Director of Public Prosecutions v Lim
[2017] VCC 321
•29 March 2017
(1)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-02127
CR-16-02128
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YIH WEN LIM |
| AND |
| EN YAO TEOH |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2017 | |
DATE OF SENTENCE: | 29 March 2017 | |
CASE MAY BE CITED AS: | DPP v Lim & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 321 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCING
Catchwords: The accused Lim – one charge of import a commercial quantity of border controlled drug – one charge possess a marketable quantity of border controlled drug. The accused Teoh – one charge of import a marketable quantity of a border controlled drug
Legislation Cited: Criminal Code (Cth)
Cases Cited:
Sentence: Lim – Total effective sentence – 12 years with 9 years non-parole period fixed. Teoh – Total effective sentence – 5 years with 3 years non-parole period fixed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Verdon | Commonwealth Director of Public Prosecutions |
| For the Accused Lim | Mr T Antos | Paul Vale & Associates |
| For the Accused Teoh | Mr T McCulloch | Victoria Legal Aid |
HER HONOUR:
1 Yih Wen Lim, you have pleaded guilty in respect to Charge 1 importing a commercial quantity of border controlled drug contrary to s.307.1(1) of the Criminal Code (Cth) by virtue of s.311.4 of the Criminal Code (Cth).
2 The offending took place between 25 April 2016 and 5 August 2016 and involved you importing substances; namely, methamphetamine and heroin and the quantity imported being a commercial quantity.
3 There were five importations and the particulars of those are:
(1)175.8 grams of pure methamphetamine on or about 25 April 2016;
(2)358.2 grams of pure methamphetamine on or about 15 May 2016;
(3)approximately 408 grams of pure methamphetamine on or about 24 May 2016;
(4)356 grams of pure methamphetamine on or about 28 June 2016; and
(5)236.6 grams of pure heroin on or about 5 August 2016.
4 A commercial quantity of methamphetamine is 750 grams and a commercial quantity of heroin is 1.5 kilograms.
5 By virtue of s.311.4 of the Criminal Code (Cth), it is permissible for the amount of drug to be bundled up and charged as one offence of importing a border controlled substance and the quantity imported being a commercial quantity.
6 Mr Lim, you have also pleaded guilty to Charge 2, possession of a marketable quantity of a border controlled drug, namely, methamphetamine, on 25 May 2016. The amount of a marketable quantity of methamphetamine is two grams and the amount that you have been charged with is 79.6 grams.
7 En Yao Teoh, you have pleaded guilty to Charge 3, importing a marketable quantity of a border controlled drug, namely, heroin, between 2 August 2016 and 5 August 2016. A marketable quantity of heroin is two grams. The amount of heroin found in your possession was 233 grams.
8 Each of the offences are serious, and that is reflected in the maximum penalty that is prescribed by Parliament. For Charge 1, importing a commercial quantity of a border controlled drug, the maximum penalty is life imprisonment; Charge 2, possess a marketable quantity of a border controlled drug, the maximum penalty is 25 years’ imprisonment; and similarly, Charge 3, import a marketable quantity of a border controlled drug, the maximum penalty is 25 years’ imprisonment.
9 You both have no prior criminal history.
10 I shall now proceed to sentence you on the basis of the summary of the prosecution opening for the plea that was read into the transcript and was exhibited at the plea hearing.
11 Briefly, Mr Lim, you were a member of a drug syndicate involved in the importation of multiple consignments of border controlled drugs into Australia. Your role in the syndicate included obtaining and providing addresses where consignments of border controlled drugs were to be sent, as well as tracking and overseeing the completion of the consignments by other syndicate members when they were delivered to the relevant address.
12 With respect to you, Mr Teoh, you are charged only in relation to the importation of 233 grams of heroin between 2 August and 5 August 2016. Your role was to attend a specified address to collect the consignment.
13 By way of background, on the evening of 25 May 2016, Australian Federal Police (“AFP”) members executed a search warrant at the residential address in Kew where you, Mr Lim, lived with your wife, Jennifer and your daughter. Mr Teoh was also present at the time of the search.
