Director of Public Prosecutions v Hew
[2016] VCC 1680
•2 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-01466
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENG HONG HEW |
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JUDGE: | Her Honour Judge Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 December 2015, plea listings 29 February and 12 August 2016. Plea in mitigation 17 October 2016. | |
DATE OF SENTENCE: | 2 November 2016 | |
CASE MAY BE CITED AS: | DPP v Hew | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1680 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Ellis | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Fitzgerald | Victoria Legal Aid |
HER HONOUR:
1 KENG HONG HEW, you are to be sentenced in respect of one charge of importing a commercial quantity of a border controlled drug, methamphetamine, contrary to subsection 307.1(1) of the Criminal Code Act 1995 (Cth) (“the Code”), on the basis that you were engaged in an organised commercial activity that involved repeated importing of such drugs as provided in section 311.4 of the Code. Section 311.4 has application where a person has engaged in the business of importing border controlled drugs,[1] as you did, on repeated occasions and it permits the aggregation of quantities of such drugs imported in the course of that activity.[2] That provision does not create a separate offence, meaning that the maximum penalty applicable in your case is governed by section 307. Section 311.4 is a means of facilitating proof of a single charge. You imported three lots of methamphetamine between 28 October 2014 and 13 January 2015 with a total weight of 5.856 kgs of pure methamphetamine. Two of your importations each consisted of a commercial quantity, and one consisted of a marketable quantity. By framing the three importations as a single charge you have avoided the entry of three convictions and three sentences.
[1]s311.4(1)(c).
[2]s311.4(1)(d).
2 The maximum applicable penalty is imprisonment for life or 7500 penalty units, or both.[3] Absolute liability applies to the quantity.[4]
[3]s307.1(1).
[4]s307.1(3). “Absolute liability” is defined in s6.2.
3 You pleaded guilty to the current single charge indictment when arraigned before me on 17 December 2015 in the circumstances I shall describe later.
Circumstances of offending
4 The facts are well set out in the Prosecution Opening on Plea (exhibit AH), which the prosecutor, Ms Ellis, read in open court at the commencement of the plea hearing. Rather than read that document again now, I shall attach it as “Annexure A” to these reasons for sentence. You accept that the document is accurate.
5 By way of brief summary, you arrived in Australia from Malaysia on 15 June 2014. You first came to the attention of the police in January 2015 when you attended at Melbourne Freight Services. You were attempting to collect a consignment of bamboo shoots which had been found to contain liquid methamphetamine. That consignment had been sent from Hong Kong addressed to KA CHUN HO of 27 Errol Street, Footscray. The consignment was said to contain “Bamboo Shoots in cans (tanks), 96 cans in total.” You made contact with the freight service on a number of occasions posing as the consignee in an attempt to arrange collection of the goods. In fact you had false identification in the name of the consignee enabling you to complete the importation process.
6 Customs officers had subjected the cans to an x-ray which revealed anomalies with 15 of the 96 cans. Presumptive testing indicated the presence of methamphetamine in those 15 cans.
7 Members of the Australian Federal Police became involved in the investigation and determined that the total amount of liquid in the 15 cans was 7.8652 kgs containing methamphetamine with a purity of 31.7%, making the total pure weight of methamphetamine 2.4933 kgs.
8 A controlled operation was then undertaken whereby police posed as members of staff at Melbourne Freight Services in Tarmac Drive, Tullamarine on 16 January 2015, the date organised for you to collect the consignment. On that date, in company with TIAN CHEW QUAH (Quah), and in possession of the relevant shipping documentation for the consignment, you presented at Tarmac Drive. You handed over the shipping paperwork, signed the collection papers in the false name, produced your false identification in that name and provided a mobile phone number. You executed all acts necessary to prove you were the nominated consignee entitled to take immediate possession of the consignment. At this point both you and Quah were arrested. Although this importation was the first to be linked to you, it was not your only importation. Following your arrest and further investigation, police discovered your involvement in two other importations containing methamphetamine.
9 The first of these concerned a shipment of four consignments from Hong Kong addressed to Greencrop Products Pty Ltd said to contain “Samples Artificial Glass Rocks for Terrazzo and Garden Décor”.[5] The relevant consignment landed in Australia on 28 October 2014. You made a number of attempts to collect the consignment, but on each occasion you were denied possession of the goods. The matter was referred to Customs.
[5]Brief of evidence page 587, attachment to statement of Paul Smith.
10 Later examination and testing revealed that the consignment contained four boxes with clear plastic bags in which a crystalline substance was found. That substance had a total net weight of 2.4499 kgs containing methamphetamine with a purity of 77.4%, making the total pure weight of methamphetamine 1.8962 kgs.
11 The final importation concerned a consignment of beauty products sent from Hong Kong that arrived in Australia on 13 January 2015. The consignee was Vincent Wong and the consignment was described as “I’PSA New Year’s Gift”. You had false identification in the name of Vincent Wong, and you were in possession of other items in that name or associated with it.
12 The consignment comprised of 31 bottles and containers purporting to be various beauty products. Presumptive testing indicated the presence of methamphetamine, so the consignment was handed over to Australian Federal Police.
13 Subsequent analysis showed that eight bottles contained a clear, colourless liquid containing methamphetamine. The net weight of the liquid was 1.6151 kgs. The total pure methamphetamine contained in the liquid was 0.6961 kg.
14 In the three importations you imported a total of 5.0856 kgs of pure methamphetamine with a potential wholesale value of between $1,340,000 and $1,474,000 and a street value of approximately $6,915,200.
