoe Vale warehouse for the short-term storage of marble, granite and tiles. On 4 May 2021, you signed a one year lease for the warehouse and received the keys, and subsequently made several cash deposit lease payments.
First, second and third consignments
6In respect of the first three consignments, in April of 2021, Shahrudin Ikram (Ikram) contacted Rosamond Bin Mohamed Saad (Saad) seeking his assistance in finding a warehouse where he could store tiles. Saad was employed at H & N Services Pty Ltd, which is an import business operated by Mohamed Nasir Bin Ismail (Ismail), located in Coolaroo. Ismail subsequently spoke to Ikram about the cost of storing the tiles and forklift handling.
7On 8 May 2021, the first consignment from Malaysia arrived in Australia in the Port of Melbourne from Malaysia, containing approximately 21,000 tiles that were stored at the Coolaroo warehouse. The consignee was H & N Services and the consignor was Yi-Lai Industry Berhad. The prosecution opening details various contacts between others in relation to this consignment and its storage. On 11 May 2021, you hired a forklift for a period of one month and extended the hire on 12 June 2021. Later that month you deposited payment into the H & N Services bank account as payment for storage of the tiles and attended the warehouse with an unknown truck driver and collected the 21 pallets.
8On 12 July, 29 July and 29 September 2021, a second, third and fourth consignment arrived in Australia in the same way and with the same consignment details, containing approximately 20,000 kilograms of tiles each time. The second and third consignments were delivered to the Coolaroo warehouse.
Forensic examination and substitution
9Between 30 September and 1 October 2021, AFP members attended the ABF air cargo examination facility and examined the contents of the fourth consignment which consisted of 20 pallets containing 76 cardboard boxes. Three of the 20 pallets contained 33 boxes that held a total of 1,290 ‘Double UO Globe’, stamped blocks, each containing a quantity of white powder. Presumptive and pre-analytical tests were conducted on the white powder that confirmed the presence of heroin.
10
The total net weight of the 1,290 blocks of compressed white powder seized by federal agents was 451.5 kilograms. The purity of the heroin was 72.3 per cent. The minimum total pure weight of heroin was 326.7 kilograms. The three pallets and 33 boxes were reconstructed to resemble their original condition for the purpose of a controlled delivery and the blocks of heroin substituted. On
3 October 2021, a controlled operation was authorised and commenced and on
4 October 21, the consignment was placed back into the cargo delivery stream.
Telephone intercepts and moving the substituted consignment to Coolarro
11On 4 October 21, AFP commenced lawful interception of Ismail's mobile phone and then Saad's mobile phone, tracing calls concerning delivery of the container of tiles, as outlined in the prosecution opening.
12On 11 October 2021, AFP commenced lawful interception of the mobile phone used by you and commenced surveillance at the Pascoe Vale warehouse. On 12 October 2021, AFP commenced lawful interception of a second mobile phoned used by you with the number ending in 866 subscribed in a false name.
Moving the substituted consignment from Coolaroo to Pascoe Vale
13On 12 October 2021, you contacted Melbourne Forklifts and arranged for a forklift to be delivered to the Pascoe Vale warehouse. You then travelled by car from Sydney to Melbourne arriving at approximately 8.30 pm at the warehouse. You inspected the first consignment of tiles and remained in the factory overnight.
14On 13 October 2021, which is the commencement date of your offending, AFP surveillance operatives observed you attend a Bunnings Warehouse where you purchased items including tape and moving cartons. Later that day the forklift was delivered to the Pascoe Vale Warehouse. You paid the delivery driver in cash for the hire of the forklift for another month.
15A few hours later, Nashrur Mohid Nasser (Nasser), and employee of H & N services loaded five pallets from the substituted consignment onto a truck at the Coolaroo warehouse and delivered them to the Pascoe Vale warehouse. You directed him as to where to unload the palettes within the warehouse and you recorded on your phone the delivery of them and then paid him in cash.
16At about 6.23 pm, an unknown male using a Malaysian subscribed contact number, contacted you on your mobile and you discussed the pallets. The unknown male asked you, 'How many gifts in total?' And you said, 'Sixteen. One with 10 and one with seven. Three items'. You told him that the one with 16, hadn't yet arrived and he said, 'When it does, we'll shut the door and then unpack the gift'. He told you to take photos of the consignment when it is unpacked, send the photos and dispose of the sim card. It was indicated that you take a photo of the white stuff coming out of one of the boxes to show him.
