Chan v The Queen; Tan v The Queen
[2014] VSCA 301
•27 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0261 | |
| CHUAN WEI CHAN | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2014 0002 | |
| HONG HOE TAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH JA and ALMOND AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 June 2014 |
| DATE OF JUDGMENT: | 27 November 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 301 |
| JUDGMENT APPEALED FROM: | DPP v Chan and Tan (Unreported, County Court of Victoria, Judge Dean, 25 November 2013) |
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CRIMINAL LAW – Sentence – Attempts to possess marketable quantities of a border-controlled drug (heroin) – First parcel 245.5 grams – Second parcel 241.4 grams – Individual sentences for Tan and Chan manifestly excessive – Current sentencing practice considered – Total effective sentence of Chan affirmed – Appeals allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Chan | Mr Jason Gullaci | Lethbridges |
| For the Applicant Tan | Mr John McLoughlin | Victoria Legal Aid |
| For the Crown | Ms Krista Breckweg | Commonwealth Director of Public Prosecutions |
REDLICH JA:
ALMOND AJA:
Hong Hoc Tan (‘Tan’) and Chuan Wei Chan (‘Chan’) (‘the applicants’) were jointly prosecuted in the County Court on a Commonwealth indictment for drug offences.
Tan pleaded guilty to one charge of attempting to possess a marketable quantity of a border-controlled drug (heroin) contrary to s 307.6(1) of the Criminal Code (Cth) (‘Criminal Code’) (Charge 1 on the indictment). He was sentenced to six years’ imprisonment with a non-parole period of four years.
Chan pleaded guilty to two charges of attempting to possess a marketable quantity of a border-controlled drug contrary to s 307.6(1) of the Criminal Code (Charges 2 and 3 on the indictment). He was sentenced to seven years’ imprisonment on each charge and a total effective sentence of eight years’ and six months’ imprisonment with a non-parole period of six years and three months.
The applicants sought leave to appeal against their sentences. On 26 March 2014, Priest JA refused leave in each case. The applicants have elected to renew their applications for leave to appeal pursuant to s 315 of the Criminal Procedure Act 2009 (Vic).
Circumstances of the offending
On or around 30 May 2012, a parcel carried by TNT Air Freight arrived at Melbourne Airport from Malaysia (‘TNT parcel’). The TNT parcel contained 340.5 grams of white powder, which on analysis contained 245.5 grams of pure heroin.
The TNT parcel was consigned to ‘Kevin Koh, c/- Holiday Inn, Melbourne Airport’. TNT delivered the parcel there on 30 May 2012.
On 31 May 2012, Tan arrived in Australia from Malaysia for the purpose of collecting the TNT parcel. He had in his possession two mobile phones and a SIM card assigned with the contact number recorded for the consignee of the TNT parcel. He had a booking slip for a night’s accommodation for Kevin Koh at the Holiday Inn at Melbourne Airport. Customs officers questioned Tan at the airport and searched him and his luggage. He admitted coming to Australia to collect the TNT parcel and was detained.
On 1 June 2012, a parcel carried by United Postal Service arrived at Melbourne Airport from Malaysia (‘UPS parcel’). The UPS parcel contained 351.4 grams of white powder, which on analysis contained 241.4 grams of pure heroin.
On the same day, 1 June 2012, Chan arrived in Australia from Malaysia to collect the TNT parcel after Tan had failed to collect it. Chan completed an Incoming Passenger Card stating that he would be residing at the Crown Promenade Hotel during his stay in Australia. Instead, he went to the Holiday Inn at Melbourne Airport, checked in under the booking for Kevin Koh and made enquiries with hotel staff about the TNT parcel. Chan was arrested by police at the hotel.
The UPS parcel was consigned to ‘Mr Kevin’ at the Holiday Inn, Flinders Lane, Melbourne. It was not delivered to the consigned address. Customs officers intercepted this parcel upon its arrival at Melbourne Airport. When police arrested Chan, he was in possession of three mobile phones and a laptop computer. One of the mobile phones contained internet relay chat logs containing instructions to go to the Holiday Inn, Flinders Lane, to collect the UPS parcel and keep it in a safe box. There was also a confirmation email for a room reservation at that hotel.
