Director of Public Prosecutions v Chan
[2020] VCC 251
•11 March 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01271
CR-19-01275
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KE JIAN CHAN |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 March 2020 |
| DATE OF SENTENCE: | 11 March 2020 |
| CASE MAY BE CITED AS: | DPP v Chan |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 251 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW – Sentence.
Catchwords: Import a commercial quantity of a border controlled drug – import a marketable quantity of a border controlled drug – deal with money proceeds of crime – considerable delay.
Legislation Cited: Crimes Act (Cth) 1914; s. 16A, s. 17A, s.19AD (2); Sentencing Act 1991; s.6AAA.
Cases Cited:Pham v The Queen [2016] VSCA 259, Nguyen v The Queen[2016] VSCA 198 ,DPP (Cth) v Thomas [2016] VSCA 237.
Sentence:Ke Jian Chan: Total effective sentence of nine and half years’ imprisonment with a new non-parole period of six years and six months.
Ban Ming Teh: Total effective sentence of ten years and three months’ imprisonment with a non-parole period of six years and nine months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Queen | Ms K. Breckweg | Commonwealth Director of Public Prosecutions |
| For Accused Chan | Ms L. Hartnett (Plea) Ms C. Flocke (Sentence) | Giorgianni and Liang Lawyers |
| For Accused Teh | Mr J. Dickson QC | Haines and Polites |
HIS HONOUR:
1Ke Jian Chan, on 5 March 2020, you pleaded guilty to three charges on Indictment No.CR-19-01271 in the County Court at Melbourne:
Charge 1, is importing a border controlled drug in a commercial quantity. That drug was methamphetamine. This charge has a maximum penalty of life imprisonment;
Charge 2, importing a border controlled drug in a commercial quantity. This drug was an N-Isopropylbenzylamine. This charge has a maximum penalty of life imprisonment;
Charge 3, importing a marketable quantity of a border-controlled drug. The drug was methamphetamine. The maximum penalty was 25 years for that offence;
2You are a Malaysian national who arrived here in Australia on 31 May 2012. You are now an unlawful non-citizen here.
3You have no prior convictions in this country. I have sentenced you for subsequent offending for which you have been imprisoned. I will deal with those matters in the sentencing considerations for you. You are not to be punished twice for the other offending for which you currently are serving a term of imprisonment.
4Mr Ban Linh Teh, on 5 March 2020, you pleaded guilty to four charges on Indictment No. CR-19-01275.1 in the County Court at Melbourne:
Charge 1, was importing a commercial quantity of a border controlled drug. The drug was methamphetamine. This charge has a maximum penalty of life imprisonment;
Charge 2, import a commercial quantity of a border controlled drug. This drug was N-Isopropylbenzylamine. This charge has a maximum penalty of life imprisonment;
Charge 3, importing a marketable quantity of a border controlled drug. The drug is methyl amphetamine. This charge has a maximum penalty of 25 years imprisonment and;
Charge 4, dealing with money which is reasonably suspected of being the proceeds of crime. This offence has the maximum penalty of three years' imprisonment.
Personal Circumstances of Ke Jian Chan
5You are 29 years old; you are a citizen of Malaysia. You are the only son of your parents. You have three sisters. One of your younger sisters lives here in Melbourne. Your father requires dialysis treatment and does not work. Your mother is now engaged as your father's carer.
6You were educated to the equivalent of Year 9 in Malaysia. You attended many different primary schools. After leaving school you worked as a kitchen hand in Malaysia. As I said earlier, you came to Australia in 2012. This was the year after your father had been diagnosed with diabetes.
7On arrival in Australia, you attended English courses for two semesters. You have not attended any other courses. You worked part-time in Papa Rich in Glen Waverley, and other places as a kitchen hand. You worked there for approximately five years. You sent some of the funds you had earned home to support your family.
8In 2013, your wife joined you here in Australia. Shortly before your arrest, your wife returned to Malaysia. At the time of her return, she was pregnant with your son. You have never seen your son who was born in Malaysia. Given your present custodial situation your marriage has subsequently ended.
9You have been in custody since 14 August 2017, when you were arrested on the other unrelated matters. You were arrested on that day at the Tullamarine airport in an attempt to travel to New Zealand.
