CDirector of Public Prosecutions v Yap

[2018] VCC 1249

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00679

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

SONG HONG YAP

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2018
DATE OF SENTENCE:	10 August 2018
CASE MAY BE CITED AS:	CDPP v Yap
MEDIUM NEUTRAL CITATION:	[2018] VCC 1249

REASONS FOR SENTENCE
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Subject:  Commercial quantity border controlled drugs
Sentence:                  10 years imprisonment with a non-parole period of 7 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Hollingworth (Plea) Mr K. Stephens (Sentence)
For the Accused	Mr S. Andrianakis

Pages 1 - 7

 

 

HIS HONOUR:

1Sing Hong Yap, you have pleaded guilty to a Federal charge of importing a commercial quantity of border-controlled drugs for which the maximum penalty is life imprisonment.  The charge has rolled two drugs into the one charge for the purposes of the plea.  On 23 December 2017, you brought into Australia from Malaysia two suitcases that contained 19.1 kg of pure methylamphetamine and 15.37 kg of pure heroin.  Both the wholesale value and the street value of the respective quantities of drugs imported by you are estimated to be many millions of dollars. 

2The circumstances of your offending are contained in a Crown opening in writing dated 28 May 2018.  That document was tendered in open court and marked as an exhibit on the plea and it was read in open court by the learned prosecutor, Ms Hollingworth.  Your counsel, Mr Andrianakis, accepted that the Crown opening was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.  In those circumstances, it is not necessary that I again set out what is contained in the summary except in an abbreviated way.  These sentencing remarks should, however, be read with what is contained in the Crown summary.

3You are approaching 21 years of age and at the time you offended you were aged 20.  You fall to be sentenced as a young offender. 

4You came to Australia from Malaysia on 10 June 2017.  Your purpose was to live here and study.  You lived with other students in similar circumstances in the Melbourne CBD.  You were not well off financially, and you were introduced to a scheme to make $5000.  The person who introduced you to this scheme is referred to in the papers only as "Jackson".  The scheme involved you leaving Australia and returning to Malaysia where you collected two suitcases.  In order to earn $5000 your job was to return to Australia and go through Customs with the two suitcases that you had been given by someone in Malaysia.   

5To that end you left Australia and returned to Malaysia for four days returning on 23 December 2017.  When you booked a return flight, you booked for a checked luggage allowance of 20 kg upon leaving Australia and 40 kg for the return flight.  On your return flight you had two suitcases in your possession which, when searched, revealed that you were carrying with you 19.1 kg of pure methamphetamine and 15.37 kg of pure heroin.  A passenger card completed by you for Customs declared that you had nothing to declare.

6After your arrival in Melbourne with the two suitcases, you told a Customs official that you understood the passenger card that you had filled in, that the two suitcases were yours but they had been packed by a friend, and that you did not know what was in the suitcases.  You told the official you did not have the keys to the suitcases.  In a later record of interview you repeated that you did not know what was in the suitcases and that someone gave them to you in Malaysia.

7Later analysis of your mobile phone revealed that shortly after your arrival in Melbourne you video recorded and photographed your incoming passenger card and boarding pass and sent these to an unknown recipient.  Further, using an application WeChat via a mobile phone, you communicated with other unknown recipients.  Some of those communications are set out in the Crown opening.  From the contents of those discussions, it is clear to me that you were very anxious about passing through Customs and very conscious of the fact you were bringing something illegal into Australia.  You may not have known that you had drugs, and you may not have known the precise amount, but you had full knowledge that you were being used as a courier to bring in illegal goods.

8You were arrested and taken into custody where you have remained on remand ever since.  You have served 230 days of pre-sentence detention.

9You have no prior convictions in Australia or elsewhere and, this offending aside, have led an unblemished life and you are otherwise of good character.  I have taken into account written character references tendered in evidence on your behalf.

10You have pleaded guilty to the charge at the earliest opportunity and that is to your credit.  By your plea of guilty, you have saved the time and cost of a trial and you have facilitated the course of justice.  For that you are entitled to a reduction in the sentence that will be imposed and this will be reflected in the sentence that I will shortly pass.  I also treat your guilty plea as evidence of genuine remorse on your part for this offending.

