Director of Public Prosecutions (Cth) v Teoh and George
[2018] VCC 155
•19 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01693
CR-17-01699
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| CHUN SIANG TEOH |
| AND |
| NORMAN GLAN GEORGE |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 December 2017 | |
DATE OF SENTENCE: | 19 February 2018 | |
CASE MAY BE CITED AS: | DPP (Cth) v Teoh & George | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 155 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Importing commercial quantity of border controlled drug – attempt to import commercial quantity of border controlled drug – possessing or controlling a false travel document
Legislation Cited: Criminal Code (Cth); Foreign Passports (Law Enforcement and Security) Act2005; Crimes Act1914 (Cth)
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms H Baxter | Solicitor for the Director of Public Prosecutions (Cth) |
| For the First Accused | Mr J Taaffe | Doogue & George Solicitors |
| For the Second Accused | Mr C Thomson | James Dowsley & Associates |
1 Chun Siang Teoh, you have pleaded guilty to one charge of importing a commercial quantity of a border controlled drug, namely heroin, contrary to s307.1(1) of the Criminal Code (Cth) (“the Code”). The maximum penalty for this offence is life imprisonment. The period of your involvement in the offending conduct giving rise to this charge is 16 December 2016 to 27 March 2017; some three months and 11 days or 102 days.
2 Norman Glan George, you have pleaded guilty to one charge of attempt to import a commercial quantity of a border controlled drug, namely heroin, contrary to s11.1 of the Code. The maximum penalty for this offence is also life imprisonment. The period of your involvement in the offending conduct giving rise to this charge is 16 March 2017 to 5 April 2017; some 21 days
3 George, you have also pleaded guilty to one charge of possessing or controlling a document knowing it was a false foreign travel document, namely a document purporting to be a Chinese passport, in the name of Hsien Loong Chin, contrary to s22(1) of the Foreign Passports (Law Enforcement and Security) Act2005. The maximum penalty for this offence is 10 years’ imprisonment or a fine of 1,000 penalty units.[1] It is alleged that you committed this offence also between 16 March 2017 and 5 April 2017, a period of 21 days.
[1]At the time of the offending a penalty unit was $180.00 pursuant to Crime Act 1914 (Cth) s4AA
Sentencing facts
Overview of offending
4 You were both arrested as part of the investigation in Operation Tirich, which focussed on a syndicate of Malay nationals who imported a commercial quantity of heroin secreted in a shipping container into the Port of Melbourne from Malaysia.
5 Teoh, you are a 29 year old Malay national,[2] who arrived in this country on 29 August 2008. You worked as an itinerant fruit picker in New South Wales and Victoria and are the husband of Siew Kim Loh (“Loh”)
[2]Date of birth is 18 August 1988
6 George, you are a 34 year old Malaysian national,[3] who arrived in Australia on 6 March 2016, travelling with Barani Bin Enggu (“Enggu”) and a person whom you, George, identify as Winston (Winson) Bin Indar (“Winston”). George, you worked as an itinerant fruit picker during your time in Australia on farms in regional New South Wales and Queensland. In Malaysia, you worked as a pizza delivery driver and a security guard.
[3]Date of birth is 26 November 1983
7 On 5 October 2016, an unknown male using the passport of Howard Teh Yi Quan leased a storage cage from Dallas Self Storage in Heidelberg Heights on behalf of Teoh. The sum of $2,100 was paid in cash for one month’s lease and a bond deposit. Further monthly payments in the sum of $1,100 were paid from the credit card account in the name of Loh in November and December of 2016.
8 On 6 October 2016, a shipping container arrived in the Port of Melbourne from Malaysia (“the container”). The consignee was listed as Machine Screen Printers in Abbotsford, Victoria and the consignor was listed as Triplink Trading in Malaysia. The contents of the container were described as a “conveyor rolling system”. Machine Screen Printers had never ordered the container or its contents.
9 On 16 December 2016, the first day of your charged offending, you Teoh, contacted APL Lines Shipping, a container transportation and shipping company, and provided the details of a fabricated company as the new consignee address for the container, being Python International Co Ltd in Yatala, Queensland.
10 On 30 December 2016, you Teoh, changed the consignee name again to Sewing Machines Australia in Albany Creek, Queensland. Sewing Machines Australia, which is a legitimate company, had never ordered the consignment. A document in the Mandarin language discussing importing sewing machines into Australia and the strategy of changing the name from Sewing Machines “as this will put them in a better position to pull it out” was found on digital material seized from you Teoh, upon your arrest.
11 The container was subsequently examined by Australian Border Force (“ABF”). No anomalies were found and the container was released.
12 On 20 January 2017, FTS Logistics (“FTS”), a Malaysian-based logistics company, contacted Across the Ocean Shipping (“ATOS”) requesting that they act as the freight forwarder for the container. FTS provided ATOS with your, Teoh’s, contact details, including your email address and a telephone number subscribed in the name of Loh, but used by you Teoh. On 2 February 2017, you Teoh, received an audio WeChat from an unknown person, which said:
He’s asking how much we want, we take 20%, we no need to be afraid because there’s nothing shown after the x ray.
13 Between 20 February and 31 March 2017, you Teoh, engaged in telephone and email communication with ATOS to find solutions for clearing the container into your possession. In all communication with ATOS, you Teoh, used the alias of “Max Tan” and an email address of [email protected]. You Teoh, provided ATOS with additional contact details of George and one Muhammad Adel Matani Sakampong (“Sakampong”), and provided ATOS with an additional two telephone numbers, which you had falsely subscribed to. During this period, you Teoh, paid a total of $62,546 in invoice fees to ATOS.
14 On a date unknown in March 2017, you Teoh, requested a copy of the passport and tax file number from Enggu. As noted earlier, Enggu had travelled to Australia with you George, and worked as a fruit picker on the same farm as you Teoh. You Teoh, told Enggu that you needed his details to give to the boss at the farm. A person identified as Lumbang took a photograph of Enggu’s passport and tax file number and sent them to you Teoh.
15 On 5 March 2017, you Teoh, registered the business name “Barani Bin Enggu” with the Australian Business Register providing an address of 5/67-69 Clissold Parade, Campsie in New South Wales. Enggu has never registered for an ABN and has no connection with the Clissold Parade address. Rather, this address is associated with you Teoh. The following day, you Teoh, provided ATOS with these details as the new consignee for the container.
16 Between 16 March 2017 and 22 March 2017, you Teoh, using the alias Max Tan sent ATOS a number of documents purporting to verify ownership of the container so as to satisfy customs clearance requirements. These documents included a computer generated diagram drawn by your friend, Cheong Xin Han, purporting to show what was inside the container, together with documents purportedly signed by Enggu.
17 On 14 March 2017, anomalies were detected by ABF in steel tubes contained within the rear section of the container. The container was further X-rayed, revealing what appeared to be a dismantled conveyor rolling system. Amongst the conveyor rolling system parts were 18 steel tubes. Of these, six were identified as containing anomalies and were further examined. This further examination revealed that these six steel tubes contained another steel tube within. The inner steel tube was cut open and found to contain a wax-like substance, a red coloured powder suspected to be paprika and numerous blocks wrapped in cellophane. An examination of one of these blocks revealed it contained a white powder, which tested positive for heroin.
18 On further deconstruction of the six steel tubes, AFP Forensic Services members located 114 blocks suspected to be heroin with a total net weight of 40.11 kilograms and a calculated total pure net weight of 28.57 kilograms of heroin. A commercial quantity of heroin at the relevant time was 1.5 kilograms.[4] Accordingly, this importation was over 19 times the commercial quantity of pure heroin.[5] Each block had the markings of “Double UO Globe” on them and had been wrapped several times in various materials.
