CDirector of Public Prosecutions v Koo

[2024] VCC 1995

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-24-00716

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

BOON BING KOO

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5 and 8 July 2024
DATE OF SENTENCE:	12 December 2024
CASE MAY BE CITED AS:	CDPP v Koo
MEDIUM NEUTRAL CITATION:	[2024] VCC 1995

REASONS FOR SENTENCE
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Subject:

Catchwords:              One indictable charge (Charge 1) of attempting to possess a commercial quantity of an unlawfully imported border controlled drug (methamphetamine) – 662.9 times commercial quantity – role of unpacking, repacking and loading consignment on one day only with recklessness as to it containing illicit drugs and driving reloaded boxes from consignment to another destination – lowest role of known co-offenders on one day only – admissions and early plea of guilty – some remorse – high utilitarian value of plea of guilty and no Worboyes discount – no prior criminal history and good prospects of rehabilitation - one indictable charge (Charge 2) of possessing a drug of dependence (methylamphetamine) and one Summary Charge of possessing cartridge ammunition whilst not being the holder of a license

Legislation Cited:      Crimes Act1914 (Cth)

Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169

R v Nguyen (2010) 205 A Crim Rep 106

Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673

Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105

Sentence:                  On Charge 1 – total effective sentence of five and a half years’ imprisonment with a non-parole period of three years

On Charge 2 – fined $500

On Charge 3 – fine $100

Section 6AAA on Charge 1 – eight years’ imprisonment with a non-parole period of five years

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APPEARANCES:	Counsel	Solicitors
For the DPP (Cth)	Mr J. Shaw	Solicitor for Commonwealth Director of Public Prosecutions
For the Offender	Mr P. Chadwick K.C.	Nicodemus Lawyers

HER HONOUR:

1Boon Bing Koo, you have pleaded guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug (methamphetamine), which carries a maximum penalty of life imprisonment or a fine of 7,500 penalty units or both.  You have also pleaded guilty to one charge of possessing a drug of dependence (methylamphetamine), in relation to which the prosecution has conceded that your possession was not for any purpose relating to trafficking. In these circumstances, the maximum penalty for that offence is one year imprisonment or a fine of 30 penalty units or both.  In addition, you have consented to a Summary Charge (Charge 3), possessing cartridge ammunition whilst not the holder of a licence, being uplifted from the Magistrates’ Court to be heard in the County Court, and have pleaded guilty to that charge, which carries a maximum penalty of a fine of 40 penalty units.

2The circumstances of your offending are detailed in the Prosecution Plea Opening.[1]  In essence, Charge 1 on the indictment involves conduct by you in Melbourne on one day relating to a consignment of 16 pallets of toilet rolls in a container which had left Malaysia by ship on 9 September 2023 and arrived in Melbourne on 26 September 2023 (“the consignment”).  Australian Border Force had inspected the 16 pallets and discovered that on three of the pallets, instead of eight slabs of toilet rolls, there were only six such slabs, which were resting on two layers of white parcels.  The parcels contained 125 gold packets labelled “Freeso Durient tea” and 497 green packets labelled “Guayinwang tea”.  In total, there were 622 packets of tea, each weighing approximately one kilogram.  Each of the packets contained methamphetamine with a purity of about 80 per cent.  The total quantity of pure methamphetamine in the consignment was 497.2 kilograms.  A commercial quantity of methamphetamine is 0.75 kilograms.  Thus, the amount of methamphetamine was 662.9 times the commercial quantity.

[1]Exhibit “A.

3Police removed the methamphetamine from the tea packets and replaced it with an inert substance.  After such substitution, a controlled delivery of the consignment was made to the named consignee, “BRO&S Cleaning Supply Pty Ltd, 12/45 Bunnett Street, Sunshine North, Vic 3020” (“the warehouse”).  You were present at the warehouse on 10 October 2023 when an unknown male driving a semi-trailer delivered the consignment to the warehouse at 12.21pm.  You had been provided with the keys to the warehouse by one your three co-offenders, Mr Hailong Lin, for whom you had performed various tasks in the past.  Once such task had been to rent a truck with registration number 1YB 1ZA (“the rental truck”) on 26 September 2023, which you had parked outside the warehouse on 10 October 2023.  The prosecution concedes it is unable to prove beyond reasonable doubt that, at the time you performed any acts at the request of Mr Lin prior to you receiving the consignment at the warehouse on 10 October 2023, you had knowledge that the consignment was expected to contain illicit drugs.

4The prosecution case is that it was at approximately 1.29pm on 10 October 2023, that you developed the mental state of recklessness as to the substance in question being a border controlled drug.  This was when it became apparent to you that what, on their face, appeared to be packets of tea had been concealed in the white parcels under the slabs of toilet rolls on 3 of the pallets.  Prior to that time, you had opened the roller door to the warehouse at 12.35pm so that the semi-trailer carrying the consignment could drive into the warehouse.  From 12.20pm to 12.52pm you supervised the unknown driver as he unloaded the container from the semitrailer and left it in the warehouse before he returned to the semitrailer and drove away.  You then drove the rental truck into the warehouse and closed the roller door.  At approximately 1.05pm one of your co-accused, Mr Wai Cheung, arrived at the warehouse and supervised you from then until 1.25pm whilst you used a pallet jack to unload the pallets from the container.  From 1.25pm to 1.29pm you and Mr Cheung worked together removing plastic wrap from the pallets.

