Director of Public Prosecutions v Loh
[2023] VCC 1155
•3 July 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-02349
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUEI QIN LOH |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 July 2023 | |
DATE OF SENTENCE: | 3 July 2023 | |
CASE MAY BE CITED AS: | DPP v Loh | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1155 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Knowingly deal with the proceeds of crime – Malaysian citizen on a bridging visa – youthful offender
Legislation Cited: Crimes Act 1958, s465; Drugs, Poisons and Controlled Substances Act 1981, s81
Cases Cited:Alon Waterman v The Queen [2016] VSCA 32; Blaire Ashweirth v The Queen [2015] VSCA 224; Boulton v The Queen [2014] VSCA 342; Worboyes v The Queen [2021] VSCA 169; R vMills [1998] VSC 241
Sentence: Convicted and ordered to serve a Community Corrections Order for a period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Dr J. Harkess | Office of Public Prosecutions |
| For the Accused | Mr C. Hooper | Garde-Wilson Lawyers |
HIS HONOUR:
1Huei Qin Loh, at the County of Victoria in Melbourne on 3 July 2023, that is today. You pleaded guilty to a single charge on Indictment no. N11160447:
Charge 1 is knowingly dealing with the proceeds of crime. It was a rolled-up charge which included jewellery to the value of $41,348. 49 handbags valued at $148,350. Shoes to the value of $1500 and a toy valued at $500. The total of $191,698 worth of goods. A maximum penalty for that charge is 15 years imprisonment.
The circumstances of your offending
2The learned prosecutor tendered Exhibit “A” which was a Summary of Prosecution Opening in this matter and I will refer to it in part.
3You are a Malaysian citizen; you are in Australia on what is called a bridging visa. You have two children aged seven and two years of age. Until 31 May 2022 you lived in a de facto relationship with Jimmy Kown Yew Lang who I will refer to as Mr Lang. On that day Mr Lang was arrested and charged with trafficking a large commercial quantity of drug of dependence which was heroin and knowingly dealing with the proceeds of crime. Your de facto, Mr Lang, was charged as part of a drug syndicate trafficking heroin and to a lesser degree, methylamphetamines.
4Other persons involved in the drug syndicate were:
(a) Mr Teoh who was in charge of the syndicate.
(b) Ms Tran who brokered deals between Mr Teoh and Mr Lang, your de facto.
(c) Mr Mong who also brokered deals between Mr Teoh and Mr Lang; and
(d) Mr Nguyen who was a courier on one specific drug transaction.
5Between October 2021 and 31 May 2022, Victoria Police Major Drug Squad conducted an investigation named Operation MDS - Kingfisher.
6Mr Teoh was part of a joint criminal enterprise with your co-accused, Mr Lang. Together they headed a drug syndicate comprising mostly of Malaysian citizens who reside in Australia. They sold heroin in block form. Each block comprised 350 grams of heroin compressed into a rectangular packet. The packets were embossed or labelled with the logos of two lions and a globe, and they were marketed under the name of ‘Lion’ and ‘Globe’. The blocks were sold in pairs with a pair of heroin blocks selling between $115,000 and $140,000.
7Mr Teoh was in charge of the syndicate and oversaw all aspects of the drug business. Police described your de facto, Mr Lang as being the production and warehouse manager.
8Mr Lang managed, supervised, and oversaw a safe house which was situated at 3 Teague Crescent in Braybrook, where large quantities of sourced heroin were refined, tested, pressed, and re-packaged into Lion and Globe blocks. This was known as ‘Safehouse 1’. Safehouse 1 was also used as a syndicate office where key members regularly met and handled large quantities of cash and methylamphetamine. Safehouse 1 was a property which was rented by the drug syndicate. In the adjoining property of 5 Teague Crescent in Braybrook, you and Mr Lang resided there with your children. Mr Lang also managed another safe house for the drug syndicate at 80 Royal Road in Braybrook.
9
At 6.30 am on 31 May 2022 the police executed search warrants pursuant to s465 of the Crimes Act and s81 of the Drugs, Poisons and Controlled Substances Act at addresses associated with members of the drug syndicate. This included a search warrant executed at your home, or your residence with Mr Lang at
5 Teague Crescent in Braybrook and the adjoining property known as Safehouse 1, at 3 Teague Crescent in Braybrook.
10During the search of Safehouse 1, police located and seized the following items:
(a) several mobile phones.
(b) a large industrial scale hydraulic press.
(c) 12 metal press components and press plates; and
(d) a commercial cash counter.
11When they executed the search warrant at your home, they located yourself, Wendy Lang who is your de facto’s sister and your children inside the property. You told police that Mr Lang was at work in the Melbourne CBD area where you said he was employed as a kitchen hand on night shift.
12Police also located the following items relevant to your charge at 5 Teague Crescent as follows:
(a) jewellery and gold with an estimated value of $41,348.
(b) 49 luxury handbags most of which were stored in a display cabinet in the main bedroom, they were valued at $148,350.