11You fall to be sentenced as a young offender.  When dealing with young offenders, the sentencing process places emphasis on the need to rehabilitate the offender and sentencing considerations such as deterrence, both general and specific, will usually be moderated with more emphasis given to rehabilitation of a young offender.  However, in crimes as serious as this, even though an offender is young,  rehabilitation has to give way to some extent to general deterrence.  Mr Andrianakis conceded that this was the position in this case.  That is because the sentence must send a clear message to those that would seek to offend as you have that if they do so, and they are apprehended and convicted, they can expect stern punishment from the court.  I must not however, ignore the fact that you are a young offender.  In passing sentence I have taken this into account.

12Mr Andrianakis filed a helpful outline of submissions with the court which I marked as an exhibit on the plea.  I draw upon that document.  You were born in Malaysia and are one of three children to your parents.  Your father died when you were aged 14.  You attended school and completed Form 5.  You started working at age 14.  That was forced upon you at a young age by your father’s death.  Your family was impoverished and the children had to help your mother care for your father during his illness and to support the family.  I was told and accept that you worked as a waiter, packaging books, and in telemarketing with your wages going to the family.

13You came to Australia on a student visa to study English and to work.  This was arranged through an agent to whom you and your mother paid around 20,000 Malaysian ringgit.  You enrolled at Barclays College at a cost of $500 per month and you lived in pre-organised accommodation at a cost of $150 per week.  You struggled financially even though you worked as a kitchen hand in a restaurant.  That is what led you to the temptation to earn $5000 by bringing back the two suitcases which I was told and accept were given to you by a stranger at the airport at Kuala Lumpur.  Mr Andrianakis told me it was at that point you became suspicious that you might have been bringing drugs back to Australia even though you had apparently been previously told that you were bringing leather goods back to Australia. 

14I accept that to be the position.  I accept you were a courier as described by
Mr Andrianakis.  But you had time to stop and think and withdraw.  Describing your role as a courier to some extent underscores the fact that the role of a courier is essential to an importation of this kind.  The prosecution does not dispute that your participation in this crime was as a courier.

15Whilst in prison, I have been told and accept you have been moved to and from various prisons.  You have worked as a food billet and a cleaner in custody and you have completed three helpful courses. 

16You have poor English and in a prison setting I accept this will make prison more burdensome for you, as will the fact you have no family and few friends here in the result you are unlikely to have any visitors.  You are therefore unlikely to see any members of your family for a long time.  As Mr Andrianakis succinctly put it, "you left your family as a young man and you will likely return as a much older adult".  You came here to better your life but because of a foolish decision you have badly damaged the life you will have.

17In sentencing for a Federal offence, I must sentence you in accordance with Part 1B of the Crimes Act 1914 (Cth) ("the Act"). It is not in dispute here that I must impose a sentence that imposes an immediate term of imprisonment and I must fix a non-parole period.

18In determining the appropriate sentence for a Federal offence, I must have regard to the relevant matters contained in s.16A(2) of the Act. In passing sentence, I have had regard to all of those relevant matters. In addition, I have had regard to the sentencing propositions set out by Maxwell P in Nguyen v R (2011) 31 VR 673 at 681, paragraph 34.

19The prosecution filed submissions on sentence which I marked as an exhibit.  It is not in dispute that this is a serious offence and that this is a serious example of it.  The large quantity of each of the drugs imported by you of itself bespeaks the level of seriousness.  The quantity of each drug was many times the commercial quantity threshold.  The estimated wholesale value and street value of the drugs imported by you was several millions of dollars.

20Your role was that of a courier but as I indicated before, that is an essential part of this offence committed in this way.  In carrying out that role, you booked the flights in the knowledge that you would be carrying more weight on the return flight, and after you were given the two suitcases, you then at the very least came to a realisation that you may be carrying illegal drugs.  You involved yourself with communicating with others who were obviously also involved in the importation once you arrived at Melbourne Airport.  You committed this offence for modest reward. 

21On the charge of importing a commercial quantity of border-controlled drugs, you are convicted and sentenced to a term of imprisonment of ten (10) years.

22I direct that you serve a minimum term of seven (7) years' imprisonment before being eligible for release on parole.

23I declare there has been 230 days' pre-sentence detention under the sentences passed this day and I direct that 230 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.

24For the purposes of s.6AAA of the Sentencing Act 1991, I state that had you not pleaded guilty to this charge I would have imposed a sentence of 15 years' imprisonment and I would have fixed a non-parole period of 12 years' imprisonment.

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