5At 1.29pm, Mr Cheung began to remove the wrapping from the white parcels and, thus, revealed to you that what appeared to be packets of tea were concealed under the slabs of toilet rolls. You have pleaded guilty to Charge 1 on the basis that you began to become involved in this offending at this time by being reckless as to whether the contents of the packets of tea were a border controlled drug.

6Your role at the warehouse was detailed in the Prosecution Plea Opening and elaborated upon orally by the prosecutor, Mr Shaw.  From 1.29pm to 5.50pm you remained at the warehouse performing several tasks relating to the unpacking, unwrapping and reloading of the consignment.  You assisted in the task of unwrapping the white parcels and extracting the tea packets from which, unknown to you or your co-offenders, police had already removed the methamphetamine and substituted it with an inert substance.  You also constructed a quantity of cardboard boxes from flatpacks and packed the packets of tea into those boxes and sealed them with tape and loaded them into the back of the rental truck.  Over the period of four hours and twenty-one minutes during which you engaged in this somewhat laborious task, Mr Cheung periodically left you alone whilst he conducted surveillance outside the warehouse.  Between 1.29pm and 4.15pm Mr Cheung left you alone for a total of one hour and thirty-four minutes during which you continued your tasks and Mr Cheung, who was apparently conducting surveillance outside, briefly returned on three occasions.  At 4.29pm, your co-offender, Mr Lin, arrived at the warehouse and the two of you laid out a quantity of tea packets on the floor and then put them in the cardboard boxes which you had constructed.  This took place between 4.20pm and 5.03pm. Then, from 5.19pm to 5.50pm, the two of you loaded the packed boxes into the rental truck.  As stated, the total amount of time in which you were engaged in various tasks associated with the consignment at the warehouse was four hours and twenty-one minutes.

7At approximately 5.55pm, Mr Cheung drove away from the warehouse.  At this time, Mr Lin also drove away in a different vehicle, however, he stopped and parked nearby.  You then drove the rental truck loaded with the boxes which had been packed with what appeared to be packets of tea, out through the roller door, which you closed behind you. You drove to where Mr Lin was parked in his vehicle and then drove in convoy with Mr Lin for approximately five minutes before stopping and parking in Westmoreland Road, Sunshine North.  A third co-offender, Mr Ka Chun Ng, was waiting at this location.  You got out of the rental truck and Mr Ng got into the driver’s seat of it and drove off.  You then got into the vehicle driven by Mr Lin, who drove you from Sunshine North to your home in Glen Waverley and, then, drove himself to his own home in Box Hill.  That concluded your offending in relation to Charge 1. The following day, when police executed Search Warrants at the warehouse, you were present.  CCTV footage from the warehouse shows that, immediately before police attended, you had been there sweeping up the refuse from the deconstructed pallets.  The rental truck which had been driven off by Mr Ng the previous day was parked at the warehouse.

8When police searched the rental truck on 11 October 2023, they located a backpack on the passenger seat. This contained three identification cards with your name and image upon them, a used methylamphetamine pipe and 3.28 grams of pure methylamphetamine in a small zip lock bag.  Your possession of the methylamphetamine forms the basis of Charge 2. As previously stated, the prosecution accepts that it was not possessed by you for any purpose related to trafficking.

9Police also executed a Search Warrant at your home address.  In a drawer in the study, they located a small plastic chest which contained 21 cartridges of firearm ammunition.  This included 12 gauge and 410 bore shotgun cartridges and rifle/pistol cartridges of .22 to .30 calibre.  You were not licensed to posses ammunition.  This is the basis of Summary Charge 3.

10You are presently aged 35 years, having been born in January 1989.  You come before the Court with no prior criminal history.

11Mr Chadwick of senior counsel, in a plea on your behalf, told the Court that you were born in Malaysia as the eldest of three children of your parents, who are self-employed vegetable farmers.  You were educated to Year 12 level and then began studying for a Diploma in Electrical and Electronic Engineering over a period of two and a half years, during which you also worked promoting the sale of Canon printers.  You did not conclude your course, as you decided to return to reside with your parents and work on the family vegetable farm.  You had formed a relationship with Ms Jun Wei Kok when you were about 19 years of age. When you were about 26 years old, the two of you married.  Both of you remained living and working at the family vegetable farm in Malaysia until you came to Australia on 29 September 2019. 

12Your wife, Ms Kok, obtained a Student Sub-class 500 visa in order to undertake a Diploma of Hospitality Management at Newton College in Melbourne. You were granted a Student Dependent Sub-class 500 visa as a result of your wife’s student visa status.  Your wife’s visa was to expire on 16 August 2024[2], however, Mr Chadwick stated that she has enrolled in Certificates 3 and 4 of a Commercial Cookery course, which she expects to complete on 9 February 2025. Her Migration Agent has told her that her visa is expected to be extended until then, but she then proposes to return to Malaysia.

