Director of Public Prosecutions (Commonwealth) v Zainal

[2020] VCC 1690

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02257

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

v

ZAILEE ZAINAL

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September & 8 October 2020
DATE OF SENTENCE:	8 October 2020
CASE MAY BE CITED AS:	DPP (Commonwealth) v Zainal
MEDIUM NEUTRAL CITATION:	[2020] VCC 1690

REASONS FOR SENTENCE
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Subject: importation of a commercial quantity of a border control drug (heroin)
Catchwords: guilty plea – international flight steward – imported 8 consignments each of 1 kg of heroin – 5 consignments intercepted – 4021.7 g of pure heroin intercepted – intercepted heroin 2.68 CQ – high degree of organisation and planning – high moral culpability – 1^st offender – excellent prospects of rehabilitation – extenuating circumstances of daughter’s medical condition to explain offending – mercy
Legislation Cited:

Cases Cited: R v Hai Van Nguyen [2008] VSCA 235; R v Phuong Thu Thi Pham [2010] NSWCCA 238; Phuong Bich Nguyen v The Queen, Phommalysack, Phousadeth v The Queen (2011) 31 VR 673; Wong v The Queen [2001] HCA 64; Miceli [1998] 4 VR 588

Sentence: 9 years 6 months imprisonment with a minimum non-parole period of 4 years and 9 months

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr J. Manning	Commonwealth Director of Public Prosecutions
For the Accused	Mr L. Barker	Emma Turnbull Lawyers

HIS HONOUR:

1Zailee Zainal, you have pleaded guilty to one charge of importing a commercial quantity of a border control drug.

2Your offending occurred between 2 October 2018 and 7 January 2019.  The circumstances are set out in the amended prosecution opening on plea, dated 3 September 2020, which is Exhibit A.  They are agreed facts.

3You were working as a cabin crew member for a Malaysian airline.

4While you were working on international flights, on instruction from a person known as 'Od Mei', you brought into Australia packages of heroin, referred to as a ticket, concealed in your under garments, on eight occasions.  Each ticket of heroin weighed approximately one kilogram.  Authorities intercepted five packages which you had brought into Australia on 10 October 2018, 24 October 2018, 22 December 2018, 4 January 2019 and 7 January 2019.

5The total pure weight of heroin contained in the intercepted packages was 4,021.7 grams.

6Under federal law, a commercial quantity of heroin is 1500 grams. 

7On each of three further occasions, namely, on 2 October 2018, 15 October 2018 and 25 December 2018, you brought into Australia a ticket of heroin, which were not intercepted. 

8The tickets of heroin which had been seized, had a gross weight of approximately one kilogram and contain 70 to 80 per cent pure heroin.  It is highly likely the three imports which were not intercepted, each contained a similar quantity of heroin.

9Each time you arrived in Melbourne with a ticket of heroin, you went to your hotel where you met a woman in the toilets and exchanged the heroin for payment in cash.  The price per ticket was $155,000.

10Police arrested you on 7 January 2019 at Melbourne Airport when you arrived on a flight from Malaysia with a ticket of heroin.

11When police interviewed you, you admitted you brought the packages into Australia.  When asked whether they contained drugs, you said you were told that they did not.  You said, 'Somehow or other I knew it was a drug, but I was in denial and tried to believe it that it is not'. 

12You said a woman at work, who helped you with money for your daughter's hospitalisations, recruited you in March 2018 to deliver the packages.  You said it took you three months to learn to walk confidently carrying a package between your legs.

13You said you were paid 5,000 Malaysian ringgit (approximately $1700 AUD for your first trip to Melbourne).  You said the money was left in your car for you when you returned to Malaysia. 

14You said from May or June 2018, you brought drugs into Australia around twenty times or more.  (I keep in mind you are to be sentenced for a single charge which involved eight importations between October 2018 and January 2019).

15You acknowledged meeting Michelle Tran, who was the head of the Melbourne-based syndicate and her associates, Lina Tran and another woman named 'Ut'.  Lina Tran and Ut collected the packages from you.  You referred to Lina Tran as 'rich aunty'.

16You said you did not expect the packages would contain heroin because of the death penalty in Malaysia and you thought it was probably marijuana. 

17You said:

'I'm really sorry for what I've done.  If I knew it was heroin, I wouldn't have done it in the first place, but I know it's illegal'.