14 AFP members located a plastic bag in a cupboard underneath the laundry sink. Mr Lim, your fingerprints were later found to be on the outside of that plastic bag, and inside the plastic bag were two smaller clip seal bags, each containing a white crystalline substance.
15 That was analysed and one clip seal bag contained 234.2 grams of methamphetamine (small crystals) with a purity of 27.4 per cent and the other bag contained 19.4 grams of methamphetamine (one large crystal) and had a purity of 80.3 per cent. Combined, the total amount of pure methamphetamine, including both the large and small crystals, was 79.6 grams. (Charge 2 possess a marketable quantity of a border controlled drug)
16 The circumstances in relation to the importation of the five consignments of a border controlled drug involved in Charge 1 are as follows:
17 Between about 25 April 2016 and 5 August 2016, Mr Lim, you were involved in the importation of four consignments of methamphetamine and one consignment of heroin.
(1)175.8 grams of pure methamphetamine.
18 On or about 25 April 2016, the Australian Border Force (“ABF”) in Melbourne seized a DHL consignment that was addressed to a Mr Chan at 30 Kent Road, Box Hill. The consignment was sent from Malaysia. The description of the items inside the parcel was “Chinese praying stuff”.
19 ABF examined the consignment and found it to contain a quantity of white crystalline substance concealed within seaweed sheets. It tested positive for methamphetamine on preliminary testing.
20 The items were then transferred to the AFP where further testing and analysis confirmed the methamphetamine, and the weight was 219 grams net with a purity of 80.3 per cent, meaning the pure weight of methamphetamine was 175.8 grams.
21 Prior to the importation, AFP members were able to identify you, Mr Lim, and you were using the name "Lewis", using the instant messenger service “Wechat” to communicate with other members of the syndicate in relation to this consignment.
22 In those messages, Mr Lim, you sent the address to which the consignment was sent, that is, 30 Kent Road, Box Hill. You also followed up by asking the syndicate whether there was any news, and you also sent a message identifying the DHL parcel.
23 Between 12 September 2015 and 9 June 2016, a female, using the name Guat Ching Lee, leased a room from the owner of 30 Kent Road, Box Hill. Lee used a mobile phone number which ended in 921. This number was saved in Mr Lim’s phone contacts under Yue Quing (in Chinese characters). On 13 May 2016, Mr Lim, you were in contact with this number and it also was contained in a deleted SMS message.
(2)358.2 grams of pure methamphetamine.
24 This occurred on or about 15 May 2016, and on that date the ABF in Sydney seized a FedEx consignment addressed to “Melville” at 30 Kent Road, Box Hill, and that consignment had been sent from California.
25 The consignment was deconstructed and found to contain 446.2 grams of methamphetamine concealed inside a Sony DVD player.
26 That methamphetamine had a purity of 80.3 per cent, meaning the pure weight was 358.2 grams of methamphetamine.
27 As with the previous consignment, Mr Lim, you were liaising with contacts in relation to that package. You sent details of the Box Hill address on 12 May 2016 to one of the contacts. On 15 May 2016, you had other conversations via Wechat, both by text and audio message during which you discussed with your contact the pending arrival of the consignment and expressed concern it had not arrived. From those communications it was clear you did not believe the package would be sent to the Box Hill address and suggested a Bundoora address for future delivery.
28 On 15 May 2016, during a conversation it was confirmed that the consignment had not yet arrived. On 16 May 2016, you and another engaged in a conversation via Wechat by both text and audio message during which you said, “I had the feeling that the one to Box Hill won’t pass. It happened several times before.”
You then suggested that things be sent to Bundoora instead and there was a discussion about how much money could be made by those who were involved.
(3) Importation of approximately 408 grams of pure methamphetamine. on or about 24 May 2016.
29 On 17 March 2016, Mr Lim, you rented a room at 7 Anna Street, Bundoora and paid two months’ rent in advance in cash. You did not occupy that room and on 30 March 2016, you advised the landlord that you no longer required it.
30 At about 11.52 am, on 24 May 2016, a FedEx consignment was successfully delivered to this address. That package was addressed to Molly Smith and was sent from California. The parcel’s contents were described as “Amazon fire sticks” and valued at USD$250.