The estimated wholesale value of the heroin in each parcel was $252,000. The estimated street value of each parcel was in the order of $400,000.[1] A marketable quantity of a border-controlled drug (in this case, heroin) is an amount between 2 grams and 1.5 kilograms. The amounts contained in the parcels of 245.5 grams and 241.4 grams of pure heroin substantially exceed the minimum quantity for this offence. Expressed another way, the quantities in each case represent a little less than 17 per cent of the maximum of 1.5 kilograms, for this category of offending.
[1]DPP v Chan and Tan (Unreported, County Court of Victoria, Judge Dean, 25 November 2013) [7] (‘Reasons for Sentence’).
Both applicants contend that their sentences are manifestly excessive. Thus, the central question for determination in each application is whether their sentences fall outside the range of sentences reasonably open to the sentencing judge.[2] For a sentence to be manifestly excessive ‘the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable’.[3]
The applicant Tan
[2]Director of Public Prosecutions v Karazisis (2010) 31 VR 634, 662–3; Pham v The Queen [2014] VSCA 204 (‘Pham’), [76] (Osborn JA); R v McPhee [2014] VSCA 156, [10]–[11].
[3]Hanks v The Queen [2011] VSCA 7, [22].
The applicant Tan relies on the following grounds:
Ground 1:The sentence imposed (on count 1) was manifestly excessive, given the offence was constituted by an early attempt, the applicant offended in the context of threats made to repay a debt, and the mitigating matters accepted by the sentencing judge.
Ground 2:The sentencing judge erred in failing to take into account as a relevant consideration the nature of the offence as an attempt in its earliest stages in assessing the applicant’s moral culpability.
Ground 3:The sentencing judge erred in failing to make a finding that the applicant’s motivation to offend arose from his debts, and threats made in relation to those debts, and that these matters were relevant to an assessment of the applicant’s moral culpability.
Counsel for Tan relies on:
(a) an extract of Victorian cases decided in the County Court, which he submits reflects sentencing practices in that Court during the period 1 May 2009 to 19 June 2013 for importation or attempted importation of heroin. The sentences range from two years and six months to five years;
(b) a summary of appellate sentencing decisions of this Court in Commonwealth prosecutions for significant marketable quantities of drugs since 2008. Sentences for couriers who pleaded guilty range from five years to two years; and
(c) a summary of national sentencing decisions of appellate courts in Commonwealth prosecutions for comparable marketable quantities from 2008.
The summary of ‘national sentencing decisions’ shows that sentences for couriers which exceed six years which were upheld on appeal involved pure quantities of drugs (heroin/cocaine/methamphetamine) substantially higher than the quantity of drugs involved in Tan’s case or were cases where the offender’s role was more significant than Tan’s role. Tan submits that, considering his role, whether viewed from a national or Victorian perspective, the term of six years’ imprisonment for the quantity involved in this case is too much. Despite the recognised limitations of sentencing statistics they provide a very general comparator for sentencing judges and appellate courts against which to examine a sentence without being determinative of the outcome.[4] Those statistics invite appellate scrutiny of a sentence of six years for attempted importation of the quantity of heroin involved.
[4]Pham v The Queen [2014] VSCA 204, [72] (citing Hili v The Queen (2010) 242 CLR 520, 537), [73]–[75].
Against this background, Tan submits that the sentence of six years’ imprisonment is manifestly excessive, having regard to the following factors:
(a) the offence was constituted by an early attempt;
(b) the applicant offended in the context of threats made to repay a debt; and
(c)the sentencing judge accepted matters in mitigation (including the plea of guilty, remorse, the giving of some assistance to authorities and good prospects for rehabilitation).
