Director of Public Prosecutions v Goh

[2020] VCC 1603

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00028

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENG LEE GOH

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2020
DATE OF SENTENCE:	7 October 2020
CASE MAY BE CITED AS:	DPP v Goh
MEDIUM NEUTRAL CITATION:	[2020] VCC 1603

REASONS FOR SENTENCE
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Subject: trafficking in a marketable quantity of a border control drug contrary to Criminal Code (Cth)

Catchwords: guilty plea – foreign national – travelled to Australia to facilitate sale of 1 kg (784.2 g pure) of heroin – 3.14 x marketable quantity - delivered heroin to a buyer in Melbourne and arrested – no criminal record – successful businessmen in Malaysia – no evidence of motive for offending – no evidence of benefit – assumed financial gain – exceptional progress to reformation while on remand – excellent prospects of rehabilitation justifying shorter minimum term

Legislation Cited: Part 1B of the Commonwealth Crimes Act 1914 (Cth)

Cases Cited: R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238, at [72]followed in Nguyen v R; Phommalysack v R (2011) 31 VR 673 at [34] and Suky Lieu v The Queen [2016] VSCA 277, at [41]-[43], DPP(Cth) v Estrada [2014] VSCA, 128 Power v The Queen (1974) 131 CLR 623 at 628 – 629

Sentence: 6 years imprisonment; non-parole period of 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Manning	Office of Public Prosecutions
For the Accused	Ms C. Lynch	Papa Hughes Lawyers

HIS HONOUR:

1Beng Lee Goh, you have pleaded guilty to one charge of trafficking a marketable quantity of heroin.

2Your offending occurred between 4 and 7 January 2019, when you were involved in the delivery of the sale of a ticket, or 1 kg of heroin, which contained 784.2 grams of pure heroin.

3Under federal law, a marketable quantity of heroin is 250 grams.

4The circumstances of your offending are set out in the amended prosecution opening on plea dated 3 September 2020.  They are agreed facts.

5A woman named Zailee Zainal was a member of the Malindo Air cabin crew airline who was bringing tickets or (1 kg packages) of heroin into Australia on flights from Malaysia for a transnational drug syndicate.

6In late December 2018, a Melbourne-based syndicate member, “Johnny” agreed to supply a person with two tickets, that is, 2 kgs of heroin in Melbourne CBD on 8 January 2019 for $310,000.

7Shortly after, a Malaysian based syndicate member, “Od Mei” arranged for Zainal to bring into Melbourne two tickets, one on a 4 January flight and the other on a 7 January flight.

8On 31 December 2018, you, and Sean Wah Tay (“Tah”) and Yen Ping Kan (“Kan”), booked return tickets from Kuala Lumpur to Melbourne, to depart
3 January 2019 and return on 10 January 2019.

9On 4 January 2019, Zainal arrived in Melbourne, , on a flight from Malaysia, carrying a ticket of heroin.  You, in company with Tah and Kan, arrived in Melbourne on the same flight.

10With Tah and Kan, you checked into a room at the Oaks on Market Hotel at 8.41 am.  Around 10.10 am, the three of you went to the Oaks on Collins Hotel where you went to the level one toilets for a minute, before leaving the building. Tah and you waited outside. A minute later, Kan returned to the toilets where she collected the heroin from Zainal.  Kan left the hotel with the heroin and returned to Oaks on Market with Tah and you.

11On the morning of 7 January, Zainal arrived at Melbourne on another Malaysian flight with a second kilogram of heroin.  Police arrested her at the airport and seized the heroin.

12Other syndicate members became aware of Zainal’s arrest.

13At 3:27 pm, Johnny told the buyer that there would be only one ticket delivered by his friend, referring to you, the next morning.

14During the evening, messages, found on a phone in your possession when you were arrested, were exchanged with Tah’s wife about the arrest.

15At 7:22 pm, Johnny told the buyer to meet two men, both named Tommy, at the Immigration Museum at 10:30 am next morning, where they would deliver the heroin to him.

16On 8 January 2019, before the scheduled meeting, the buyer sent Johnny an image of a "minion" T-shirt which would be worn by the person who would collect and pay for the heroin.

17At 10:04 am, you left Oaks on Market with Tah.  Two minutes later he returned to the hotel and you walked to the Museum.