[2]Exhibit “2”.

13After arriving in Australia, you undertook work as a truck driver and removalist and also as an Uber driver.  I found the precise details of your work history in Australia somewhat difficult to ascertain. It seems that you initially worked for some 4 months moving furniture. Then, for a period from March or April 2020, for approximately 9 months, you were employed as a truck driver/removalist of furniture and freight for a firm called Kevin Logistics Pty Ltd. Mr Chadwick stated that you were employed as a permanent casual at a rate of $25.00 per hour for some 10 hours per day on six days per week. No payslips, tax returns or reference were tendered from this employment, but simply a printout from the Australian Government site “ABN Look Up” for that company, which had an ABN status active from 24 September 2019.[3]  Your counsel stated that, in Malaysia, you had obtained a truck licence and this apparently sufficed for you to obtain a Victorian licence endorsed to enable you to drive heavy vehicles of up to four and a half tonnes.  He stated that, whilst working long hours in this job in 2020, you were introduced to methylamphetamine by your truck jockey, who would give you “a puff” of his ice pipe in order to help you to keep alert throughout the day.  You instructed that, after three months, the jockey left that employment and you then began to purchase your own methylamphetamine in or about late 2020.  By the time you left your employment with Kevin Logistics Pty Ltd in early 2021 you had developed a habit of smoking half a gram of methylamphetamine per week, which was costing you $150.

[3]Exhibit “3”.

14What transpired after you left the employment of Kevin Logistics Pty Ltd was the subject of a very lengthy, often amended, and confusing account to the court.  Mr Chadwick stated that you and Ms Kok had been sharing a house with a Mr Chew and Mr Tan whilst you had been working for Kevin Logistics Pty Ltd.  The four of you decided to go into business together using trucks for deliveries. On 24 August 2020, a business name, JK Best Moving, was registered in Ms Kok’s name.[4]  On 5 March 2021 a company, Two Fast Logistic Pty Ltd was registered with Ms Kok as the sole director, the secretary and only shareholder.[5]  From 12 March 2021 Two Fast Logistic Pty Ltd had an active ABN status and “ABN Look Up” records show that the company was conducting business under the name of JK Best Moving.[6]

[4]Exhibit “6”.

[5]Exhibit “4”.

[6]Exhibit “5”.

15A sorry tale was told by Mr Chadwick of how you and Ms Kok were persuaded by Mr Chew and Mr Tan to invest in the purchase of a second truck for the company, involving expenditure of some $20,000 in or about September 2021.  Although Mr Chew was involved in the business and “handled the money”, and Mr Tan was also involved as the driver of a truck, neither of their names were on the business or company records. Nor was yours. Ms Kok apparently worked for wages and carried out administrative work “doing the books”.  You apparently worked for wages as a driver, but no details or documents relating to this work were tendered. Mr Chadwick told the Court that your methylamphetamine use progressively increased and, by mid-2021, you had doubled your usage to one gram per week which cost you $300 or $400 per week. 

16Mr Chadwick stated that, on 17 December 2021, whilst Mr Chew was driving a truck, he collided with an electronic gate at a high rise building in A’Beckett Street in the city, causing $7,500 damage to the gate. This resulted in the company which owned the building having to employ security guards for the sum of $55,000.  A draft of a letter of demand dated 13 February 2023, with an attached proposed Statement on Claim, seeking payment of the sum of $63,381.30 by way of damages, addressed to Two Fast Logistics (sic) Pty Ltd trading as JK Best Moving, was tendered.[7]  You instructed Mr Chadwick that the business ceased trading three weeks after this collision.  Apparently, Ms Kok discovered that Mr Chew had not been paying the insurance premium for the truck and Mr Chew and Mr Tan “walked away from the business”, leaving this debt and a $30,000 company tax debt with yourself and Ms Kok.  However, as was pointed out by the prosecutor, Mr Shaw, you actually had no liability in relation to either Two Fast Logistic Pty Ltd or JK Best Moving as, unlike Ms Kok, you were not registered in any capacity in relation to the company or the business. In any event, no documentary proof of the alleged business debts was tendered. Nor was evidence produced that any judgement had been entered subsequent to the date of the letter of demand.

[7]        Exhibit “9”.