Arrest and interview
15 When arrested by police you were found in possession of a water bill associated with a property at 187 William Street, St Albans. A search warrant was executed at that address during which police found two false New South Wales driver’s licences containing your photo. One of those licences was in the name Vincent Wong. The other was in another false name. Police also found more passport photographs of you, 24 grams of methamphetamine in white powder, a number of clip seal bags and a set of electronic scales.
16 When interviewed by police you admitted using a false driver’s licence in the name of Ho in an attempt to collect the bamboo shoots, claiming that you were told to do so by an unknown friend. You said that you were paid $1000-$2000 to collect this consignment. You also admitted to attempting to collect the consignment of artificial glass rocks. You told police that you had been paid “tea money” to collect that consignment.
17 You have not named any other person involved in any of the importations.
Offence gravity
18 Your venture was well organised and highly sophisticated. Planning had gone into the method of importation and means of disguising the true participants in the business. The system was designed both to maximise the chances of the methamphetamine slipping through border control undetected, and to distance the true culprits in case the true nature of the importation was discovered. Each importation involved a different form of concealment and different consignor and consignee details.
19 The unlawful importation of border controlled drugs is a most serious crime, the inherent gravity of which is reflected in the maximum applicable penalty, in your case, life imprisonment. It is well understood that these substances have the potential to wreck the lives of those who use them, and beyond, they “continue to present to a modern civilised society an increasing burden both monstrous and intolerable.”[6]
[6]Moran & Byrnes (1987) 31 A Crim R 248 at 254 per Tadgell, J.
20 You played a vital role in this commercial enterprise. On each occasion you were the intended recipient. So much is clear from the fact that you held false identification in the name of the consignees in two of the importations (bamboo shoots and beauty products). As to the “glass rocks” importation, because you did not have identification in the name of the consignee, you became the consignee’s nominee in your true identity. Your role as intended recipient can also be inferred from the active steps you took in an attempt to take possession of two of the consignments. What you intended to do with the consignments after you had taken delivery of them is far from clear. Your counsel makes no submission in this regard.
21 The fact that the drugs never found their way onto our streets is no thanks to you. Your persistent attempts to collect the drugs were frustrated at every juncture.
22 Ordinarily, in cases such as these, principles of general deterrence, condemnation and denunciation, protection of the community and just punishment are predominant sentencing considerations. Put simply, those who engage or attempt to engage, at any level, in the importation and/or dissemination of border controlled drugs must expect condign punishment.
Plea in mitigation
23 Your counsel, Mr FitzGerald, acknowledged the gravity of your offending and conceded that the only appropriate response to it is the imposition of a term of imprisonment.
Your personal history
24 You were born in Malaysia and are now 70 years of age. Your father worked as a street vendor and your mother stayed at home raising four children. You had three sisters but one of them passed away. Your family was very poor. You attended primary school for only two years. Your parents died when you were still relatively young and the responsibility of raising your sisters fell on your shoulders when you were aged about 17 years.
25 You first started work as a tailor, then when you were aged about 20 years you moved to Singapore where you obtained work as a welding apprentice. You regularly sent money back home to support your sisters.
26 A few years later you moved to Indonesia where you obtained work as a welder. This opened up further job opportunities and you worked as a welder in Saudi Arabia for approximately two years. It was cash in hand and you earned good money for your work.
27 After leaving Saudi Arabia, you returned to Singapore where you established a business running a canteen at the Singapore General Hospital. You operated that business for about 14 years.
28 At age 28, you were married in Singapore. You have two children as a result of that union.
29 You seemed to prosper in your canteen business and you expanded it into food importation from other Southeast Asian nations.
30 You separated from your wife in approximately 2005. Around this time your contract to run the canteen was up for tender. You were outbid and lost the canteen. You then tried various other business ventures, ultimately returning to welding for a number of years. You then travelled to Indonesia and tried, unsuccessfully, to establish a restaurant there. You left Indonesia and returned to your birthplace. There you made a further attempt at establishing a welding business. Unfortunately this venture failed and left you in debt.
Your reason for offending
31 Little information was provided regarding your reason for offending. In the Brief Outline of Submissions for Plea Hearing tendered as exhibit KH 1, your counsel stated:
“[24] Keng Hong Hew travelled to Australia for a holiday. While here he met a number of people who offered him the “work” which amounted to the offending in this case.”
32 Under heading “The Offending” your counsel added:
“[25] It is clear that Keng Hong Hew has had some organisational role in the importation….
[26] He was being paid for his assistance, and his motivations were financial. The payments made to him were of 1 to 2 thousand dollars per consignment. He was not sharing in the profits of the trafficking in a way as to suggest a higher organisational role.
[27] In all of his activities, Keng Hong Hew was acting on the instructions of others. He was given different names for these other people. Real names weren’t used. He received verbal instructions. He was not a principal.
[28] He did not specifically know the contents of the consignments or the quantities. Nevertheless, his plea is an acknowledgement by him that he knew that the consignments contained drugs.”
33 In discussion with counsel I raised whether it could be inferred from a number of circumstances that you knew that a commercial quantity of border controlled drugs was the subject of the importations. The circumstances from which such an inference could be drawn include the highly sophisticated method of concealment, the number of occasions that goods containing the drugs were imported, the creation of false identifications enabling you to obtain possession of the consignments and the inherent unlikelihood that all this trouble would be justified for an importation involving less than a commercial quantity. However, Ms Ellis urged me not to draw the inference. She submitted that there is no evidence to make the inference beyond reasonable doubt that you believed the quantity was at least an aggregate of 750 grams of pure methamphetamine, the commercial quantity.[7]
[7]Exhibit BH, Crown’s Sentence Submissions paragraph 16, confirmed in oral sentencing submissions.
