Director of Public Prosecutions v Abe and Kijima
[2020] VCC 1347
•28 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-19-00113
Case No CR-19-00549
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYUTARO ABE SAKIYA KIJIMA |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2020 | |
DATE OF SENTENCE: | 28 August 2020 | |
CASE MAY BE CITED AS: | DPP v Abe and Kijima | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1347 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Pleas of guilty – One charge of importing a commercial quantity of a border controlled drug – Approximately 2.3 times the commercial quantity in pure weight – Serious offending but not at high end – Both offenders were couriers – Offenders reckless as to nature of substance in their suitcases – Young offenders – No prior criminal history – Very strong prospects of rehabilitation – Circumstances of COVID-19 taken into account.
Legislation Cited: Criminal CodeAct 1995 (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991.
Cases Cited:Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673; The Queen v Shi [2004] NSWCCA 135; DPP v Weybury [2018] VSCA 120; The Queen v Pham (2015) 256 CLR 550.
Sentence: Imprisonment for a period of 6 years with a non-parole period of 3 years in relation to both offenders.
APPEARANCES: | Counsel | Solicitors |
| For the CDPP For the Accused Ryutaro Abe | Mr P Doyle Mr C Pearson | Commonwealth Director of Public Prosecutions James Dowsley & Associates |
| For the Accused Sakiya Kijima | Mr C Terry | Victoria Legal Aid |
HIS HONOUR:
Introduction
Sakiya Kijima and Ryutaro Abe, you have each pleaded guilty to one charge of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1(1) of the Criminal CodeAct 1995 (Cth), which carries a maximum penalty of life imprisonment and/or 7500 penalty units.
You both have no prior criminal history.
Circumstances of the Offending
A prosecution opening was tendered on the plea and may be summarised as follows:
On 17 October 2018 you both travelled from Tokyo, Japan to Bangkok, Thailand on Thai Airways flight TG641.
On 18 October 2018, the following bookings were made for you both:
· Accommodation at Albert Heights Serviced Apartments in East Melbourne from 23 to 26 October 2018;
· A Thai Airways flight from Bangkok to Melbourne, at 12.15 am on
23 October 2018; and
· A Thai Airways flight from Melbourne to Bangkok, at 4.15 pm on
26 October 2018.
On 19 October 2018, the following bookings were made for you both:
· Accommodation at the Grand President Apartment in Bangkok from
20 to 23 October 2018;
· Accommodation at the Grand President Apartment in Bangkok from
26 to 29 October 2018; and
· A Thai Airways flight from Bangkok to Tokyo, at 8 am on
30 October 2018.
On 22 October 2018, the following bookings were made for you both:
· Accommodation at Sunshine Motor Inn, Melbourne from
26 October 2018 to 29 October 2018;
· Thai Airways flight TG465, from Bangkok to Melbourne, at 12.15 am on 26 October 2018; and
· Thai Airways flight TG466, from Melbourne to Bangkok, at 3.25 pm on 29 October 2018; and
· A Thai Airways flight from Bangkok to Tokyo, at 8 am on
1 November 2018.
On 23 October 2018, the following bookings were made in cash for you both:
· Thai Airways flight TG465, from Bangkok to Melbourne, at 12.15 am on 26 October 2018; and
· Japan Airways flight from Melbourne to Tokyo departing
29 October 2018 at 00.45 am.
All bookings were through travel company HIS Tours Co Ltd, based in Bangkok.
On 26 October 2018 at approximately 1 pm, you both arrived together in Melbourne on Thai Airways flight TG465 from Bangkok, Thailand.
You both completed an Incoming Passenger Card (IPC) and you each declared that you were not in possession of any prohibited goods. You, Mr Abe indicated your reason for travel to Australia was for a vacation and that you intended to stay for three days.
At approximately 1.11 pm, Australian Border Force (ABF) offices approached you, Mr Abe, and you confirmed that you were travelling with you, Mr Kijima.