17Mr Chadwick informed the Court that, in or about December 2021, you began working as an Uber driver, but, by September 2022, you had fallen into a state of inactivity, “feeling sorry for yourself”, and barely worked at all between September and December 2022, although you hid this from Ms Kok.  He stated that you turned to two “loan sharks” and borrowed a total of $10,000 at an interest rate of 10 per cent per week, however, there was no suggestion that any of this money was used to assist Ms Kok to pay off any of the business debts.  Relations were strained between you and your former business associates, Mr Chew and Mr Tan. Apparently, at some point in mid-2022, Mr Chew advised Ms Kok that you were using ice, of which she was previously unaware.  Mr Chadwick stated that, by December 2022, you recovered from “feeling sorry for yourself” and worked as an Uber driver. By this stage, Ms Kok had ceased receiving wages from Two Fast Logistic Pty Ltd, which, as I have stated, apparently ceased trading 3 weeks after the collision in which the company truck was involved on 17 December 2021. She, too, began working as an Uber driver. Mr Chadwick stated that each of you were earning $2,500 per week as Uber drivers up until you claimed to suffer a “downturn” in your earnings of some 30% following the conclusion of the Melbourne Grand Prix in 2023. Given that the Grand Prix was an event which took place over only approximately four days in late March/early April 2023, it is difficult to understand how any decreased income from your Uber driving is associated with it. In any event, no details of the income of either yourself or Ms Kok were provided to the Court.

18Mr Chadwick told the Court that, at some time during 2023, you had attended a snooker hall in Box Hill where you met up with a person whom you had known from when you worked as a removalist.  This person introduced you to your co-accused, Mr Lin. In or about July 2023, upon you complaining of your financial troubles to Mr Lin, he offered to give you some work.  From that time, around mid-2023, you developed a close association with Mr Lin, but your counsel described “a fairly disorganised and ad hoc arrangement” in relation to the work which you performed for him.  You were not on a salary, but simply paid to do a particular job.  Mr Chadwick stated that, in the three months prior to the offending for which I must sentence you, you had worked as Mr Lin’s chauffeur on about ten occasions in Melbourne and, on two occasions, had accompanied him to Sydney, where you stayed in the same accommodation as him for some three or four days, for which he paid.  He stated that you were paid $2,000 for a trip to Sydney. However, other work might involve you being “the general dogsbody”, performing menial tasks, which, on your instructions, on one occasion prior to the offending, had involved delivering a small quantity of toilet paper somewhere.  For such work you were paid $50 an hour and always in cash.  Mr Chadwick stated that one of the “lesser roles” you performed was to act as a “translator” for Mr Lin from Mandarin to English.  The latter is somewhat puzzling, given that your English is very much less than perfect. You required an interpreter from Mandarin to English during your record of interview and, also, during the plea hearing.  Further, when I inquired as to why Mr Lin did not drive himself, your counsel stated “for some reason, [you] just didn’t know”.  It is plain that Mr Lin was capable of driving, as the undisputed evidence is that he drove to the warehouse on 10 October 2023 and, later, left the warehouse driving the same vehicle until you met up with him and travelled in convoy, and, subsequently, Mr Ng took over the driving of the rental truck and Mr Lin drove you home and, then, continued from there to drive himself home.  Mr Chadwick then stated that Mr Lin did not own a car, but often rented one.  Even so, this does not explain why he would need you to be his driver.

19You instructed your counsel that, prior to the date of offending, you were not aware that Mr Lin was engaged in the importation of illicit drugs.  In August 2023, he had engaged you on a casual basis to unload a shipping container of toilet paper, and you had been required to take photographs of the unloading process on your mobile phone.  Leading up to 10 October 2023, you had had a discussion with Mr Lin about setting up a CCTV camera at the warehouse and, at his request, you purchased the equipment for this and installed it.  You also hired the rental truck prior to 10 October 2023, but denied that you had any idea that it was to be used for transporting any illicit goods.

20Mr Chadwick stated that, as mentioned in your record of interview, you were paid $500 for the unloading and repacking and given a $100 “tip” by Mr Lin.  You instructed Mr Chadwick that the latter payment had occurred because you had rung Mr Lin when you realised that there was something suspicious about the consignment and he had then attended the warehouse to assuage your fears and paid you an extra $100.  You claimed that the $600 cash found in your possession by police on the day after the offending represented the total remuneration received by you from Mr Lin for the work you performed in relation to the consignment.

21In your record of interview, you initially told police that, when you saw what was inside the packets of tea, “I first I never seen this type if it’s drug, no”, but then promptly stated “I admit it" and told police that you used a little bit of ice.[8]  You had earlier referred to being a bit scared when the “Hong Kong” man (your co-offender, Mr Cheung) first pulled out what was obviously not toilet paper from the pallet and stated that you had called the man whom you normally contact via the messaging service Telegram (your co-offender, Mr Long Lin) and told him “brother, don’t play … this is – you know, can – you know, this, I know the serious charges.”[9] 

[8]Exhibit “13”, record of interview questions and answers 204-205, p28-29.

[9]Exhibit “13”, record of interview, answer to question 188, p26.

22As previously stated, the case against you is that you became reckless as to the contents of the consignment being an unlawfully imported border controlled drug in a commercial quantity at approximately 1.29pm on 10 October 2023, when you saw that the consignment included a significant number of what appeared to be packets of tea concealed amongst the toilet rolls. After this, you did not attempt to extract yourself from being involved in this illegal enterprise by leaving the warehouse.  Certainly, your co-accused, Mr Cheung, was with you, but, you were left alone by him for a period of one hour and thirty four minutes, during which you continued to perform the tasks allotted to you. After Mr Lin arrived, you kept performing those tasks until 5.50pm and, then, drove the rental truck to meet Mr Lin, where he was waiting in his car, and drove the rental truck a further short distance from there to where Mr Ng took over the driving.

