Director of Public Prosecutions v Loh and Leong

[2019] VCC 1731

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00304; CR-19-00305

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHOON MUN LOH
WAI LEUN LEONG

---

JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2019
DATE OF SENTENCE:	23 October 2019
CASE MAY BE CITED AS:	DPP v Loh and Leong
MEDIUM NEUTRAL CITATION:	[2019] VCC 1731

REASONS FOR SENTENCE
---

Subject:

Catchwords:              Attempt to traffick drugs of dependence – Malaysian citizens on tourist visas in Australia – receipt of parcels containing methylamphetamine and ketamine – interception of parcels – controlled delivery and arrest – gambling debts and poverty – isolation in prison - deportation to Malaysia upon release – prospect of employment on return – no reason to distinguish between accused

Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For Accused Loh	Ms A. Burnnard	Michael J. Gleeson & Associates
For Accused Leong	Mr G. Chisholm	Emma Turnbull Lawyers

HER HONOUR: 

1Just over 12 months ago, on 2 August 2018, each of you, Wai Leun Leong and Choon Mun Loh, arrived in Australia from Malaysia on tourist visas.  You are both Malaysian nationals.  As is now admitted by you, you came here in order to earn money by taking part in some form of work.  That work was in fact receiving a parcel or parcels containing drugs.  On arrival you told authorities that you were staying at an address in Point Cook.  Although you went there after leaving the airport, you were later seen checking into the Seasons Heritage Hotel at 572 St Kilda Road, Melbourne.

2Five days later, on 7 August, Australian Border Force officers intercepted a FedEx package.  It was addressed to C.M. Loh at 572 St Kilda Road, Melbourne.  That is the address of the Seasons Heritage Hotel.  The package contained 250.6 grams of methamphetamine of between 87 and 88 per cent purity and 98 grams of ketamine of between 69 and 72 per cent purity.

3Methamphetamine and ketamine are drugs of dependence within the meaning of the Drugs Poisons and Controlled Substances Act.  Any quantity greater than 3 grams of both of those drugs is a traffickable quantity.  Any quantity greater than 250 grams of methamphetamine is a commercial quantity.  So the methamphetamine fell just above the minimum threshold for a commercial quantity.  Any quantity of ketamine greater than 500 grams is a commercial quantity.  The ketamine in this parcel was just under 100 grams, so one fifth of that. 

4The drugs were removed and replaced with an inert substance and arrangements to make a controlled delivery were put in train.  That same day, 7 August, both of you were seen waiting outside the Seasons Heritage Hotel for four hours.  You were seen to approach couriers carrying mail on numerous occasions. 

5The following day, 8 August, the controlled delivery of the parcel took place.  Surveillance showed both of you, together with two other Malaysian nationals, a man and a woman who had entered Australia with you on 2 August and in whose company you had been since your arrival in Australia, in or near the hire car, which the four of you had been using since your arrival, outside the Seasons Heritage Hotel.  An undercover operative arrived at the address in a delivery van.  He made two phone calls to the phone number on the delivery package. 

6Neither call was answered but you, Loh, were seen to get out of the car holding a mobile phone whose screen could be seen to be lit up.  You were seen to pass the phone to somebody inside the car and, shortly after that, you walked up to the delivery van where the undercover operative was sitting.  You confirmed that he was there to deliver a parcel and identified yourself as the intended recipient of the parcel.  You showed him the unique identifier delivery number for the parcel which you had written on your arm and it matched the information on the parcel itself.

7He handed the parcel over to you and you went back toward the car where the other three were, indicating to them that you had received the parcel.  Police, who had been keeping all of this under surveillance, then approached the car.  The two of you, with Loh still in possession of the parcel, ran away, but you were quickly caught and arrested.  The car containing the other two occupants drove off at a high speed and they have not been located since. 

8Following your arrest, you were both interviewed.  You, Loh, told the police that somebody from Malaysia had told you that you could get money by working in Australia for a week, by collecting a parcel.  You said you did not know what was inside the parcel.  You told police you owed $15,000 in gambling debts back in Malaysia and you said that you would die in Malaysia because you owed money for gambling.  You said that you were to receive $80 payment per package and that your contact was a person called Eric.

9Whilst your instructions about owing the $15,000 debt were pressed today, your counsel acknowledged on the plea that the other assertions that you did not know what was in the parcel, that you were to be paid only $80 per package and that your contact was a person called Eric, were all lies.

10When you were interviewed, Mr Leong, you denied any knowledge of the drug importation or what the package contained.  You asserted that you had paid for your trip and that you were a business person in Malaysia.  You said you were an innocent party who knew nothing and you were just following the other people.  By your pleas of guilty, your assertion you knew nothing about what was in the package is shown to be false.  By what was put to me on your plea in relation to your impoverished life and circumstances in Malaysia, it is also highly unlikely that your assertions that you paid for your trip and that you were a business person in Malaysia were truthful.