10On 10 April 2019, I sentenced you for other unrelated offending to a term of imprisonment for four and a half years with a non-parole period of three years. A total of 605 days pre-sentence detention was declared at that time.
11I was told that at the day of your plea for these charges, you have 161 days of your minimum term of three years to serve. I am obliged to take the unserved part of your minimum sentence into account when fixing the non-parole period for the current matters.
12You are currently incarcerated at Fulham prison, and have a job repairing small engines. You have completed English and cleaning courses whilst you have been in prison.
13You have been assessed by Dr Aaron Cunningham, Forensic Psychologist, for the purpose of this plea. The report dated 4 March 2020 was Exhibit “C2” on the plea.
14Dr Cunningham's assessment was that you do not suffer from intellectual disability and did not suffer from any mental illness. He noted you engaged in this offending to improve your financial situation. That is something you told him. At the completion of your term of imprisonment, you will be deported to Malaysia.
Personal Circumstances of Ban Ming The
15Mr Teh, you are now 27 years old. On the day of your arrest, you had just turned 25. You are a Malaysian citizen. You came to Australia on 27 July 2015. You are now an unlawful non-citizen.
16Your parents live in Malaysia, your father worked as a motor mechanic but is now retired. You have two sisters and a brother in Malaysia. You completed high school level education and then worked for a technology company selling mobile phones.
17In 2015, you came to Australia for further training. You attended an institute here for two years and worked as a kitchen hand to support yourself. Mr Chan was your boss in the kitchen.
18The delay in this prosecution has resulted in 910 days pre-sentence detention for you. You ultimately pleaded guilty to these charges shortly after conducting a contested committal hearing. No doubt the evidence of the worker, as I will describe him, had some impact on your decision-making process.
19Whilst in custody, you have completed a large number of courses. Exhibit “T2” sets out the certificates of completion and is instructive in the sense of an evaluation of your prospects of rehabilitation. You will be deported at the completion of your sentence.
Circumstance of the offending
20I will now deal with the circumstances of the offending that is applicable to both of you.
21The prosecution tendered a prosecution opening for plea dated 3 March 2020. This was Exhibit “A”. Mr Chan and Mr Teh, you are charged jointly with committing charges numbered 1, 2 and 3. I will outline your offending in respect to those charges at the same time.
22Between 17 September 2016 and 25 January 2017, Mr Chan and Mr Teh, you entered into an agreement with each other and unknown others, to import a border controlled drug, methamphetamine, and an analogue of a border controlled drug known as N-Isopropylbenzylamine into Australia.
23The two of you devised a scheme whereby parcels containing drugs were posted to various Victorian residential premises, addressed to fictitious individuals. The parcels were then collected by third parties referred to by both you, Mr Teh and Mr Chan, as workers who you had recruited. The workers who collected the parcels were paid $100 to $150 for each collection.
24Once the drugs were collected by the workers, they would be delivered to either of you who would then arrange for the re-sale of the drugs. In general terms, Mr Chan's role was to recruit and manage the workers. Mr Teh's role was to remit the money proceeds to the criminal syndicate members in Asia.
25On 25 June 2019, I previously sentenced one of your workers for his part in Charge 1 and Charge 3. He was convicted and sentenced to three years' imprisonment, and to be released after serving two years upon entering a recognisance in the sum of $2000 to be of good behaviour for five years.
26The worker's charges were different to your charges, and he undertook to give evidence against both of you at the committal hearing held on 27 June 2019. Mr Chan, you pleaded guilty at that committal hearing. In July 2016, telephone intercepts were placed on devices used by Mr Chan and later on devices used by Mr Teh and the worker, as part of an investigation into the activities of the Australian-based members of an international crime syndicate involved in the importation of border controlled drugs into Australia from overseas.
27The intercepted telephone communications between the two of you during the course of the investigation revealed the following:
1) Mr Teh and Chan discussed the importation of drugs by arranging for the packages to be posted to borrowed addresses and collected by their workers for payment.
2) The importation of the drugs into Australia would be facilitated by renting various addresses through a Chinese rent website, Yeeyi.com.
3) Mr Chan recruited Malaysian syndicate members to assist with the collection of border controlled drugs from the Australian addresses.
4) Mr Chan coached Malaysian syndicate members on what to say to Customs officers when they arrived here in Australia.