23In a history which you gave to the forensic psychologist, Mr Cummins, you stated that you “now felt traumatised by the fact that the co-accused deceived (you) into engaging in the offending”.  You certainly mentioned in your Record of Interview that you felt “they are cheating me”,[10] but had earlier told police that “the Hong Kong guy”, in response to you having apparently commented upon the weight of the packages disguised in the pallets of toilet rolls, had said “It’s not, ah, in your interest or benefit that if you ask something that you’re supposed not to,” and you responded “okay”. After that, he asked you whether you would help with the unpacking and stay at the warehouse, and you agreed to do that.[11]  Further, you told the police that, after the unpacking and repacking, this same person had stated “okay, so now you have a new task, so it's very easy.  Okay?  You just put into the truck and then drive the truck to my friend … ah, just nearby the warehouse … okay.  You just put the truck there.  Okay?  You can go.  Okay.  I pay extra $200.  Okay … I know today you do an extra do this.”[12]

[10]Ibid, answer to question 202.

[11]Ibid, question and answer 198.

[12]Ibid, question and answer 204.

24It seems that you saw Mr Lin and his associates as a handy source for receiving cash payments.  Indeed, you told police that, on one occasion, you had been paid $200 just to go and check something at the warehouse, which you thought was good because, usually, when you drive someone from Glen Waverly to the airport you would be paid only $80.[13]  You had also described to police how “the Hong Kong man” (your co-accused, Mr Cheung) had arrived from Hong Kong late in the day and needed a car, did not have a bankcard, and only had an Indonesian licence and wanted to rent a car.  You assisted him to rent a car from the airport. You hired the Tiguan vehicle that was driven by Mr Cheung to the warehouse by providing your licence to the rental company and asking if it was possible to add on a second driver, which they did.  When speaking to police, you laughed and stated “I make money from him”,[14] and went on to say “because he pay me for extra 250”.[15]

[13]Exhibit “13”, question and answer 115.

[14]Question and answer 163.

[15]Question and answer 165.

25Although it is possible, I consider it unlikely, that you were paid only $600 for your involvement in this very serious offending. The risk was huge and, once you realised that there was something peculiar about the weight of some of the pallets and that they concealed packets of tea, you expressed your concern to Mr Lin about the seriousness of potential charges. You had started to do work for Mr Lin because you were unhappy with your insufficient earnings as an Uber driver. It is plain that you were keen to do whatever Mr Lin asked and be paid for it.  Your rental of the Tiguan vehicle is not part of the offending for which I must sentence you, but it is indicative that you were very willing to assist Mr Lin and his business associates.  This is also evident from the fact that, the day after the offending, you attended the warehouse to sweep up all the refuse from the unpacking and repacking of the consignment, even though this activity is not part of your actual offending.  You were clearly trusted by Mr Lin, as is apparent from you having installed CCTV cameras at the warehouse, and also having been provided with keys to open and lock the warehouse.

26In the history to the forensic psychologist, Mr Cummins, you stated, “If I hadn’t been using drugs, I wouldn’t be I touch with the people I was in touch with”.[16] Although you were a user of methylamphetamine, drug use is not necessarily mitigatory. In any event,  I am not satisfied that your usage was so high as to impair your capacity to reason, drive or to function with reasonable efficiency at the time of offending. You certainly seemed to be able to sustain purposeful, coordinated body movements and focus whilst engaging in the tasks allocated to you at the warehouse. It is inconceivable that Mr Lin or any other co-offender would have trusted you with such an extraordinarily valuable illicit consignment of methamphetamine had you been a seriously drug-addicted person.

[16]Exhibit “12”, p 5, para 25.

27In all of the circumstances, although I am unable to quantify the extent of your financial gain from being involved in this offending on 10 October 2023, I am satisfied beyond reasonable doubt that you were involved in it for the purpose of financial gain.  Prior to your involvement on 10 October 2023, there were factors known to you which would have made any reasonable person suspicious about the legitimacy of Mr Lin’s business.  For example, you told police that Mr Lin kept changing his telephone contact number approximately every two weeks.[17]  When police asked whether you thought it was strange or unusual that your co-offenders were shipping in “tissue paper” (as you referred to toilet paper), you answered that one container fee previously had been $US7,000 and you laughed and said “how much for the tissue?”[18] Indeed, as pointed out by the prosecutor, Mr Shaw, the previous consignment of toilet paper which you helped to unload from a container (and which is not alleged to have contained illicit drugs, but rather to have been “a dry run” for the later container) was plainly visible in the warehouse and still wrapped in plastic and apparently unloaded.[19] You plainly put your moral qualms aside and, as you told police, “my job is follow instruction:  they pay me money.”[20]

[17]Exhibit “13”, question and answers 263-264.

[18]Exhibit “13”, question and answer 278, p36. Although the container referred to is recorded as having been “two years ago”, this would appear to be an error, as there is no suggestion that Mr Koo had been associated with Mr Lin’s business two years previously.