In response, the Crown submits that the sentence imposed was not manifestly excessive, having regard to the following factors:
(a)offending which is associated with the importation of heroin into Australia is very serious and offenders must expect the imposition of substantial terms of imprisonment on conviction;
(b)the offending involved the attempted possession of 245.5 grams of pure heroin, which is over 100 times the marketable quantity of heroin;[5]
(c)the conduct of the applicant is closely associated with the importation of heroin into Australia for profit;
(d)the applicant played a pivotal role in the offending by travelling to Australia to take possession of the parcel containing the heroin;
(e) the potential value of 245.5 grams of pure heroin was substantial;
(f)the offending was very serious (as indicated in the maximum penalty of 25 years’ imprisonment) and warranted serious punishment; and
(g)the sentence imposed reflects the considerable weight to be given to the principle of general deterrence, protection of the community, the need for punishment and reflected the great harm drug offending poses to the community.
[5]A marketable quantity of the border-controlled drug heroin is two grams, pursuant to sub-s 314.4(1) of the Criminal Code. A commercial quantity is 1.5 kilograms.
Analysis with respect to Tan
The sentencing judge characterised Tan as in effect ‘a courier engaged by a drug syndicate to take delivery in Australia of the TNT parcel’[6] who ‘participated in conduct closely associated with the importation of heroin into Australia for profit’.[7]
[6]Reasons for Sentence, [8].
[7]Ibid [9].
His Honour accepted that the investigating police were ultimately able to locate both packages and apprehend Chan as a result of statements made by Tan when he was first arrested. His Honour noted that the importation of heroin into Australia is of the utmost seriousness.
In reference to Tan’s personal circumstances, his Honour said:[8]
I now turn to your personal circumstances. Hong Hoe Tan, you were born on the 29th of September 1959 in Malaysia and you are now aged 54. You have a long-term partner who resides in Malaysia but you have no children. You were educated to year 11 level. Your family relied on fishing as you grew up and after leaving school you worked as a fisherman and then in your family’s fish farm business in Penang. I accept that until the age of approximately 40 you lived a simple and hard-working life. After a dispute with your brother you left the family business and worked in a variety of unskilled occupations. You turned to gambling and, in 2009, occasioned drug use. You became indebted to private money lenders and it is in this context that your offending occurred. I do not accept that you offended simply to extinguish a debt owed to a so-called loan shark, however, it is not possible for me to determine to what extent you expected to profit from your offending, although you did tell investigating police you were to be paid $2000 for your role.
I have received in evidence a psychological report of Mr Guy Coffey, a consulting and forensic psychologist, in relation to your background and psychological profile. I accept that you suffer from anxiety and depression and that imprisonment for you will involve isolation from your family in Malaysia, as it must. I also accept that you are now remorseful for your offending and that your prospects for rehabilitation are good. You will be deported from Australia when you are released on parole or complete your sentence.
[8]Ibid [13], [14].
It is evident from the sentencing remarks that the sentencing judge addressed the considerations relevant to the sentencing of this offender, including the nature and circumstances of the offence, the fact and extent of remorse, the plea of guilty, the timing of the plea of guilty, the degree to which Tan cooperated with the authorities, deterrence (specific and general), the character and antecedents age and means of the offender, the fact that he was suffering from anxiety and depression, that imprisonment would involve isolation from Tan’s family in Malaysia, and his prospects for rehabilitation.
Early attempt
The detection and apprehension of Tan occurred before he had passed through customs after being questioned by a customs officer and following a search of his belongings. Tan did not proceed through customs and immigration or to the Holiday Inn at Melbourne Airport to recover the TNT parcel. We do not accept that the sentencing remarks evidence a failure on the part of the sentencing judge to give sufficient weight to the fact that the attempt to import the heroin was, as submitted by his counsel, ‘an early attempt; or ‘an attempt in its earliest stages’.
His Honour’s summary of the circumstances of the offending include reference to the stage at which Tan was apprehended. His Honour said:[9]
On 31 May 2012, the accused Tan arrived at Melbourne Airport on a flight from Malaysia. He was there questioned by a customs officer and following a search of his belongings investigating AFP officers attended at the Melbourne Airport Holiday Inn and recovered the TNT parcel.