11You were each charged with various offences relating to the parcel and its contents and remanded in custody.  On 15 February this year, when your committal proceeding was listed, the charges against you were resolved.  The prosecution accepted pleas of guilty from each of you to two charges of attempting to traffick in a drug of dependence, one each for the methamphetamine and the ketamine, in resolution of all charges originally laid.

12A plea hearing was originally listed for June but was vacated at the request of one of you.  And so it is that today you come to be sentenced, each of you on two charges of attempted trafficking in a drug of dependence.  Although the quantity of methamphetamine is 0.6 of a gram above the minimum threshold constituting a commercial quantity, it is accepted for the purposes of your plea that the prosecution cannot prove that either of you knew the quantity of drugs in the parcel.

13You come to be sentenced therefore on each charge for attempted trafficking in a drug of dependence of a trafficable quantity, not of a commercial quantity which, by reason of the amount of amphetamine, might have been able otherwise to have been charged.  But I proceed on the basis that the evidence does not fix you with knowledge of any specific quantity of the drugs and deal with it then simply as attempted trafficking of a traffickable quantity of each of those drugs.

14That you are pleading guilty to attempted trafficking and not the completed offence of trafficking arises solely from the fact that this was a controlled delivery.  It was the discovery that the parcel contained drugs by Australian Border Force officials, the decision to replace the drugs with an inert substance and to use an undercover operative to make a controlled delivery, coupled with the mounting of an operation which led to your arrest immediately after taking delivery of the parcel, which thwarted the successful delivery of the drugs that had originally been in the parcel to their intended on-recipient.

15Parliament has prescribed that the penalty for the offence of attempted trafficking is the same as the penalty for trafficking.  I do not consider that your culpability is reduced by reason of the fact that this is an attempt resulting from the intervention by Australian Border Force and police.  The maximum penalty for the offence of trafficking and attempted trafficking is 15 years' imprisonment. 

16This was clearly a small part of a much larger and sophisticated operation.  The material before me reveals just a small part of the operation, but an assessment of its scale can be gleaned from the fact that four Malaysian nationals came to Australia together and were involved in taking delivery of the parcel.  That parcel was sent through FedEx to be delivered to the address where you were staying and addressed to the name of one of you.

17All four of the people who arrived together on 2 August were seen at the address initially listed on the arrival information provided by all four of you and all four of you were seen together later that day and then at the Seasons Heritage Hotel, the address where the parcel was delivered.  You collected a hire car from the airport and all four of you were in it at the time of the delivery of the parcel.  According to information provided by you on your arrival, and by what you told the police, it was intended that you would be staying in Australia for a week or two before returning to Malaysia.

18If resources are being put into just that part of the operation that relates to the delivery of the parcel and collection of it from FedEx, with no evidence that suggests that, apart from receiving the parcel, your roles were other than to keep custody of it until somebody else took it or you delivered it to somewhere else, it shows that, whilst your role may have been a small one, it is part of a much larger and more sophisticated operation.  It also indicates deliberate attempts to distance the two of you from any knowledge of people further up the line or further down the line.

19I sentence you therefore on the basis that there is no evidence to suggest that either of you had any involvement other than as a receiver and custodian of the parcel.  I accept that you were part of the supply chain.  There is no evidence that you had any involvement in the sending of the parcel or with the arrangement for its movement after it had passed out of your hands.  There is no evidence that you provided the funds to buy the drugs.  There is no suggestion that you were principals. There is no suggestion that you were the supplier or the intended end recipient or what might be called the supplier's customer.  And there is no evidence that you stood to gain anything other than payment for your involvement in receiving the parcel, a free trip to Australia and your accommodation and expenses while you were here. 

20I therefore find, in respect of both of you, that you did not fund your trip here and that that was paid for as part of the operation.  And again, I see that as showing that your role was one of a person in the supply chain rather than a principal.  You did not, it appears to me, invest any of your own money in this venture.

21Whilst, clearly, I do not characterise you as principals, the authorities that guide me in sentencing make it clear that a role such as yours in the supply and distribution chain is integral.  Without trusted people who can take delivery of a parcel and who can be trusted to keep it safe until its next move along the supply chain, drug importation and trafficking ventures cannot occur.  It is clear therefore that, subject to considerations personal to you, denunciation and deterrence are important factors in the sentencing mix.

22The drug trade is pernicious.  Those who seek to profit from it whether as principals or as paid employees or contractors, should expect to be punished if and when caught and punished in a way that will make potential profit that they stand to gain not worth it, the gamble not worth taking. 