[19]Still photo 16 taken from CCTV footage, Exhibit “B”.

[20]Exhibit “13”, question and answer 144, p20.

28Your role in this offending is very considerably less than that of Mr Cheung, who apparently flew into Australia on 19 September 2023 specifically for the purpose of overseeing the unpacking and repacking of the consignment. Mr Cheung gave directions to you about these tasks and performed a little of the initial unpacking himself, as well as conducting surveillance outside the warehouse. Unlike you, his offending spanned a period from 19 September 2023 to 10 October 2023 and, at all times, he was aware of the illicit drugs concealed within the consignment. He was arrested at Melbourne airport on 11 October 2023 prior to his planned departure from Australia on a flight to China. Upon his arrest, he had possession of 3 mobile phones (two of which contained incriminating photographs of the consignment) and $6,330 in cash. Your role is also very considerably less than that of Mr Lin, who facilitated the receipt of the consignment into Australia by making his warehouse available for the purpose of unpacking and repacking, and recruited you to perform the latter tasks, as well as overseeing the transfer of the repacked contents to Mr Ng. He, too, was aware at all times of the illicit contents of the consignment. Mr Ng’s role, beyond having taken over the driving of the rental truck from yourself, is not known to the Court.  At present, Mr Lin and Mr Ng are apparently awaiting a trial for their involvement in this offending.

29Although you did not have an organising role like Mr Cheung and Mr Lin, and the plan as to what was to be done with the contents of the packets of tea was revealed to you in a somewhat piecemeal fashion, your role was crucial to ensuring that this very large shipment of methamphetamine could ultimately be distributed to the detriment of the community.  For some four and a half hours, you engaged in unloading, unpacking, repacking and reloading work.  Mr Cheung was there to give some assistance to you when he was not outside conducting surveillance or doing whatever else he was doing, but you were left for approximately an hour and a half totally on your own, to undertake the laborious tasks, and continued them after Mr Lin arrived.   

30I agree with the prosecution submission that, just because your role was a menial one, does not mean that it is insignificant.  As I have said, you were clearly trusted by Mr Lin and, also, it seems, by Mr Cheung. As pointed out by the prosecutor, that trust was well placed, because you did not pull out once you became aware that the consignment was other than what it purported to be and were reckless as to whether it contained illicit drugs. There is no evidence that you were indebted to Mr Lin or that you were induced, threatened or intimidated into being involved, as distinct from voluntarily and diligently completing the tasks asked of you and, indeed, returning the next day to clean up the mess.  It was a labour-intensive role that you undertook in the warehouse and, once the taped up boxes containing the tea packets were loaded by you into the back of the rental truck, you then transported them in convoy with Mr Lin to where Mr Ng was waiting to take over the driving of the rental truck from you, although it is not suggested that you knew anything of this arrangement with Mr Ng prior to 10 October 2023.

31Mr Koo, you should be in no doubt as to the very grave nature of the offending for which I must sentence you.  It is reflected by the maximum penalty of life imprisonment which applies to it.  There are a number of different factors which courts take into account in determining the gravity of the circumstances of a particular offence and of the offender. Charge 1 on the indictment is a quantity-based offence. Hence, the quantity of drugs which you attempted to possess is relevant albeit not the sole determining factor for a sentence.  Generally speaking, the larger the quantity of drugs attempted to be possessed, the more serious the offending.  In your case, because of the role you played in unloading, unpacking and repacking, you were very well aware that there were hundreds of packets of tea, each weighing approximately one kilogram each.  As mentioned at the outset of these sentencing remarks, the total quantity of pure methamphetamine amounted to 497.2 kilograms, which is 662.92 times the commercial quantity of 0.75 of a kilogram of methamphetamine.  The sheer weight of the drugs involved in this offending makes it a serious example of this serious offence.

32It is often said by courts that illicit drugs are a scourge on our society.  They are detrimental to the health of drug users and destructive of the relationships that drug users have with others in their family and the community.  Crime-related to illicit drug use is widespread and, this, together with the health resources needed to treat drug addicts, places an onerous burden on our community.  Attempted possession of unlawfully imported border controlled drugs is a prevalent crime and is difficult to detect.  It occasions further high costs to the community because of the amount of time, effort and expense incurred by police officers and those working in courts and prisons.  Illicit drugs are responsible for a huge toll financially and a very significant adverse impact on the welfare of the whole community.  For these reasons the primary sentencing considerations for this serious offending are denunciation of your conduct, general deterrence, just punishment and protection of the community.  General deterrence means that courts must signal to would-be possessors of unlawfully imported border controlled drugs that the potential profit to be gained from such activities will be neutralised by the risk of severe punishment.  It is clear that unless significant sentences are imposed in relation to offences of this type, the interests of general deterrence cannot be served. For this reason the only appropriate sentence is a significant term of imprisonment, although I accept that your lack of criminal history means that there is no emphasis needed on specific deterrence in your case.