18It is sufficient for the purposes of proof of the crime that you knew that you were carrying a drug of some kind. 

19Following your arrest, you were remanded in custody. 

20You have no criminal record. 

21You were born on 5 August 1980.  You were 38 years old when you offended and you are now 40.

22Mr Barker, on your behalf in comprehensive written and oral submissions, relied on the following documents:

1.      A report dated 15 June 2020 of Carla Lechner, psychologist;

2.      Hospital and medical records concerning your daughter Mia;

3.      Your letter of apology dated 3 August 2020;

4.      Certificates for rehabilitative and vocational programs you have completed in prison;

5.      Invoices from Pantai Hospital, Kuala Lumpur for the hospital and medical expenses for your daughter's admissions in August 2016 and November 2018;

6.      A letter from your daughter Mia;

7.      Letters from family members, your husband and your sister and close friends.

23You are the youngest of four children and were raised in a small Malacca town.  Your father was a police officer and your mother worked as a laboratory assistant in a hospital.  Your mother died in 2010, your father in 2018. 

24You described a 'very happy family life'.  When you completed your secondary schooling, you studied accounting at university in Selangor. 

25When you were 22 years old, you started working as a flight attendant with Malaysian airlines. There, you met your husband who was also a flight attendant.  You worked for the airline for eight years until you resigned your work to care for your sick daughter and your mother.  Due to the mounting financial pressure of your daughter’s medical expenses, you returned to work in 2015 with Malindo Air.

26You have three children aged nine, seven and four years.  Your oldest, you child, Mia, was born with a very serious ano-rectal abnormality.

27She had operations in 2011 and 2012 when she was five months, 10 months, 12 months and 13 months old.  As an infant, she required a colostomy bag.

28She had further hospital admissions in August 2016 and November 2018, which left you with large hospital and medical bills.  She needs further operations to try to improve her condition.  She was due to have surgery in June 2019.  She is prescribed medicine and requires an enema twice weekly because she has no bowel control.  She lives with chronic pain and discomfort.

29In your letter to the court, Exhibit 4, you said you returned to work in 2016 to help pay for Mia's many operations and you started selling cupcakes, brownies and Tupperware to raise funds, but it was not enough.  You wrote:

'In the end, my husband and I needed to swallow our pride and ask for help.  In February 2018, just a month after my beloved mother passed away, Malindo Air Human Resources, at my request, emailed all staff seeking donations for Mia's medical needs.  It was after that email, that someone I thought was a friend approached me to be a carrier.  I was vulnerable and at the time, willing to do anything to be able to pay for Mia's operations and medical expenses.

At this time, I only thought about Mia and my family.  I did not think about what these drugs could do to someone else or their family and friends.  Since being in prison, I have seen the terrible effects drugs have on people and I am deeply ashamed and so sorry that I became involved.  I need to apologise to everyone who has ever been affected by me as a courier and I take full responsibility for my actions'.

30In prison, you work as a sewing billet and have completed every course made available to you.  Although you have never used drugs or alcohol yourself, you have attended AA and NA meetings to understand the adverse effects of both substances.  You overcame your natural shyness to perform in the prison drama group's annual production of 2019.  The theatre company CEO,
Maud Clark AM wrote:

'Zailee demonstrated an incredibly strong work ethic, balancing fulltime work in the prison with daily prayer and intensive rehearsals.  She shone in her performance, reflecting not just her talent to perform, but also her innate kindness.  Zailee has expressed great remorse and regret for the circumstances that led her to the prison gate and intensely feels the shame and separation that prison inflicts.  Zailee has always continued to be generous and nurturing in her support towards others'.

31Your friends and family, including your in-laws, all attest to you being a good, kind and loving person who is devoted to family.  You looked after your mother when she was sick and bedridden, until she passed, and have been the primary carer for your sick daughter. 

32Your sister wrote, before you had married and had children, you were a very good student and were nominated in the Dean's list at university.

33Your husband wrote that you have had a wonderful marriage for 12 years.  He has worked for Malaysian airlines for 24 years.  He confirmed, when your mother became ill and Mia was born, you took leave from the airline to care for them.  He confirmed it was a struggle to meet Mia's ongoing medical expenses, even though he worked as many flights as he could and you went back to work and took on extra work from home.  At one point, you extended your house mortgage to pay hospital bills.  He was 'embarrassed and uncomfortable' when, as a last resort, Malindo Air's HR emailed all employees asking for donations.  Some responded with money and toys, but it was not enough.  That you felt that you had no other option other than to commit a crime to raise the money needed for Mia's care has really shaken him.