34 You called no evidence to explain the circumstances of your involvement or the state of your knowledge or belief about the importation. It is hard to know where the truth lies. You did not identify the “people” who recruited you that you happened to meet while visiting Australia. You did not say where you met them or why, out of all of the visitors staying in Australia, they happened to choose you, or trust you with such a valuable commodity. You did not suggest that you were in any way vulnerable so as to make you more susceptible to recruitment or that you were under any form of pressure to join the venture.
Your prior good character
35 You have no prior convictions, but this fact carries less weight than it might otherwise have done. Often in cases such as these, persons of good character are engaged to facilitate the importation of border controlled drugs. This is because persons of good character are less likely to attract the attention of authorities, thereby making it less likely that the unlawful enterprise will be detected. It is not known whether you would have been granted entry into Australia had you been a person with prior convictions.
36 Two character references were tendered on your behalf, one from your niece Joey Tan Yeon Yeon (exhibit KH 2) and one from your sister Hiew Fock Yin (exhibit KH 3). These references attest to the hardship you have faced in your life and the efforts you have made to support your family.
Guilty plea
37 You contested the allegations of importation at committal and maintained that stance until relatively soon before your trial was to commence before me. The trial was listed for hearing on 18 January 2016, but on 17 December 2015 you pleaded guilty to the current indictment dated 9 December 2015 when it was filed over a five charge indictment dated 15 October 2015.
38 It is necessary to trace some of the history of proceedings as this is relevant to the weight to be given to your guilty plea. Initially, you faced the five charge indictment just mentioned. You were charged jointly with Quah. That indictment alleged (amongst other charges) that you and Quah imported a marketable quantity of a border controlled drug (charge 2) and that you and Quah attempted to possess a commercial quantity of an unlawfully imported border controlled drug (charge 5). You also faced three further charges alleged in that indictment, namely one charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug (charge 1), one charge of import a commercial quantity of a border controlled drug (charge 3) and one charge of import a marketable quantity of a border controlled drug (charge 4).
39 As to the charges in which it was asserted that you and Quah acted together, charge 2 concerned the importation of a marketable quantity of methamphetamine secreted within the bases of toilet brush holders. That charge against you has been dropped and you are presumed innocent of it. Charge 5 was based on the assertion that both you and Quah attempted to gain possession of a consignment of 96 cans of bamboo shoots, 15 of which contained a combined weight of methamphetamine in a commercial quantity. That charge was dropped as against Quah, but it forms part of the current charge you face. In the circumstances, you and Quah are no longer “co-offenders” and principles of parity do not apply.
40 You contested the charges at a one day committal hearing on 24 August 2015, and as I said earlier the matter was listed as a jury trial to commence in January 2016. Following negotiations between your legal representatives and the prosecution, your offer to plead guilty to a single charge indictment in the current form was accepted. You were arraigned on 17 December 2015 and pleaded guilty.
41 Although you did not plead at the earliest opportunity, a guilty plea, no matter why or when entered, must ordinarily attract a sentencing discount, and you will be given the benefit of such a discount.
42 Your counsel submits that your plea is indicative of your true remorse. There is no other evidence of any such remorse, and for the reasons I shall soon explain, it is difficult to assess the true level of your claimed remorse, if indeed you are remorseful.
43 Most significantly, your counsel submits, and I accept, that there is social utility inherent in your guilty plea.
Remorse
44 As I just mentioned, there is no evidence of your remorse although your counsel submits your plea of guilty is indicative of it. That is hard to reconcile with the character letter from your sister to which I have already referred, exhibit KH 3 in which she writes:
“We managed to call up and registered ourselves with Port Philip prison department and have visited him on a few occasions. During our visits in Port Philip prison, we were told by Albert Hew that his friends has intentionally fixed him up by deliberately asking him to collect a parcel on their behalf at the railway station in Melbourne which he is unfamiliar and most importantly the contents inside the parcel is unknown to him. Upon collection of this parcel he was arrested till now. When we asked for his friend’s names, he doesn’t know their actual names, he only knows them by their nicknames.
In our opinion, Albert Hew being a very responsible brother and a very kindhearted person will never compromise his life in doing this type of trade and commit this type of offence. He is definitely being misled by his so called good friends.”
45 That exhibit is dated 8 August 2016. It would appear that as a result of your communications with her, your sister is under the impression that you are not guilty. Neither of the character references contain any acknowledgement of your guilt or expressions of your remorse.
46 You have not named the persons who procured your involvement or any other person implicated in these transactions. Although your failure to assist the authorities is not an aggravating factor, your silence in this regard cannot be counted as indicative of any remorse.
Delay
47 As mentioned earlier, you pleaded guilty to the charge on 17 December 2015. However, the plea in mitigation was not heard until 17 October 2016. The reason for the delay was that there were two cases pending in the Court of Appeal that raised the question whether a sentencing discount to recognise the social utility of a guilty plea is available for Federal offenders. The cases were heard together. The judgment, published on 10 October 2016[8] confirms that ordinarily the utilitarian value of a guilty plea is a factor to be weighed in mitigation of penalty. There is no warrant to deprive you of this mitigating factor.