[4] Pursuant to Criminal Code Regulations 2002 (Cth), Schedule 4, Item 95
[5]See DPP (Cth) v Brown [2017] VSCA 162 [4] (Maxwell p, Santamaria JA and Beale AJA)
19 On 16 March 2017, you George, attended at the Forest Hill branch of the Bank of Melbourne and attempted to open a business account for Machinery and Hardware Trading Pty Ltd using a Chinese passport in the name of Hsien Loong Chin (“Chin”). The passport contained your photograph, George. You provided the teller with a Medicare card in the name of Chin and a certificate of registration for Machinery and Hardware Trading Pty Ltd. The passport was identified as possibly fraudulent by the bank officer and you George, were asked to attend the bank of a later occasion.
20 Subsequent investigations revealed that the passport was a fake and that Chin had left the country on 27 September 2016 and had not returned. These facts give rise to the second charge you are facing, George, of possessing or controlling a false foreign travel document.
21 Later on 16 March 2017, you George, entered the ANZ Bank at 18 Tunstall Square, Donvale to open a business bank account for the company Machinery and Hardware Trading Pty Ltd. In the process of setting up this account, you George, again used the Chinese passport in the name of Chin, but this account was subsequently activated.
22 On Tuesday, 27 March 2017, the container was repacked with a reconstructed and fully substituted six steel tubes in preparation for a controlled delivery.
23 On 28 March 2017, you Teoh, using the WeChat identity “Carson” sent a message to an unknown person who was using the WeChat identity “Lee”. You asked Lee:
do you have any connections? I want 300g which is good, cheap and big piece.
Lee responded:
the problem is whether goods can send over there or not? If it not successful who is going to bear for money?
24 On 29 March 2017, you George, re-attended the ANZ Bank at Donvale to sign paperwork which had not been signed on the previous occasion. You Teoh, sent a picture message to George, using WeChat with the address of the ANZ Bank at 18 Tunstall Road, Donvale. In a further WeChat message with George, you Teoh, sent a picture message with the details which included a page from the passport in the name of Chin.
25 George, you were then contacted by an unknown male and had a discussion with that male about returning to the bank. The male told you:
you said in the bank, use the Chinese Passport?
You George replied:
yes, I use that one. It has my face in it. That is why I am angry with DEE. He paid me less. He promised me 4000 but he paid me 100 and a half only.
26 On the same date (29 March 2017), ATOS contacted you Teoh and confirmed that the container had been released from border hold and once the additional wharf fees had been paid the container would be ready for collection. On that day, the unknown male using the WeChat identity “Lee” sent a further message to you Teoh in which he said:
you say you want to have 30% to 35%, you show me what is it about, if I am satisfy, then we can strike a deal, otherwise no …. only you and me know about it …. It is a big problem, you know this is international.
You Teoh responded:
I did not ask you on the deal with me, I only give opinion, I draft the system, I only want to earn commission.
27 On 30 March 2017, you Teoh paid the sum of $2,077.33 as the final outstanding amount owing for the storage of the shipping container whilst it had been stored in the Port of Melbourne.
28 On Friday, 31 March 2017, you Teoh called ATOS and discussed delivery. You said that it would take you about 10 days to obtain a key to a private delivery address. On that same day, you received a text message on the mobile phone subscribed in Loh’s name from Winson on an unknown number which stated:
I want all my salary and Norman [George] salary before 6pm,if you don't pay me, I go to police station, I tell Baran, I have the paper, I give him, I tell about ANZ Bank fake loan you did, the container, I have all the paper work, container number, all the paper come from ur phone, I have all the prove, I ask them to check ur we chat record, outlook history, you fuck with me, I fuck with you, you will lost the farm job too, I will tell tony and Ali everything, all worker will mad at you. you mad because ur job is stop, and now you blame me for everything, don't play with me.
29 Later that day you Teoh, while in New South Wales, called George and had a conversation as follows:
TEOH: “Ah Norman, can someone go to container?”
GEORGE: “One person ah. Cut?”
TEOH: “Don't cut first. Wait, wait (indistinct)”
GEORGE: “Ok. Ok”
…
TEOH: “You can go down alone?”
GEORGE: “Can, no problem. But Alwin, how is it now?”
TEOH: “Don't want to cut now. Put it back but in different place.”
GEORGE: “Put where?”
TEOH: “Take that 6 metals, send to another place. Can?”
GEORGE: “Can go down. No problems.”
30 Between 31 March 2017 and 4 April 2017, you Teoh directed George to find a storage facility to rent, payments having ceased on the previous rented facility in December 2016. Specifically, you Teoh, told George that you did not want a storage facility that would have to be shared. You Teoh directed George to rent a hire car and you Teoh provided money to George, including paying for your, George’s, accommodation during your stay in Melbourne. On 31 March 2017, you Teoh and Sakampong engaged in a number of lawfully intercepted telephone conversations with you George. You Teoh told you George to use Enggu’s name and company number when renting the storage facility, and cautioned you George not to use the word “container” when inquiring about rental facilities. You Teoh told you George that Sakampong would be arriving tomorrow to help you George and that would be with a guy that you George needs to watch.
31 Sakampong then directed you George to look for a place to rent and told you:
that the place must be safe. Everything must be safe. The surrounding must be surrounded with factory, industrial area so that it is not obvious
32 Sakampong, you George and you Teoh then began making inquiries with warehouse facilities that were advertised on the internet. Sakampong introduced himself as Enggu when inquiring with two warehouse facilities.
33 On 1 April 2017, Sakampong and one Nor Aman Fauzy Bin Kasmuri arrived in Victoria from New South Wales by train. When leaving New South Wales, Sakampong had in his possession a blue coloured tool bag containing drills and grinders. That same day, you Teoh, using the WeChat identify “Carson”, sent a message to a person with the WeChat identify “Zzzz” which said:
if they did not remit money over here, I cannot rent factory, factory requires 20–30 thousand dollars, so I am asking them to remit money over here.
34 On 4 April 2017, you Teoh called ATOS telling them that you should get the key to the warehouse by Friday, you Teoh having previously provided ATOS with the address of a warehouse in Brooklyn. You Teoh said that you wanted ATOS to remove the container once they had cleared the goods and that it was best to contact your employees, referring to George and Sakampong.
35 That same day, you Teoh received a call from you George who told Teoh that the warehouse had a security camera and you should not use it as George was worried that the owner of the warehouse might spy on you. You discussed using a different warehouse that is enclosed where making noise would not be a problem.
36 On the afternoon of 4 April 2017, you George and Kasmuri viewed a further warehouse at Rebecca Drive, Ravenhall. You George paid a $500 deposit and provided Enggu’s photocopied passport as identification. You Teoh provided George with directions as to what details to provide to the owner and transferred to George the deposit moneys. You Teoh also directed George to attend the bank the next day and withdraw $13,804 to pay the two months’ rent required to secure the warehouse.
37 You Teoh then contacted ATOS and changed the container’s delivery address to the Ravenhall address. You told ATOS that you will have “labourers” present at the time of delivery to handle the cargo and you provided ATOS with George’s mobile phone number as a contact person. You Teoh requested a delivery date of 8 April 2017, to which ATOS suggested 7 April 2017 as a preferred option. You advised that you would confirm this the next day. This was the final date of contact between you Teoh and ATOS.
38 On 5 April 2017, you Teoh called George and told him to use WeChat as you were scared. You Teoh told George to remove all the money from the bank. Following these instructions, you George returned to the ANZ Bank in Donvale and produced the Chinese passport in the name of Chin. You George were present with Sakampong and Kasmuri, who waited in the hire car while you George attended the bank.
Arrest of George
39 Victoria Police were called to the ANZ Bank and spoke with you George. You were arrested before you could withdraw any money from the account. You produced a Chinese passport in the name of Chin and told police your name and date of birth were Shin Loong Chin, born 30 June 1989. You were subsequently placed under arrest for use of false documents. Victoria Police officers then searched the hire car and spoke with Kasmuri and Sakampong who had remained in the vehicle. Police located a blue bag containing an angle grinder, drill, socket set and loose hand tools. On your arrest, George, you immediately sent a message to Teoh using WeChat stating that you had been arrested and that it was concerning your passport.