34In your absence, your sister is taking care of your children.  She wrote, without you, things are difficult at home for your family.  Looking after your daughter is not easy.  Your husband has been unable to work since April 2020 because of the global pandemic and he described living 'week to week and surviving on the generosity of family and friends'.  Your two older children are home-schooling and you help them with their studies over the phone from prison.  He will stand by you.  He wrote:

'My wife is very regretful and remorseful for having committed a crime.  I know she will never do anything like this again.  Together, we will be able to rebuild our lives and ensure the care, health and education for our children'.

35Ms Lechner, the psychologist wrote:

'… when you offended, you focused only on the hope of helping your daughter to get the surgeries that she needs.  In custody, you have focused on your rehabilitation, but you feel isolated in prison and have been anxious and depressed.  You are keen to return to your family in Malaysia as soon as possible.  You expect you will be deported when you have served your prison sentence'.

36In her opinion, considering:

1.Your strong family support and desire to care for your children;

2.Your lack of any other offending and lack of any antisocial attitudes or other antisocial behaviours;

3.Your insight into the wrongfulness of your actions and your lack of mental health and substance abuse issues,

you are a low risk of reoffending.

Defence Submissions

37Mr Barker acknowledged your offending was serious and a period of imprisonment is inevitable.

38He submitted, while your role was important, you were a 'courier' who was not involved in the organisation of the importations.  He acknowledged you committed your crimes for financial reward.  However, you were desperate to raise money to pay for the operations your daughter needs to improve her quality of life.  He said, while you were promised 5,000 Malaysian ringgit for each importation, you were not always paid and you believe you received around 20,000 Malaysian ringgit, which would be around six and a half thousand Australian dollars.

39He submitted taking into account your lesser role, your relatively small financial benefit and your extenuating circumstances, I should access your objective criminality is low to medium.

40In support of his sentencing submission, he relied on the following mitigating factors:

·Your plea of guilty entered as soon as practicable, for its utilitarian value and as evidence of your acceptance of responsibility and remorse;

·Your lack of prior convictions;

·Your previous good character;

·Your cooperation with authorities;

·Your demonstrated remorse and insight;

·Your isolation from family as a first-time offender in a foreign country;

·Your exceptional prospects of rehabilitation;

·The impact of COVID-19 for its additional hardship on prisoners.

41Mr Manning, who appeared for the prosecution, in helpful written and oral submissions, referred me to the sentencing principles for importation offences.  He also provided me with a table of comparable cases. 

42He submitted:

·The maximum penalty of life imprisonment “speaks with unmistakable clarity” as to the seriousness with which Parliament views the offending;

·You were an international courier with substantial involvement in unorganised commercial importation activity;

·That you were trained for your role and instructed to use codes for delivery and, at times, you attempted to change your work roster to suit the needs of those directing you showed a degree of planning and premeditation to your offending;

·That you delivered heroin eight times and, as each one of them is capable of constituting a separate offence, your criminality is greater than for a charge involving only one episode.

43He also submitted the quantity and the value of drugs you imported over the eight occasions was considerable.

44He acknowledged:

·You made full and frank admissions to police of your involvement, which included importations not known to them, and you gave them details about the syndicate's operations, which was beyond what their investigations had uncovered;

·You entered your guilty plea at the earliest opportunity;

·Your financial gain was relatively modest;

·You have demonstrated remorse and insight into the wrongfulness of your crime.

45He also acknowledged that you are a person of otherwise good character but submitted it should be given less weight than might be given in a case of less serious offending.

46He indicated the Crown did not dispute the extenuating circumstances which led you to offend and he accepted your circumstances do justify leniency but submitted it should be moderated to take into account the persistent nature of your offending. 

Comparable Cases

47As I say, he provided me with a useful table of comparable cases.  I have read them and used them as a yardstick to measure your sentence.

Analysis

48The sentencing principles and the importation cases are well-established. 

·The amount of the drug imported is highly relevant to determine the objective seriousness of the offence;

·An offender's criminality is to be assessed by consideration of her/his involvement in the importations.