[8]DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237.
48 There is no evidence to explain whether you have undertaken any courses or taken any steps to improve your prospects of rehabilitation in the period of delay.
Prospects of rehabilitation
49 Your counsel submits that in view of your good work history and lack of prior convictions, combined with your age and family supports, you have good prospects for rehabilitation. I am unable to come to a conclusion one way or the other about your prospects of rehabilitation in the absence of cogent evidence regarding same.
Jail more onerous
50 You have a nephew in Australia, but otherwise have no other family connections here. I accept that your sentence will be more onerous upon you because of your relative isolation from family and because of your age and your status as an insulin-dependent diabetic.
Possibility of deportation
51 You committed the offence whilst on a three month visitor’s visa. Your counsel asserted that you happened to be in Australia for a holiday when you met people here who involved you in the importations. Your counsel did not say whether you became acquainted with these “people” in Sydney or Melbourne. No evidence was given about the nature of your holiday, why you decided to come here, or how you were able to afford a holiday exceeding six months[9] when you were in debt following the failure of your business.
[9]Hew arrived in Australia on 15 June 2014 at Kingsford Smith Airport, Sydney (Brief of evidence pages 14 – 15, Statement of Simon Yelland). Hew was arrested in Victoria on 16 January 2016.
52 As I understand it, there is no suggestion that you held either Australian residence or citizenship. Although there was no evidence given at the plea hearing regarding your status and what will happen once your sentence is completed, I consider it likely that you will be deported as you have no lawful visa or permit allowing you to remain in Australia after your sentence has been served.[10]
[10]s501(3A) Migration Act 1958 (Cth) provides that the Minister must cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full time custodial sentence.
53 Upon your eventual release, you intend to return to Malaysia where you will enjoy ongoing support from your family.
Analysis
54 In determining the sentence to be passed or the order to be made I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.[11]
[11]s16A(1) Crimes Act 1914 (Cth).
55 There are many factors that I must take account of when sentencing you, including:
1.
Principles of general deterrence, which I have already mentioned;[12]
[12]See Crimes Act s16A(2)(ja) – general deterrence is now specifically included as a matter to be considered.
2.
The nature and circumstances of the offence[13] including your moral culpability;
[13]s16A(2)(a) Crimes Act.
3.
The maximum applicable penalty;[14]
[14]See Makarian v R (2005) 228 CLR: The maximum penalty serves as a yardstick to enable a comparison between the case before the court and the worst case scenario.
4.
Any injury, loss or damage resulting from the offence;[15]
[15]s16A(2)(e) Crimes Act.
5.
The degree to which you have shown contrition for the offence;[16]
[16]s16A(2)(f)(ii) Crimes Act.
6.
The fact that you have pleaded guilty to the charge;[17]
[17]s16A(2)(g) Crimes Act.
7.
The social utility inherent in your guilty plea;[18]
[18]see DPP (Cwth) v Thomas [2016] VSCA 237, applied in Kim v R [2016] VSCA 238.
8.
The degree to which you have cooperated with law enforcement agencies in the investigation of the offence or of other offences;[19]
[19]s16A(2)(h) Crimes Act.
9.
The deterrent effect that any sentence or order under consideration may have on you;[20]
[20]s16A(2)(j) Crimes Act.
10.
The need to ensure that you are adequately punished for the offence;[21]
[21]s16A(2)(k) Crimes Act.
11.
Your character, antecedents, age, means and physical or mental condition;[22]
[22]s16A(2)(m) Crimes Act.
12.
Your prospects of rehabilitation;[23]
[23]s16A(2)(n) Crimes Act.
13. The probable effect that any sentence or order under consideration would have on any of your family or dependants;[24]
[24]s16A(2)(p) Crimes Act – also note family and family members include - de facto partner, child as defined in section 3, and anyone else who would be a member of the offenders family as defined see s16A(4). Also note that there must be exceptional circumstances before this factor can be taken into account – Markovic v R [2010] VSCA 105.
14.
The probability of your deportation;[25]
[25](more than a possibility, and based on evidence) – Guden v R [2010] VSCA 196, but see the presumption of deportation created by s501(3A) Migration Act 1958 (Cth).
15.
Delay; and
16. Principles of parsimony.[26]
[26]s17A(1) Crimes Act and see R v Carroll [1991] 2 VR 509.
56 The general principles applicable to sentencing Federal drug offenders were summarized in R v Nguyen:[27]
[27](2010) 205 A Crim R 106 at 126 – 128.
“Some General Sentencing Principles Concerning Serious Federal Drug Offences
[70] The importation and possession offences now contained in the Criminal Code Act 1995 (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts “a quantity-based penalty regime” by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen [2008] HCA 15; 234 CLR 143 at 146 [2].
….
[72] The following general propositions emerge from the authorities:
(a)the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];[28]
[28]R v Lee [2007] NSWCCA 234.
(b)problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];
(c)it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];
(d)although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen[29] at 607-608 [64]; R v Lee at [23]-[24];
[29](2001) 207 CLR 584.
(e)the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];
(f)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: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];
(g)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: Wong v the Queen; Leung v The Queen at 607-608 [64];
(h)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: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];
(i)involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];
(j)the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];
(k)where offenders are not young …. the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];
(l)where an offender …. is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise: El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]-[37];
(m)offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230;
(n)the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong and Leung remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s.16G Crimes Act 1914 (Cth): R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at 438 [34]-[36]; R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at 67-68 [65]-[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40]; …..”
