Director of Public Prosecutions (Cth) v Ooi

[2019] VCC 156

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-02370

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

KENG HOOI OOI

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2019
DATE OF SENTENCE:	18 February 2019
CASE MAY BE CITED AS:	DPP (Cth) v Ooi
MEDIUM NEUTRAL CITATION:	[2019] VCC 156

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – SENTENCING

Catchwords: Importing a marketable quantity of border-controlled drug contrary to s307.2(1) of the Criminal Code (Cth) – no prior criminal history – risk of deportation – term of imprisonment imposed.

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Mr R Nathwani (Plea) Mr P Darby (Sentence)	Commonwealth Director of Public Prosecutions
For the Accused	Mr J Saunders (Plea) Mr G Thomas (Sentence)	Greg Thomas Burns & Co

HER HONOUR:

1       Keng Ooi, you have pleaded guilty before me to one charge of importing a border-controlled drug, namely heroin, and the quantity imported being a marketable quantity.  The charge relates to 3 October 2016.

2       The offence is serious and that is reflected in the maximum penalty which is imprisonment of  25 years or a fine of $900,000. 

3       You are a person who comes before the court with no prior criminal history.

4       I shall proceed to sentence you on the basis of the prosecution opening for plea that was read at the plea hearing and is marked Exhibit 1.

5       On 21 August 2018, I sentenced Xi Chen and Zhounan Zhao in relation to related offending. 

6       You, together with Chen and Zhao, were part of a Melbourne-based syndicate involved in the importation of heroin into Australia.  The syndicate operated by recruiting various consignees at various addresses in Melbourne to receive packages from Malaysia.  The packages were to be collected and then taken to a contact in Springvale for exchange for money.

7       Ms Xi Chen was found guilty of five charges of importing a marketable quantity of a border-controlled drug and Ms Zhounan Zhao was convicted of four charges of the same offence following a jury trial. 

8       Both of those offenders had no prior criminal history.  Charge 9 on the indictment in respect to Ms Chen relates to the same importation to which you have pleaded guilty.

9       Ms Chen was convicted for her involvement in importing five separate consignments containing heroin between 1 September 2016 and 6 October 2016.  She was sentenced to a total effective sentence of eight years and six months with a non-parole period fixed of six years.  In respect to each charge, she was convicted and sentenced to four years and six months' imprisonment. 

10      Ms Zhao was convicted for her involvement in importing four separate consignments containing heroin between the same days, namely 1 September 2016 and 6 October 2016.  She received a total effective sentence of six years and six months with a non-parole period fixed of four years' imprisonment.

11      The jury verdict reflected their findings that Ms Chen was involved in dealing with the packages the subject of the five charges and Ms Zhao in connection with four packages in connection with their importation by providing a delivery address, being a consignee and/or liaising with others in relation to the consignments. 

12      Their offending involved a course of conduct consisting of offences of a similar nature and that was a factor taken into account by the court in sentencing. 

13      The court accepted both Chen and Zhao were not the masterminds of the importations but they still played a crucial role to the operation of the syndicate which relied upon having various addresses and consignees available in Australia to receive heroin.

14      It was submitted by the prosecution and not contested that Ms Chen was slightly higher up in the syndicate having regard to her proximity to a person Chee Ho Chow known as “Lucas Chow”.  Both Ms Chen and Ms Zhao's sentences reflected a high level of co-operation including comprehensive admissions and the application of the totality principles.

15      The person known as Lucas Chow is your friend and he was involved in the syndicate.  At the time of the offending he was in a relationship with Ms Chen.  He cannot be located and has not been charged with any of the offending. 

16      Ms Chen was actively involved in recruiting her friend Ms Zhao to provide various addresses and thereafter assisting with the collection of the consignments that were the subject of her charges.  Ms Chan was sentenced to a slightly higher term of imprisonment having regard to her role.

17      Ms Zhao’s role was considered to be more than just providing a post box for the delivery of the consignments.  She was found to have actively assisted Ms Chen in the tracking of packages and their collection and she was aware that the packages were being exchanged for money.

18      Both Ms Chen and Ms Zhao were sentenced on the basis that they intentionally imported a substance into Australia, the substance comprising a marketable quantity of a border-controlled drug, and that each of them intended or were reckless to the substance being a border-controlled drug.

19      The offence does not require proof of either knowledge or recklessness as to the identity of the particular border-controlled drug imported.  Absolute liability applies in relation to the quantity of the drug. 