·For involvement at any level, an offender should expect a significant sentence;

·It should be ordinarily inferred that a person who is importing drugs is doing so for profit;

·General deterrence is the primary sentence in consideration;

·Prior good character is generally to be given less weight as a mitigating factor;

·The sentence must signal to would-be drug importers that the potential financial rewards are neutralised by the risk of severe punishment.

(See R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238, at [72] followed in Nguyen v R, Phommalysack v R (2011) 31 VR 673 at [34]).

Maximum Penalty

49The maximum penalty of life imprisonment does demonstrate, 'with un-mistakable clarity', the seriousness of your offending. 

50The quantity and value of the drugs you imported was considerable:

·The wholesale value of the five intercepted tickets, which contained four kilograms of pure heroin, was around $750,000.  Its street value would have been around three to four times greater.

·While I cannot make a precise finding, the high likelihood is, the packages which were not seized, three of them, each of one kilograms, likely contained 7 to 800 grams of heroin to be sold for around $155,000.

·The quantity of drugs you imported was at least 2.68 times the commercial quantity.

Role and Involvement

51Your role and involvement was substantial. 

52You worked as an international courier for a highly sophisticated, transnational drug syndicate.  You were carefully trained to execute your role, using codes and changing flights, to perform it eight times during the charge period.  While you were not told you were carrying heroin, you knew you were carrying a border control drug and persons in Melbourne were paying hundreds of thousands of dollars for them.

53Your culpability was high.

54As the High Court said in Wong v The Queen, because of the difficulty of detecting importation offences, general deterrence is to be given 'chief weight' in sentencing, and, because of 'the great social consequences that follow', stern punishment will be warranted in almost every case.  (Wong at [64] per Gaudron, Gummow and Hayne JJ).

55While an offender's prior good character is generally to be given less weight as a mitigating factor, your personal circumstances are compelling.  In particular, there are extenuating circumstances which explain why you took the risk and offended as you did.

56You were desperate to raise money for your daughter's medical treatment and the drug syndicate's recruiter took advantage of your vulnerability.

57While the lengthy steps you took to prepare yourself to conceal drugs and your willingness to make a number of deliveries add to your culpability, they are also an indicator of your desperation.

58You are a person of positive good character.  You are a capable, intelligent and have been dedicated to your family's care. 

59When you were arrested, you made full and frank admissions to your offending and gave police other information about the syndicate's operations.

60You pleaded guilty at the earliest opportunity.

61Drug importation cases are notoriously difficult and expensive to prosecute.  Contested trials are often lengthy.  You are entitled to a sentencing benefit for the community cost and inconvenience avoided.

62In prison, you have taken every opportunity to advance your reformation.

63You have shown true insight into your offending and you are profoundly remorseful.

64For the reasons Carla Lechner set out, I am of the view you are very unlikely to reoffend and I find your prospects of rehabilitation are excellent.

65Your daughter suffers a serious medical condition.  You felt a desperate need for money for her hospital treatment.  I am satisfied those extenuating circumstances explain your offending and in those exceptional circumstances, I am of the view that you are deserving of some leniency.  There is a place for the exercise of mercy in sentencing, even in serious drug importation cases. 

66In Miceli [1998] 4 VR 588 Tadgell JA stated:

'An element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion'.

67Yours is an appropriate case for the exercise of mercy and I will moderate the sentence which I would otherwise have imposed.  

68To provide mitigation for your punishment in favour of your rehabilitation through conditional freedom, I will also fix a shorter than usual non-parole period to permit your release after you have served the minimum term justice requires you must serve, having regard to the circumstances of your offending.

69You fall to be sentenced under Part 1B of the Crimes Act 1991.  I must impose a sentence that is of appropriate severity in all the circumstances.

70In determining your sentence, I have taken into account the matters listed in s.16A(2), insofar as they are relevant and known to the court.

71I must not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate.  No other sentence is appropriate in your case. 

72By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.

73Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, for the offence of importing a border control drug, I sentence you to nine years and six months imprisonment which is to commence today.  I fix a minimum non-parole period of four years and nine months.

74I declare you have served 640 days of your sentence by way of pre-sentence detention and pursuant to s.6AAA of the Sentencing Act, I declare but for your plea of guilty, I would have sentenced you to 12 years and six months imprisonment and fixed a minimum non-parole period of seven years and six months. 

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