23What then are your personal circumstances to balance against those principles? You are each in your thirties.  You are adult men of sufficient intelligence and maturity and experience of life to know right from wrong and to be responsible for the conscious decisions you make about your conduct.  Neither of you, on the material before me, suffers from any disability, mental illness, psychological condition or substance abuse which might explain your involvement or reduce your moral culpability.

24You, Mr Loh, appear to have come from a relatively comfortable family.  You completed secondary schooling and an apprenticeship as a mechanic.  You have a 20-year history of working as a mechanic and in more recent years have been running your own business successfully.  You have family, friends and an established life in Malaysia.  I was told that, in 2014, following the death of your father, you began gambling and that, by 2016, you had amassed significant gambling debts. I was told that, at your grandmother's entreaty, you stopped gambling.  She, it would appear, is an important figure in your life.

25When you were a child your parents went to Singapore to work and your grandmother brought you up.  For much of your adult life you have lived with her and looked after her as she became frail.  Although you had paid off most of your debt, as of 2018 I was told you still had about 50,000 ringgit or $15,000AUD outstanding.  And I was told it was the opportunity to pay off or reduce that debt that was your motivating force for deciding to participate in this venture.

26It is not suggested that, by reason of your debt or anything else, you were threatened or coerced.  It seems rather that it appeared to you an easy way to make the money to clear the debt.  How wrong that was.

27You, Mr Leong, I am told grew up in poverty.  You completed primary school but did not go to secondary school.  You were sent to work.  At the age of 12, you began working as a tea boy.  By 13, you had graduated to working as a kitchen hand and I am told that that is what you did for the next 10 years.  You worked often seven days a week, 12 hours a day and in working conditions and for pay that are just hard to comprehend in a country like Australia.  You moved from that poorly paid work to becoming a plasterer and labourer from your early 20s and for the last 10 years you have worked hard at that.

28You have been in constant employment but again it would appear that the pay was very poor and that, despite your diligence and long hours, your financial circumstances were still poor.  I was told that you earned barely enough to support yourself and so for you it was the offer to make money, considerably more than you could make by your endeavours as a plasterer and labourer, which led you to take this on and to take that gamble, with the consequences of loss of family and reputation that has followed. 

29Neither of you has any previous convictions and you can call your previous good character in aid as mature men in your 30s.  That counts in your favour when assessing your prospects for rehabilitation.  However, it is also a feature of offending such as this that it is persons of good character who are recruited to take part in this sort of work.  People with criminal histories are likely to attract the attention of authorities, assuming they satisfy the requirements for getting a visa to this country.

30Each of you has pleaded guilty and have done so at an early stage.  Although neither of you was completely frank in your interview with the police, as I have already noted, the matter resolved at committal. You have accepted the correctness of the prosecution's summary.  No witnesses were required to be cross-examined at committal and the prosecution did not have to prepare for a trial or for a contested factual issue on the plea.  These are significant utilitarian benefits and you are entitled to get full credit for them and for the early stage at which your pleas were entered.

31I accept that each of you is isolated in custody.  You have no family or friends to visit you.  You have no ties to this country.  I am told that neither of you spoke English before your arrival, although each of you has learnt some English and each of you has been housed in custody with some other Cantonese speaking prisoners.

32I accept that imprisonment is more onerous for you than it is for people who have family and friends here, a cultural connection with this country and who speak Australian English as a first language.  The burden of imprisonment is greater on you by reason of those factors than it is for those who are Australian English first language speakers with family, friends and a cultural connection here.

33I accept that the consequences of being arrested and charged, having spent the last 441 days in custody and the knowledge that you will be deported upon your release has had a powerful deterrent effect on you.  You, Mr Loh, have lost your business and your marriage as a result of being charged and held in custody here.  You sold your share in your business to your business partner and settled your gambling debts from the proceeds.  You had been married only a few months before you came to Australia.  Your wife has severed contact with you since discovering that you are here, charged and in custody.

34You were effectively brought up by your grandmother and you had been living with her and looking after her even after your marriage.  I am told that she is over 80, that she has mobility problems and suffers from dementia.  And whilst of course you should have thought before lending yourself to this venture that she would be adversely affected if you were caught, I accept that you now appreciate the impact on her of your conduct and that that is a burden you bear.

35For you, Mr Leong, your partner has given birth to your only child whilst you have been here.  You have not been able to support her or the child financially or emotionally and you have not been there with her to share in the joy of new parenthood.  You are fortunate to have the continued support of your employer, who has written a testimonial expressing his surprise at this out-of-character conduct.  It would appear that both of you have prospects, good prospects, of return to your previous employment upon your release and deportation.  You, Mr Leong, with your previous employer.  You, Mr Loh, as an employee of the man who used to be your business partner. 