40 You George were conveyed to the Doncaster Police Station where a satchel which was in your possession was searched. In this satchel was found a number of documents including:
·Identity documents in the name of Chin, including a Medicare card and an AGL electricity bill.
·ABN lookup document for Machinery and Hardware Trading Pty Ltd.
·Certificate of Registration for Machinery and Hardware Trading Pty Ltd.
·Register of Members for Machinery and Hardware Trading Pty Ltd.
·Across the Ocean Shipping tax invoice.
·Application for ABN confirmation in the name of Enggu.
·Bill of lading.
·APL receipt in the name of Enggu.
·Photocopy of passport in the name of Enggu.
·Real estate documents with the addresses 67–69 Clissold Parade, Campsie, NSW and 79-81 Rebecca Drive, Ravenhall.
·Three diagrams on A4 paper. These diagrams are the same as those drawn by Han and sent to ATOS by you, Teoh.
Actions post George arrest – Teoh and Sakampong
41 After you Teoh had been informed of George’s arrest, you called Sakampong and told him that you wanted him to go to the warehouse and wait in a coffee shop nearby to watch for the “dogs”. In a further conversation with Sakampong on the same day, you warned Sakampong not to use the hire vehicle and to use a taxi instead and to throw away his SIM card. You again wanted to know from Sakampong if there were “dogs” at the warehouse. Sakampong told you that the police were investigating George now and that he, Sakampong, did not want to go to the warehouse because he was scared.
42 In the afternoon of 5 April 2017, Loh received a message through WeChat from you Teoh telling her that you needed help finding a manager for the warehouse as something bad already happened to George. Loh received a further message from you through WeChat stating that something bad happened to “their men” and they needed a particular sum of money. On the same date, Loh received a message through WeChat from you Teoh stating that it was important for her to deposit $1,000 to Sakampong. Later that same day, Sakampong and Kasmuri returned the hire car to Hertz at Melbourne Airport on your, Teoh’s, instructions.
Arrest – Sakampong
43 On the return of the hire car, Sakampong and Kasmuri were arrested by AFP officers at the Melbourne Airport. At the time Sakampong had in his possession a blue and black coloured tool bag containing a grinder and several other tools. I was told that Sakampong was charged with one count of attempting to possess a commercial quantity of a border controlled drug contrary to s11.1(1) of the Criminal Code (Cth) and one count of attempting to import a commercial quantity of a border controlled drug contrary to the same provision. I was told that a one-day contested committal hearing was listed for 24 January 2018. I was told that Kasmuri has not been charged with any offence in relation to this operation.
Interview with you George
44 After being release by members of the Victoria Police, you George were arrested by AFP officers and interviewed. You made the following admissions:
·You knew the account being set up with ANZ was in a false name.
·You knew that “they” were importing metal to make “thing”.
·You were going to be paid $50,000 to set up the bank account.
·You were provided with the false documents to open the bank account by someone you knew to be “Choon”.
·When asked about the storage facility in Brooklyn, you told investigators that it is the address for a Kmart.
·You denied being threatened to engage in any unlawful activity.
·In response to a question about: “Was it their job to unload the container?” you responded, “No. I just – I just know they’re the ones to cut.” I infer this to be a reference to the six metal rollers that contained the heroin.
·You denied knowing Teoh, Loh or Enggu, despite being shown photographs of these people.
·You denied any knowledge of the importation of the heroin.
45 On 5 April 2017, Teoh and Loh departed Tumut, New South Wales and checked into a bed and breakfast in Lankeys Creek, New South Wales. You Teoh checked in using the name Max Tan.
46 On that same day, you Teoh, using the name Max Tan, showed drawings of a machine to the owner of the bed and breakfast and inquired about whether you would be able to use his property to assemble the machine.
47 On 6 April 2017, you Teoh, using WeChat messaged an unknown person with the WeChat identity “Lee” and told him:
I already got into trouble, give me some more time, what I promise I will deliver to you, 3 people are already captured you not… give me some more time….I already escape I do not have time to handle.
Arrest of Teoh and Loh
48 On 7 April 2017, you Teoh and Loh and your seven month old daughter in the company of two other people left the bed and breakfast in a vehicle and were subsequently intercepted returning to Tumut by the AFP. You Teoh and Loh were both arrested for your involvement in the importation of this heroin. A number of search warrants were executed by AFP officers including on the vehicle being driven by you Teoh and the following documents and other items were located:
·Seven mobile phones;
·One package of documents from ASIC regarding company registration;
·One spiral notebook containing handwritten notes including details of Sewing Machines Australia, commodity printer holder and blocks;
·Westpac Banking Corporation customer receipts for $58,155.85 and $2,077.33;
·Shipping invoice for consignee: Baran Bin Enggu;
·Two ATOS invoices dated 29 March 2017 and 21 March 2017 addressed to Baran Bin Enggu: Attn: Max Tan of Unit 5/67-69 Clissold Parade, Campsie;
·Bill of lading, letter of authority for shipping company to deal with Enggu, letter of authorisation for Enggu;
·Packing list for Triplink Trading;
·Pro-forma invoice for Triplink Trading;
·ABN lookup and application confirmation for Enggu;
·Dallas Self Storage agreement in the name of Yi Quan Howard;
·Identity documents in the name of Hsien Loong Chin, including AGL account and photocopy of passport page;
·Documentation for registration of Machinery and Hardware Trading Pty Ltd;
·Tax file number for Enggu and photocopied passport page for Enggu;
·Correspondence from ATOS in relation to the container;
·One document which contained the following:
Most importantly, we must know doing it this way, there might be a risk, but Ben did not say clearly what sort of risk.
He also said that if we continue to leave the goods with APL, it is not a good idea to wait for buyers, the fees will be too much, it is going to be more and more expensive each day. We have spent too much money up to date, the container fee is too high, that is not the way. May be the best way is to buy the container. If the agent agreed, we can clear the custom and not need to pay the unnecessary charges. This is the fastest and most direct way.
Secondly, if we can do it this way, it is convenient and we can take the goods out directly.
Thirdly, if we do not have any place, we can leave it at their place; their storage fees is not expensive, +/- 50/day as compared to another place ($135/day), the longer you stored it, the higher the rate is.
I personally think there is no other way out now. The problem is that we do not have a real company, they suggested this proposal, I personally think it is quite a good idea. If we store goods over there for too long, this is the last resort and straight forward.
We have to pay APL now and another 2 services.
Total expenditure up to date 24/2 total $50000
The container cost is not included. We have to pay $50000 to APL, after this, we need to clear customs.
27/2 Monday we wait till received email from Ben & Shipping Agent, we then decide what to do for the next step.
·Documentation relevant to Triplink Trading; and
·Documentation relevant to a steel conveyor rolling system.
49 Examination of a mobile phone subscribed to Loh, but used by you Teoh, revealed:
·Images of large amounts of cash, schematics of a palletising machine and images of a palletiser machine;
·Images of emails relating to wharf charges from ATOS, international money transfer documents, retail boxes of power tools and a number of images of various passports;
·Internet search history revealing searches for printer holder and machinery images, images of packing list templates and commercial real estate property;
·Searches for holder, printer holder and palletising machine and searches for templates for shipping packing lists; and
·A photograph of a text message saying:
matani said, you not gonna pay the salery if we moved, I’m not matani, if you don’t pay my salary, I wait until this evening, if you don’t pay me, and you kno what am I able to do. I go to jail, you go to jail.