[9]Ibid [5].
These sentencing remarks indicate that his Honour was cognisant of the ‘early stage’ of completion of the attempt. It was not necessary for the his Honour to specifically say so.
In any event, we are not persuaded that Tan’s moral culpability is necessarily lessened because he was apprehended early. It has not been demonstrated, either expressly or by inference, that Tan did not intend to ‘complete the attempt’ had he not been questioned at customs. Indeed, by his plea of guilty Tan concedes that he did intend to take possession of the TNT parcel.
Threats
We do not accept that his Honour erred in failing to make a finding that Tan’s motivation to offend arose from his debts and threats made in relation to those debts.
It is true there is no explicit finding to that effect, but that is not indicative of error. Plainly, the sentencing judge was not bound to accept every assertion made in submissions by counsel from the Bar table or the hearsay contents of an expert report (in this case from a consulting and forensic psychologist) which mirror the history as relayed to the expert by the offender. In any event, counsel on the plea did not maintain that threats or coercion provided any motivation for the offending and called no evidence to that effect.
Tan’s explanation and demeanour were referred to in the Prosecution Summary of Opening, which states relevantly:
20.At about 10.50 am Customs officer Brian March approached TAN while he was waiting in a queue in the baggage examination area. He asked TAN for his travel documents and asked him questions regarding his visit to Australia. TAN stated he was visiting Melbourne for 4 days because he was stressed and wanted to see some kangaroos. He said he could only afford to stay 4 days.
21.At the examination bench Customs officer Olibia Agalidis inspected TAN’s Incoming Passenger Card and his luggage. He had only a black carry-on bag. He said he had completed his Incoming Passenger Card and packed his own bag. He told Agalidis he was visiting Australia for a holiday and to rest, and that he was retired. He told her his friend bought his ticket for him. He also told March that a friend bought his ticket as he could not use the internet.
22.TAN was in possession of two Nokia mobile phones (Nokia 1800 and Nokia 6233) and a quantity of cash ($1190AUD, $100SIN and 400 Malay Ringgit).
23.One of the phones contained phone messages suggesting Tan was in financial debt and officer March questioned him about the messages. TAN stated he was in a small amount of debt. When officer March asked him to elaborate he stated words to the effect ‘my life is over…do what you have to do’.
24.An ION scan swab of some of Tan’s belongings tested positive for ketamine. Officer March questioned him about the result and TAN admitted to using ‘K’.
25.March spoke further with TAN about his travel documents, his debt and drug use. Tan was nervous and struggled to answer March’s questions. He said he would be killed if he went back to Malaysia.
26.In addition to the Nokia phones, Tan was also in possession of a SIM card for phone number 0173498149 which was also recorded as the contact number for the consignee on the TNT parcel.
27.TAN’s Nokia 1800 phone contained a message which read: ‘0060103810301 Kevin Koh TNT parcel. 30/5 meeting with bro call boss. meet ma’. Officer March asked TAN if he was in Melbourne to pick up a parcel. TAN’s demeanour deteriorated. He had more difficulty answering Officer March’s questions and dropped to his knees a number of times.
…
29.The 0060103810301 number found in a message on TAN’s phone and also written on the piece of paper found on TAN was the same number listed as the consignor’s phone number on both the UPS and TNT package.
…
31.Officer March questioned TAN about the handwritten note. TAN said he was in Melbourne to collect a parcel; that he was to go to the hotel, wait for a phone call, collect a parcel and then wait for another phone call. That he was paid $2000 and the plane ticket to do this. Officer March asked him what was in the parcel. TAN said he didn’t know but that it was ‘something illegal’.
…
39.The manager retrieved the TNT parcel and gave it to the AFP members.
40.Received the following day, on 1 June 2012 on TAN’s Nokia 6223 phone was a text message which read fuck u! owe money pay money, u hide for wat, I send andy to collect fr u nw at Melbourne.[10]
[10]Emphasis in original.