18At 10.30, a man wearing the "minion" T-shirt, met you at the museum.  You walked with him to the toilets where you made a phone call before supplying him with the heroin.  When you were walking with him to his car to collect payment, $155,000, police arrested you.

19The 1 kg package contained 784.2 g of pure heroin.  

20Two days later, Tah and Kan flew out of Melbourne to Malaysia.

21You had been taken into custody following your arrest and when police interviewed you, you said you arrived in Melbourne on 4 January.  You described yourself as a businessman and said you speak several languages. You exercised your right to remain silent when police questioned you about the heroin sale.

22You pleaded guilty to the charge before the court at the committal hearing, before any witnesses were examined. 

23You have no criminal record.

Personal Circumstances

24You were born on 30 August 1976 in Malaysia.  You are now aged 44 years.

25You are the youngest of three children.  You grew up in a small town, Alor Setar, in northern Malaysia.  Your parents worked as hawkers selling noodles on the street to provide for you.  While your parents were poor, you grew up in a happy family. You did well at school and, in 1999, you graduated from the Universiti Ebangsaan (National University of Malaysia) with a degree in Mass Communication.  As a graduate, you worked for a life insurance company and in 2005, you were promoted to group sales manager.

26In 2006, as a result of a degenerative spine condition, your father became bedridden.  You looked after your parents who lived with you.

27In 2008, you married your first wife.  You were together only a short time.  In 2009 your father died.

28In 2012, your married your second wife.  Your first daughter was born later that year.  In 2015, your second daughter was born.

29In 2013, with two friends, you set up a medical equipment manufacturing company, 3D Instrumentation, in Malaysia.  It proved successful and now employs 71 staff.  In 2017, the business won a Malaysian government sponsored "Bioeconomy Excellence" award.

30Ms Lynch, who appeared on your behalf, told me with success came conceit and, seduced by an extravagant lifestyle, you spent more time with business associates, drinking heavily, and less with your family.

31I have read a number of references from family members, business associates and friends.

32Your mother wrote she and your father worked hard to provide better opportunities for their children and you responded by studying and working hard yourself.  She described you as a good son.  She has lived with you for decades. She is 73 years old now and her health is poor and she wants you home to help with her care.

33Your wife described you as a dutiful son, a loving husband and a good father. She wrote there were times when you lost yourself to alcohol and isolated yourself from the family.  However, she believes you have repented and she will stand by you.

34Your sister and brother confirmed you had a poor but happy upbringing.  Your family was very proud when you graduated from university and have admired your success in business.  Your sister works in your business and your brother is a university graduate too.  They believe you are still a good man and want you back with your family.

35Your founding business partners were shocked to learn of your crime.  They know you as humble and polite, intelligent and creative.  They have offered you a position as executive director in the business when you are released from prison.

36Other friends and colleagues, including a retired federal court registrar, find your offending hard to comprehend.  They only know you as a good, caring, family man.

37I have also read your letter of apology.

38You wrote you regret deeply the wrong decision you made.

39You have always worked hard to achieve your goals and, when success came, you became arrogant.  Your imprisonment has taught you humility.  In custody, you have had to mourn the loss of your grandfather who died in 2019, and your grandmother, who died in July this year.  You miss your children, wife and mother and blame yourself for your absence from them.

40You wrote:

“The education and programs in MRC have changed me to become a new person that is more sensible, responsible, humble, respectful… The drugs and alcohol programs have completed me with the knowledge of drugs and alcohol and the harm it brings.”

41From the early days of your remand you have been focused on your rehabilitation.

42In reception into prison, on 11 January 2019, you said you would like to go to church to see the chaplain and to go to the gym to stay fit.  You also said you were a good cook and would like to work in the kitchen.

43You completed Occupational Health and Safety and food handling courses and got work in the kitchen.  Your work was highly regarded.  You completed further kitchen courses and were promoted to special duties in the staff dining area.

44You have worked hard to improve your English and have maintained good physical and mental health.

45You speak regularly to your wife and sister by phone.