17The prosecution case is that the reference to ‘gifts’ was code for heroin, and that this discussion about 16, 10 and 7, refers to the number of boxes within the consignment that contained heroin. Of the 33 boxes that contained heroin, there were 7 boxes in one pallet, 10 boxes in another, and 16 in the third. Later that day, the unknown male telephoned you and there was further discussion about the ‘gifts’ and how they should be repacked and the area cleaned. You remained overnight in the Pascoe Vale warehouse sleeping in the upstairs office area of the factory.
Opening and inspecting the substituted consignment
18In the morning, on 14 October 2021 you used a forklift to move the two pallets within the warehouse. Nassar also made three further trips between the Coolaroo warehouse and the Pascoe Vale one to deliver the remaining 15 pallets from the substituted consignment. With your supervision he unloaded the 15 pallets from the truck and placed them inside the warehouse. Included in these 15 pallets was the pallet that contained the remaining substituted blocks of heroin.
19At about 10.35 am, the unknown male contacted you by phone again and said to act normal. The unknown male stated he had a meeting with the big boss yesterday, and the current work was being done between 'You and me’ and after they’ve done their part, they'll hand it to ‘the big boss man’. Once all the deliveries had been completed Nassar left and you closed the warehouse roller door.
20The prosecution opening outlines your conduct between approximately 12.09 pm and 9.08 pm as including the following.
(a) You moved, unpacked, photographed repacked the substituted heroin packages. During this time you used a mobile to make and receive 37 WhatsApp calls to and from a Malaysian subscribed contact number, listed as ‘Sam’ in your contact list. WhatsApp is an encrypted messaging service in the audio content of the encrypted calls were not able to be intercepted by AFP, and ‘Sam’ is yet to be identified.
(b) You used a forklift to separate the three pallets containing the substituted heroin from the other pallets containing only tiles and then removed a total of 33 boxes from within the three pallets. You wore black-coloured gloves to remove the substituted heroin blocks from within the boxes.
(c) You unpacked, examined, rearranged and photographed the individual substituted heroin blocks. You placed the ‘Double UO Globe’ branded blocks of substituted heroin in a grid pattern on the floor of the warehouse, counting and comparing individual blocks.
(d) You photographed the substituted heroin blocks using a Samsung phone.
(e) You recorded four short videos of the substituted heroin blocks using your phone. You videoed yourself using a cigarette lighter to light the corner of a single partially opened block of the heroin substitute. It is the prosecution case that lighting the corners of the blocks of heroin, was a method to test if the heroin contained in the consignment had been substituted by law enforcement.
(f) You started to place individual substituted heroin blocks into the ‘Wrap and Move’ moving bags purchased from Bunnings warehouse, the day before.
21Soon after 9pm you left the warehouse and a few minutes later you were intercepted and arrested by police in the driveway of the Pascoe Vale warehouse. Police searched you and your vehicle and located items as outlined in the opening, including a total of four mobiles, $1,800 cash, Melbourne Forklift invoices, receipts for the warehouses and Bunnings and a key and electronic fob for access to the Pascoe Vale warehouse.
22An examination of the interior of your vehicle revealed the presence of the tracer material applied to the substituted heroin blocks during the reconstruction of the consignment. The tracer material was also located on your person and clothing. You were interviewed, Mr Cheng by police with the assistance of an interpreter in the early hours of 15 October, as outlined in the prosecution opening. You made various admissions, such as to renting the Pascoe Vale warehouse, but when asked about the heroin that police were investigating you said you did not know.
Commonwealth sentencing
23In sentencing for a Commonwealth offence, the court must sentence in accordance with Part 1B of the Crimes Act. The overarching requirement is that the court must impose a sentence ‘of a severity appropriate in all the circumstances of the offence’. The factors are non-exhaustive and apply in addition to any other matters.
Objective gravity of offending
24The offence that you have pleaded guilty to is an objectively serious one as indicated by the maximum penalty of life imprisonment. An offence of attempted possession is not in a less serious category than an offence of importation.
25The basic principles that guide the exercise of the sentencing discretion for federal drug offences were not in dispute between the parties. The principles were comprehensibly set out in the Victorian Court of Appeal case, Nguyen v Queen; Phommalysack v The Queen[1] were referred to and outlined by both counsel and I have assessed your offending within this framework and with reference to these principles, as they apply in your case.