5) Mr Chan assisted Malaysian syndicate members in settling into Australia by paying their rent, school fees and helping them with visa applications.
6) There were discussions concerning the value of the drugs, their appearance and quality, testing the drugs and verifying their quality, masking the smell emanating from drug packaging, the arrival of drugs, providing customers with samples, trafficking the drugs, packaging of the drugs and collection of the drugs.
7) The overseas accounts which Mr Teh would remit the cash to.
8) The worker's experience in collecting drugs.
28Between 6 and 8 October 2016, Mr Chan called the worker on three occasions on a Malaysian phone number. During the calls, the worker responded in terms to indicate that he had either previously spoken with Mr Chan or had been led to expect a call from him. Mr Chan stated that he would purchase a ticket for a worker to fly from Malaysia to Australia on 10 October 2016 and provide him with some local currency.
29Mr Chan gave the worker detailed instructions concerning his travel to Australia including:
(a) How the worker was to answer questions from Customs officers to prevent suspicion regarding his visit to Australia,
(b) Further correspondence between them was to be done via WhatsApp in order to conceal their activities from authorities and;
(c) The worker was not to disclose he knew Chan and to delete their correspondence and conceal the fact of their communications.
30On 10 October 2016, the worker arrived in Australia and contacted Mr Chan, the worker was later introduced to Mr Teh.
31Charge 1, this is the offending at Gillard Street, Burwood address. On 26 November 2016, Australian Border Force intercepted a parcel from the United States addressed to Mr Vincent Toh at Gillard Street, Burwood and labelled, 'Playdoh Zoo Adventure.' The allegation by the prosecution is either Mr Chan or Teh rented this property by advertising on a Chinese language site, Yeeyi.com.
32The package was examined and revealed a crystal-like substance. Subsequent forensic analysis established that the package contained
799.1 grams of pure methamphetamine. The commercial quantity of that drug is 750 grams. That meant that this package was 1.06 times the commercial quantity.33On 29 November 2016, Mr Teh met the worker and gave him the keys to the Burwood property and another property at Blackburn. Mr Teh instructed the worker to go to the Burwood address and await delivery of the parcel.
34On 29 November 2016, Mr Teh telephoned Mr Chan and told him that he had given the worker keys to the two properties. He had instructed the worker to go to the Blackburn property first and see if a card was there, and then to the Burwood property. Mr Teh also had advised the worker of the impending drug delivery. Mr Chan and Teh were discussing advancing money to the worker and another collector and the need to keep accounts of the collector's wages.
35On 30 November 2016, the worker went to the Burwood premises and waited until the evening. The parcel was not delivered. Mr Teh contacted the worker and told him that the parcel had not arrived and allowed him to leave the premises.
36The worker later told investigators that he went back to the premises the following day in a further unsuccessful attempt to collect the parcel. The worker also stated that he was not paid for attending the Burwood property.
37Charge 2, this is the offending at Canterbury Road in Blackburn address. On 9 December 2016, the Australian Border Force detected two postal parcels from Hong Kong addressed to “John” at 215 Canterbury Road in Blackburn. The parcels were examined, and two packages were concealed in decorative paintings.
38The subsequent analysis of the two packages confirmed that the contents of the packages were 1,512.44 grams of N-Isopropylbenzylamine. A commercial quantity for that drug is 750 grams; this package was 2.01 times the commercial quantity for that drug.
39On 9 December 2016, the worker called international couriers, DHL Express, identified himself as “Matt” and inquired about the Blackburn parcel. The worker stated the parcel was for 215 Canterbury Road and that his friend had given him a tracking number. The worker explained that the parcel was for his friend who had asked him to call on his behalf. The worker then made two further calls on 9 December 2016, with no success in arranging a delivery.
40Charge 3, this is the offending at Kintore Crescent in Box Hill. On 22 January 2017, Australian Border Force detected a parcel from the United States addressed to “Alvin Lee” of 30 Kintore Crescent, Box Hill. The parcel was examined, and a white crystalline substance was discovered in a vacuum sealed bag. An analysis of that substance in the package contained 403.9 grams of pure methamphetamine. The marketable quantity for methamphetamine is two grams. This package is therefore 202 times the marketable quantity.