46A note in your prison file, dated 17 July 2020 reads:

"He appears fully invested in his personal development and is devoted to his wife and children… Beng received excellent feedback from staff in the kitchen where he has been working for over a year.  He has been consistently good at his work, is punctual and works hard.  Beng has improved the quality and variation of the food in the staff kitchen… Beng's English has improved dramatically… I can’t recall seeing a prisoner being so driven to developing himself into a better more functional person."

Offending

47In relation to your offending, Ms Lynch submitted your role was very limited and should be likened to a “courier”.  While she acknowledged your offending was serious. she submitted it falls towards the lower end of seriousness for offences of the type considering:

·     you were involved in a single episode of trafficking;

·     it lacked sophistication;

·     you were only the conduit to facilitate delivery of the drug;

·     the quantity of drug was a mid-range marketable quantity;

·     there is no evidence of actual financial gain;

48She submitted there was insufficient evidence to establish you, and not Tah, sent Tah’s wife the messages about the courier’s arrest, found on your phone.

49In mitigation of penalty Ms Lynch relied on:

·     your early guilty plea for its utilitarian value, acceptance of responsibility and remorse;

·     your expressions of genuine remorse;

·     your excellent prospects of rehabilitation;

·     the additional burden of prison due to your separation from family and COVID restrictions on prison life;

·     your good character otherwise;

Prosecution submissions

50Mr Manning, who appeared for the Crown, in written and oral submissions, referred me to the relevant sentencing principles and provided some useful comparable cases.

51He submitted, in the cohort of Tah, Kan and you, you assume the primary role. He pointed out the hotel booking was in your name and you were responsible for delivering the drugs and collecting payment.

52He also submitted, relevantly to your moral culpability, you were undeterred by the courier’s arrest and determined to complete your task, that is, to deliver the heroin and obtain payment, on behalf of the syndicate.

53He accepted your guilty plea was made early; and has significant utilitarian value.

54He also accepted, as your prison records clearly show, you have excellent prospects of rehabilitation.

Comparable cases

55I have read the marketable quantity trafficking decisions in Merrill and Elshani, to which Mr Manning referred, and others and use them for guidance in the sentencing principles and as a yardstick to measure your sentence.

Analysis

56The maximum penalty of 25 years imprisonment demonstrates the inherent seriousness of trafficking in a drug in a marketable quantity

57The sentencing principles are well-established:

·The offenders role and involvement in the enterprise, the sophistication of the enterprise and the amount of drugs involved are relevant to the assessment of the seriousness of the offending;

·because of the difficulty in detecting the offending and the great harm stemming from the distribution of illicit drugs in the community, significant weight is attached to the principle of general deterrence;

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

·as a matter of common sense, it should be inferred, unless there is evidence to the contrary, the person who is trafficking drugs is doing so for profit;

·prior good character is generally to be given less weight, as a mitigating factor.

58See: R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238, at [72]followed in Nguyen v R; Phommalysack v R (2011) 31 VR 673 at [34] and Suky Lieu v The Queen [2016] VSCA 277, at [41]-[43]

Quantity of drugs and value

59The quantity and value of the drugs you imported was significant

60The wholesale value of the  intercepted ticket, or 1 kg package was $155,000. Its street value would have been around three to four times greater.

61The quantity of drugs you trafficked was 3.14 times a marketable quantity or half commercial quantity. 

Role and involvement

62Your role and involvement were important.

63You worked as an international courier for a sophisticated, transnational drug syndicate.  With Tah and Kan, you travelled from Malaysia to Australia to collect two tickets of heroin from an international courier and deliver them to a buyer in Melbourne.  The three of you travelled to Melbourne on the same flight as the courier and booked into a hotel not far from her hotel.  Tah and you accompanied Kan to that hotel where Kan collected the first ticket of heroin. Between the three of you, you communicated with another, or other, members of the syndicate, here and/or overseas, to complete the sale. You were entrusted with the responsibility to deliver the heroin to the buyer and collect payment.

64But for your arrest, you would have returned to Malaysia, on 10 January 2019, on the same flight as Tah and Kan.

65I have examined the images found on your phone.  They include images of Tah with Kan, Kan alone and Tah with you.  There are also messages between the user of the phone and Tah’s wife.  Some are in English; others in Chinese.  In the English messages, there is reference to a “sad” event, which I am satisfied relates to the courier’s arrest.  One of messages states “don’t worry: I’ll look after your husband”.  In another, Tah’s wife wrote “ask swah to call me”;‘swah’ is clearly a reference to Tah.  I am satisfied the communications in English were between Tah’s wife and you and, those in Chinese, were between Tah, himself, and her.  I am satisfied you communicated with Tah’s wife about the courier’s arrest and used the phone to confirm the identity of the person who was to collect the heroin from you.