Nature and gravity of the offence
50 The maximum penalty for each of these offences is life imprisonment, the highest penalty in the criminal calendar. This indicates the seriousness with which the Federal Parliament views offences of this nature. As the Victorian Court of Appeal has said on numerous occasions, the offence of importing a border controlled drug is one of “the utmost serious”.[6] The offence of attempting to import a commercial quantity of a border controlled drug is no less heinous than the completed offence.[7]
[6] See Nguyen v R (2011) 31 VR 673, 676 [2] (Maxwell P); DPP (Cth) v Afford [2017] VSCA 201 [36] (Maxwell P and Beach JA)
[7] See R v Nguyen (2010) 205 A Crim R 106, 127–8 [72(l–(m))] (Johnson J)
51 Each of your offences is a serious example of the respective offences with which you have been charged. While the sentencing regime for Commonwealth importation offences is to some extent quantity-based,[8] the amount imported is not determinative of my assessment of the objective gravity of each of your offences. However, in this case, the pure weight of drug you imported being 28.57 kilograms of heroin, or 19 times the commercial quantity threshold, means that this offence falls towards the upper end of the spectrum of offences of this kind in terms of quantity imported. This means that the objective gravity of each of your offending conduct is very serious.
[8] Adams v R (2008) 234 CLR 143
52 I was told the AFP estimate that the potential value of the heroin you Teoh imported and you George attempted to import is between $10,314,000 and $13,752,000.
53 Also of significance is the role you each played in importing these drugs into this country. Each of you played a crucial albeit different role in this joint criminal enterprise. You particularly, Teoh, were intimately involved in the steps taken to deal with the container once it had been imported into Australia and your role was that of able bodied lieutenant to the ultimate organiser of this importation. You took numerous, pre-planned and complicated steps to ensure that the container was released from customs and taken to a storage facility where it could be opened and the heroin removed from where it was secreted.
54 Your counsel, Teoh, submitted that this was a sophisticated operation and that you “played a significant, hands on role to facilitate the local side of the importation and clearing of customs.” While you were not the “master mind” you, Teoh, liaised directly with those who financed and organised the importation.[9] It was also accepted by your counsel Teoh, that you:
dealt directly with the container transportation and shipping company and the freight forwarder. [You] arranged for the payment of fees and costs of storage to the freight forwarder and took steps to organize the rental of a factory or storage facility to receive the container. At times, [you] directed [your] co-accused George and Sakampong to perform certain tasks and [your] role must be considered as above theirs.
[9]Plea Submissions for Plea Hearing on 14 December 2017 (exhibit T1) [4]–[5]
55 You, George, also played an important role for the time that you were involved in this joint criminal enterprise. I accept that your role, George, was much less than was Teoh’s role, if only because you were involved for a much shorter period of time and clearly during the period you were involved you were receiving your instructions from Teoh.
56 The different charges which have been preferred against each of you reflect the timing of your respective involvement in this joint criminal enterprise. You, Teoh’s, involvement occurred earlier on, and was approximate to the importation. By contrast, the bulk of your, George’s, involvement occurred later and was, in the main, more proximate to the substitution of the consignment by the AFP. It is for this reason that you, Teoh, have been charged with an import charge and you, George, with an attempt to import, as after the date of substitution of the drug for a benign substance a substantive charge of import was no longer available against you, George. This, however, does not affect my assessment of the objective gravity of your respective offending conduct. That is to be determined in relation to the conduct that you each engaged in, your respective roles and the period of time for which you were engaged in this joint criminal enterprise.
Relevant sentencing provisions
57 Both of you must be sentenced in accordance with the relevant provisions of Part 1B of the Crimes Act1914 (Cth) (“the Act”) and in particular the provisions of s16A. Consistency in Federal sentencing is to be achieved through the consistent application of Part 1B.[10]
[10] See Hili v The Queen (2010) 242 CLR 520, 535-536 [48] – [49] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ)
58 Pursuant to s16A(1), the Court is required to impose a sentence which is of a severity appropriate in all the circumstances of the offence. In determining the sentence appropriate in all the circumstances of the offence, I am required to take into account the matters listed in s16A(2), and any other relevant matters, insofar as they are relevant and known to me.
59 Section 17A(1) of the Act provides that I shall not pass a sentence of imprisonment on you for these offences unless, having considered all of the available sentences, I am satisfied no other sentence is appropriate in the circumstances. The Crown submitted that owing to the nature and seriousness of each of your offending conduct and the need for significant weight to be given particularly to the principles of denunciation and general deterrence, significant terms of imprisonment are the only appropriate sentencing options in each of your cases. Your respective counsel did not demur from this submission and indeed gave sentencing ranges which I will discuss later in these sentencing remarks.
60 So far as the offending conduct is concerned, in summary, you Teoh imported and you George attempted to import a commercial quantity of heroin secreted in a shipping container arriving in the Port of Melbourne from Malaysia. When the container was intercepted by AFP on 14 March 2017, it was found to contain 28.57 kilograms of pure heroin which is 19 times the commercial quantity applicable to that drug.
61 Additionally, George, you possessed or controlled a false foreign Chinese passport in the name of Hsien Loong Chin, and used this passport in an attempt to open a business bank account in the name of Machine Hardware and Trading Pty Ltd in connection with the container’s importation. Whilst this constitutes separate criminal conduct on your part, George, and needs to be separately punished, it nonetheless formed part of your role in the importation and accordingly I will order complete concurrency in relation to the sentence I impose on that charge with the sentence I impose on charge 2.
Each Offenders’ Role
62 So far your role in the importation is concerned, Teoh, the Crown submitted that you made arrangements to import the drugs into Australia and that you were part of the on-shore organising chain in this country. It was submitted that you dealt with the substance in connection with its importation by:
(a)Organising the clearance of the container from customs, including asserting ownership over the container.
(b)Paying fees associated with the importation of the container.
(c)Directing George and Sakampong to find storage facilities for housing the container.
(d)Directing George to open a bank account using a false Chinese passport in the name of Chin.
63 The Crown submitted that your role, George, in the importation, albeit in your case an attempt, was to take direction from Teoh and to deal with the substances in connection with the importation by:
(a)Liaising with Teoh as to the rental of warehouses and viewing various rental facilities.
(b)Renting a warehouse facility.
(c)Opening a bank account associated with the importation using the false passport in the name of Chin.
Applicable Sentencing Principles
64 So far as the sentencing principles applicable to each of you are concerned, these have been laid down by the Victorian Court of Appeal in Nguyen and Phommalysack v R.[11]
[11] (2011) 31 VR 673, 681-684 [33]–[39] (Maxwell P); DPP (Cth) v Brown [2017] VSCA 162 [27] (Maxwell P, Santamaria JA and Beale AJA)
65 As the Commonwealth Director submitted, a critical consideration for the Court is to determine what each of you did in participating in these drug importation offences. The Director submitted that I should have regard to the role played by each of you and the particular activities undertaken by each of you in performing your respective roles. The Director submitted that I must take care to ensure that any shorthand description of each of your roles does not obscure my assessment of what each of you respectively actually did.[12]
[12] Olbrich v R (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ)
66 In relation to you, Teoh, the Crown submitted the following:
(a)You were in control of the arrangements to clear the container from customs. You amended the consignee details on three occasions, including on one occasion by changing the consignee to that of a false company in the name of Enggu.
(b)You liaised with ATOS as to the clearance of the container, including providing ATOS with the alias of “Max Tan” and his corresponding email address. You did this in order to avoid detection.
(c)You, Teoh, set up a false ABN in the name of Barani Bin Enggu and provided the details of this false ABN to ATOS in order to effect clearance of the container.
(d)You, Teoh, provided ATOS with two mobile phone numbers, which you had falsely subscribed to.
(e)You, Teoh, provided ATOS with a number of false documents purporting to be signed by Enggu in an effort to verify ownership of the contents of the container.
(f)You, Teoh, paid invoice fees to ATOS totalling $64,624.
(g)You, Teoh, paid for George and Sakampong’s accommodation on their stays in Melbourne, including during the period where George travelled to Melbourne to set up the false bank account.
(h)You, Teoh, told Sakampong and George that you would pay them for their involvement in this joint criminal enterprise.
(i)You, Teoh, directed George to locate storage facilities and told him to rent those facilities in the name of Enggu. You also directed George regarding how he should rent those storage facilities by providing clear instructions that they “don’t want a warehouse they would have to share”, and “not to use the word ‘container’” when inquiring about potential storage facilities.