41Around this time, Mr Teh instructed the worker to go to 30 Kintore Crescent in Box Hill and collect the parcel. Mr Teh gave the worker money to pay the landlord for the rent. When he attended, he gave him the name of the person to whom the parcel was addressed.
42The worker later told investigators he went to the Box Hill address and paid the landlord the rent in exchange for the key to the premises. He stayed there until the evening and left when the parcel did not arrive. The worker attended the premises a second time in an unsuccessful attempt to collect the parcel.
43On 24 and 25 January 2017, the worker made further contact with UPS to try and get this parcel delivered. The parcel was never delivered.
44On this occasion, Mr Teh paid the worker a hundred dollars for his attempt to collect the parcel at the Box Hill address.
45Charge 4, this charge only applies to you, Mr Teh, and the proceeds of crime charge is based on the following facts;
46On 13 September 2017, Mr Teh was arrested in Melbourne. At the time of your arrest, you were in possession of a large Harrod's shopping bag that contained $601,825.00 in cash, bundled in large quantities predominantly in Australian $50 notes. Also, in your possession at the time was a mobile phone that showed various “WeChat” calls made and received during the course of that day relating to the movement of money located in your possession. The prosecution does not allege that these sums of money are profits from ongoing drug importations.
47Mr Teh, you were arrested on 13 September 2017, and have been in custody since that day. As I have said, your pre-sentence detention is now 910 days, not including today. At the time of your arrest, you exercised your right to make a no-comment record of interview. You conducted a contested committal but ultimately entered a plea of guilty to all of these four charges on 24 September 2019. You have been awaiting your plea and sentence since that day.
48Mr Chan, you were arrested for these matters on 5 February 2018. In your record of interview you admitted knowing Mr Teh and the worker. You denied any involvement in criminal activity and with drug importation. You have been in custody since the day of your arrest for the other unrelated matter which was in August of 2017.
49That time in custody has been accounted for in your sentence imposed by me on 10 April 2019. The sentence imposed was for four and a half years with a non-parole period of three years' imprisonment. 605 days of
pre-sentence detention was declared on that day.50I have been informed by the prosecution that 161 days remain, that is at the date of your plea, 5 March 2020, of your non-parole period. This is relevant to fixing a new non-parole period pursuant to s.19AD(2) of the Crimes Act (Cth) 1914.
51During the course of the plea there was some argument about the valuations of the imported drugs put forward by the prosecution. I do not propose to descend to resolving those issues.
52The relevant sentencing facts for me to consider are, in respect to Charge 1; the quantity is 1.06 times the commercial quantity; in respect to Charge 2, is 2.01 times the commercial quantity; in respect to Charge 3, it is 202 times the marketable quantity, and in respect of Charge 4, it is six times the minimum amount for that offence.
Sentencing Considerations
53The sentencing considerations for each of you have a significant number of common features. I will deal with them first, and then your specific individual sentencing considerations, and ultimately, your sentences for each of your offences.
54The most significant consideration sentencing Federal offenders such as yourselves, is set out in s.17A of the Crimes Act (Cth) which provides are follows:
55The court shall not pass a sentence of imprisonment on any person unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. A term of imprisonment is the only appropriate sentence for your offences.
56Section 16A of the Crimes Act (Cth) sets out a non-exhaustive list of factors that the court must take into account and consider when sentencing a Federal offender such as yourselves.
57There are many factors I must take into account that are set out in that section and they include the following:
(a) The nature and circumstances of your offending;
(b) If your offending formed part of a course of conduct consisting of a series of criminal acts. In your case there are three charges for you Mr Chan, and four for you Mr Teh;
(c) Any loss of injury or damage resulting from your offending;
(d) The degree to which the person has shown contrition for their offending. In your case remorse is confirmed by your pleas of guilty;
(e) you have pleaded guilty to the offence;
(f) That the deterrent effect of any sentence or order under consideration may have on you personally, that is, specific deterrence;
(g) The deterrent effect that any sentence under consideration may have on other persons, that is, general deterrence. In cases such as this general deterrence is of prime consideration in sentencing;
(h) The need to ensure you are adequately punished for your offending;
(i) Your character antecedents, age, means and physical and mental condition;
(j) The prospects of your rehabilitation; and
(k) The proper effect any sentence or order under consideration would have on your families.