20      In their cases the prosecution were not in a position to allege that either offender knew or was reckless as to the particular identity of the drug, heroin, or the specific quantities of the drug imported.  However, that does not mitigate the offending.[1]

[1]Lau v The Queen [2011] VSCA 324

21      Those features apply in your case.

22 In sentencing you I must do so in accordance with Part 1B of the Crimes Act 1914 (Cth). Specifically I must take into account the matters listed in s16A(2) that are relevant and known to the court as well as any other relevant factors. I must impose a sentence that is of severity appropriate in all the circumstances (s16A(1)).

23      The principles of general deterrence and denunciation are prime considerations in sentences for drug importation offences and it has been stated by courts in the past that stern punishment will be warranted in almost every case.[2]

[2]R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) A Crim R 106 at [72] #7 and #8

24      This is largely because of the difficulty in detecting the offending and the great social consequences that flow from the movement of such drugs into Australia and their distribution within Australia.[3]

[3]Wong v R (2001) 207 CLR 584 per Gaudron, Gummow and Hayne JJ at [64]

25 Part 9.1 of the Criminal Code (Cth) sets out a quantity-based regime which differentiates drugs according to  the prescribed pure weight.  The weight of the drug is ordinarily a highly relevant factor (albeit not the chief factor) to which regard must be had in determining the seriousness of the offence.

26      A marketable quantity of heroin is 2 grams.  In your case, you have pleaded guilty to importing 244 grams of pure heroin.  Therefore, that is 122 times the marketable quantity.

27      You were charged formally on 17 February 2017.   A filing hearing was held and then there were various committal mentions.   A committal hearing was held on 20 November 2017.  The informant was the only witness called.  You indicated a plea of not guilty and you were committed for trial in the County Court. 

28      The matter then proceeded in the County Court and was listed for trial to commence in September 2018. Further final directions hearings were conducted and ultimately your matter resolved prior on 29 August 2018.  On that date you were arraigned and pleaded guilty to the single charge on the indictment.  The trial date was vacated and the matter was fixed for a plea hearing.

29      Whilst the plea of guilty was not entered at the earliest possible stage, the prosecution agree that it was at an early stage in the proceedings.

30      The prosecutor conceded that you were not made fully aware of the Crown case against you until July of 2018.  You then indicated that you would plead guilty.  Therefore the prosecution accepts that the plea is entered an early stage and a sentencing discount will apply.

31      Mr Saunders on your behalf accepted that your role in this matter was not inclusive of the one day as set out in the charge on the indictment and that the context evidence showed that you were involved to an extent from September 2016. 

32      On 22 September 2016, you created a note in your iPhone containing various consignment details including Mr Chow’s mobile phone details and your name and address.  On 29 September 2016, you sent a text message to Ms Chen listing two UPS tracking numbers and on the same day you sent a screen shot to her of the UPS website with tracking information for one of those consignments. 

33      On 3 October 2016, Australian Border Force officers on duty at the UPS facility at Melbourne Airport intercepted the UPS consignment from Malaysia that you had been tracking.  The consignee details were recorded as Mr Ooi, Unit 1, 15 Paterson Road, Springvale, Victoria and had Mr Chen’s mobile contact details noted. 

34      Following an examination of the consignment a small package containing a white powdery substance was located.  Presumptive tests on that substance returned a positive reaction to heroin.  Subsequent analysis confirmed it was heroin with a pure weight of 244 grams. 

35      On 12 October 2016, a search warrant was executed at your home address and your Apple iPhone was seized. 

36      You were taken to the Australian Federal Police Melbourne office and you participated in a formal record of interview.  You were cooperative during the interview and confirmed various details concerning your address, telephone number, and other details.

37      You confirmed that you had no idea about the consignment that was addressed to you containing heroin.

38      You admitted that you knew a man called Lucas whom you had met at the Springvale TAB and you had known him for about a year.  You said that you met through a mutual friend known as Sky who used to live with him.

39      You said if you wanted to contact Lucas you could do so on WeChat and you had last spoken with him approximately a week ago.

40      You said that you had met Lucas’s friend but did not know her name, (that is referring to Ms Chen), and that on one occasion you had been given something to pass on to another friend in the Springvale Shopping Centre and that this may have happened a second time.

41      You told police that you previously discussed with Lucas or his girlfriend the idea of parcels coming from Malaysia to Australia containing “the bad stuff, like ah … the drug, like, the fake ID, everything, but we not for action” and the reason why they did not action was “because I scare …because I got a problem before.  I scared.  I have my family”. 