31 Wechat messages sent by you, Mr Lim, to other members of the drug syndicate in relation to this consignment included reference to the fact that you had received the consignment.
32 Video footage taken on the phone of one of the members of the drug syndicate showed the consignment being deconstructed inside your Kew residence on the afternoon of 24 May 2016. A Sony DVD player was found inside the package. As it was taken apart, a quantity of substance comprised of large crystals was placed on the scales and weighed. The substance was inside a clip seal bag, and the scales showed that together, the bag and the substance, weighed 511 grams.
33 On the basis that the large crystals featured in that video footage appeared visually similar to the large white crystal that was located during the execution of the search warrant at Mr Lim’s home on 25 May 2016, it was later found to be 19.4 grams of methamphetamine calculated at purity of 80.3 per cent (Charge 2).
34 The pure quantity of methamphetamine within this consignment, therefore, was estimated to be approximately 408 grams pure.
(4) Importation of 356 grams of pure methamphetamine on or about 28 June 2016
On that date ABF Sydney seized a FedEx consignment addressed to Xiao Mi at 74 Banksia Street, Heidelberg. The consignor was “Danny Kim” and it was sent from California.
When the package was deconstructed by the ABF, it was found to contain a quantity of white crystalline substance concealed within a Sony DVD player.
Further forensic examination and analysis confirmed that the substance was 444 grams of methamphetamine. The methamphetamine had a purity of 80.3 per cent, meaning that the pure quantity was approximately 356 grams.
35 At the time of your arrest, Mr Lim, you were renting a room with Mr Teoh at 72 Banksia Street, Heidelberg. When that room was searched by AFP on 5 August 2016, police located an Apple iPhone belonging to you. Inside the phone at the time was a SIM card for the same phone that was provided to FedEx as the contact number for the consignee of the package.
(5) Importation of 233.6 grams of pure heroin by Lim (Charge 1) and Teoh (Charge 3) on or about 4 August 2016.
36 On 4 July 2016, the owner of 6 Edro Court, Bundoora leased a room to a male person who spoke Cantonese and said he was from Hong Kong, using a mobile service that ended in the numbers 759. That person paid for the room in cash but did not occupy the room.
37 At approximately 9.00 am on 4 August 2016, a DHL delivery driver attempted to deliver a package addressed to “Alex Tan” at 6 Edro Court, Bundoora. That consignment had been sent from Malaysia and was said to have contained religious clothes. As nobody was home at the time of the attempted delivery, an undelivered shipment card was left in the letterbox.
38 At 10.26 am on 4 August 2016, Mr Lim you called DHL and, using the name “Alex Tan” requested that delivery be reattempted the following day.
39 On the morning of 5 August 2016, both of you walked together from the direction of 72 Banksia Street, Heidelberg and boarded a bus outside the Heidelberg train station.
40 At about 8.43 am on that day, the DHL delivery driver reattempted delivery of the package. As he walked towards the premises, he was approached by you Mr Teoh, you had been waiting on the front porch. Mr Teoh, you told the delivery driver that you were “Alex Tan” and accepted and signed for the delivery of the package.
41 At about 4.35 pm on 5 August 2016, you were both arrested in the vicinity of Yarra Street, Heidelberg.
42 At the time of the arrests, Mr Teoh, you were carrying a bag that contained a block of heroin in white powder form that was wrapped in red paper with Chinese symbols on it. Later forensic testing confirmed the heroin weighed 350 grams gross; it had a purity of 66 per cent, which meant the weight of the pure heroin was calculated to be 233.6 grams.
43 Two mobile phones were also found in Mr Teoh’s possession at the time of his arrest. One of those mobile phones had the contact phone number that was given to DHL as being the contact number for the recipient of the package.
44 When you were arrested, Mr Lim, you had a white Apple iPhone with the phone number ending in 442.
45 An analysis of that phone revealed that you had been in contact with others concerning this final consignment, including two SMS messages sent on 31 July 2016 with the message text setting out the contact mobile phone number that was given to DHL for Alex Tan, four SMS messages with the text message, “6 Edro Court, Bundoora, Victoria, 3083” and repeating the mobile number.