The prosecution summary reveals that upon questioning at the airport Tan said he was in a small amount of debt. When asked to elaborate he said ‘my life is over … do what you have to do’ and that ‘he would be killed if he went back to Malaysia’. He said nothing to the effect that he offended because of threats made in relation to his debts.
The text message received by Tan on 1 June 2012 ‘fuck u! owe money pay money, u hide for wat, I send andy to collect fr u nw at Melbourne’ has threatening overtones but has to be considered in its context. This text message was sent after Tan had failed to carry out the designated task of collecting the TNT parcel and had failed to communicate with his contact in Malaysia. It does not constitute evidence of threats being made prior to the offending conduct.
On the subject of threats at the plea hearing, Tan’s counsel said:
He did manage some other small job opportunity, but when the factory closed in which he was working, he was doing some piece work at a factory, he took a loan from what he describes as a loan shark. That was a loan to which interest payments grew very quickly and it escalated beyond his capacity to pay to the amount of $10,000 Australian and it was against this background of financial circumstances that Mr Tan, in effect became right for the picking by drug bosses. He was subject to threats to repay those debts and those threats are set out in Mr Coffey’s report. Threats that were both serious and believable. He was also told that the loans could be repaid if he went to Australia and he agreed.
Now in terms of the threats, I’m certainly not relying on them to suggest any form of duress. It cannot be said that Mr Tan is an innocent agent, he certainly isn’t. But it’s also not the case that he was an equal entirely willing party in this venture. The truth, Your Honour must lie somewhere in between that. Perhaps the court can be confident though that absent, Mr Tan’s financial circumstances and his background, he would not have travelled to Australia to pick up the package.
It is noteworthy that Tan’s counsel submitted that Tan was not relying on the threats to suggest any form of duress, which on its face suggests that Tan was not relying upon pressure or coercion as the motivation for his offending. Counsel’s characterisation of Tan as not an ‘innocent agent but not an equal entirely willing party’ and the submission that the truth ‘must lie somewhere in between that’ is, at best, vague. Counsel seemed to implicitly acknowledge that the court might not find this material compelling by concluding the submission on threats with the following statement: ‘[p]erhaps the court can be confident though that absent Mr Tan’s financial circumstances and his background he would not have travelled to Australia to pick up the package’.
Considering the material before the sentencing judge as a whole, including the submissions made in relation to threats, it is unsurprising that the sentencing judge did not make a finding that the applicant’s motivation to offend arose from threats made in relation to debts.
The sentencing judge clearly considered the rationale for offending when he said:[11]
You became indebted to private money lenders and it is in this context that your offending occurred. I do not accept that you offended simply to extinguish a debt owed to a so-called loan shark …
[11]Reasons for Sentence, [13].
It is evident that his Honour accepted the premise that Tan was indebted to a loan shark’ and that the offending occurred in the context of being indebted to such a person, though he did not accept he offended simply to extinguish the debt. That his Honour did not go further and make other findings (specifically to the effect that the offence was motivated by threats) was clearly open to his Honour and does not, in our view, indicate error. It is also to be noted that the fact that an offender needs money to pay off debts does not necessarily affect culpability.[12]
[12]Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32, [34] (proposition 6, citing DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, 63 [261]).
Although we are not persuaded by Tan’s submissions that the sentencing judge made errors by not sufficiently taking into account matters relating to the stage of completion of the attempt and asserted threats it seems to us, nevertheless, that the sentence of six years’ imprisonment for Tan is manifestly excessive, having regard to the following matters:
(a)Tan’s role as (in effect) a courier to take delivery in Australia of the TNT parcel;
(b)Tan revealed himself to be extremely naïve and unaccustomed to criminal enterprise. Tan’s lack of sophistication was revealed upon questioning at the airport when Tan stated he was visiting Melbourne for four days because he was stressed and wanted to see some kangaroos. In discussion during the plea, his Honour described Tan’s behaviour at the airport as ‘remarkably naïve.