57 These principles have been cited with approval in Victoria.[30]
[30]See for example Nguyen v R; Phommalysack v R (2011) 31 VR 673.
58 In Nguyen v R; Phommalysack v R[31] Maxwell P observed:
[31](2011) 31 VR 673.
“[35] In De La Rosa,[32] McClellan CJ at CL identified the following as key reference points for sentencing (and for comparing sentences) in cases such as these:
[32][2010] NSWCCA 194, [267].
·quantity;
·role;
·reward;
·assistance to authorities;
·criminal history; and
·prospects of rehabilitation.
[36] His Honour reviewed a large number of sentencing decisions, which he grouped into the categories set out in the table below. It should be emphasised that this classification was intended to be descriptive of current sentencing practice and hence to promote consistency of sentencing in future.[33] His Honour was not purporting to lay down quantitative sentencing guidelines.[34] (The Court of Criminal Appeal subsequently made use of this categorisation in Nguyen and Pham.[35])
[33]Ibid [197].
[34]Cf Wong vThe Queen; Leung v The Queen (2001) 207 CLR 584 (‘Wong and Leung’).
[35][2010] NSWCCA 238, [109].
| Import commercial quantity Customs Act 1901 (Cth) s 233B and Criminal Code Act 1995 (Cth) s 307.1 | Range of sentences imposed | ||
| Head sentence | Non-parole period | ||
| Group 1 | High quantity (tens or hundreds of kilograms); high value (tens of millions of dollars); large reward (hundreds of thousands of dollars) although finding of reward not required; not guilty plea in half of cases; no assistance; no remorse; mastermind, principal or part of organising committee; high degree of responsibility | 25y to life | 8y 6m–30y |
| Group 2 | High quantity; high value; guilty plea; principal, member of upper management or ‘essential’ role with moderate to very high level of responsibility; reward in tens of thousands of dollars although finding of reward not indicative | 18–24y 6m | 10–16y |
| Group 3 | Quantity generally below 7 kg; mid-range role; discount for assistance, cooperation; plea not indicative | 8–15y | 4–11y |
| Group 4 | No prior convictions; good antecedents; quantity not indicative; plea not indicative although discount provided for early plea; role not indicative although generally part of syndicate | 6y 3m–8y | 3–4y 6m |
…..”
59 His Honour went on to acknowledge the level of detail in the table which was prepared from a comprehensive study of some 80 cases. He noted that the table provides a helpful reference point for sentencing, but it must not be regarded as setting the sentencing parameters for the arbitrary quantities into which groups analysed were divided.
60 In your case, the prosecution has provided a table of cases said to be indicative of appropriate sentencing range. It should be noted current sentencing practice is to be interpreted from sentencing practice Australia-wide, and not just from Victoria[36] where, as it has been observed, sentencing practice has been lower than in other States.[37] But caution must be exercised when statistical information is relied upon because no two cases are likely to be identical.[38]
[36]R v Pham (2015) 325 ALR 400 at [18] – [19].
[37]Pham v R [2014] VSCA 204 at [44] and Attachment B to those reasons.
[38]Alavy v R [2014] VSCA 25.
61 Most recently, in DPP v Pham,[39] the Court of Appeal re-emphasised that while sentencing statistics offer guidance and promote consistent sentencing practice throughout Australia, they are not determinative of the sentence to be imposed in any particular case.
[39][2016] VSCA 259
62 In your case, the statistical table was accompanied by the judgments referred to in it. I have read all of the cases provided to me. There is no case in the bundle that constitutes a direct match with your offending or your personal circumstances.
Sentence to be imposed
63 I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.[40] In all the circumstances I have no alternative but to impose a term of imprisonment.
[40]s17A(1) Crimes Act.
64 The objective gravity of your offending is high and there is little by way of mitigation apart from your guilty plea, your age and your dependence on insulin to control diabetes. Having said that, however, I have taken all of the matters referred to above when determining the appropriate sentence in your case.
65 On the charge of importing a commercial quantity of a border controlled drug (methamphetamine) contrary to subsection 307.1(1) of the Code you are convicted and sentenced to twelve years’ imprisonment. That sentence will commence today.
66 In fixing the non parole period I must pay regard to s19AKA of the Crimes Act which sets out the purposes of parole. Those purposes are:
a) The protection of the community;
b) The rehabilitation of the offender;
c) The reintegration of the offender into the community.
67 Taking these matters into account I direct that you serve a minimum term of eight years before becoming eligible for parole.
68 I am required to explain the impact of my order.[41] The total effective sentence is 12 years’ imprisonment. I have directed that you serve a minimum period of 8 years before becoming eligible for parole. Accordingly, you will be required to serve a minimum period of imprisonment of not less than 8 years, and thereafter if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole and subject to any order for your deportation. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
Direction under section 17A(2)(b) Crimes Act
[41]s16F(1) Crimes Act.
69 Having come to the conclusion that I have no alternative but to impose a term of imprisonment, under section 17A(2)(b) of the Crimes Act I direct that my reasons for so finding be entered in the records of the Court. I direct that a copy of my revised reasons for sentence be entered in the court’s records and stand as the reasons under section 17A(2)(b).
Declaration of presentence detention under section 16E Crimes Act
70 Under section 16E of the Crimes Act, I declare that the period of 656 (six hundred and fifty-six) days be reckoned as time already served under this sentence and I direct that the details of this declaration be entered in the Court’s records.