46 There was regular contact with international phone service +60179097268, including an outgoing call at 10.29 am on 4 August 2016, immediately following the phone call to DHL customer service.
47 Police then identified and searched the room that was rented at 72 Banksia Street, Heidelberg. There they located various items including a DHL undelivered shipment card for the consignment in the name of “Alex Tan”, an Apple iPhone 4S containing a SIM with a mobile number which was the number listed as the contact number for the consignee on the package that contained the heroin. That phone was found to be secured with a PIN code and had an image of you, Mr Lim, as the screen saver and another SIM mobile starter pack for the mobile number ending in 430, as well as numerous other SIM cards and SIM starter packs.
48 Following the arrests, you were both interviewed with the assistance of a Mandarin interpreter.
49 Mr Teoh, you admitted during your interview attending 6 Edro Court on the morning of 5 August 2016 and accepting delivery of the consignment but made false statements about the reason for you attending, including that you had been offered a $2,000 amount by an unknown person you had met at Crown Casino a week earlier to collect a package from Bundoora, to return certain contents and convey them back to that person: You were told the package contained something to worship the gods and you were provided with a phone by that person which that person said they would contact you on once you received the package; and that at the time of your arrest you were travelling to the city with Mr Lim to buy food.
50 During your interview, Mr Lim, you admitted that you were the user of the Wechat profile “Lewis”. However, you made a number of false statements including that:
· You travelled to Bundoora with Mr Teoh on 5 August 2016 but stayed at McDonald’s while he went to see a friend; that you did not call DHL on 4 August 2016;
· That you were not aware of heroin located in Mr Teoh’s bag until after the arrest, however, you could not be sure if your fingerprints were on it, as you helped him with tidying up his room;
· At the time of your arrest you said you were travelling to the city to see your wife to have a meal;
· The mobile phone seized at the time of your arrest was yours and protected by a PIN code, 0629;
· You said Mr Teoh knew that code and sometimes used the PIN code;
· You said that you knew Egbert Eoh Yang was doing some stuff but you, yourself, were not involved in the importation of drugs into Australia;
· You said that you rented the room at 7 Anna Street, Bundoora to stay with your wife but only stayed there a couple of nights as it was too far from the city.
· You said that you sent the address of 7 Anna Street, Bundoora to Egbert Eoh Yang on Wechat because he was looking for somewhere to live and you had no knowledge of the consignment containing methamphetamine sent to 7 Anna Street, Bundoora;
· You told police you did not think it was you sending the address of 30 Kent Road, Box Hill to Egbert Eoh Yang on Wechat and that you had no knowledge of either of the consignments containing methamphetamine that was sent to that address.
Gravity of offending and roles
51 Mr Lim your offending here is particularly serious. The amount of border controlled drug imported was large, especially the methamphetamine, in terms of volume and the amount of heroin is not insignificant. I refer to the chart that was provided by the prosecution during the plea hearing which sets out the drug quantities. There are multiples of marketable quantity and percentage of commercial quantity, and that chart will be annexed to my reasons for sentence.
52 The total of the consignment, the subject of Charge 1, methamphetamine, was 1.73 times the commercial quantity, and the heroin was 15.5 per cent of the commercial quantity. Charge 2, the methamphetamine was 5.3 per cent of the commercial quantity.
53 Mr Lim, your role was an important one. You were no mere courier. I do not find that you were the mastermind of this scheme but nonetheless I consider you to be the key intermediary, that is, the major player here in Victoria involved in these importations. Therefore, your moral culpability is high and you will be sentenced on that basis.
54 You played a significant role in the importation of these drugs. Having regard the nature of the importations and the quantity of drugs imported, I consider these to be serious examples of this serious offence.
55 The Crown submitted that the Court ought make a finding that your sole purpose for travelling to Australia was to operate the business on behalf of the international syndicate. A document showing two photographic images was provided to the Court; one was a screen shot captured on 17 January 2016 showing a bundle of Australian money displayed, and the second was a screen shot taken 5 April 2016 showing an Asian man with a fan made up of money.