66In regard to the latter, I note the last communications, on the morning of
8 January 2019, are an image of the "minion" T-shirt, to be worn by the buyer you met, received from an overseas number, and the reply, “ready”, sent shortly before you met him.

67It appears someone overseas was communicating separately with “Johnny” who had arranged the buyer, on the one hand, and your cohort, Tah, Kan and you, which was to deliver the heroin to the buyer, on the other.

68There was a reasonable degree of planning, coordination and sophistication to your offending which involved international travel and separation of the “Malaysian side”, including you, from the local side, to reduce the risks of detection.

69I am not satisfied you were necessarily the senior member of your cohort.  All that is clear is that you were one of a group of three who travelled to Australia to collect the heroin from an international courier, deliver it to a local buyer, obtain payment and return to Malaysia with it.

70The risk you took was very high.  You have offered no explanation for your involvement.  There are no are extenuating circumstances which explain why you took the risk and offended as you did.

71It is difficult to understand why, as a successful businessman, you did take the risk.  In the absence of any evidence of the contrary, I can only conclude you expected some financial reward.

72While knowledge of the courier’s arrest did not deter you, in the absence of evidence of your position in the hierarchy of the syndicate, I do not attach great weight to it.

Mitigating factors

73I accept your early guilty plea has significant utilitarian value.

74In the decision of Suky Lieu the Victorian Court of Appeal, at [56], said:

“drug importation and drug trafficking charges are notoriously difficult and expensive to prosecute.  Contested trials on those charges can occupy the time of the courts, and of the law enforcement officers, for a considerable period, and can be a substantial burden on the community.  It is for these reasons that it is important that sentences imposed in cases such as this, after a plea of guilty, are such as to reflect the value of those plays as mitigating circumstances.”  

75I accept your guilty plea is also evidence of acceptance of responsibility for your actions and remorse.  I also accept your expressions of remorse are genuine.

76I accept your isolation from family and friends has made prison harder for you but, because you came to Australia to commit a serious crime, intending afterwards to return to your home, little weight can be attributed to it.  (DPP(Cth) v Estrada [2014] VSCA 128

77I accept impact of COVID19 has caused increased anxiety and concern for all in the community, including persons in prison.

78I accept you have excellent prospects of rehabilitation. While you have been in prison, you really could have done no more to advance your reformation.

79Because of the seriousness of your offending, your otherwise good character is of less relevance, but it is a nevertheless factor I take into account, in concluding you are unlikely to reoffend.

Federal offending

80As a federal offender, you fall to be sentenced under Part 1B of the Commonwealth Crimes Act 1914 (Cth)

81I must impose a sentence that is of appropriate severity in all of the circumstances (s.16A (1)).

82In determining your sentence I have taken into account the matters listed in sub-s.(16A)(2), insofar as they are relevant and known to the court.

83I must not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate (s.17A).  No other sentence is appropriate in your case.

84Considering the seriousness of your offending, I must impose a sentence of imprisonment which, under federal law, requires me to fix a non-parole period.

85Because of your extremely impressive behaviour in gaol and your excellent prospects of rehabilitation, I will fix a shorter than usual minimum term “to provide for mitigation of your punishment, in favour of your rehabilitation through conditional freedom on parole”.  (Power v The Queen (1974) 131 CLR 623 at 628 – 629)

86Please stand Mr Goh.

87By the sentence I impose, I must denounce your conduct, punish you and deter you, and others, from committing crimes of the same or similar kind.  I must also look to your rehabilitation.

88Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, for the offence of trafficking a marketable quantity of a border control drug, I sentence you to six years imprisonment which is to commence today.

89I fix a minimum non-parole period of three years. 

90I declare you have served 638 days of your sentence by way of pre-sentence detention.

91Pursuant to s.6AAA of the Sentencing Act, I declare but for your plea of guilty, I would have sentenced you to eight years imprisonment and fixed a minimum non-parole period of five years. 

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