Statement under section 6AAA Sentencing Act1991 (Vic)
71 Under section 6AAA of the Sentencing Act, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea I would have imposed a total effective sentence of 15 years’ imprisonment. I would have fixed a non-parole period of 10 years. In real terms, your sentence has been discounted by 20% to reflect your guilty plea.
72 I direct that the sentence that would have been imposed but for the plea of guilty be noted in the Court’s records.
73 Anything else?
74 MS ELLIS: No, Your Honour.
75 MR FITZGERALD: No, Your Honour. If Your Honour pleases.
76 HER HONOUR: Thank you very much, you may remove the prisoner.
- - -
“ANNEXURE A”
THE QUEEN
- v -
KENG HONG HEW
PROSECUTION OPENING ON PLEA
CHARGE
KENG HONG HEW (the offender) has pleaded guilty to one charge of ‘importing a commercial quantity of a border controlled drug’ contrary to subsection 307.1(1) of the Criminal Code (Cth), by virtue of section 311.4 of the Criminal Code.
This charge encompasses the following 3 importations of methamphetamine:
Import:
Date of import:
Drugs concealed in:
Pure weight
1
7/1/2015
15 x cans of bamboo shoots
2.4933kg
2
28/10/2014
4 x boxes of artificial glass rocks
1.8962kg
3
13/1/2015
Various IPSA beauty products
0.6961kg
Section 311.4 of the Criminal Code allows the combining of drug quantities on the basis that the offender was engaged in organised commercial activity that involved repeated importing.
FACTS
On 15 June 2014, the offender arrived in Australia from Malaysia.
The offender first came to the attention of police in January 2015, when he attended at Melbourne Freight Services to collect the bamboo shoots consignment which had been found to contain liquid methamphetamine.
Items located in the offender’s possession, including a notebook with details of names and addresses, led to the detection of the other 2 consignments.
Import 1 - Consignment of bamboo shoots containing liquid methamphetamine - imported on 7 January 2015
On 7 January 2015, a consignment of 96 cans of bamboo shoots arrived at DP World via sea freight from Hong Kong. The consignment details were as follows:
Consignor: ART TARGET LTD
RM 2A 14F, CHUN WO COMM CT
CENTRAL
Consignee: KA CHUN HO
27 ERROL STREET
FOOTSCRAY
Country of Origin: Hong Kong
Commodity: Bamboo Shoots in cans (tanks), 96 cans in total.
On 6 January 2015, the offender, using email address [email protected], contacted AAW Global Logistics and using the consignee name of Ka Chun Ho, requested the collection of the consignment. He provided a copy of a NSW drivers licence in the name Ka Chun HO which bore his photograph[42]. An AAW employee, Renee TWIST advised that the consignment had been delayed due to it being damaged. The offender stated he did not want compensation for the damaged goods.[43]
[42] Statement of Renee TWIST, p425- 429.
[43] Statement of Renee TWIST, p425- 429.
On 9 January 2015, Customs officers examined the consignment. An X-ray revealed anomalies with 15 of the 96 cans in the consignment. The 15 cans were date stamped 16 June 2015 and the remainder of the cans were date stamped 15 June 2015. A presumptive test was conducted by Customs Officers on liquid located within two of the cans date stamped 16 June 2015 and the tests revealed the presence of methamphetamine[44].
[44] Statements of Customs Officers JOBLING, p36, FRANCIS, p34, COX, p30, and McDONOUGH, p64.
On 12 January 2015, AFP took possession of the consignment[45] and subsequent forensic analysis revealed that each of the 15 cans dated 16 June 2015 contained methamphetamine. The total amount of liquid in the 15 cans was 7.8652kg[46]. The liquid contained 31.7% pure methamphetamine. Thus, the total net weight of pure methamphetamine in the liquid was 2.4933 kgs[47].
[45] Statement of GRENFELL, p133.
[46] Statement of Forensic Officer HUGHES, p346-351.
[47] Statement of NMI Scientist RUSSO, p354-5.
As part of an AFP controlled operation, on 15 January 2015 TWIST contacted the addressee HO via email and advised him that the consignment could be collected from Melbourne Freight Services at 7 Tarmac Drive, Tullamarine, on 16 January 2015 between 10:00am and 2:30pm.
On 16 January 2015, the offender attended the AAW office at 102 Dodds Street, Southbank[48]. The offender was informed by TWIST that he needed to attend Melbourne Freight Services in Tullamarine[49].
[48] Statement of Renee TWIST, p425- 429.
[49] Statement of Renee TWIST, p425- 429.
At approximately 11:00 am that day, the offender, in the company of another male named Tian QUAH, attended Melbourne Freight Services[50]. The offender produced the shipping documentation for the consignment along with a false NSW drivers licence in the name of ‘Ka Chun HO’ bearing his photograph[51]. The offender then signed for the consignment, using the name Ka Chun HO with mobile number 0470 767 028[52].
[50] Statement of GRENFELL, p133.
[51] Statement of HARRISON, p199
[52] Statement of HARRISON, p199 and Karl TULLBERG, p418.
The offender was then arrested by police. At the time of arrest, the offender was carrying a satchel bag[53]. On searching the bag a number of items were located and seized, including:
[53] Statement of GRENFELL, p133.
a.A false NSW Drivers Licence in the name of Ka Chun HO bearing a photograph of the offender;
b.Six mobile phones;
c.16 sim cards;
d.Three handwritten notebooks;
e.Four sets of keys;
f.Handwritten notes detailing rental transactions;
g.A paid water bill for 187 William Street, St Albans; and
h.A Western Union Cash Transaction in the name of Vincent WONG dated 5 January 2015.