You both each collected your baggage from the carousel and were subsequently both selected for a baggage examination.
Ryutaro Abe
I turn first to you, Mr Abe. On your arrival into Australia, you were in possession of a Burberry brand suitcase covered in a black external suitcase cover, and a camouflage satchel bag.
On your arrival at the baggage examination area at approximately 1.24 pm, you stated to ABF officer Thomas Zyla-Cook that you had read and understood the contents of the IPC and had signed it. You confirmed that all the baggage was yours, that you had packed your bags yourself and that you were fully aware of the contents of the bags.
During the examination of your luggage under caution in the interview room, you stated that your intended address in Australia was the Sunshine Motor Inn and you intended to stay in Australia from 26 October and were flying out on the evening of 28 October.
Your Burberry suitcase was emptied and x-rayed. Anomalies were observed in the lining of the suitcase.
At approximately 3.47 pm, customs used a box cutter to cut the inside lining of your suitcase, at which time they located a thick lining wrapped in black electrical tape. When the lining was drilled, a white crystalline substance was located, which on presumptive testing returned a positive result for methamphetamine.
The package weighed approximately 2.205 kilograms and the empty suitcase weighed 6.476 kilograms. Subsequent formal forensic analysis of the contents of the package revealed that it contained 1.766 kilograms of pure methamphetamine.
On 26 October 2018, you participated in three records of conversation with police during which you stated that:
· you did not try to smuggle prohibited substances;
· you had flown from Japan to Thailand and from Thailand to Australia;
· you were unemployed;
· you intended to stay at the Sunshine Motor Inn whilst in Melbourne;
· the hotel booking was for the 26th to the 29th but your flight leaves on the evening of the 28th; and
· you have sometimes travelled to Australia before.
Forensic examination of the fine white crystalline material located in your suitcase revealed the gross weight to be 2205.7 grams. Forensic analysis revealed that the substance was methamphetamine, with a purity of
80.1 percent. The pure weight was 1766.7 grams. A commercial quantity of methamphetamine is 750 grams.
The wholesale value of the methamphetamine from your suitcase is between $165,000 and $264,000. The street value is between $551,425 and $771,995.
Sakiya Kijima
I turn to you, Mr Kijima. At the time of arrival, you were in possession of a brown coloured patterned Bojuegzi brand suitcase, and a red Supreme brand duffel bag.
On your arrival at the secondary or baggage examination area at approximately 1.24 pm, you stated to ABF officer Mr Zyla-Cook that you had read and understood the contents of your IPC and had signed it. You confirmed that all the baggage was yours, that you had packed your bags yourself and that you were fully aware of the contents of the bags.
Your suitcase was emptied and x-rayed. Anomalies were observed at the base of the suitcase. You were cautioned and the baggage examination continued in the interview room under audio-visual recording.
At approximately 2.47 pm, customs officers used a box cutter to cut the inside lining of the base of the suitcase at which time a thick black electrical tape lining was located. Inside the lining was a white powder that tested presumptively positive for methamphetamine. The package weighed approximately 2.196 kilograms and the empty suitcase weighed 6.796 kilograms. Subsequent formal forensic analysis of the contents of the package revealed it contained 1.764 kilograms of pure methamphetamine.
On 26 October 2018, you participated in three records of interview with police at which time you stated, amongst other things:
· that you had travelled to Melbourne from Thailand with Mr Abe as a tourist and planned to stay there for three days;
· that you bought the suitcase from an ordinary shop in Thailand;
· that you did not know there were any drugs in the suitcase; and
· that you packed the suitcase yourself.
In a further interview with police on the evening of 26 October 2018, you again denied any knowledge of illicit drugs in your luggage and said you purchased the suitcase in Thailand as you were carrying items you had purchased in Thailand.
Forensic examination of the fine white crystalline material located in your suitcase revealed the gross weight to be 2196.8 grams. Forensic analysis revealed that the substance was methamphetamine, with a purity of
80.3 per cent. The pure weight of which was 1764 grams.