56 On the basis of those images being sent from the Wechat user "Lewis", the Crown submitted I ought make a finding that you, Mr Lim, came to Australia solely for the purpose of involving yourself with this syndicate.
57 This evidence taken alone does not, in my view, lead to the conclusion that the Crown seeks to make in the absence of other evidence supporting that submission.
58 In respect to the possession charge, I note that the drug was found in your possession at your rental property in Kew. Your fingerprints were on the outside of the package, so that you must have handled that package at some stage. I am satisfied that you were holding the drugs in safe custody on behalf of the syndicate.
59 Mr Teoh, I am satisfied that you played a lesser role within this international drug syndicate. Nonetheless you were a trusted member of the syndicate and actively participated in taking delivery of the marketable quantity of a border controlled drug, namely heroin, the subject of Charge 3. On the basis of the chart that was provided by the prosecution, that heroin is 116.8 times the marketable quantity or 15.5 per cent of a commercial quantity.
Sentencing factors
60 In sentencing you both I must impose a sentence that is of a severity appropriate in all the circumstances of the offending, (s.16A(1) Crimes Act 1914 (Cth)).
61 As you are being sentenced as federal offenders, I must have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth) and more specifically the matters set out in s.16A thereof.
62 The principles applicable to sentencing for serious federal drug offences, including offences of importation, are set out in R vNguyen; R v Pham (2010) 205 A Crim R 106 at 72, approved by the Victorian Court of Appeal in Nguyen v R and Phommalysack v R (2011) 31 VR 673, where the President of the Court of Appeal, Justice Maxwell, stated at [33] that those principles substantially accord with the course of decisions in Victoria, and I am guided by those principles.
63 Courts in Australia have consistently stated that those who engage in the illicit drug trade, no matter what their status in the enterprise, must expect heavy sentences in which general deterrence is the principal purpose of punishment.
64 Both of you have no prior criminal convictions but, as the Court of Appeal in this State has made clear in Nguyen v R[1], prior good character is generally given less weight as a mitigating factor in this kind of offending than it might otherwise be given.
[1][2016] VSCA 276.
65 General deterrence, denunciation and specific deterrence are the major considerations relevant to sentence. This is particularly important in relation to offenders motivated by financial reward. As Maxwell, P said in the decision of Nguyenv R; Phommalysack v R:
“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.”[2]
[2](2011) 31 VR 673 [34].
66 I shall now turn to matters personal.
Mr Lim
67 Mr Antos made submissions on your behalf in mitigation.
68 Both your mother and younger brother were present in Court and travelled to Australia from Malaysia for the plea hearing. They were also accompanied by your wife, Jennifer.
69 By way of personal history, I note that you are aged 25. You were 24 at the time of your arrest. You were born and grew up in Penang, Malaysia. You are a Malaysian national.
70 You are the eldest of four children. Your family is one of modest means. Your mother is a housewife and your father works in the timber industry.
71 You abandoned education in about 2007 having completed the equivalent of Year 9. You then commenced employment to help provide for your family. There are cultural expectations within your community that the eldest son will bear some financial responsibility and provide a significant proportion of his income to the family.
72 You worked in the timber industry in Malaysia up until you travelled to Australia in late 2015. You were being paid the equivalent of $700 Australian per month.
73 You met your wife Jennifer in 2009 and married a year later. You have one daughter who was born in Malaysia on 22 October 2014. Your daughter initially lived here in Australia with you and your wife, but is now being cared for by your parents in Malaysia.
74 You arrived in Australia in 2015 with your wife and daughter, and the purpose of visiting Australia was so that your wife could undertake studies. You held a Bridging Visa A, being a secondary applicant on your wife’s student visa. That visa permitted you to remain in Australia for longer than three months.
75 Because of your arrest, the Bridging Visa was cancelled and you are currently unlawfully in Australia. At the time of your arrest, you were not being considered for a different visa.
76 Submissions were made by your counsel in his written outline about your intentions when you arrived in Australia. There was no evidence to demonstrate that you were seeking to undertake further education to foster a career and improve your financial prospects nor was there any evidence that you had applied for assessment for a different visa.
77 I am not satisfied that there was any evidence to support the submission that you lost the opportunity to remain in Australia.