[1] (2011) 31 VR 673, 681-683.
26General deterrence and denunciation are paramount considerations given the difficulty of detecting importation offences and the great social consequences and potential harm that follow from such offending. The sentence to be imposed must send the message to others, that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
27In all the circumstances I accept that your offending was very serious and your moral culpability high, and I will turn now to the various matters relevant to this assessment.
28The amount of the drug involved is not a controlling or determinative factor in sentencing, however it remains a relevant circumstance in assessing the objective seriousness of such offending. The sentencing regime for Commonwealth drug offences is quantity based which differentiates between drugs according to prescribed pure weight. Consequently, the quantity of the drug imported is a highly relevant factor in determining the objective seriousness of the offence. Other things being equal the greater the quantity involved the more serious the offence.[2]
[2]CDPP v Brown [2017] VSCA 162, at [61].
29A commercial quantity of pure heroin is 1.5 kilograms. You have pleaded guilty to attempting to possess 326.7 kilograms of heroin, which is 217.8 times the commercial quantity threshold. As your counsel put it, the quantity of heroin involved here was ‘enormous’. It was clearly very substantial and of very high value.[3]
[3] See also statement of Federal Agent Brigid Allen, 24 July 2023.
30
The weight of the drugs has increased significance when an offender is aware of the amount of drugs imported. Given the circumstances of your offending and the nature of your task as outlined in the prosecution opening, I accept that as of
13 October 2021, you believe that the substance was a border controlled drug and that you intended to possess a quantity of the drug that was substantial. As of
14 October 2021, when you unpacked the blocks of substituted heroin, laid them out in a grid pattern, counted and compared them and tested one of them with a cigarette lighter, I accept and am satisfied that you were aware that the substance was heroin of a substantial amount exceeding the commercial quantity. I accept that there is no evidence that you had knowledge of precisely how much was involved, or of the purity levels or exact street values of the drugs.
31Self-evidently the actual quantity involved here makes this a very serious example of this offence, but I do caution myself against the danger of allowing the sentencing process to be overwhelmed by the sheer quantity of the drug, the subject of the charge.[4] Where it is capable of being discerned, the role played by an offender and their criminality is also an important consideration in assessing the objective criminality.
[4]Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270, [97]; Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 at [72]-[73].
32The prosecution submit that while the charge is put on the basis that you had the requisite state of mind from 13 October 2021, your earlier conduct demonstrates the level of trust and responsibility placed in you by the criminal enterprise responsible for the importation. In circumstances where the prosecution accept that you were not aware that the earlier importations were effectively ‘dry runs’, at the plea hearing I expressed some difficulty in accepting this submission. On one view, it suggests that you were trusted by those in the enterprise whereas on another view if you did not have any relevant awareness or knowledge, it suggests that you weren't fully entrusted at that particular time. I make clear Mr Cheng, that I will sentence you for your charged criminal activity only, and I take this background into account as context and as indicating the sophistication of the broader operation.
33In your case the full nature and extent of the drug enterprise is not known and I note that no other persons appear to have been charged. Your role is set out in detail in the prosecution opening. I assess your criminality against your actions and what you did.
34The prosecution accept that you are not the ‘mastermind’ or architect behind the operation. It was also accepted that you were receiving instructions as opposed to issuing them. On the evidence it appears that you were directed in relation to the unpacking of the heroin from 13 October 2021, by the person on WeChat known as ‘Sam’. It is clear that you were receiving multiple text messages and calls telling you what to do with the consignment.
35Your criminal involvement in this offending was confined to two days and constitutes a discreet aspect of the overall attempted importation. It is not alleged by the prosecution that you were involved in the importation of the heroin itself, or that your role was to extend beyond this phase. I accept that your involvement and what you did on the 13th and 14 October 2021 indicates that you were a trusted participant, assisting as you did in warehousing the delivery and taking steps to relocate, sort, unpack, photograph and repack the consignment.
36I accept that you are not the organiser or financer of this enterprise, your role was a relatively limited one and you did not appear to have acted independently or autonomously. I accept that you were tasked to do a job under instructions. Nonetheless your role as outlined was a significant one. During this particular phase, that is, once the consignment had arrived in Australia, your role and the activities you undertook were important. Involvement at any level, in such offending, even a limited one, must necessarily attract a significant sentence. Criminal drug enterprises can only prosper because people like yourself are willing to undertake such roles.