58The sentencing principles relevant to charges of importation of a border controlled drugs are well-settled. The cases of Nguyen and Pham v The Queen, DPP (Cth) v Thomas, have enunciated these principles clearly. Your counsel accepted these principles apply in your cases.
59The relevant sentencing principles may be summarised as follows:
(a) General deterrence is to be given chief weight on sentence and stern punishment will be warranted in almost every case, given the difficulty of detecting the importation offences and the great social consequences that follow;
(b) Where general deterrence is of paramount sentencing considerations, factors personal to you, the offenders, are usually afforded less weight than might otherwise be given, such as good character or your youth and immaturity;
(c) The criminality of the offenders, that is, the two of you, is to be assessed by a consideration of the involvement of the offender and the steps taken to effect the importation. Involvement at any level must attract significant sentences otherwise the interest of deterrence is not served;
(d) Where it is capable of being discerned, the role played by each offender is of great importance in assessing the objective criminality of the offence;
(e) Although the weight of the drug imported is not the principle factor to be considered when fixing the sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of the drugs imported;
(f) Ordinarily the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offences; in many cases the only factor that would lead to a determination that one importation is worse than another would be the amount of the drug involved, where otherwise the circumstances of the importation were the same or very similar;
(g) 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; and
(h) Sentences imposed for drug importation offences 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.
60Each of you have pleaded guilty to the charges on your individual indictments. Mr Chan, you indicated your plea of guilty prior to the committal hearing on 27 June 2019. Mr Teh, you conducted a contested committal hearing but indicated a willingness to plead guilty to negotiated charges which were finalised by your plea on 24 September 2019. Whilst your pleas of guilty are not made at the earliest time but are made prior to the necessity for full trial preparation by the prosecution and the allocation of court time for a joint trial.
61Your pleas do have a utilitarian value for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your pleas allow for the preservation of court and investigative resources to deal with other matters. Your pleas vindicate the public confidence in the legal process set up to protect the community.
62Your pleas are clear indication and acknowledgement by each of you that you accept your responsibility for all your criminal behaviour. Your pleas also recognise that you are willing to facilitate the course of justice in this community. I accept that your pleas to these charges does represent some remorse on your part, and your pleas of guilty in these cases is significant because of the number of witnesses that would have been required to attend court in a trial of this nature, including your co-accused “worker”.
63The offending by each of you is serious, and the indicators of the level of seriousness are as follows:
(a) There are three separate and distinct importations of border controlled drugs in a period of 17 September 2016 to 22 January 2017, a four month period;
(b) The importations of methyl amphetamine are 1.06 times the commercial quantity for Charge 1, and 202 times the marketable quantity or put another way, .53 of a commercial quantity for that particular drug in Charge 3;
(c) The importation of N-Isopropylbenzylamine was two times the commercial quantity for that particular drug in Charge 2;
(e) Whilst it is not clear precisely what each of you were to receive for this offending, your motivation was for financial gain;
(f) Each of you had significant roles in the Australian-end of these importations. Mr Chan, you were the person in charge of recruiting and controlling workers, in effect, the role of a human resources manager in a legitimate business. Mr Teh, you were the person in charge of the handling of the money involved and made by this criminal activity. In effect, you were the financial manager if it was a legitimate business. Each of you were equally involved in this criminal activity, but in different roles;
(g) The fact that none of these imported drugs ever made it to the streets in our community does not lessen your moral culpability for these offences;
(h) There is no evidence to suggest you travelled to Australia to commit these offences. Mr Chan, you have been here in Australia for approximately four years before the commencement of these offences. Mr Teh, you have been in Australia for approximately one year prior to these offences commencing; and
(i) Both of you have previous good character, but this factor is given less weight in sentencing for drug offences under the Commonwealth law.
64I am also required to take into account current sentencing practices in fixing your sentences. That inquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its' own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.
65I have been helpfully provided a sentencing schedule and applicable cases by the prosecutor which is part of Exhibit “B” in this case. The cases referred to include the decisions of intermediate appellate jurisdiction. These decisions provide a yardstick of current sentencing practices across the Commonwealth of Australia for this type of offending and I take these decisions into account when fixing your sentences.
66I am also required to take into account the sentencing principle of totality and I have made orders for cumulation in respect of each of the charges to reflect the additional criminality but have moderated the degree of cumulation so as not to impose a crushing sentence upon either of you.