The wholesale value of the methamphetamine from your suitcase is between $165,000 and $264,000. The street value is between $549,200 and $768,880.
The contents of mobile telephones belonging to you both were analysed. The relevant communications are annexed to the prosecution opening and I will not reproduce them in this summary however they largely confirm the travel movements of both of you over the relevant period and some communication relied on in relation to payment. The calls also explain the variations in relation to the accommodation bookings which I was told were as a result of the drop off location changing from Sydney to Melbourne.
Nature and gravity of the offending
The offence of importing a commercial quantity of a border controlled drug is a very serious offence which is reflected by the maximum penalty of life imprisonment.
In relation to both of you, it was conceded by your counsel that you were aware that what you were carrying in your luggage probably contained illicit drugs, however you proceeded nonetheless. That is, you were reckless as to the nature of the substance you were carrying. The prosecution accept this characterisation of the conduct.
The amount of the drug that you imported in each case was substantially the same which was just over 2.3 times the commercial quantity in pure weight, with a potential street value exceeding $700,000. As is well established on the authorities, the amount of the drug involved in an importation, is a highly relevant factor in determining the objective seriousness of the offence.[1]
[1]Nguyen v The Queen and Phommalysack v The Queen (2011) 31 VR 673 at [34].
As to you Mr Abe, you instruct that you were told you would receive about 20,000-30,000 Yen, which equates currently to about $260 - $390 Australian dollars plus your flights and accommodation for making the trip. You, Mr Kijima state that you were told by Mr Abe that you could receive a small financial gain if you assisted in smuggling items into Australia.
In sentencing submissions, the prosecution referred the court to the well known propositions applicable to sentencing for serious drug offences and the adoption of those principles by the Victorian Court of Appeal in Nguyen v The Queen and Phommalysack v The Queen[2] and the 13 propositions to be considered when assessing the seriousness of the offending. While I have taken the 13 propositions into account, I highlight the following:
[2] (2011) 31 VR 673 at [33] and [34] (Maxwell P).
Proposition (7):
The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
Proposition (8):
The sentence to be imposed for a drug importation offence must signal to would be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: and
Proposition (11):
Where offenders are young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
The prosecution accepts that your roles were that of couriers and there is no evidence to suggest that you were the organisers of this importation or had any part in the ownership of the drugs. Nonetheless, the role of a courier is indispensable and drug networks can only continue to exist if people like you are willing to take the risk and undertake the task of being a courier.[3]
[3]The Queen v Shi [2004] NSWCCA 135 at [34].
The prosecution also accepts that you were both acting on the instructions of others who were clearly part of a well planned operation involving organisations in a number of locations including Japan, Thailand and Australia.
As to you, Mr Abe, the prosecution does not accept that the reward you said that you would receive, would be as little as stated. As was discussed during the plea hearing, you knew while you were in Bangkok that you were to pick up a suitcase which contained an illegal product, probably drugs, and you therefore were cognisant of the extreme risks involved. It would seem extraordinary that you would engage in the activity over a period of days with associated risks, for the small amount of money you suggest you were to be paid. I therefore agree with the prosecution and do not accept that you were to only be paid the amount you stated. As was made clear in Nguyen and Phommalysack as one of the 13 propositions:
As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit.[4]
[4] Proposition (6) in Nguyen and Phommalysack.
As I have already stated, the offence is by its nature a very serious offence. Here the amount of drugs that each of you imported was approximately 2.3 times the commercial quantity. That said, the evidence also clearly supports the fact that your roles were limited to that of couriers.