37
There were no matters put forward on your behalf relevant to a reduction of your moral culpability. Your counsel Mr Anderson told the court that in early 2020 you came to Australia for work. You were asked to come here by ‘Sam’, who told you there was work in the importation of tiles. When you came to Australia it coincided with the pandemic and lockdowns which severely restricted your movements or possible return to Malaysia. You resided mainly in Sydney doing various
cash-in-hand jobs to support yourself and you were sending money back home to support your family. You came to Melbourne to lease the Pascoe Vale warehouse using your personal identity documents. Soon after the ‘dry runs’ of the syndicate commenced, with a level of involvement on your part, leading into your criminal activities on the 13th and 14 October 2021.
38Given the very substantial quantity of drugs involved, along with the conversation outlined at paragraph 49 of the prosecution opening[5] which references the making of, 'so much money until you feel that's enough'. The irresistible inference is that you offended for profit, and that, while it is unclear precisely how much you stood to gain, you were expecting considerable financial reward.
[5] See also paragraph [21] prosecution submissions of 15 August 2023.
Guilty plea, contrition and cooperation
39
As already noted Mr Cheng, you were arrested and remanded in custody on
15 October 2021. Your case resolved as a plea of guilty prior to a contested committal hearing. You have entered a plea of guilty at an early opportunity which entitles you to a substantial discount in sentence.
40The fact, and the timing of your plea, is of utilitarian benefit in that a trial was avoided. This is particularly so in the context of disrupted court operations from the COVID-19 pandemic which entitles you to a greater amelioration of sentence[6].
[6]Worboyes v The Queen [2021] VSCA 169.
41I accept that your plea of guilty demonstrates your willingness to facilitate the course of justice and represents an acceptance of responsibility on your part and remorse.
Character, antecedents and other personal circumstances
42You are now 40 years of age and you were born and raised in Penang, Malaysia. You have an older brother and sister and a younger half-brother and half-sister. As a child you were exposed to violence and abuse in the family home. Your father was verbally abusive to your mother. He had another wife living in the same home, which caused some conflict and your mother was treated less favourably. Apparently, your mother suffered depression and you were left with little support or guidance growing up. Your father was also frequently violent towards you and would belt you when you were younger, causing bruising to your limbs. Your parents separated when you were 20, and you have had little contact with your father since.
43You left school at the age of 14 and thereafter you worked various jobs. Notwithstanding your disadvantaged upbringing, you appear to have a good work history. Most significantly you worked for eight years in the Philippines from approximately 2007 to 2015. You worked for an online gambling company upon returning to Malaysia in 2015, you then worked as a welder for five years.
44You met your wife in October 2007 in the Philippines and she is a citizen of that country. You married in 2009 and returned to Malaysia into 2015. You have a son aged 14, and a daughter aged six.
45Through the money that you saved from working over many years, along with the money that you borrowed, you were able to buy a home for your family in Penang. In her letter to the court your wife describes you as the breadwinner of the family, dependable and a ‘good provider’.
46Your mother who's now aged 70, is living with your family in Malaysia in rented accommodation. Since your imprisonment your wife has been required to find paid employment and now works as a cleaner. Your mother assists with the care of the children, although her ability to do this is now compromised by her age and health. Your wife is contemplating returning with the children to the Philippines, so that she might have the assistance of her own parents. The family home you had purchased, had to be sold as the mortgage could not be serviced and your wife has been left with considerable debts.
47You have no prior criminal history either in Australia or overseas. While your prior history is not of diminished value, I note that prior good character of a person involved in a drug importation offence, is generally to be given less weight as a mitigating factor than it might otherwise be given.
48I take into account your personal and background circumstances.
Other relevant factors
49I take into account that a substantial period of your remand has been served at a time where the pandemic caused conditions in custody to be more restrictive and onerous, adding to the burden of imprisonment. I also take into account that prison has been more isolating for you because you do not speak English. Also, while you appear to maintain regular video calls with your wife, you do not have family supports available to you here in Australia.
50Upon completion of your sentence, at some point, in all likelihood you will be deported. Given the circumstances of your case this was not relied upon as a factor in mitigation, but rather was referenced in support of the submission that your time in custody will be an isolated one.