78 However, given the likelihood of deportation is real following the imposition of your sentence and completion of your sentence, I accept that the fact that you will serve your term of imprisonment in the expectation of being deported means that the burden of imprisonment will be greater for you than otherwise.[3]
[3]Guden v R (2010) 28 VR 288.
79 Your motivation for the offending was the prospect of making fast and quick money. You wanted to provide greater financial support for your wife and extended family members overseas. Through your counsel you said that you were lured into this offending and that you were approached by an unknown person whilst attending the Crown Casino.
80 As was stated during the course of the hearing, I do not accept that your involvement in this importation business was as a consequence of a chance meeting with another at the Casino.
81 Having regard to the particular circumstances of your crimes, I consider that you were a willing and knowing participant at all times and that you knew that you were participating in an international drug syndicate. You were the “key intermediary” who actively facilitated the arrival and delivery of the five imported consignments of the border controlled drug the subject of the rolled up Charge 1. You were a trusted member of the syndicate and not an unsuspecting dupe.
82 Ultimately, on the evidence relied upon by the Prosecution, I am not satisfied that you entered Australia solely to organise the importation of the consignments. I am satisfied that there was initially a legitimate purpose for you to come to Australia, but then you took advantage of being present in Australia to take up your role on behalf of the syndicate.
83 When you were arrested you made many false denials. However, you have now pleaded guilty and it is accepted that that plea of guilty was entered at an early stage. Through your plea of guilty you have now accepted responsibility for your wrongdoing.
84 I note that the plea of guilty was entered at the earliest stage at committal mention. There is real utility in your plea. By pleading guilty you have saved the significant costs and inconvenience of running a trial. You have facilitated justice, and your sentence will be discounted accordingly.[4]
[4]Cameron v The Queen [2002] HCA 6; Phillips v The Queen [2012] VSCA 140.
85 You now recognise that you will spend a significant amount of time in prison prior to being deported back to Malaysia. You accept and understand that you have little or no prospect of ever being able to return to Australia.
86 You are now deeply embarrassed and ashamed of your conduct and say that you have let your family down. The impact on your family has been significant and they have suffered emotionally as well as economically as a consequence.
87 You have not revealed your offending to your wife’s family because of your shame.
88 Your wife, Jennifer, was not aware of your involvement in this offending. She is continuing to undertake her studies, however, her visa expires in 2018.
89 Because of your personal circumstances, that is, poor command of English, cultural differences and lack of personal supports here in Australia apart from your wife, I accept that it will be an isolating experience whilst you are in prison, and I have taken that into account.
90 I am satisfied that your arrest and remand has had a salutary effect upon you and you are now genuine in wanting to reform. I accept that there is some evidence of remorse, and I have taken into account the contents of the letter you addressed to the court.
91 In that letter you confirmed you were greedy and that your motivation was to make quick money. You now sincerely regret your involvement in this offending and express a desire to rebuild your life free from further offending and you now accept that drugs can cause real harm.
92 I accept that you are of a relatively young age and the principles that apply in respect to youth as enunciated in Mills[5] apply, and I have taken that into account, but I do reject the submission that you are a youthful offender, as set out in your counsel's submissions.
[5]R v Mills [1998] 4 VR 235.
93 I have taken into account your prior good character as relevant to your prospects for rehabilitation. I have taken into account your mother's reference and accept that you previously were considered to be a young man of integrity and honesty. Overall, I accept you have good prospects for rehabilitation.
94 Finally, because of the serious nature of your offending, the difficulty of detecting importation offences and the great social harm that such drugs are known to cause, I consider that a term of imprisonment is the only appropriate punishment. I will provide for some cumulation between the two charges to reflect the different level of criminality involved.
Mr Teoh.
95 Mr Teoh, you are aged 24. You were born on 3 November 1992 and were 23 when you were arrested. You were also born in Penang, Malaysia.
96 Your family lives on an agricultural property outside Penang that produces sweet potatoes primarily. You are one of four children. You have three sisters who live outside your home state.
97 You attended school up to age 16 but were a poor student. You left school to work in the family business to assist your father on his farm. That farm is approximately 200 acres and employs 16 labour workers and there are also share farmers who work the land and pay rent to your family.