(c)Tan made admissions when questioned by a customs officer and cooperated with authorities;
(d)the attempt involved 16.36 per cent of the maximum weight for this category of offending;
(e)Tan pleaded guilty and avoided the necessity of a trial which the sentencing judge accepted as evidence of remorse;
(f) no prior convictions or court appearances were alleged;
(g)Tan was 54 years of age at the time of his sentencing and suffers from depression, anxiety and isolation from his family in Malaysia;
(h)the sentencing judge accepted that Tan has good prospects for rehabilitation; and
(i)sentencing practice in Victoria and elsewhere for the quantity of heroin imported suggests that the sentence, in the circumstances of this case, is excessive.
Sentencing practice in the present context was recently considered in Pham.[13]In Pham, the Court considered tables of appellate decisions where the offender was a courier, pleaded guilty and had no prior convictions. Many of the cases relied on in Pham[14] were included in the tables presented to the Court in this appeal. They show a strong correlation between quantity and sentence for offences in this category.
[13][2014] VSCA 204.
[14]Attachment A to the reasons in Pham [2014] VSCA 204.
Taking into account all of the factors set out above, and notwithstanding the seriousness of the offence of conduct associated with the importation of heroin into Australia and the need for general deterrence (all of which was considered by the sentencing judge), the sentence imposed is manifestly excessive. Current sentencing practices and the mitigating factors relevant to Tan required the imposition of a lesser sentence.
In the circumstances, we would grant leave to appeal, allow the appeal and re-sentence Tan to five years’ imprisonment. We would fix a non-parole period of three years.
The applicant Chan
Chan relies on the following ground and particulars:
Ground 1:The sentences imposed (on charges 2 and 3), the order for cumulation, the total effective sentence and the non-parole period are manifestly excessive.[15]
[15]By Notice of Abandonment dated 4 June 2014, Chan formally abandoned ground 2 of his Application for Leave to Appeal Against Sentence.
Particulars of Ground 1
(a)The individual sentences imposed on charges 2 and 3 were manifestly excessive taking into account the following matters:
i.the applicant pleaded guilty;
ii.the weight of the heroin involved and the applicant’s role in the offending;
iii.the applicant had demonstrated remorse taking into account his plea, the timing of the plea to an appropriate indictment and his letter to the court;
iv.the applicant had no prior criminal history;
v.the applicant had taken steps in custody to rehabilitate himself and had good prospects for rehabilitation;
vi.jail was going to be more burdensome for the applicant due to isolation from his family in Malaysia;
vii.the learned judge failed to give adequate weight to:
· the remorse shown by the applicant, in a letter he wrote to the court, which demonstrated his genuine remorse. The learned judge found ‘I accept that you are now, to some extent, remorseful for your offending’;[16]
· the plea of guilty and circumstances in which it was entered — specifically the applicant ran a contested committal to aid in resolving the case. Thereafter he made plea offers in the led up to the trial to try and resolve the matter;
· the applicant’s prospects for rehabilitation. There was no basis for the learned judge to conclude ‘any assessment of your prospects for rehabilitation must be guarded’;[17] and
(b)the order for cumulation, total effective sentence and non-parole period was manifestly excessive in all the circumstances of the case having regard to the excessive sentence imposed on charges 2 and 3.[18]
[16]Reasons for Sentence, [16].
[17]Ibid [17].
[18]Another particular of ground 1, particular (c), was abandoned at the hearing of the Application for Leave.
Analysis with respect to Chan
The circumstances of Chan’s offending differ significantly from the circumstances of Tan’s offending. The sentencing judge was satisfied that Tan was in effect a courier engaged by a drug syndicate to take delivery in Australia of the TNT parcel. When Tan did not respond to telephone calls after his arrival due to his arrest the co-offender Chan was despatched from Malaysia to establish what had occurred and to take delivery of the TNT parcel and the UPS parcel.