Both your counsel submitted that the amount of the drugs imported, together with the other objective factors, suggest that the offending is towards the lower end. While terms such as ‘lower end’ and ‘mid-range’ are often used to assist the court, without being critical of that submission, I note in that regard what the Court of Appeal has said, that classifications in terms such as 'mid-range' carries a risk that it will attract reference to current sentencing practices for offences previously categorised in a particular range thus bringing the risk of limiting the instinctive synthesis.[5] What can be said is that while the offending is serious, in all the circumstances it is not at the high end.
[5]DPP v Weybury [2018] VSCA 120 at [54] (Priest JA).
Personal circumstances
Ryutaro Abe
I turn to your personal circumstances and first to you, Mr Abe.
Ryutaro Abe, you are 23 years of age and were 21 at the time of the offending when you arrived in Australia.
You were born and raised in Chiba which is a city south east of Tokyo. You have an older brother and a younger sister. Your mother has worked at home raising the family while your father has predominantly been employed as a chef. You have enjoyed strong relationships with your parents and your siblings, experiencing a safe and happy upbringing.
You attended public elementary and secondary schools and completed the Japanese equivalent of VCE. While still at school you worked part-time as a kitchen hand in local restaurants and you continued doing that kind of work after leaving school. Prior to coming to Australia, you worked on a casual basis as a construction labourer.
You were in a relationship with a woman in Japan prior to leaving to come to Australia and you have maintained that relationship by telephone contact whilst in custody.
A report was prepared and tendered on the plea by Ian McKinnon, consultant psychologist. Mr McKinnon provided general background history and a psychological assessment of you. At the time of the assessment Mr McKinnon was of the view that you were not suffering with any symptoms that met the clinical criteria for any major diagnosable psychological disorder. You have never used any illicit substances and only occasionally drink alcohol. You enjoy general good physical health however you were diagnosed with type I diabetes in your mid-adolescence and you continue to receive insulin which has been able to be maintained whilst in custody.
Five references were tendered on your behalf from friends and family in Japan, including from your mother and your partner. Each of the references speak of your otherwise good character, your excellent work history and the fact that this offending is clearly out of character. They also demonstrate that upon your return to Japan you have an extensive support network.
Sakiya Kijima
I turn to you, Mr Kijima.
Sakiya Kijima, you are 23 years of age and were 21 at the time of the offending when you arrived in Australia.
You were born and raised in the Chiba area and you are the only child of your mother and father. Your father worked in the building industry while your mother was unable to work as she has battled chronic kidney disease throughout her adult life. You have a close and supportive relationship with both parents who are aware of your offending and have maintained contact with you on remand.
You completed primary and secondary school and conducted further education during your secondary school years. You have never suffered any behavioural issues and assess yourself as an average student.
After completing your secondary schooling, you obtained work in the construction company that your father worked at. That company supported you in obtaining entry level qualifications in operating heavy machinery and in other aspects of civil work. You worked for that company for about three years during the time you were living at home with your parents.
At a very young age you were involved in relationship and at 17 years of age you became a father. You were married to the mother of your son however the relationship broke down when your son was three years of age. Following the end of the relationship your ex-wife had little contact with you or your child, leaving you as the sole carer. Since the relationship broke down you have lived with your parents. Your mother and father have assisted you in raising your son and have custody of him while you have been on remand in Australia.
You have never had any issues with drugs or alcohol and since being in custody have been subjected to random urine screens which have all been negative. You do not suffer from any mental health issues, although it was submitted on your behalf that being isolated in Australia, separated from your family and your son, causes you anxiety however it has not resulted in any identifiable psychological condition.
Five references were tendered on your behalf from friends and work colleagues. They speak of your good character and excellent work ethic. In general terms the writers express their surprise at hearing of your involvement in this offence. It is clear that you also have support in the community when you return to Japan.
You also wrote a letter to the court providing some further background information in relation to your family and your son. You explain how you have involved yourself in the prison environment, learning English and working in the laundry. You also state that you appreciate the impact drugs have on lives in the community and you express your sorrow at being involved in the offending. While letters such as yours are often viewed with caution, I accept in all the circumstances that your what is contained in your letter is genuine.