98 You have a history of drug abuse commencing at age 17 and that continued and became daily use by age 19. At age 21 you ceased use of all drugs because of the difficulties your family was having in relation to its finances and you recommitted to working with your father on the farm to alleviate his difficulties.
99 The family's financial circumstances became even more dire in 2015 because of the failure of some crops, and ultimately your father was unable to keep the farm afloat because of his inability to meet debts.
100 You travelled to Australia in late February 2016 on a tourist visa. You had saved some money through working. Your funds only lasted for a limited number of months and then you supplemented your savings with casual construction and labouring work.
101 Your visa was due to expire at the end of May 2016.
102 You are a friend of Mr Lim and you both knew each other through your school in Penang.
103 You were offered an opportunity to make some quick money and you accepted that offer out of a desire, you say, to assist your family.
104 I note your involvement in the importation is confined to the one occasion only and I am satisfied the evidence does not support any greater involvement. The mere fact that you were present at the Kew address when the police executed the warrant and the fact that you were a long-term friend of Mr Lim from childhood does not, in my view, support any inference that you played a greater role in this drug syndicate in the absence of other supportive evidence linking you to the syndicate. You will therefore be sentenced on the basis that your culpability is lesser than that of Mr Lim's.
105 As I said earlier, I am satisfied that your role was limited to that one occasion where you were the mere courier collecting the border controlled drug that had been imported and you are in the lower echelon of the drug syndicate, and you will be sentenced accordingly.
106 It is accepted that you were low in the overall hierarchy of this offending and I am satisfied you operated under the direction of others, in particular Mr Lim.
107 The quantity of drugs imported involved in your charge is 116.8 times a marketable quantity and 15.5 per cent of a commercial quantity; a not insignificant amount of heroin. It is a significant amount above the threshold marketable quantity.
108 Given that your tourist visa has expired, you are now an unlawful citizen and at the end of the sentence you expect to be deported. You do not have any ties to the jurisdiction and have no plans of remaining in Australia in any event.
109 It is accepted that given your lack of ties within the jurisdiction, absence of family and other support here in Victoria will means that you are isolated and your time spent in custody will be more burdensome. I have also had regard to the fact that you are not fluent in the English language.
110 In your favour, I have taken into consideration all the matters put in mitigation. You, too, entered a plea of guilty at the earliest opportunity. There is real utility in your plea. You have spared the expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
111 By your plea you acknowledge what you did was wrong and you accept responsibility for your criminal act.
112 I am prepared to accept there is some evidence of remorse, and I have had regard to the letter you wrote to the Court in which you demonstrate insight into your offending and express a desire to become a more positive person in the future. You would like to sincerely apologise for your involvement in this drug importation.
113 You have completed an alcohol and drug program in prison conducted by Uniting Care. You have learnt a lot from that course and you now acknowledge the real harm drugs can cause and you are committed to remaining drug-free in the future. Upon your release you express a desire to reunite with your family and rebuild your relationship with them.
114 I have had regard to the fact that you are still relatively young and the application of the Mills' principles are of some relevance.
115 Having regard to your expressed insight into your offending, your commitment to rehabilitation and your undertaking of the drug course in prison all combine such that I consider you have good prospects for rehabilitation.
116 It was conceded on your behalf, appropriately, a term of imprisonment is the only available disposition, and ultimately I have concluded that no sentence is appropriate other than a term of imprisonment having regard to the cases that have been referred to, statistics and the general sentencing principles that I have earlier referred to.
117 Although you do not come within the definition of a young offender, you were still only 23 at the time of the commission of the offence and it is accepted that immaturity of youth is an acknowledged factor that does bear upon an offender’s transgressions, and yours is a case where I consider the emphasis to be placed on general deterrence should not completely overshadow the importance of rehabilitation.[6]
[6]Paragraph K of the Propositions Applicable to Sentencing for Drug Importation Offences, R v Nguyen (2010) 2005 ACrimR 106, 126-8 [72].