(c) Three pairs of luxury shoes and a luxury toy valued at $2,000; and
(d) several mobile phones used by Mr Lang and yourself.
13You had purchased the items I have just referred to, using money that Mr Lang had obtained from trafficking drugs of dependence. Analysis of the mobile phone communications between Mr Lang and you revealed that you were aware of Mr Lang's involvement in a drug trafficking operation and that the significant quantities of cash that he provided to you were sourced from that illegal activity.
14On 6 June 2022 you were arrested by appointment and formally interviewed by police. During the interview you admitted that you resided at 5 Teague Crescent in Braybrook with Mr Lang and your two children. You told police that Mr Lang paid the rent for the property of $2,200 per month. And as is your right, you made no further comment in relation to questions put to you.
15
You indicated your intention to plead guilty to this charge on 12 December 2022 at a committal mention stage. You have been on bail since your arrest in
June 2022.
Your personal circumstances
16You are now 23, at the time of your offending you were 22 years old. At the time of your offending, you were in a de facto relationship with Mr Lang. Mr Lang is the father of your two children, Grace aged seven and Gabriel aged two. You have been a single parent since May 2022 when Mr Lang was taken into custody for the alleged drug offences.
17You are a Malaysian citizen. Your education is limited to primary school level with one year of secondary education after it. You speak Mandarin and require the assistance of an interpreter in the course of these proceedings. You are the youngest child of four children in your family.
18
In 2013 you came to Australia as a 13-year-old with two of your older siblings. You initially worked as a farm hand and fruit picker in the Robinvale area of Victoria. Whilst you were there you met Mr Lang and became pregnant with your daughter Grace. Your two elder siblings returned to Malaysia in 2017 when you were
17 years of age. And at that stage, had a one-year-old child.
19
You have no other family support in Australia other than Mr Lang's sister who resides with you and your two children. Your eldest daughter Grace is very unwell and requires constant medical care and care from you, at an intensive level. A report from Dr McNab from the Royal Children's Hospital dated
24 November 2022, sets out the severity of Grace's medical conditions. That report was Exhibit 2. And the report states as follows, and I will read this part:
'Grace has spent many months of her life as an inpatient at the Royal Children's Hospital, including stays in intensive care. Her most recent intensive care stay was in July 2022. In the past 12 months Grace has had 11 hospital admissions.
Her main health concerns relate to:
- Bronchiectasis secondary to chronic aspiration (due to pseudobulbar palsy). This requires frequent hospital input for physiotherapy and antibiotics.
- Apnoeas which are pauses in her breathing. She is at risk of sudden and extreme life threatening health deteriorations. Grace requires non-invasive ventilation known as BiPAP when she sleeps, as she cannot breathe adequately on her own.
- Feeding issues - Grace has pseudobulbar palsy, which means she cannot safely take food or drink via her mouth without aspirating, that is breathing the food or drink into her lungs. As such she requires all nutrition to be via a tube directly into her intestine.
Grace has also required an intensive care admission this year for life threatening electrolyte imbalance in the context of short gastroenteritis illness. She had a respiratory deterioration in intensive care and was critically unwell’.
20And finally, Dr McNab says,
'Grace is an extremely medically vulnerable child and needs frequent involvement with tertiary paediatric care. I do not believe she is currently safe to move to Malaysia, and moving would place her at an extremely significant risk of death.'
21You also have the care and custody of your youngest child Gabriel who is two years old.
22You have no prior convictions. You have lived in Australia for 10 years. You are currently on a bridging visa and remain in Australia on that basis. Your de facto, Mr Lang is in custody and will probably remain there for a lengthy period of time, leaving you as the primary and effectively the only carer for your two children.
23You have been assessed Dr Matthew Staios, clinical neuropsychologist. He prepared a report for this proceeding dated 1 July 2023. It was Exhibit 3. He has diagnosed you with major depression. I have no doubt that Grace's health, your de facto’s incarceration, the criminal prosecution of yourself and the uncertainty about you remaining in Australia are all factors that have weighed heavily upon you.
Sentencing considerations
24The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you, as an offender, are rehabilitated and reintegrated into society, be that here or in Malaysia.
25I am required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances. And many of the cases would be distinguishable from your case, as indeed they are from one another.
26
I also note the cases referred to by counsel in this case; Waterman v The Queen [2016] VSCA 32, and Ashweirth v The Queen [2015] VSCA 224.
I am mindful of the provisions of the Sentencing Act, in particular s5(4C) which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed. The prosecution submitted that a community corrections order was an appropriate penalty in the particular circumstances of your case.
27I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case and have had you assessed for a community corrections order. You have been assessed as being suitable, that is not the end of the matters.
28You have pleaded guilty to this charge, your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.
29There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters. And your plea vindicates the public confidence in the legal process set up to protect the community.
30Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community. And I accept that your plea of guilty to this charge indicates and demonstrates remorse on your part. I also accept you have expressed remorse to Dr Staios.