(j)You, Teoh, directed George to attend the container on its release from customs and told him to “take that 6 metals”. The Crown submitted that this was a reference to the six steel tubes containing the heroin, and I am satisfied beyond reasonable doubt that that is the case.
(k)You, Teoh, directed George to open a bank account using the false passport in the name of Chin and directed George to withdraw the amount of $13,804 to pay for the rental of the premises at Rebecca Drive in Ravenhall.
(l)You, Teoh, directed Sakampong to conduct surveillance of the container following George’s arrest and to see if there are “dogs” present at that location.
(m)The Crown opening details conversations that you, Teoh, conducted on WeChat with the user identities “Lee” and “Zzzz”. The identity of these users is unknown, as is their location. Throughout the transcripts of intercepted telephone calls, you reference other people in the syndicate, including “Choon”, “Alwin”, “Aweil” and “Win”. It is clear that this enterprise involved other people who were assisting you, Teoh, with the importation, including the provision of funds. The Commonwealth Director submitted that I may safely infer that you, Teoh, were given a “trusted role” by the organisers of this importation. I am satisfied beyond reasonable doubt that this is a justified characterisation of your role. Moreover, as the Director observed, the drugs were extremely valuable and you, Teoh, were entrusted with ensuring their safe delivery into Melbourne.
(n)The Commonwealth Director submits that the fact that you, Teoh, had yet to have physical contact with the drugs has no mitigating effect on your moral culpability. It was submitted that your moral culpability is determined by your intention to gain custody and control of the drugs. I agree with this proposition.
67 The Commonwealth Director submitted that the above facts support the conclusion that so far as the importation of the heroin was concerned, you, Teoh, were above George in the hierarchy, and you had authority to direct him and you did in fact direct him. Your counsel did not disagree with this characterisation of your role. George, on the other hand, did what he was told. You, Teoh, described George and Sakampong to ATOS as being your “employees” or on another occasion your "labour” (presumably meaning “labourers”). Moreover, you, George, referred to Teoh as “boss”.
68 I find beyond reasonable doubt that on any view you, Teoh, played a significant role in the organisation and facilitation of the importation of this heroin. You were in control of the arrangements and gave directions to others to facilitate the importation from the Australian end. You knew the container contained drugs and you were not merely reckless as to whether the container concealed a border controlled substance. In this context, I note that pursuant to s307.1(2) of the Code, the fault element for these offences is recklessness. This state of mind is not mitigatory.[13]
[13] See DPP (Cth) v Afford [2017] VSCA 201 [31] (Maxwell ACJ, and Beach JJA)
69 The Crown submitted in relation to you, George, as follows:
(a)You travelled from New South Wales to open a bank account on 16 March 2017 and again travelled to Melbourne on 29 March 2017 in preparation for the delivery of the container.
(b)You indicated your willingness to take delivery of the container, including cutting the steel tubes and transporting the drugs to another location. The Commonwealth Director submitted that you intended to take possession of the container once it had cleared customs. I will deal with this factual matter later in these reasons.
(c)You were a trusted and essential member of the syndicate as is evidenced by your role and your knowledge.
(d)You exercised a degree of independence and responsibility. While Teoh remained in New South Wales, you, George, were on the ground in Melbourne conducting preparations at Teoh’s direction.
(e)On your arrest, a number of documents were located on you relating to the importation of the container. The Director submitted that you were in possession of these documents for the purpose of taking possession of the container on delivery. This is another factual matter which I will deal with later in these reasons.
(f)The Commonwealth Director submitted that you had knowledge and were not merely reckless as to whether the container contained a border controlled drug. My previous comments in relation to Teoh in this regard apply equally to you, George, and I will also deal with this matter later in these reasons.
(g)The fact that you were arrested before the delivery of the container took place, has no mitigating effect on your moral culpability. The Courts have consistently affirmed that attempt charges are no less serious, all things being equal, than substantive offences.[14] Once again, it is what you, George, actually did in furtherance of the joint criminal enterprise that is relevant to a proper assessment of your moral culpability, rather than whether you have been charged with an attempt or a substantive offence.
[14] R v Nguyen; R v Pham (2010) 205 A Crim R 106, 126–128 [72] (Johnson J, Macfarlan JA and RA Hulme J agreeing)
70 The Commonwealth Director submitted that in locating storage facilities, leasing storage facilities and opening the bank account using false identification, you, George, played a central and important role in this joint criminal enterprise. You were the physical means by which the storage facility for the container was located and paid for and on the evidence, the location in which the container would ultimately be unpacked. I accept this properly characterises your role
71 It is clear that in both your cases the motive for committing these offences was purely financial gain. This can be inferred from the quantity and value of the drugs imported. Moreover, in your, Teoh’s, conversation with Lee, there are references to you earning a commission, and figures of 20 per cent, 30 per cent and 35 per cent are mentioned. In your case, Teoh, I am unable to form any concluded view as to what you were expecting to derive by way of financial gain from your criminal conduct, but your counsel conceded that it was significantly more than the amount which was going to be paid to George.
72 In your record of interview, George, you indicated that you were going to be paid $50,000 for opening the bank account associated with the importation. It is not known whether this $50,000 was payment for your entire role in the offending, and I make no finding that your remuneration was to be any greater than $50,000; nonetheless, that is a significant sum of money. It follows that your Teoh’s expected financial return was a considerably greater sum of money. Your counsel accepted this was the case.
73 The Director submitted that both you, Teoh, and you, George, must have known that you were each party to an importation of a substantial quantity of drugs, owing to the fact that the drugs were contained in a shipping container. In your case Teoh, I accept that was so. In your case George, I cannot be satisfied beyond reasonable doubt you knew the magnitude of the size of the importation. I note that absolute liability applies to this element of the offence to which you have pleaded guilty.[15]
[15]Criminal Code 1995 (Cth) s307.1(3)
74 In both your cases, Teoh and George, I find that your moral culpability for the offences with which you are each to be sentenced is very high.
75 In your case, George, so far as the charge of possessing or controlling a document knowing it was a false foreign travel document is concerned, I note that you made full admissions in your record of interview to possessing the false passport knowing it was false, and you admitted that you provided your photograph to be used in the false passport, and further that you were to be paid $50,000 to open a bank account using that false passport. This makes this offence a particularly serious example of the offence. However, I must be very careful not to doubly punish you, as this false travel document was used as part of your role in the offending conduct which gives rise to Charge 2, the attempt to import the border controlled drug.
76 It is clear that general deterrence must be given significant weight in sentencing you. As the Victorian Court of Appeal recently stated in DPP (Cth) v Thomas:[16]
In the case of drug importation offences, general deterrence is to be given chief weight in sentencing. Stern punishment will be warranted in almost every case in order to advance that purpose. Factors personal to the offender are thus ordinarily given less weight than might otherwise be the case.
[16] (2016) 315 FLR 31, 94 [193] (Redlich, Santamaria and McLeish JJA)
77 So far as cooperation with law enforcement bodies is concerned, I note that you, Teoh, were not interviewed in relation to this offending, and you, George, denied any knowledge or involvement in the importation of the heroin. However, as I previously noted, you did make admissions in relation to your possession of the false travel document.
78 A significant mitigating factor in both your cases is your pleas of guilty. These pleas have an objective utilitarian benefit as well as a subjective quality, in the sense that they indicate a willingness to facilitate the course of justice and an acceptance of responsibility for your offending conduct. It was accepted by the Director that both your pleas of guilty were entered at an early stage, and you will each receive a significant discount from the sentence that I would otherwise have imposed in respect of these offences. However, I am unable to find, in either case, that the pleas of guilty are indicative of true contrition and remorse. So far as you, Teoh, are concerned, your counsel did not submit otherwise.