118 Notwithstanding that ultimately your rehabilitation will probably occur in Malaysia, I have fixed a non-parole period having regard to a recognition of your relatively young age and your relatively limited role in this importation and the other positive factors I have highlighted in these sentencing remarks.
119 I will now impose the formal Court Orders. Firstly, I will deal with Mr Lim. Could you please stand?
Mr Lim
120 Charge 1, the importation of a commercial quantity of border controlled drug, convicted and sentenced to ten years’ imprisonment.
121 Charge 2, possess a marketable quantity of border controlled drug, convicted and sentenced to five years’ imprisonment.
122 Charge 1 – the date of the sentence is to commence from today’s date.
123 Charge 2 – the date of the sentence is to commence three years before the expiration of the sentence imposed with respect to Charge 1. So that makes, therefore, a total effective sentence of 12 years’ imprisonment and I fix a non-parole period of nine years’ imprisonment.
124 I make the following declaration pursuant to s.6AAA of the Sentencing Act (Vic). But for your plea of guilty, I would have imposed a term of imprisonment of 15 years to serve 12 years' imprisonment.
125 I make the following declaration of pre‑sentence detention. I direct that 237 days pre‑sentence detention be entered into the records of the Court as being the time served already in respect to the sentence.
Mr Teoh
126 Mr Teoh, on your charge, Charge 3, import a marketable quantity of border controlled drug, you will be convicted and sentenced to five years’ imprisonment to serve three years, and that is effective from today’s date.
127 I make the following s.6AAA declaration. But for your plea of guilty, I would have imposed a term of imprisonment of seven years to serve five years.
128 I make the following declaration in respect to pre‑sentence detention in relation to you. I direct that 237 days pre‑sentence detention be entered into the records of the Court.
129 There were no other ancillary orders, were there?
130 MS VERDON: No ancillary orders, no, Your Honour.
131 HER HONOUR: Thank you all for your assistance. We can adjourn. Do you want to stay in court with the interpreter here so that you can both talk to your clients?
132 MR McCULLOCH: If I may, Your Honour.
133 MR ANTOS: Yes, if the custody staff are content with that, that would be appropriate. I would prefer that rather than going down to the cells.
134 HER HONOUR: I will just leave the Bench so that that can be facilitated.
135 MR ANTOS: As Your Honour pleases.
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ANNEXE 1:
Drug quantities as a multiple of marketable quantity/percentage of commercial quantity
YIH WEN LIM
CHARGE 1 (Importation)
| Date of Consignment | Drug and Quantity | Multiple of Marketable Quantity[7] | Percentage of Commercial Quantity[8] |
| On or about 25 April 2016 | 175.8 grams pure methamphetamine | 87.9 x MQ | 23.4% of CQ |
| On or about 15 May 2016 | 358.2 grams pure methamphetamine | 179.1 x MQ | 23.8% of CQ |
| On or about 24 May 2016 | Approximately 408 grams pure methamphetamine | 204 x MQ | 27% of CQ |
| On or about 28 June 2016 | 356 grams pure methamphetamine | 178 x MQ | 47% of CQ |
| On or about 4 August 2016 | 233.6 grams pure heroin | 116.8 x MQ | 15.5% of CQ |
| TOTAL | 765.8 x MQ | Methamphet. – 1.73 x CQ Heroin – 15.5% of CQ |
[7] A marketable quantity of both methamphetamine and heroin is 2 grams.
[8] A commercial quantity of methamphetamine is 750 grams. A commercial quantity of heroin is 1.5kg.
CHARGE 2 (Possession)
| Date of Possession | Drug and Quantity | Multiple of Marketable Quantity | Percentage of Commercial Quantity |
| On or about 25 May 2016 | 79.6 grams pure methamphetamine | 39.8 | 5.3% of CQ |
EN YAO TEOH
| Date of Consignment | Drug and Quantity | Multiple of Marketable Quantity[9] | Percentage of Commercial Quantity[10] |
| On or about 4 August 2016 | 233.6 grams pure heroin | 116.8 x MQ | 15.5% of CQ |
[9] A marketable quantity of both methamphetamine and heroin is 2 grams.
[10] A commercial quantity of methamphetamine is 750 grams. A commercial quantity of heroin is 1.5kg.
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