67In each of your cases, there has been considerable delay between your arrest date and the date of your sentence. The delay has been caused by some confusion, if I could call it that, between the State and Commonwealth authorities as to which of them had the carriage of the prosecutions.
68There was then further delay due to the finalisation of the prosecution of the worker who was to give evidence against each of you.
69The impact of the delay on each of you is that the time that you have spent in custody on remand and have had the cloud of uncertainty hanging over each of you, which necessarily would have made your time in custody to date, more onerous. I take the factor of delay into account when fixing your sentences.
70As I said earlier, you will both be deported to Malaysia after you have completed your sentences. In the case of Stephen Loftus v The Queen[1], the Court of Appeal said as follows:
'The potential for an offender to be deported at the completion of a sentence is relevant in sentencing in two ways. First, the prospect of deportation renders imprisonment more onerous because a prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.'
[1]Stephen Loftus v The Queen [2019] VSCA 24
71I take into account that it is most likely that you will both be deported to Malaysia at the completion of your sentences. I accept that the prospect will render your incarceration more difficult and that you have the additional punishment that the prospects of settling here, even if just a hope on your part, has been destroyed.
Ke Jian Chan
72Mr Chan, you are now 29 years old. You are currently serving a sentence imposed by me for unrelated offending on 10 April 2019. The non-parole period for that sentence, of the un-expired part, was 155 days. The offending for that sentence occurred on or about 3 August 2017. The offending was subsequent to the offending in this case. It is unfortunate that the plea for all of this offending was not done at the same time. I will take into account that you have been in custody since 17 August 2017, when you were arrested for the cigarette importation offences. Due to the declaration of the pre-sentence detention in that sentence, you have no days of pre-sentence detention in respect of these charges.
73Your role in these offences is a significant role in the Australian-end of these importations of border controlled drugs.
74You have been assessed by Dr Aaron Cunningham, Forensic Psychologist for the purposes of the plea. You do not have any intellectual disability or mental illness. In his opinion, your motivation was to improve your financial position.
75I assess your prospects of rehabilitation as fair. The full picture of your criminal activity in Australia is that you were involved in these drug importations first and then the cigarette importation offending. By the time you are released from prison and deported to your family in Malaysia, you will have spent years in prison. You will serve your time in prison in a foreign country with only your sister to visit you, and very few other people with whom you can communicate directly with.
76I note that you speak Mandarin, so will not be totally isolated in prison. Nevertheless, it will make your sentence more onerous. You will have no support from your family, other than your sister, whilst in prison.
77The only appropriate sentence for your offending is a lengthy term of imprisonment to satisfy the sentencing principles set out in these reasons for sentence.
78Mr Chan, would you please stand.
79In respect of Charge 1, you are convicted and sentenced to seven years' imprisonment. That is the base sentence. That sentence is to commence on 11 March 2020.
80In respect to Charge 2, you are convicted and sentenced to seven years' imprisonment. That sentence is to commence five and a half years before the expiration of the sentence in Charge 1.
81In respect to Charge 3, you are convicted and sentenced to five years imprisonment. That sentence is to commence four years before the expiration of the sentence in Charge 2.
82That is a total effective sentence of nine and half years' imprisonment. Pursuant to s.19AD(2) of the Commonwealth Crimes Act, I fix a new non-parole period of six years and six months.
83Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a total of 12 years with a nine year non-parole period.
84You have no pre-sentence detention and I have signed the forensic sample order that was requested by the Crown.
85You can take a seat. Mr Interpreter, can you just tell him what that means.
86INTERPRETER: Yes, Your Honour.
87HIS HONOUR: Thank you.
Ban Ming Teh
88Mr Teh, you are now 27 years old. At the time of your offending, you had just turned 25. You were arrested for these charges on 13 September 2017. You have been in custody for a total of 910 days pre-sentence detention not including this day.
89Your offending is serious, and the only appropriate sentence is a term of imprisonment with a non-parole period. You have a further offence of dealing with the proceeds of crime, than your co-accused. It is not the prosecution's case that the $600,000 in your possession at the time of your arrest is the profit from drug importation offences.
90Nevertheless, this offence occurred some nine months after the common offences of drug importation with Mr Chan. This offending requires some cumulation of your sentence in order to reflect the additional criminality that it represents.