One of the phones seized from the offender contained three photographs of consignment paperwork taken on 13 January 2015.
In one of the notebooks seized from the offender there was a handwritten note with the consignee details:
27 Errol St
Footscray Vic 3011
Melbourne
Phone 6941-2947
Name Ka Chun HO
(House)
One of the SIM cards located on the offender had a sticker with “6941 2947 Errol” written on it.[54] The mobile number of this SIM card was 0469 412 947, being the phone number listed on the consignment and partially listed in the offender’s notebook.
[54] Statement of GRENFELL, p133.
Police subsequently discovered that the offender had rented two rooms at the consignee address, 27 Errol Street, from 22 November 2014 and identified himself to the landlord as ‘HO’, showing a NSW drivers licence.[55]
[55] Statement of GU, p394. HEW was later identified by GU from a photoboard, see statement of LASCARIS, p209 and GU, p394.
On 16 January 2015, AFP executed a search warrant at 27 Errol Street. A number of items were seized from the offender’s bedroom including: [56]
[56] Statement of LASCARIS, p211.
a.Various money transfer documents in the name of Ki Shing LAU;
b.Two SIM cards;
c.Two Lyca mobile SIM packaging
d.A set of scales;
e.A box of clip seal bags;
f.Cigarette box containing white powder substance in a clip seal bag (being 2.35 grams cocaine)
g.An ink stamp with the company name of Greencrop Products, and
h.Various travel and real estate documents.
Analysis of the items seized from the offender at the time of his arrest and from the search warrant, identified the two further importations of methamphetamine the subject of the charge.
Import 2 - Consignment of artificial glass rocks containing methamphetamine - imported on 28 October 2014
On 28 October 2014, four separate consignments arrived into Australia addressed to “Greencrop Products Pty Ltd”. All four consignments were sent from the same consignor in Hong Kong but were addressed to the attention of different people at different addresses, all of these addresses being Bunnings stores.
On 27 October 2014, a consignor “Sam,” contacted FedEx asking for the shipment to be held as the delivery details were incorrect. The consignments were re-addressed to:
Greencap Products Pty Ltd
6 Merton Street,
Box Hill Vic 3158[57]
[57] Statement of Paul SMITH, p580.
On 30 October 2014, the shipper ‘Mr. Chan’ contacted FedEx and, in respect of 2 of the 4 consignments, advised that “Mr HEW Keng Hong (Tel 0469 853 904) from Greencrop Products will go pick up the goods”.
On 30 October 2014 the offender attended FedEx Melbourne and attempted to collect the two consignments[58]. The offender stated that his name was Alan HEW and presented a NSW Photo card as identification[59]. As the consignments were not addressed to the offender, FedEx refused to hand over the consignments. FedEx staff then became suspicious of the consignments and referred it to Customs who seized the consignments on 30 October 2014.[60]
[58] Statements of Jarrod BENGER, p372-374, Annette BENGER, p364-366, HOHMANN, p401.
[59] Statement of Jarrod BENGER, p372-374, Record of interview Q.423-431.
[60] Statements of Camilleri, p26 and Leary, p60.
On 31 October 2014 ‘Mr. Chan’ called and advised FedEx that “Mr HEW Keng Hong (Tel: 0469853904) came yesterday but station reject them the pick up the package please kindly release the package to consignee Mr HEW Keng Hong (Tel: 0469853904)”.[61] A black Nokia mobile phone seized from the offender at his arrest contained a SIM card with the phone number 0469 853 904, which had been utilised in that Nokia between 29 October and 31 October 2014.
[61] Statement of Paul Smith, p580.
On 31 October 2014 the offender again attended FedEx Melbourne and attempted to collect the two consignments[62] and was again told that he could not collect the consignments.
[62] Statements of Jarrod BENGER, p372-374, Annette BENGER, p364-366, HOHMANN, p401.
This consignment had the following consignment details:
Waybill: 805637687613
Consignor: Sam
Yantai Kingstone Industries
Room 335 – 336, 3/Fl. Peninsula Centre
67 Mody Road, Tsimshataui East. Kowloon. Hong Kong
Consignee: Greencrop Products Pty Ltd
6 – 67 Cooper Street,
Campbellfield Vic 3061
Attn: Richard SOLIGO (03-8339 9300)
Description Samples Artificial Glass Rocks for Tezzazzo and Garden Décor
Subsequent deconstruction and forensic analysis of the consignments revealed that one of the consignments the offender had attempted to collect contained four smaller boxes containing clear plastic bags with a crystalline substance inside. Forensic analysis showed that the crystalline substance weighed 2.4499 kg in total[63], and contained 77.4% pure methamphetamine. Thus, the total net weight of pure methamphetamine in this consignment was 1.8962 kgs[64].
[63] Statement from Forensic Officer CARSWELL, p345.
[64] Statement from NMI Scientist RUSSO, p356.
Import 3 - Consignment of beauty products containing liquid methamphetamine - imported on 13 January 2015
On 13 January 2015, a consignment of beauty products arrived into Australia from Hong Kong and was examined by Customs. The consignment details were as follows:
Waybill: EA 201 368 300 HK (Speed Post – EMS)
Consignor: Chun Kit LEE (Hong Kong spelling)
Junjie LI (Mainland Chinese spelling)
Unit 15D, the Met. Focus, Gillies Avenue North,
Hung Hom, Hong Kong[65]
[65] Statement of Dongmei CHEN, p380-387.