79 In further written submissions dated 29 January 2018, provided after the plea hearing,[17] Mr Thomson, on behalf of you George, submitted that I should give greater weight to the subjective factors related to your plea of guilty “because the prosecution would have difficulty proving that [you] dealt with the drugs in connection with their importation” and that you knew, as opposed to were reckless as to whether, the items imported were drugs, as opposed to some other border controlled items. Relying on cases such as Phillips v The Queen,[18] Cameron v The Queen[19] and Maybus v The Queen,[20] Mr Thomson submitted that you, George, should receive a greater discount for your guilty plea “because its subjective value is high given the weakness of the prosecution case on the issues of connection to the importation and knowledge of drugs”.
[17] Exhibit G3
[18] (2012) 37 VR 594, 604–5 [36], 613 [65] (Redlich JA and Curtain AJA, Maxwell P agreeing)
[19](2002) 209 CLR 339, 345–6 [22] (Gaudron, Gummow and Callinan JJ)
[20][2017] VSCA 125 [35]–[36], [40]–[42] (Osborne and Kaye JJA)
80 In written answering submissions dated 8 February 2018,[21] the Commonwealth Director analysed the evidence admissible on the plea against you George, which was said to demonstrate your connection to the importation and the fact you had knowledge that the substance was imported. The Director reiterated her submission on the plea that there was sufficient evidence for me to find that you, George, had knowledge that you were importing a border controlled drug or at least, in the alternative, that you were reckless as to that element.
[21]Exhibit P5
81 I find that in your case George, the Crown case regarding your awareness, at all relevant times, that the substance contained in the six metal tubes was imported into Australia, was not a weak case and that, at the very least, there was sufficient evidence for a jury to be satisfied that you were reckless as to whether that substance was a border controlled drug, and thereby sufficient to satisfy the elements of the offence with which you are charged and have pleaded guilty.[22] Accordingly, so far as the weight I give to subjective factors pertaining to your plea of guilty to charge 2 is concerned, I treat the strength of the Crown case against you as neutral; being neither “weak” nor “strong”.
[22]See Criminal Code (Cth) s 307.1(2)
82 Turning to other relevant mitigating circumstances, I note that both you, Teoh, and you, George, have no prior criminal history. In each of your cases I take your prior good character into account. However, this factor is to be given less weight as a mitigating consideration in sentencing each of you respectively on charges 1 and 2 than might otherwise have been the case, because good character is not an unusual circumstance of persons involved in drug importation offending.[23]
[23] See R vNguyen; R v Pham (2010) 205 A Crim R 106, 127 [72](j) (Johnson J, Macfarlan JA and RA Hulme J agreeing)
83 So far as the prospect of deportation in respect of each of you is concerned, you, Teoh, are a 29-year-old Malaysian national. You entered Australia on 29 August 2009 and are currently held on a bridging visa. You, George, are a 34‑year-old Malaysian national. You first entered Australia on 6 March 2016 and are currently an unlawful immigrant. I am not entitled to take into account the prospect of your deportation as being in itself a mitigating circumstance.
84 However, I do accept that custodial hardship is relevant in each of your cases on a number of bases. First, you are both somewhat socially isolated in the Australian community; although in relation to you, Teoh, I note that you have received some support from your wife, Siew Kim Loh, who currently resides in Australia with your two young children. I was told that it is likely that your wife, who was present supporting you throughout the plea hearing, will likely be returning to Malaysia after these matters are finalised. This will add further to your social isolation whilst in custody. Secondly, you both may well have language difficulties whilst in prison. Thirdly, you will both have the threat of deportation hanging over your heads, adding to the hardship with which you will each serve your sentence. I take all these matters into account in sentencing each of you.
85 It was accepted by each of your counsel that this was not the exceptional case where hardship to your families is itself a relevant sentencing consideration under s16A(2)(p) of the Crimes Act1914 (Cth).[24]
[24] See Lau v The Queen [2011] VSCA 324, [43]
86 The Director provided me with extensive written submissions on the use of comparative cases and provided me with a table, together with an analysis of a number of relevant cases comprising: DPP (Cth) v Peng,[25] Luong v DPP (Cth),[26] Ruiz v The Queen,[27] Saab v The Queen,[28] Phung Nguyen v The Queen,[29] Nguyen v The Queen; Phommalysack v The Queen,[30] Chan, Lo and Nguyen v The Queen,[31] and R vNguyen; R v Pham.[32]
[25] [2014] VSCA 128
[26] (2013) 46 VR 780
[27] [2013] VSCA 313
[28] [2012] VSCA 165
[29] [2012] VSCA 119
[30] (2011) 31 VR 673
[31] [2010] NSWCCA 153
[32] (2010) 205 A Crim R 106
87 I have considered these cases, together with others which may be described as “relevant comparators (whether because they are materially the same or because they are instructively different)”.[33] The so-called “comparable cases”[34] are not easy to reconcile; however, they do provide a general yardstick which has helped to inform my instinctive synthesis regarding the appropriate range for each of your offences.[35] A list of the cases I have considered is annexed to these reasons for sentence. So far as the offence of possessing or controlling a false travel document is concerned in your case, George, I have discovered only three prior cases: Ali v The Queen,[36] R v Hou,[37] and Wong v The Queen.[38] I have taken the sentences imposed in these cases into account in determining an appropriate sentence on charge 3, George.
[33] DPP (Vic) v Frewstal Pty Ltd (2015) 47 VR 660, 671 [49] Maxwell P
[34] See generally DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 91 ALJR 1063, 1073 [52] (Kiefel CJ, Bell and Keane JJ), [83] (Gageler and Gordon JJ); Kalofolias v The Queen [2017] VSCA 308 [49]–[50] (Maxwell P, Beach and McLeish JJA); DPP (Cth) v Thomas (2016) 315 FLR 31, 88–91 [171]– 183] (Redlich, Santamaria and McLeish JJA)
[35] R v Pham (2015) 256 CLR 550, 560–1 [29] (French CJ, Keane and Nettle JJ), 565 [47]–[48] (Bell and Gageler JJ)
[36][2008] NSWCCA 60
[37][2010] VSCA 36
[38][2013] VSCA 52
88 So far as appropriate ranges are concerned, on the plea hearing Mr Thomson, who appeared for you, George, submitted verbally that an appropriate sentencing range for charge 2 in your case fell between 8 to 11 years’ imprisonment. He referred me to a number of what he considered to be “comparable” cases.[39] He made that submission, without my invitation, in accordance with the decision of the Victorian Court of Appeal in Matthews v The Queen.[40] Consequently, I invited Mr Taaffe, who appeared for you, Teoh, to provide a submission regarding an appropriate sentencing range in your case, which he did by email to my Associate on 26 January 2018.[41] Mr Taaffe submitted that “a total effective sentence in the range 10–12 years would be appropriate” in your case.
[39] DPP (Cth) v Peng [2014] VSCA 128; DPP (Cth) v KMD (2015) 254 A Crim R 244; DPP (Cth) v Masange [2017] VSCA 204; Fernando v The Queen [2017] VSCA 208; Huynh v The Queen [2017] VSCA 216; Tran v The Queen (2017) VSCA 346
[40] (2014) 44 VR 280, 290–1 [22]–[25] (Warren CJ, Nettle and Redlich JJ), 317 [162] (Priest JA and Lasry AJA not deciding). See Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, 500–1 [34]–[37], 502 [40], [41], 504 [47], 506–7 [56] (French CJ, Kiefel, Bell, Nettle and Gordon JJ), 511–3 [72]–[77] (Gageler J), 516 [87], 519–20 [95]–[99] (Keane J); DPP (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 [293]–[294] (Wigney J)
[41]Exhibit “T3”
89 I invited the Commonwealth Director to respond to these ranges in accordance with Matthews. Initially, the Director “respectfully declined” to respond to the sentencing ranges provided by defence counsel by “providing an alternative quantified range”.[42] She did so on the basis that “any statement of applicable range of sentence given by the prosecutor would be ‘some statement of the specific result’ which is expressly disapproved of in Barbaro”.[43] The Director expressed the view that the decision in Matthews did not change her interpretation of the High Court decision in Barbaro.[44] To be fair, the Director may have misunderstood the nature of my request, which was to respond to the ranges provided by defence counsel in the manner approved of in Matthews.