Relevant sentencing considerations
As the charge to which you both fall to be sentenced is a Commonwealth charge, I am required to take into account a number of matters pursuant to s 16A of the Crimes Act 1914 (Cth).
As noted above, the principles applicable to sentencing an offender for drug importations have been clearly expressed in decisions of the Victorian Court of Appeal and other intermediate appellate courts.[6]
[6]Nguyen v The Queen and Phommalysack v The Queen (2011) 31 VR 673 at [33]-[34] (Maxwell P).
The authorities are clear, that given the great social consequences that flow from drug importation, general deterrence must be given primary consideration in the sentencing equation and that stern punishment will be warranted in almost every case.[7] Denunciation of your conduct is also a relevant sentencing consideration.
[7] Ibid at [34], proposition (7).
As to specific deterrence, you both come before the court as young offenders with no prior criminal history and I accept that you were recruited into this conduct without any connection to the ownership of these drugs. Further, you have both experienced the consequences of being separated from your families and country as a result of the risk you took. As such in my view there is little need for specific deterrence to be given weight in the sentencing equation in this instance.
I take into account your pleas of guilty. Although the plea offers were not made until the week before the trial, your pleas of guilty do have a utilitarian benefit, saving the community the time and expense of a trial. I also note that no witnesses were cross-examined at the committal hearing. As such your pleas have facilitated the course of justice and demonstrate your acceptance of responsibility.
I also take into account that you were both 21 years of age at the time of the offending and therefore your rehabilitation must remain prominent in the sentencing equation however must be balanced with the seriousness of the offence to which each of you have pleaded guilty.
As to your prospects of rehabilitation, you have accepted that you will be required to serve a significant term of imprisonment and as such you have both adapted well to custody engaging yourselves in work and improving your English skills. Further, you have very supportive families who will continue to support you in custody and upon your return to Japan. Thus, in the circumstances, in my view, in both cases I asses your prospects of rehabilitation as very strong.
I take into account the current circumstances surrounding the COVID‑19 pandemic. Since the onset of the pandemic there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. In your specific circumstances, while your contact with your families is via telephone and has continued, I accept that life in prison is generally more difficult and is a matter to be taken into account in your favour.
As this is a Commonwealth offence, I am required to have regard to sentences that have been imposed in other states and territories in order to find guidance as to the relevant sentencing principles and to assist in achieving reasonable consistency.[8] To that end, the prosecution and the defence summarised a number of case examples which I have taken into account.
[8]The Queen v Pham (2015) 256 CLR 550 at [47]-[50].
Finally, while it is common ground that a term of imprisonment must be imposed, pursuant to s 17A(1) of the Crimes Act 1914 (Cth), I am satisfied that no other sentence is appropriate other than a term of imprisonment.
Sentence
Mr Abe and Mr Kijima, please stand.
Rytuaro Abe and Sakiya Kijima on Charge 1, import a commercial quantity of a border controlled drug, you will each be convicted and sentenced to 6 years imprisonment. I direct that you each serve a period of 3 years before becoming eligible for parole.
I declare that 672 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 8 years imprisonment with a non-parole period of 5 years.
Mr Abe and Mr Kajima, on the charge that you pleaded guilty to I have sentenced you to 6 years imprisonment. And I made a direction that you serve a period of 3 years imprisonment before becoming eligible for parole.
What that means is that once you have served 3 years you will be eligible to be assessed by the Parole Board in order to, in their view, grant your parole if that is appropriate at the time. And of the 6 year sentence, you have already served 672 days of that sentence. So that has already been done. So in about a year or so you might be eligible for parole. But that is a matter not for the court to decide but for the Parole Board. And if you are granted parole you will have to abide by any instructions the Parole Board gives you at that time.
If you are granted parole after 3 years, then you are subject to conditions of parole and any breach of those conditions might mean you have to go back to prison and serve the remainder of the 6 year sentence.
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