33In arriving at the sentence which I intend to impose, I have had regard to sentences imposed in other jurisdictions across Australia for this Commonwealth offence. It is trite to say that no two factual scenarios in sentencing are identical, but other sentences are of assistance in illuminating the relevant principles to be applied, as well as serving as yardsticks in the sentencing process and, obviously, it is important to be consistent when sentencing for like offending. I have also had regard to such of the matters listed in s16A of the Crimes Act 1914 (Cth) as are known to me.

34In sentencing you I take into account the role which you performed, as already outlined by me.  As I have stated, it is plain that your offending was well below the level of Mr Cheung and Mr Lin in that you were not involved in planning any matters relating to the illicit consignment and simply obeyed directions given by them on one day only, 10 October 2023. You present as being somewhat unsophisticated in that you kept photos of the consignment on your mobile phone. You also attended the warehouse to clean up on the day after the offending and were driving the rental truck which had been hired in your own name and contained various personal possessions of yours, including personal identification cards.  

35Although your trusted position meant that you were allocated and undertook the significant amount of labour-intensive work necessary to ensure that this very large quantity of what you believed to be methamphetamine could be made ready for distribution into the community, there are a number of mitigating factors in your favour. I take into account that you cooperated with police by answering their questions and making significant admissions in a Record of Interview and pleaded guilty to the charge at an early stage.  You formally indicated your intention to plead guilty to the charge at a Committal Mention on 26 April 2024.  However, as a matter of fairness, it should be noted that, following the Filing Hearing in the Magistrates’ Court on 12 October 2023, there had been three prior committal mention dates. Following each of these, the matter had been adjourned in order for the parties to engage in discussions with a view to resolution of the matter. I note that Mr Cheung’s offer to plead guilty was somewhat later on, on 4 July 2024, after having conducted a contested committal on 17 June 2024. Your plea of guilty has significant utilitarian value in sparing the time and expense of a trial and I also accept that the plea, itself, together with significant admissions which you made in your Record of Interview, show a degree of remorse or contrition on your part and, obviously, an acceptance of responsibility and willingness to facilitate the course of justice.

36Mr Shaw, for the prosecution submitted that the fact that you had told Mr Cummins, forensic psychologist, that you had been deceived by your co-accused into becoming involved in the offending[21] detracts from your remorse. This is perhaps unfair in that it is acknowledged that it was only after you had come to the warehouse and were unloading the container that its weight and the presence of the packets of tea caused you to become reckless as to whether the consignment contained illicit drugs.  Whilst, as I have commented, you still could have refused to be involved, it is true to say that you were deceived into going to the warehouse that day by being led to believe that you would be unloading toilet paper.  Although you apparently put your moral qualms aside in favour of your loyalty to Mr Lin and desire to receive financial reward from him, it is plain that, unlike Mr Lin or Mr Cheung, there was no aggravating factor of premeditated involvement in this offending by you. Your involvement was the lowest role in the organisation which involves recklessness (rather than actual knowledge) concerning the illicit nature of the consignment and providing “the muscle” to do the unpacking, sorting and repacking of the packets of tea. The roles of Mr Lin in providing the warehouse, directing you to hire the rental truck and recruiting you to be “the muscle” and that of Mr Cheung who flew into Australia with knowledge of the illicit nature of the consignment and gave you directions, are markedly above your role, as persons who had significant roles organising and supervising the consignment. The principle of parity should not apply to give you the same sentence as either of those offenders who were clearly well aware of the illicit nature of the consignment and involved for longer periods in making arrangements in relation to it. You played no role in the importation and only a small role in the future distribution of the contents of the consignment by following Mr Lin’s directions to drive the truck to Westmoreland Road, loaded with the packets of tea repacked into boxes.

[21]Exhibit “12”, Page 6, Paragraph 41.

37I accept that you do feel guilt, shame and regret, and some remorse for what you have done, albeit that in neither the Record of Interview or your discussion with Mr Cummins do you show insight into the harm that illicit drugs cause in the community. I accept that, given your lack of prior criminal history, you have probably learned your lesson and have reasonably good prospects of rehabilitation. I do not consider that there is a need for emphasis upon specific deterrence in sentencing you. The value of your plea of guilty will be reflected in a real and significant discount on the sentence which otherwise would have been imposed.  I should make plain that I do not consider that there should be any additional discount on the sentence pursuant to the principle in Worboyes v The Queen,[22] given that the effects of the pandemic in creating congestion in the criminal trial lists had come to an end by around about the time that the Filing Hearing had been held in the Magistrates’ Court on 12 October 2023.

[22][2021] VSCA 169.

38In sentencing you, I take into account the well-established 13 principles to be addressed in importation offences.[23] I note that prior good character is not always given as much weight when sentencing for offending of this seriousness. However, it is of relevance. It is evident from your good family background and the reference provided by your parents[24] and from your wife[25] that you have lost respect in your family because of your offending albeit that they will continue to support you.  Moreover, it seems that you had a reasonably good work history, which is a prosocial factor, and I accept that you have shown your work ethic since being remanded in custody in 2023 by engaging in work as a laundry buggy driver on six days per week.