31Your plea of guilty has been entered at a time when the courts are dealing with a backlog of trials due to the COVID-19 pandemic. You have been on bail and at large in the community and have not used the backlog to engage in further delay of this case by conducting a trial. Your plea of guilty in these circumstances is worthy of greater weight in mitigation than a plea entered in, what I refer to as, normal times.
32The Court of Appeal in Worboyes stated:
'A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.'
33In the circumstances of this case, Worboyes case has application in your sentencing for this offence.
34There has been a delay of 13 months from the time of your arrest and charging to the finalisation of your sentencing process. Unfortunately, a delay of this magnitude is a common occurrence in our criminal justice system. Delay is important in the overall sentencing synthesis. In your case, the delay has particular relevance because of the circumstances peculiar to yourself in the form of Grace’s precarious health status, your risk of imprisonment, the risk of deportation and when you are suffering from major depression. I take delay into account when finalising your sentence.
35It was submitted on your behalf that the risk of deportation from Australia is an appropriate factor for this court to take into account in the sentencing process. You are currently on a bridging visa. You have lived in Australia for 10 years and your two children, both of whom were born here. I cannot speculate on your chances of remaining in Australia after this sentence is pronounced. I do accept that you have felt, and continue to experience hardship concerning the risk of deportation. Particularly when your eldest daughter’s health is so fragile.
36You are a youthful offender. You lived in a dependent relationship with Mr Lang and accepted the largess from his criminality willingly. Nevertheless, the sentencing principle as set out in R v Mills are relevant to your case. The principles are:
(1) Youth of an offender, particularly a first time offender, such as yourself should be a primary consideration for a sentencing court.
(2) In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Rehabilitation benefits both the community as well as you, the offender.
(3) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if the offender is beginning to appreciate the effect of the past criminality. And I accept that to be the case with you.
37The sentencing principles of youthful offenders have application to your case.
38In your case the fact of Grace's ill health and the degree of care required to be provided by you are exceptional in this case. Requiring the court to exercise some mercy in the sentencing process. Your prospects of rehabilitation are good. You have no alcohol or drug use issues. You have no prior convictions. You are very busy and engaged in looking after your two daughters, one of whom requires constant care and monitoring by you as her mother. That responsibility is your job now.
39Your offending is serious, Parliament has reflected the seriousness of this offending by setting a maximum sentence of 15 years imprisonment. The indicators of the level of seriousness are as follows:
(a) You knew the money you spent on luxury items and jewellery came from drug trafficking activities of Mr Lang.
(b) You were not spending the money, holding the luxury goods in any form of laundering the drug money. You just kept the goods.
(c) You were prepared to take advantage of the money coming from illicit drug trading by Mr Lang.
(d) You have no active part in the drug trafficking business conducted by Mr Lang.
(e) You have no prior convictions.
(f) Your role was peripheral to the drug trafficking business which generated the money you spent on the luxury items.
40I assess your level of criminality for this offence in the low range for this type of serious offence. Your counsel did not submit that Verdins principles apply in this case. I note however your diagnosis of major depression in Dr Staios' report and take that matter into account when fixing your sentence.
41The sentencing principles of general and specific deterrence, protection of the community and just punishment can adequately be addressed by the imposition of a community corrections order with conditions in the particular circumstances of your case.
42Would you stand please.
43On Charge 1 you are convicted and sentenced to serve a community corrections order for a period of three years, commencing today. The conditions of the community corrections order are as follows:
(1) You are to be supervised.
(2) You are to be assessed and attend to mental health treatment and rehabilitation.
(3) You are to perform 200 hours of unpaid community work.
(4) Any hours of treatment for your mental health are to be credited to your hours of community work.
(5) You are to attend at a judicial monitoring on 2 October 2023 at 9.30 am. And that that judicial monitoring will take place by Webex from Sunshine Community Corrections Centre.
44In this case, pursuant to s6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to nine months imprisonment. In combination with two years of a community corrections order.
45The Crown has sought a forfeiture order to be signed and I have signed it.
46Is there anything further?
47MR HOOPER: No Your Honour.
48DR HARKESS: No Your Honour, the offender just needs to agree to and sign the order.
49HIS HONOUR: I'm sorry, yes of course. If you wouldn't mind attending with your client and just explain to her the corrections order and she can sign it, thanks.
50MR HOOPER: Of course, Your Honour, thank you.
51HIS HONOUR: Thank you. I will have three copies of that order made, Ms Loh one of them will be given to you. I tell everyone I give the opportunity of a community corrections order, to stick up the order inside their wardrobe cupboard and have the door open so you can see it. Just so you are reminded every day when you go to get your clothes out, of what your responsibility is. Your main job is to look after your children.
52Counsel thank you both for your assistance today and the instructions you have both obtained, thank you.
53MR HOOPER: As Your Honour pleases.
54DR HARKESS: As Your Honour pleases.
55HIS HONOUR: Madam interpreter just before I go, I always forget. Thanks very much for your assistance today, spread as it was over the day, but thank you very much.
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