+852 9453 4348
“Ling”
Consignee: Vincent WONG
809 Glenferrie Rd
Hawthorn Vic 3122
Melbourne Australia
+61-3 6977 2739
Description: I’PSA New Year’s Gift
Customs examined the consignment and discovered the contents to be various beauty products, namely:
a.12 bottles (200 ml) detailed as ‘IPSA – Time reset aqua W.’
b.4 bottles (100 ml) detailed as ‘IPSA – Me preparing lotion 1’; and
c.15 small bottles, glass and plastic of other IPSA beauty products.
This consignment tested positive to methamphetamine and was subsequently seized and then transferred into AFP possession on 14 January 2015[66].
[66] Statement of LASCARIS, p209.
Subsequent deconstruction and forensic analysis of this consignment showed that 8 of the 12 bottles labelled ‘IPSA – Time reset aqua W’ contained a clear colourless liquid which contained methamphetamine. The total weight of the liquid was 1.6151 kg[67] and it contained 43.1% pure methamphetamine. Thus, the total net weight of pure methamphetamine in this consignment was 0.6961 kg[68].
[67] Statement of Forensic Officer HUGHES, p350.
[68] Statement of NMI Scientist RUSSO, p361.
One of the notebooks located on the offender when he was arrested contained details of a licence in the name of Vincent WONG. It also contained a handwritten note with the consignee details of this package[69]:
[69] Statement of GRENFELL, p133.
809 Glenferrie Rd
Hawthorn Vic 3122
Melbourne
Phone 6977-2739
B Name Vincent WONG
The consignee address of 809 Glenferrie Road, Hawthorn is a commercial property that was vacant between June 2014 and April 2015.[70]
[70] Statement of Brendan GOSS, p388-393.
On 29 January 2015, a search warrant was executed at 187 William Street, St Albans[71]. A number of items were seized including:
[71]The address on the water bill found in the offender’s possession at the time of his arrest
a.Two false NSW drivers licences bearing the photo of the offender:
i.One in the name of Vincent WONG, the consignee name of import 3, and
ii.One in the name of Ki Shing LAU;
b.Passport photographs bearing the photo of the offender, the same as in the fake NSW drivers licences;
c.White powder, being 24 grams methamphetamine;
d.Clip seal bags; and
e.Set of electronic scales.[72]
[72] Statements of Adam Davison & PSR, p107-117, and Robert Dzaja, p120-125.
The details on the false Vincent WONG drivers licence bearing the offender’s photograph were the same as the details contained in the notebook found on the offender at his arrest.
One of the SIM cards located on the offender had a sticker with “69772739” written on it.[73] The mobile number of this SIM card was 0469 412 947, being the consignee contact number for import 1.
[73] Statement of GRENFELL, p133.
At the time of his arrest, the offender was also found in possession of a Western Union Cash transaction in the name Vincent WONG dated 5 January 2015.
Drug totals and value
In total, the offender imported 5.0856 kgs of pure methamphetamine.
A commercial quantity of the border controlled drug methamphetamine is 750 grams pursuant to Regulation 5D(2) and Schedule 4, Item 117 of the Criminal Code Regulations 2002 (Cth).
The total potential wholesale value of the methamphetamine is between $1,340,000 and $1,474,000.[74]
[74] Statement of Keith Randall, notice of additional evidence.
The total potential street value of the methamphetamine is $6,915,200.[75]
[75] Ibid
A table showing the breakdown of the amounts and values per import is below.
Import
Total weight
Pure weight
Wholesale value
Street value
1 (bamboo shoots)
7.8652kg
2.4933kg
$680,000 to $748,000
$3,490,400
2 (glass rocks)
2.4499kg
1.8962kg
$480,000 to $528,000
$2,449,900
3 (beauty products)
1.6151kg
0.6961kg
$180,000 to $198,000
$974,900
Totals:
11.9302kg
5.0856kg
$1,340,000 to $1,474,000
$6,915,200
RECORD OF INTERVIEW
During a record of interview with police on 16 January 2015 the offender:
a.Stated that he used the false drivers licence (to collect import 1) because an unknown friend told him to;
b.Admitted that he attended the AAW Global Logistics to collect the consignment and then attended the Melbourne Freight Services warehouse to collect the consignment (import 1);
c.Stated that he stays with unknown friends all over but can’t remember any of the names or the addresses;
d.Stated that he was paid $1,000 – 2,000 AUD to collect this consignment;
e.Stated that he paid rent to stay at Errol Street, Footscray;
f.Admitted that he owns the six mobile phones that were located in his bag when he arrested. He stated that he uses different phones for different friends and that he bought over 15 sim cards for use with different friends; and
g.Admitted to attempting to collect the consignment from FedEx (import 2) using his ‘photo card’ in the name of Keng Hong HEW and that he had been paid ‘tea money’ to collect the consignment.
ANCILLARY MATTERS
Maximum Penalty
The maximum penalty for the offence of importing a commercial quantity of a border controlled drug is life imprisonment.
Plea of Guilty
The offender conducted a 1 day contested committal on 24 August 2015 and entered a plea of guilty to the charge on the Indictment on 17 December 2015.
Days in Custody
The offender was arrested on 16 January 2015 and has been in custody since that date. Accordingly he has spent 640 days in custody (not including the date of the plea) on 17 October 2016.
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