36Each of you has, I am instructed, engaged in work whilst in custody, learnt English and participated in courses.  It would appear that you have accepted your fate and you are determined to make the best of it until your sentences are complete and you are deported to Malaysia.  Deportation in these circumstances is not an added punishment as Malaysia is your home and each of you wants to go back.  In fact, it is your absence from there that is an added burden of imprisonment for you.  But in all of those circumstances I consider that, for both of you, your prospects for rehabilitation are good and having regard to what has happened since you were charged, I do not consider that specific deterrence need to be given undue weight. 

37It was sensibly acknowledged by counsel for both of you that no sentence other than one of imprisonment was appropriate having regard to the objective gravity of the offending and the importance of denunciation, general deterrence and just punishment in sentencing.  And despite Mr Chisholm's submissions to the contrary, I consider that the only appropriate sentence is one which fixes a head sentence and a non-parole period.

38I am not satisfied that there is any reason to distinguish between the roles of the two of you.  There is no basis, in my view, by reason of your personal circumstances, to impose different sentences upon you.  In my view, the sentences on Charges 1 and 2 should be served concurrently upon each other.  Although there were two different drugs in the parcel, there was only one parcel that you collected and the sentence should reflect the overall offending.  It should not be artificially inflated or artificially divided because there were two different substances in the parcel.  And in my view the sentence on Charge 2 should be less, reflecting the lesser quantity of that drug.

39Although I consider it appropriate to fix a head sentence with a non-parole period to reflect the overall gravity of the offending, denunciation and deterrence, the non- parole period is, in my view, important because it gives you the incentive to continue to work on your rehabilitation whilst serving your sentence and so maximise your prospects of a release at your earliest eligible release date.   Could you now please stand.

40Wai Leun Leong and Choon Mun Loh, on the two charges to which each of you has pleaded guilty, you are convicted. 

41On Charge 1, each of you is sentenced to be imprisoned for a period of three years.

42On Charge 2, each of you is sentenced to be imprisoned for a period of two years.

43As I have said, that sentence is to be served concurrently with the sentence on Charge 1.  That makes a total effective sentence of three years and I fix the period of 18 months as the time that you must serve before being eligible for parole.  I declare that you have spent 441 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

44I declare pursuant to s 6AAA of the Sentencing Act that, if you had not pleaded guilty, I would have imposed a greater sentence on you, a sentence of six years' imprisonment with a non-parole period of four years.  However, you must understand that the actual sentence I have passed on you is a three-year sentence with an 18-month non-parole period.

45I have been asked to make an order for the provision of a forensic sample.  Your counsel have not opposed that and, having regard to the nature and seriousness of the offence and to the fact that you did not immediately make full admissions in respect of your involvement in it, I propose to make that order. 

46That sample is to be provided by way of a buccal sample.  That means you must provide a mouth swab by rubbing a small stick on the inside of your mouth, until a sufficient sample has been obtained.  I must warn you that if you do not cooperate in the provision of that sample, the police are authorised to use reasonable force to obtain a sample and they may well use the more invasive means of obtaining a forensic sample, that is taking of a blood sample.  Do you understand that?  Thank you.  Are there any further orders that are required to be made?

47MS MALOBABIC:  No, your Honour.

48HER HONOUR:  Do the orders that I pronounce reflect what I said I intended to do?

49MR CHISHOLM:  No, your Honour.

50HER HONOUR:  They do not?

51MR CHISHOLM:  Sorry?

52HER HONOUR:  Do the orders that I have pronounced reflect what I said I intended to do?

53MR CHISHOLM:  Yes.

54HER HONOUR:  Thank you.

55MR CHISHOLM:  Sorry, your Honour.

56HER HONOUR:  That is all right.

57MR CHISHOLM:  I was doing, writing two things whilst ‑ ‑ ‑

58HER HONOUR:  All right.  Can I thank all three of you for your assistance.  The quality of materials and the manner in which they were presented to me, was of high standard and I was much assisted.

59MS BURNNARD:  May it please the court.

60HER HONOUR:  Thank you.  Could you please - I have got to stay on the bench, as you know.  Do each of you want to go and speak to your clients before they are taken down?  While you have got the benefit of the interpreter?  Or will you go downstairs?

61MS BURNNARD:  I am proposing to go downstairs, your Honour.  It might be easier.

62MR CHISHOLM:  I will just do it quickly, because I will take longer with an interpreter on the phone.  So may I approach briefly?

63HER HONOUR:  The interpreter will go downstairs with you.

64MR CHISHOLM:  All right.  As long as I am not holding them up by doing that then.

65HER HONOUR:  Very well.  In that case, could you please remove Mr Loh and Mr Leong.

66(At this stage the two accused, Loh and Leong left the court.)

67And can I thank both the interpreters, too.  Thank you.

‑ ‑ ‑