42      You denied giving money to Lucas or his girlfriend in exchange for any packages and you told police that you never tracked a parcel on line nor had you asked anyone to do so on your behalf.

43      When asked whether you knew the mobile phone number being the service used by Mr Chow, you said that you had a feeling that maybe you had that contact number but you were not sure.

44      You were released pending further investigations.

45      You then left Australia for a short period and returned on 17 February 2017. You were again arrested and participated in a second record of interview.

46      During that interview, you were fully cooperative.  You gave further details of your conversations with Mr Chow.  You continued to deny any knowledge of the package that was intercepted that contained the heroin.

47      When shown a screenshot from Ms Chen’s phone detailing a text message sent from your number on 29 September 2016 with the relevant UPS tracking number, you denied sending the message.  You denied speaking with Ms Chen on various occasions and suggested that it could have been as a result of Lucas using the phone to call you but you did not know about the text messages.  You said Lucas told you sometimes he used his girlfriend’s number to ring him.  You  confirmed that there was no evidence that you are speaking with Lucas’s girlfriend.

48      At the conclusion of the second interview you were formally charged.

49      Australian Federal Police obtained warrants and they intercepted phone calls including your number.

50      In November 2017 and July 2018 a number of phone calls involving that telephone number were translated and transcribed by Cantonese interpreters.  Those calls reveal that you were in contact with Lucas, also known as Mr Chow, and Ms Chen between the dates of 28 September to 6 October 2016. 

51      In those conversations you were repeatedly discussing the deliveries coming through the post via couriers including DHL and UPS and the apparent delay of packages being released by Customs.

52      The material set out in paragraph [21] of the Crown opening is used for context only.  It showed contrary to your denials that you were discussing meeting up with Chen during that same period.

53      Mr Saunders accepted that the context evidence shows your involvement is greater than that of just being the recipient of a package on one day only.  He submitted that those other contacts concerned you being primarily involved with tracing various consignments as instructed by Lucas.

54      You will be sentenced on the basis that your role in the syndicate was limited to nominating your address for delivery of a consignment and tracking the consignment and liaising with others involved to receive the package from Malaysia .

55      You actively participated in the importation of heroin into Australia.  Your role whilst limited was crucial to the successful importation of the package containing the border-controlled drug.

56      I consider that Ms Chen operated at a higher level than you and that your role was akin to Ms Zhao’s involvement, albeit you are to be dealt with for one consignment only. 

57      I have had regard to the factors personal to you.  You are now 35 and at the time of the offence you were 32.

58      You were born in Malaysia and you are eldest of three children.  Your parents who are elderly reside in Malaysia.  Your mother is seriously ill with metastatic cancer.  Your immediate family reside in Malaysia and you have no close relations in Australia with the exception of your wife, Vu Bao Tran, your stepson and two young children.  

59      Ms Tran is of Vietnamese heritage and an Australian citizen.  She is aged 35.  You met her at work where she was working as a cashier at the fruit and vegetable shop where you were working.  She was separated from her husband and she had a young child, Jackie.  You married late in 2012.  You have two children born from your marriage, Jason aged six and Jisseih aged four.

60      Your migration status has changed over the years.  Initially you travelled to Australia in 2006 as a tourist.  Whilst in Australia you met a Malaysian girl with whom you formed a relationship.  You overstayed your visa.  You survived working at farms picking and packing fruit.  That relationship eventually failed and the girlfriend returned to Malaysia.  However, you stayed on in Australia with no visa. 

61      For about four and a half to five years you were an unlawful non-citizen and during that time you continued to pick and pack fruit and vegetables in Robinvale, Victoria, and in various farms in Queensland.

62      Following your marriage in 2012 you obtained permanent residency.

63      

You have been in continuous employment since 2011 and your employer,

Mr Ngo, was present at the plea hearing.  He confirmed that you worked with his company and had progressed from being shop attendant at his shop in Springvale Central Plaza to being a manager.  You now run the stall operated by his company at the Epping Wholesale Market where produce that is grown in Queensland by the company is sold to market customers.  You also manage the shop at the Springvale Central Plaza.  You are considered to be highly respected and a valued and trusted employee.  Your absence will have a dramatic impact on his business.  He expressed genuine surprise concerning your involvement with this offending.

64      I accept that you have demonstrated a strong work ethic and a responsible attitude generally through your employment and family life.