His Honour found that to perform this role Chan must have been a trusted intermediary of a drug syndicate and did not accept that his role was akin to that of the co-offender Tan. In particular, his Honour noted that Chan had previously visited Melbourne between 22 May 2012 and 25 May 2012 and that it had been conceded on behalf of Chan that this was for a purpose related to the importation of heroin. Though both Tan and Chan participated in conduct closely associated with the importation of heroin into Australia for profit, in the case of Chan, the conduct concerned both parcels totalling almost half a kilogram of heroin.[19]
[19]Reasons for Sentence, [8]–[9].
In reference to Chan’s personal circumstances, his Honour said:
15.Chuan-Wei Chan, you were born in Malaysia on 26 October 1984 and you are now aged 29. You are married and have one child now aged three. You were educated to year 12 level in Penang. After leaving school you worked in a variety of occupations until joining the Guang Ming daily local newspaper as a sales representative. You had been employed by that organisation for seven years prior to your arrest. It was submitted on your behalf that you also became involved in this offending by reason of gambling debts in the sum of $100,000 and that you were to be paid $6000 for your role. I do not accept this explanation for your offending, but it is also not possible for me to determine the extent to which you expected to profit from your role in the importation of a substantial quantity of heroin with a wholesale value of approximately $500,000. You are an educated person and plainly you must have expected to profit substantially from your offending.
16.I have received in evidence a psychological report of Mr Jeffrey Cummins, a consulting and forensic psychologist, in relation to your background and psychological profile. Mr Cummins saw you at the MRC on one occasion on 8 November 2013, approximately 18 months after your arrest. Based on your statements to him he concluded that you suffered from gambling addiction at the time of your offending. He also concluded that you suffered from anxiety and depression. Whilst your offending may have occurred in this context, in my opinion your offending was motivated by the substantial profits to be realised from the importation of heroin and you were well aware of the seriousness of your conduct. I accept that you are now, to some extent, remorseful for your offending.
17.Your family visited you in 2012 and 2013 and so whilst you were isolated from them it would appear that they have the means to visit you here in Australia. As I have already observed, you were a trusted intermediary in a drug syndicate and any assessment of your prospects for rehabilitation must be guarded.
It is evident that the circumstances of Chan’s offending are significantly more serious than the circumstances relating to Tan.
Counsel for Chan submits that the sentencing judge failed to give adequate weight to the remorse shown by Chan in a letter he wrote to the Court in which he indicated his remorse and regret.
It is correct to say that his Honour did not specifically mention the letter from Chan which was provided to the Court at the plea hearing, but it does not follow that his Honour did not take the letter into account. During the plea, there was considerable discussion between counsel and his Honour about the contents of the letter. It was frankly acknowledged that the letter was motivated by self-interest. Further, his Honour had evidently considered the contents of the letter when he noted there did not seem to be a great deal of acknowledgment of the extreme seriousness of the offending, save for a statement of remorse and regret expressed in the first paragraph of the letter.
Given these remarks, and taking into account the engagement between counsel and the sentencing judge during the plea hearing, there seems to us to be no basis for saying the sentencing judge failed, in his instinctive synthesis, to give adequate weight to the statement of remorse made by the applicant in the letter.
Plea of guilty
Counsel for Chan submitted that Chan’s plea of guilty should be regarded as a ‘relatively early plea to an appropriate indictment’ despite being made on the first day of trial. In substance, it was submitted that Chan ran a contested committal to aid resolution of the matter; and that there were ongoing discussions in the months leading up to the trial, which culminated in a plea ‘to an appropriate indictment’, namely a plea to the attempt to possess charges (but not to two alternative charges of importing a marketable quantity of a border-control drug). The plea was entered on 5 August 2013, the day Chan’s trial was listed to commence. A detailed history was set out in an outline of submissions relied on at the plea hearing. Counsel for Chan and the sentencing judge engaged in discussion about when and in what circumstances the plea of guilty was made to the charges of both counts of attempted possession.