[42] Email to my associate dated 21 December 2017 (Exhibit “P3”)
[43]Ibid
[44]Ibid
90 Subsequently, the Commonwealth Director did respond to the range provided by Mr Taaffe on behalf of you, Teoh, and said that “it would not be open [to me] to impose a head sentence in the proposed range 10–12 years”.[45] Her submission was based on the “comparatives” relied on at the plea hearing and additionally on DPP (Cth) v Thomas,[46] DPP (Cth) v Masange and Kachunga,[47] and DPP (Cth) v Brown.[48][49] I infer from the Commonwealth Director’s response that she is of the opinion that the range submitted by Mr Taaffe is too low.
[45]“Prosecution response to further submissions on plea” dated 8 February 2018 (Exhibit “P4”)
[46] (2016) 315 FLR 31 particularly at 103–4 [241]–[242].
[47] [2017] VSCA 204
[48] [2017] VSCA 162
91 The Commonwealth Director responded at the plea hearing to the range submitted by Mr Thomson that a sentence of 8 years’ imprisonment was not open to me, but otherwise made no further response to Mr Thomson’s range. I take to be a concession by the Crown in right of the Commonwealth that a sentence within the range 9 to 11 years’ imprisonment is open to me in the proper exercise of my sentencing discretion.
92 While I have not ignored the sentencing ranges submitted by defence counsel in respect of their respective clients, I have made an independent assessment of the appropriate sentencing range in each of your cases using the comparative cases to which I have referred as yardsticks.
Personal Circumstances
93 Turning to your personal circumstances. You, Teoh, are a 29-year-old man of Chinese ethnicity. You were born in Malaysia and grew up in a small Malaysian fishing town. Your father was a fisherman and a heavy gambler. The family was of very modest means.
94 From the age of nine, you were required to assist your father with the family business, washing fish and then selling them at market. You completed six years of primary schooling before dropping out to commence full time work. You left school before commencing high school. Later, you moved to Kuala Lumpur and worked in the construction industry until you were aged 16. At that age, you sought work in Singapore, but were unsuccessful and you returned to Kuala Lumpur, before working for a year in the United Kingdom in a Chinese restaurant.
95 Your grandfather passed away in 2006, when you were 18 years old, and you then returned to live with your family in Malaysia. Between 2006 and 2008, you worked with your father as a fisherman. In 2008, you were involved in a motor vehicle accident, in which another driver’s legs were broken. Facing retaliation from associates of the other driver, you returned to Kuala Lumpur and then decided to travel to Australia.
96 You arrived in Australia on 29 August 2008 on a tourist visa, and worked thereafter in Western Australia and then Victoria and New South Wales on farms and vineyards as a fruit picker. In the four years leading up to your arrest, you worked for the same employer and you were later given some responsibility in supervising other workers.
97 You married in May of 2015 and you have two very young children of that marriage, an 18-month-old daughter and a 3-month-old son. You have never met your son, as he was born after you were remanded in custody.
98 Your wife is also a Malaysian national. The standing of your marriage and the legal status of your children is uncertain. Your wife has sought to register the marriage and the children with the Malaysian embassy, however she has been told that your physical presence is required. Your wife is on a bridging visa with little financial support. I was told by your counsel that the uncertain status of your children and the situation of your wife causes you considerable anxiety. I have taken these matters into account in fixing an appropriate sentence in your case, Teoh.
99 Your tourist visa had expired at the time of the offending and you were on a bridging visa at that time.
100 So far as your motivation for committing the offence is concerned, I was told by your counsel that your father’s gambling caused financial difficulty for your family throughout your life. In the periods you worked away from home and overseas, you would always send money back to your family for their financial support. You continued this practice in Australia.
101 In late 2016, your father was in considerable debt to a Malaysian money lender and paying punitive interest on the debt owed. You were helping with the repayment of the debt and in contact with the money lender. You were offered a role in the importation through the money lender, and you were to receive payments that could be put towards your father’s debt. Your involvement in the importation was financially motivated but with a view to assisting your family with the problems arising from your father’s gambling debts. As the oldest son, you naturally felt a degree of responsibility for your father and your family in Malaysia.
102 Your counsel fairly accepted that while this provides some explanation for your committing the present offence, it in no way provides any excuse. Your offence remains a very grave one.
103 Ultimately, in your case, Teoh, Mr Taaffe relied on the following factors in mitigation: your early plea of guilty, your prior good character, this is your first time in custody, and a degree of custodial hardship.
104 He submitted that “general and specific deterrence as well as just punishment will be primary sentencing considerations.” I would add, that denunciation of your conduct must also loom large and that protection of the community is not entirely irrelevant in your case, given the nature of your offending. Mr Taaffe submitted that you have good prospects of rehabilitation because of your lack of prior convictions. The Crown conceded that you have “reasonable” prospects of rehabilitation. I sentence you on the basis that you have good prospects of rehabilitation.
105 Turning now to your personal circumstances, George, Mr Thomson told me you arrived in Australia from Malaysia on 6 March 2016 to work as an itinerant fruit picker.
106 You were born in Keningau in Sabah on the island of Borneo, now a state of Malaysia, on 26 November 1983. You were born to a Murut mother and Kadazan father; both are indigenous peoples of Sabah who pursue slash and burn agriculture with hunting and gathering.
107 In your early years you moved from place to place with your mother. Your schooling ended at primary school level. Your father died when you were aged about 13 years. Your mother, then a Christian, married a Muslim man and converted to Islam. You were sent to live with a Muslim uncle, whom you did not like. After a month you ran away.
108 You pursued an itinerant existence doing menial jobs. You often slept rough. You borrowed money from a Chinese Malay money lender and became heavily in debt. You and a friend decided to go to the Malaysian mainland where, you believed, you could earn more money. An agent paid your air ticket to Kuala Lumpur (priced at 250 ringgits) on the understanding you would have to pay back 1500 ringgits.
109 You worked in a brick factory outside Kuala Lumpur for 25 ringgits a day. After a year you went to work in a factory making air conditioners for 35 ringgits a day, working a seven-day week. You subsequently worked in other factories as a security guard and on a garbage truck in different parts of Selangor.
110 You have had one long lasting relationship with a girlfriend, but you have no children.
111 You have used cannabis irregularly and alcohol regularly, but I was told you do not use either of these drugs to excess.
112 When a friend of yours went to Australia and reported that he could earn in a month what you would earn in a year, you decided to try your luck too, as by this time your debt to money lenders was about 50,000 ringgits (or about AUD 16,127). You flew to Sydney with a friend who was also from Borneo. You went to Batlow in New South Wales to work picking apples for a Chinese-Malay contractor.
113 After three months, that work ended and you went to Swan Hill, where you obtained employment pruning fruit trees. You were paid 90 cents per tree. You sent some of this money back to your mother in Malaysia. In Swan Hill, you caught up with a friend from Malaysia, named Winson, who worked for Teoh. It was Winson who introduced you to Teoh.
114 Your counsel told me that Teoh asked you if you wanted to make some easy money. Teoh promised to pay you $50,000 for opening a business account using a false Chinese passport, that he would supply, and also for helping find somewhere to store a shipping container. I was told that you received little apart from money to pay your expenses before you were arrested. Apparently, your friend Winson argued with Teoh about not being paid as agreed and left the scheme and went back to Malaysia.