51
I take into account the delay in the finalisation of your case. I take into account and give some weight to the probable hardship that your sentence will have on your young family in Malaysia. The family home has now been sold. Your daughter was also forced to stop school. Your wife is under considerable strain, working and trying to look after your young children, and it is likely that she will have to return to the Philippines to get some extra help. In her letter to the court, your wife describes how significantly life has changed for her and your children.
I also accept that the impact of your offending on your family and knowing how it has diminished their quality of life is something that will burden you in custody.
Prospects of rehabiliation
52In assessing your rehabilitative prospects Mr Cheng, I take into account your age, solid work history, lack of prior criminal history, family support and your early plea of guilty. Your wife describes you as a good husband, father and provider. You do not appear to have any drug, alcohol, gambling or psychiatric issues. Overall, I assess your prospects of rehabilitation as favourable. I also consider that the imposition of a substantial term of imprisonment is likely to be a salutary experience for you.
Comparative sentences
53To ensure national consistency in federal sentencing, regard must be had to sentencing practices across Australia. Having regard to comparable cases, serves two purposes, it provides guidance as to the identification and application of relevant sentencing principles and upon analysis may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence.
54Every sentence however involves the exercise of discretion. Each should be the product of an instinctive synthesis.[7] Consideration of current sentencing practices ensures fairness in a system promoting consistency of approach. The sentences in other cases for the same offence are not precedents. Where those sentences can be seen to fall within a range, that range informs but cannot determine the appropriate sentence in a particular case. The consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentence, rather the process is directed to achieve inconsistency in the application of relevant legal principles.
[7]DPP (Cth) v Brown [2017] VSCA 162 at [54].
55There are some discernible important differences in some of the cases referred to. By way of example, in the case of Tran v R,[8] while there are some parallels with your role, the commercial quantity multiples were higher, and the appellants level of criminal culpability was significantly greater than yours, as he was instructing and directing co-offenders. The case of DPP vBrown involved an offender who played an 'executive and autonomous role' over a period of some four months and who was sentenced after trial. The case of Lau v R[9] involved smaller commercial quantity multiples and the applicant, who was sentenced after trial, had an intellectual disability.
[8] [2021] VSCA 278.
[9] [2014] NSWCCA 179.
56The case of Wang v R[10] involved lower commercial quantity multiples, but an offender who had a substantial involvement in the operation in both China and Australia who recruited and directed a co-accused and communicated about the arrival of drugs in Australia and making them available for delivery. The case of Shakhanov v R[11] concerned a high volume of drugs but in lower commercial quantity multiples than your case and an offender who had a relatively limited role but an important one including in recruiting a co-offender.
[10] [2010] NSWCCA 319.
[11] [2019] VSCA 38.
57Clearly, federal offending involving substantial quantities of drugs, have attracted significant sentences. The cases assist in the application of broad principles, but as I have already noted, they do not operate as precedents, nor do they offer a mathematical formula to sentencing.
Sentence
58By the sentence I impose Mr Cheng, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look at your rehabilitation and balance the mitigating factors in your personal circumstances.
59In formulating an appropriate sentence I have had regard to the matters canvassed, the relevant provisions of s16A(2) of the Crimes Act 1914 (Cth) and the need to impose a sentence that is just in all of the circumstances.
60In all of the circumstances of your case, I consider the only just and appropriate sentence is one of a substantial term of imprisonment. This is a significant penalty for a man in your position who has no prior criminal history. The objective seriousness of your offending and the prominence of general deterrence and denunciation demand a stern sentence be imposed. In formulating the sentence, I have taken into account and reflected the factors raised on your behalf in mitigation, including your early plea of guilty and my assessment as to your role.
61Synthesising all relevant matters, on the charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug, you are convicted and sentence to a term of 12 years' imprisonment.
62I fix a non-parole period of eight years. That is the period before which you will be eligible for parole.
63
I am obliged to explain to you Mr Cheng that part of your sentence may be served in the community on conditional release. I am not permitted to speculate as to whether you will be released on any parole period, given your likely deportation.
I set this period as the minimum that justice requires having regard in particular to your prospects of rehabilitation.
64I declare that you have served 701 days of pre-sentence detention.
65Pursuant to s6AAA, but for your plea of guilty I would have sentenced you to a period of some 15 and a half years with a non-parole period of 11.
66Mr Anderson, I'm going to allow the link to continue. You'll have it for a period of time with Madam Interpreter that you can speak to your client once I leave the Bench.
67MR ANDERSON: Thank you.
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