In his sentencing remarks, the sentencing judge did not accept that the plea could be described as ‘relatively early’ but did accept it was of utilitarian value, avoiding the necessity for a trial and demonstrated remorse. Further, his Honour specifically states he had taken the plea into account in Chan’s favour in mitigation of sentence.[20] There is nothing to suggest that the mitigating circumstances of the plea received insufficient weight. Despite the detailed history which had led up to the making of the plea, it was open for the sentencing judge to decline to accept the characterisation of the guilty plea as a ‘relatively early’ plea.
[20]Reasons for Sentence, [3].
Prospects for rehabilitation
The applicant, under cover of this particular of manifest excess, asserts specific error. In our view, it was open to the sentencing judge to conclude that Chan’s prospects for rehabilitation must be guarded.
The sentencing judge found that Chan was a trusted intermediary of the drug syndicate despatched by that syndicate after Tan failed to take delivery in Australia of the TNT parcel and failed to respond to telephone calls after his arrival. Further, it was conceded on Chan’s behalf that Chan visited Melbourne between 22 May 2012 and 25 May 2012 for a purpose related to the importation of heroin and that he had some previous involvement in Malaysia with the importation of the packages into Australia. Although there was no evidence that Chan himself sent the packages, it was conceded that he did offend for the ‘purpose of making quick money’. It is noteworthy that the expert report of Mr Cummins, consulting psychologist, makes no reference to Chan’s prospects for rehabilitation or the likelihood of his re-offending.
The fact that Chan had completed some TAFE educational programs whilst on remand, had not been in trouble with the authorities whilst on remand, had some family support (which was noted by the sentencing judge),[21] and had written the letter to the Court did not necessitate a more optimistic view of the applicant’s
rehabilitative prospects. The sentencing judge was entitled to express some note of caution in assessing Chan’s prospects for rehabilitation.
[21]Reasons for Sentence, [17].
In summary, we are not persuaded by Chan’s submissions that the sentencing judge did not sufficiently take into account the extent of remorse, the circumstances of entering into the plea of guilty and the applicant’s prospects for rehabilitation.
Nevertheless, it seems to us that the individual sentences of seven years’ imprisonment on each of charges 2 and 3 are manifestly excessive, having regard to the following matters:
(a)the attempts involved 16.36 per cent and 16.09 per cent respectively of the maximum weight for this category of offending;
(b)Chan pleaded guilty and avoided the necessity of a trial;
(c)the sentencing judge accepted that Chan is now to some extent remorseful for his offending;
(d)no prior convictions or court appearances were alleged;
(e)Chan was 28 years of age at the time of his sentencing and is isolated from his family in Malaysia;
(f)Chan suffers from anxiety and depression and the offending appeared to have occurred in the context of Chan suffering from a gambling addiction (though motivated by the realisation of substantial profits); and
(g)as discussed in our reasons relating to Tan, sentencing practice in Victoria and elsewhere for the quantities of heroin involved in each offence suggests that the individual sentences are excessive, even after taking into account that Chan must be sentenced as a trusted intermediary of a drug syndicate who was sent from Malaysia to Australia to deal with a problem which had arisen in relation to the importation of heroin in the TNT parcel and to collect the USP parcel.
Although there was some proximity in the timing of each offence and some common features, the two offences were separate and reflect separate criminality. This was properly conceded by counsel for Chan at the plea hearing. Making due allowance for the seriousness of attempting to import heroin into Australia, the need for general deterrence, and the more serious role played by Chan, we consider for the quantities involved, that the individual sentences of seven years’ imprisonment imposed on each charge are manifestly excessive. In the circumstances, we would grant leave to appeal, allow the appeal and re-sentence Chan to six years on each of charges 2 and 3.
We do not consider however that a less severe total effective sentence is warranted having regard to Chan’s total criminality. Accordingly we would order that two years and six months of the sentence on charge 3 be cumulated with the sentence on charge 2, to produce a total effective term of imprisonment of eight years and six months. We would fix a non-parole period of six years.
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