115 Ultimately, in your case, George, Mr Thomson relied on the following factors in mitigation: your early pleas of guilty, which he submitted indicates remorse, but he accepted that there was no other evidence before me of true contrition and remorse on your part for your involvement in these serious crimes. In the circumstances, while I accept your plea has a utilitarian benefit, as well as representing an acceptance by you of responsibility for your crimes and a willingness to facilitate the course of justice, I do not sentence you on the basis that there is sufficient evidence before me of true contrition and remorse on your part.[50]
[50]See Barbaro v R (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA)
116 Mr Thomson also relied in mitigation on your admissions in relation to using the false passport, your lesser role than Teoh, your poor education and deprived upbringing, your prior good character, your lack of family support and social isolation, resulting in the service of your sentence in custody being more onerous, together with the fact that you will be deported on your release from custody, which will also weigh more heavily on you whilst in custody, and the fact you have been gainfully employed as a gardener while you have been on remand. I have taken all these matters into account.
117 Mr Thomson accepted that general deterrence must play a significant part in any sentence I impose on you. He also submitted that you have “good” prospects of rehabilitation. The Commonwealth Director submitted that you have “reasonable” prospects of rehabilitation. I will sentence you on the basis you have good prospects of rehabilitation.
Conclusion and Sentence
118 In my view charges 1 and 2 are very serious offences and each of you bare a high moral culpability in relation to your involvement in this joint criminal enterprise to import 28.57 kgs in pure weight of heroin into this country. Denunciation, general deterrence and just punishment must be given primacy. Specific deterrence and protection the community are also relevant sentencing principles.
119 Ultimately in this case, my task, in accordance with s16A(1) of the Crimes Act is to “impose a sentence … that is of a severity appropriate in all the circumstances of the offence.” In doing so, I have to take into account a number of factors including: the seriousness of the offence, which carries a maximum penalty of life imprisonment; the quantity of heroin imported; your respective roles; the financial rewards offered to each of you; mitigating factors; and your personal circumstances, particularly your early pleas of guilty.
120 I must balance a number of sentencing considerations; including, the need to deter others who might be minded to import illicit drugs into this country. After having considered all other available sentencing options in each of your cases, I am satisfied that no sentence other than a sentence of immediate imprisonment is appropriate in all the circumstances of your cases.[51] Your counsel did not submit otherwise.
[51]See Crimes Act 1914 (Cth) s17A
121 In fixing the non-parole periods I will impose on each of you, I have had regard to the matters contained in Division 4 of Part 1B of the Crimes Act.
Stand up Teoh
122 On Charge 1, importing a commercial quantity of a border controlled drug, you are convicted and sentenced to be imprisoned for a period of 14 years to commence from today and expire on 18 February 2032. I fix a non-parole period of 10 years to commence from today and expire on 18 February 2028, on which date you will become eligible for parole.
123 Pursuant to s 18 of the Sentencing Act1991 (Vic), as applied by s 16E of the Crimes Act, I declare that you have spent 318 days in pre‑sentence detention, not including this day, and that period is to be reckoned as a period of imprisonment already served under this sentence and I direct that that declaration be entered in the records of the Court.
124 Pursuant to s 6AAA of the Sentencing Act1991 (Vic), as applied by s 68 and s 79 of the Judiciary Act1903 (Cth), I state that but for your plea of guilty, I would have sentenced you to be imprisoned for 17 years with a non-parole period of 13 years 6 months.
125 I am required by s 16F of the Crimes Act to explain, or caused to be explained to you in a language likely to be readily understood by you, the purpose and consequences of fixing that non-parole period.
126 In particular, an explanation:
(a) That service of the sentence will entail a period of imprisonment of not less than the non-parole period, and if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence.
(b) That if a parole order is made, the order will be subject to conditions.
(c) That the parole order may be amended or revoked.
(d) Of the consequences that may follow if you fail without reasonable excuse to fulfil those conditions. Those consequences are that you may be required to serve the full term of 14 years’ imprisonment from today’s date.
Stand up George
127 On Charge 2, attempting to import a commercial quantity of a border controlled drug, you are convicted and sentenced to be imprisoned for a period of 11 years to commence from today and expire on 18 February 2029.
128 On Charge 3, possessing or controlling a false foreign travel document, you are convicted and sentenced to be imprisoned for a period of 9 months to commence from today and expire on 18 November 2018. That means the sentence on charge 3 will be served wholly concurrently with the sentence I have imposed on charge 2.
129 I fix a non-parole period of 7 years and 6 months to commence from today and expire on 18 August 2025, on which date you will become eligible for parole.
130 Pursuant to s 18 of the Sentencing Act1991 (Vic), as applied by s 16E of the Crimes Act, I declare that you have spent 320 days in pre‑sentence detention, not including this day, and that period is to be reckoned as a period of imprisonment already served under this sentence and I direct that that declaration be entered in the records of the Court.
131 Pursuant to s 6AAA of the Sentencing Act1991 (Vic), as applied by s 68 and s 79 of the Judiciary Act1903 (Cth), I state that but for your plea of guilty, I would have sentenced you to be imprisoned for 14 years with a non-parole period of 11 years.
132 I am required by s 16F of the Crimes Act to explain, or caused to be explained to you in a language likely to be readily understood by you, the purpose and consequences of fixing that non-parole period.
133 In particular, an explanation:
(a) That service of the sentence will entail a period of imprisonment of not less than the non-parole period, and if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence;
(b) That if a parole order is made, the order will be subject to conditions;
(c) That the parole order may be amended or revoked; and
(d) Of the consequences that may follow if you fail without reasonable excuse to fulfil those conditions. Those consequences are that you may be required to serve the full term of 11 years’ imprisonment from today’s date.
| ANNEXURE | |
| R v Igwebuike [2017] ACTSC 323 Jaafar v R [2017] NSWCCA 223 R v Scott [2017] SASCFC 96 Vi v R [2017] VSCA 254 Lim v R [2017] VSCA 246 Yip v R [2017] VSCA 231 DPP (Cth) v Masange & Kachunga [2017] VSCA 204 DPP (Cth) v Afford [2017] VSCA 201 DPP (Cth) v Brown [2017] VSCA 162 R v Pham, Tran & Dang [2017] QCA 46 PC v R [2016] NSWCCA 137 Vo v R [2016] VSCA 277 Lieu v R [2016] VSCA 277 Nguyen v R [2016] VSCA 276 Pham v R [2016] VSCA 259 DPP (Cth) v Thomas (2016) 315 FLR 31 R v Onyebuchi [2016] QCA 143 R v Harrington (2016) 11 ACTLR 215 Banker v R [2016] QCA 74 R v UE [2016] QCA 58 R v Pham (2015) 256 CLR 550 DPP (Cth) v KMD (2015) 254 A Crim R 244 Kev & Sok v R [2015] VSCA 232 Lam v R [2015] NSWCCA 143 Bae v R [2015] NSWCCA 133 Legault v R [2014] NSWCCA 271 | R v Agboti (2014) 246 A Crim R 72 Webber v R [2014] NSWCCA 111 DPP (Cth) v Peng [2014] VSCA 128 Luong & Nguyen v DPP (Cth) (2013) 46 VR 780 R v Calis [2013] QCA 165 R v Thathiah [2012] QCA 195 Nguyen v R [2012] NSWCCA 184 Nguyen v R [2012] VSCA 119 Lau v R [2011] VSCA 324 R v Holland (2011) 205 A Crim R 429 Zhang v R [2011] NSWCCA 233 Nguyen & Phommalysack v R (2011) 31 VR 673 Ng v R (Cth) [2010] NSWCCA 232 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 R v Oprea [2009] QCA 184 R v SC [2008] NSWCCA 29 R v Ong (2007) 176 A Crim R 366 R v Nguyen (2007) 176 A Crim R 366 R v Tran (2007) 172 A Crim R 436 R v Jain [2004] VSCA 30 R v Otto (2005) 157 A Crim R 525 Speer v R [2004] NSWCCA 118 R v Wong & Leung [2002] 127 A Crim169 Wong v R (2001) 207 CLR 584 R v Jiminez [1999] NSWCCA 7 R v Wong & Leung (1999) 48 NSWLR 340 R v Banthithadawit Unreported CCA NSW, 8 April 1994 |
[49]“Prosecution response to further submissions on plea” dated 8 February 2018 (Exhibit “P4”)
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