91I regard your prospects of rehabilitation as fair. You have engaged in courses and retraining whilst on remand for these offences. You will be deported to Malaysia at the completion of your sentence for these offences. You will be returning to your home country after spending years in an Australian prison which will make your reintegration into Malaysian society more difficult. You have limited family support whilst you are here in prison.
92The sentencing principles outlined in these reasons, dictate that a term of imprisonment with a non-parole period is the only just sentence.
93Mr Teh, would you stand please.
94In respect of Charge 1, you are convicted and sentenced to seven years' imprisonment. That sentence is to commence today, 11 March 2020. That is the base sentence.
95Charge 2, you are convicted and sentenced to seven years' imprisonment. That sentence is to commence five and a half years before the completion of the sentence in Charge 1.
96Charge 3, you are convicted and sentenced to five years' imprisonment. That sentence is to commence four years before the completion of a sentence in Charges 2.
97In respect of Charge 4, you are convicted and sentenced to 18 months' imprisonment and that sentence is to commence nine months before the sentence in Charge 3 is completed.
98That is a total effective sentence of ten years and three months' imprisonment. I fix a non-parole period of six years and nine months' imprisonment.
99Pursuant to s.6AAA, but for your plea of guilty, I would have sentenced you to 13 years with a ten year non-parole period.
100I declare that you have served 910 days in respect of the sentences I have just imposed, as pre-sentence detention. I have ordered a forensic sample order. I make a forfeiture order in respect of the $601,825.00 that was found in your possession on the day your arrest.
101HIS HONOUR: Has someone checked my arithmetic?
102MS BRECKWEG: I am just doing that now, Your Honour.
103HIS HONOUR: So just to clarify that. I have announced the commencement dates of the sentences, but just so it is clear, this is what I am seeking to achieve.
104The case sentence is in respect of - Mr Teh - Charge 1 of seven years.' I am cumulating the Charge 2 sentence, one and a half years'; I am cumulating the other Charge 3 sentence, one year, and I am cumulating Charge 4, nine months.
105MS BRECKWEG: Yes, that's correct, Your Honour. The only issue I have is with the expression where it is, for instance, Mr Chan, Charge 2, seven years, sorry, Charge 3, five years commence four years before the expiration of Charges 1 and 2.
106HIS HONOUR: Sentence each.
107MS BRECKWEG: It should - yes - it should only be Charge 2, not Charge 1.
108HIS HONOUR: All right.
109MS BRECKWEG: And the same with Mr Teh, otherwise because both of them are ending on different days.
110HIS HONOUR: Yes, okay, thanks. I will make those amendments, so that is in respect of Mr Teh. I just want to clarify Mr Chan. The base sentence of seven years is Charge 1, seven years.
111MS BRECKWEG: Yes.
112HIS HONOUR: Charge 2, it is one and a half years cumulation and Charge 3, it is one year cumulation.
113MS BRECKWEG: Yes. So Charge 2 technically begins on 11/09/21 and finishes on 11/09/28.
114HIS HONOUR: Yes.
115MS BRECKWEG: Charge 3 starts 11/09/24, finishes 11/09/29; 11/03/20 to 11/09/29 is nine and a half years.
116HIS HONOUR: Yes. Thanks. Counsel are you right with those?
117MS FLOCKE: Yes, Your Honour.
118MR DICKSON: Yes, at first blush it seems correct, Your Honour.
119HIS HONOUR: Thanks. If there is any problem, contact my associate and we will organise a day and we will get the two prisoners back and do it.
120MR DICKSON: Yes, Your Honour.
121HIS HONOUR: Thanks. Thank you. If you could remove - sorry - thank you very much Mr Interpreter, you can step out of there. Thanks for your assistance Mr Zhou.
122INTERPRETER: Thank you, Your Honour.
123HIS HONOUR: Yes, thank you. Thank you, gentlemen, you can remove the prisoners. Just before you go, can someone just complete the forensic procedure documents. There is just a blank left there about the Constable or whoever is to attend. I just want to take the opportunity to thank counsel for their assistance in this case. Thank you.
124MS BRECKWEG: Thank Your Honour.
125HIS HONOUR: You are excused. I have got some other matter to deal with.
126MR DICKSON: Thank you, Your Honour.
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