65      Overall I consider that you do have reasonable prospects for rehabilitation having regard to your previous good character and the fact that you have no prior convictions or other matters pending. 

66      Inevitably, your wife, Ms Tran, will experience real difficulties associated with you being imprisoned.  You have a close relationship with her son Jackie, who plays competitive badminton.  You are involved with that activity with him.

67      Ms Tran is the primary carer of all three children.  She has only one relative in Australia, a sister who lives in Queensland, and no relatives in Melbourne.  In the recent past she has been able to work part time when her mother assists her.  Her mother lives in Vietnam and travels to Australia on occasion on a tourist visa but is only able to stay for periods of up to three months because  of the visa restrictions. 

68      I have taken into account the effect on you of the hardship caused to others by reason of your imprisonment and I accept imprisonment will be more burdensome for you because of the anguish you will suffer at being unable to care for your family.[4] 

[4]See R v Williams [2004] VSC 429, [16].

69      Further, having regard to your migration status a term of imprisonment greater than 12 months will mean that you face mandatory cancellation of your visa with the prospect of deportation being a real likelihood.

70      Whilst it is accepted that the court cannot speculate about whether the Minister will revoke the cancellation order, the real prospect of deportation is a relevant sentencing consideration on the basis of the additional anxiety that you will suffer whilst undergoing service of the term of imprisonment due to the existence of the risk of deportation.[5]

[5]Guden v R (2010) 28 VR 288 and Konamala v R [2016] VSCA 48 at paragraphs [35] to [36]; Schneider v R [2016] VSCA 76; Da Costa Junior v R [2016] VSCA 49

71      I have had regard to the delay in these proceedings.  You have had them hanging over your head for some two and a half years.  The delay was in no part attributable to any actions of the prosecution.

72      I have had regard to the principles of parity and the sentences imposed with respect to Ms Chen and Ms Zhao whose sentences were imposed following trial.

73      I accept that the plea has real utility and your plea was entered at an early stage as I discussed earlier.  Through your plea you have spared the expense and necessity of a trial being conducted.  You have demonstrated that you accept responsibility for your actions.  You have facilitated justice and your sentence will be discounted accordingly.

74      I accept that you are genuinely remorseful.  Given your expressed remorse and contrition, I consider the need for specific deterrence in this case can be moderated.

75      I have regard to your prior good character.  However, prior good character of a person involved in a drug importation is generally to be given less weight as a mitigating factor than it might otherwise be given. [6]

[6] Nguyen and Pham [72]#10

76 Section 17A(1) of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment on any person for a Federal offence unless, having considered all other available sentences, the court is satisfied no other sentence is appropriate in all the circumstances.

77      Both the prosecutor and defence counsel conceded appropriately that a term of imprisonment is warranted. 

78      Mr Saunders submitted having regard to the combination of the mitigating factors and your personal circumstances that a sentence of imprisonment of a period of no less than 12 months ought to be considered. 

79      Mr Nathwani, on behalf of the prosecution, submitted that a sentence of imprisonment greater than three years was required having regard to the seriousness of the offending. 

80      In all the circumstances, I consider that a sentence of immediate and actual imprisonment is the only appropriate sentencing option.

81      The formal court orders are:

82      In respect to the one charge of importation of a marketable quantity of a border-controlled drug, you will be convicted and sentenced to three years’ imprisonment to be released on a recognisance release order after serving two years.  Such sentence is to commence from today’s date. 

83      I make the following s6AAA declaration.  But for your plea of guilty, I would have imposed a term of imprisonment of four and a half years to serve three years.  Mr Darby.

84      MR DARBY:  Thank you, Your Honour, just two things.  There needs to be a recognisance amount payable upon - - -

85      HER HONOUR:  Yes, I will fix that at $500.

86      MR DARBY:  Yes.  And just a period of good behaviour after release.

87      HER HONOUR:  Two years.

88      MR DARBY:  Thank you, Your Honour, I have prepared that.

89      HER HONOUR:  I will ask my associate to take that down and with your assistance, Mr Thomas, if you could go through the form of the order and explain the recognisance.  He does not necessarily have to pay the $500 but in the event that he breaches the order then he forfeits it, and the consequences that may flow if he does not comply with the conditions.  If you would not mind doing that, that would be appreciated, thank you.

90      That has all been explained?

91      MR THOMAS:  Yes, Your Honour.

A Recognisance Release Order in the terms stated was prepared and signed by Kheng Ooi.

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