[23]R v Nguyen (2010) 205 A Crim Rep 106, as adopted in Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673 at 681-2, and many subsequent cases.

[24]Exhibit “1”.

[25]Exhibit “2”.

39At the present time, your wife’s visa, which was due to expire in August of this year, is apparently to be extended until she completes her courses in Certificate III and IV of Hospitality in February 2025.  Thus, it appears that she will remain in Australia until then and she is obviously in contact with you and supportive of you.  Prior to this recent extension of her visa, in the reference tendered to the Court, she had expressed her intention of returning to Malaysia to be with her ageing parents when her visa expired.  This means that you will be left to serve your sentence in a foreign country where you are relatively isolated in prison. Although this is an inevitable consequence of a foreigner committing a crime in Australia and Mr Cummins’ report makes it clear that you do not present with any mental health disorders, I do take into account you are experiencing symptoms of reactive depression and that you are likely to worry about the relationship with your wife and family whilst serving your sentence. 

40Section 16A(2)(p) of the Crimes Act 1914 (Cth) requires a court to take into account the probable effect that any sentence would have on a person’s family or dependents. In her reference, your wife stated that she has been left in a perilous position. She described how you have known each other for 16 years and been married for 9 years and, after you were arrested, she lost the major financial support that she had and had to cut down on her expenses and to borrow money from her parents to make ends meet. She described her life as chaos and how she was on the edge of a mental breakdown and her parents came to Australia to stay with her for a while. She stated that you and she had discussed having a child, but now she fears that she will be too old to be able to have a child with you. Although she stated that she will continue to support you, she stated that there will always be “shadows between the two of you” because of what you have done. 

41Your parents in their reference stated how much they miss you and how they had hoped that you would return to them on their farm. Obviously, your ability to assist them in this way will be substantially delayed whilst you serve your sentence.

42I acknowledge and take into account pursuant to s16A(2)(p) the probable effect of your serious offending upon your family, particularly your wife. However, it is clear that the Court’s discretion to exercise mercy on the basis that your imprisonment creates hardship for people other than yourself, is an appeal for mercy which should only be exercised in exceptional circumstances.[26]  This is because imprisoning a person will almost inevitably impact adversely on that person’s family. If lenience were to be given to an offender because of family hardship resulting in benefit to the offender so that his innocent family would not be so adversely affected, then another equally guilty offender, who did not have family, may feel justifiably aggrieved by receiving a less lenient sentence. 

[26]Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105.

43There seems to be little doubt that your visa, which was dependent upon your wife’s student visa, will be cancelled. Indeed, it apparently expired on 16 August 2024 and your current visa status is unclear. However, there was never any suggestion that either you or your wife had an expectation that you would be able to settle permanently in Australia or had made an application to do so.  Thus, although it is almost inevitable that you will be deported at the end of serving of your sentence. Save for the anguish that you will suffer in the meantime, particularly worrying about the welfare of your wife and your relationship with her, there is no identifiable hardship attached to such deportation. Your family of origin and, also, your wife, will be there in Malaysia when you return and that is the country in which you grew up.

44Mr Chadwick submitted on your behalf that a Recognisance Release Order which would involve a term of imprisonment of not more than three years is within range in your case.  The maximum sentence of life imprisonment for Charge 1; the very large volume of methamphetamine involved; the extent of your significant labour-intensive role in facilitating the distribution of what you believed to be illicit drugs into the community, and the need for emphasis upon denunciation, general deterrence, just punishment and protection of the community, in my view mean that a sentence by way of a Recognisance Release Order, which may not exceed 3 years in length, would be inadequate.  I consider that a significant term of imprisonment with a non-parole period is warranted.

45In relation to Charge 2, possession of 3.28 grams of methamphetamine, the prosecution has not suggested that this was possessed by you for the purpose of trafficking.  Indeed, it was found in the rental truck with other personal possessions of yours, including an ice pipe, and you have admitted to police and to Mr Cummins that you were a user of methylamphetamine.  The prosecution has conceded that this is a relatively minor example of possession of a drug of dependence and that a non-custodial sentence is within range.

46Summary Charge 3, possession of cartridge ammunition, has a maximum penalty of 40 penalty units.  The explanation for possession of the various pieces of ammunition is that you found them when cleaning out a house some years earlier and had collected them as some sort of souvenir.  There is no suggestion that you were in possession of any firearms in which the ammunition could have been used. In these circumstances, I consider that the offence is of a relatively minor nature.

47On Charge 1, attempted possession of a commercial quantity of an unlawfully imported border controlled drug, you are convicted and sentenced to be imprisoned for a period of five and a half years.  This sentence is to commence today.  I direct that you serve a period of three years before becoming eligible for parole.

48I declare a period of presentence detention of 428 days to be time reckoned as already served under the sentence imposed this day.

49On Charge 2, possession of a drug of dependence, you are convicted and fined $500.

50On Summary Charge 3, possession of ammunition, you are convicted and fined $100.

51Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your plea of guilty to Charge 1, the sentence imposed would have been eight years’ imprisonment with a non-parole period of five years.