Director of Public Prosecutions v Loo

[2020] VCC 1532

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -20-00764

DIRECTOR OF PUBLIC PROSECUTIONS

v

TEONG LOO

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2020
DATE OF SENTENCE:	24 September 2020
CASE MAY BE CITED AS:	DPP v Loo
MEDIUM NEUTRAL CITATION:	[2020] VCC 1532

REASONS FOR SENTENCE
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Subject: Attempt to possess a commercial quantity of an unlawfully imported border controlled drug; methamphetamine
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. James	CDPP
For the Accused	Mr W. Barker	Lewenberg Lawyers

HER HONOUR:

1Leong Hee Loo, you have pleaded guilty to the Commonwealth offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug.  A commercial quantity of methamphetamine, the relevant border controlled drug, is 750 grams.  The maximum penalty for this offence is life imprisonment and/or a fine of $1.575m.  The maximum penalty is reflective of this type of offending and is objectively very serious.  The view of the legislature is firm punishment should be imposed, with the hope of suppressing the illicit trafficking of drugs. 

2The principles applicable to sentencing for Commonwealth offences are set out in part 1B of the Crimes Act 1915 (Cth) (the Act). The fundamental principle in sentencing for a Commonwealth offence is that the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. A non-exhaustive list of factors is set out in s.16A(2) of the Act, as matters that I am required to consider in addition to other common law sentencing principles.

The nature and circumstances of the offence (s.16A(2)(a));

3The circumstances of your offending are set out in Summary of Crown Opening for Plea, dated 18 August 2020 – Exhibit A – and can be summarised as follows:

4On 19 February 2020, Australian Border Force officers at Melbourne Airport identified an air freight consignment (the consignment) which had arrived from Malaysia.  The consignment was addressed to you at an address in Melbourne (the address), with a mobile phone number listed for the consignee (the mobile number).

5Upon examination, the consignment was found to contain a box with two metal rollers wrapped in clear plastic, weighing 11.7 kilograms.  Further examination revealed a quantity of a crystalline substance was concealed inside the metal rollers.  Presumptive tests returned a positive result for methamphetamine, and the gross weight of the substance was approximately 2 kilograms.

6The matter was referred to Australian Federal Police (AFP), who removed the drugs and metal rollers from the consignment and substituted them for items of a similar weight.  AFP officers rang the mobile number and left a voicemail.  The same day, two attempts were made to deliver the consignment to the address but nobody was there to collect it.

7On 27 February 2020, an AFP officer purporting to be a delivery driver for TNT Express called the mobile number twice and spoke with you about arrangements to deliver the consignment to the reception desk at the address.  Later that afternoon, an attempt was made to deliver the consignment, as arranged; however nobody answered the intercom at the address.  The AFP officer called you, and you advised you were stuck in traffic and asked for the consignment to be left at the reception.  You were observed by police in the vicinity of the address at the time that this delivery was attempted.  You left that area without making an attempt to collect the consignment. 

8On 28 February and 2 March 2020, you called TNT Express, requesting an update on the delivery timeframe for the consignment.  On 3 March 2020 at about 11.30 am, an AFP officer sent an SMS message to the mobile number, indicating the delivery for the consignment was scheduled for 12 o'clock that day and requested a confirmation 'yes' in response.  Shortly afterwards, such a reply was received from the mobile number.   At about 12 pm police attended your address and you were observed loitering in that vicinity and alternating between the use of two mobile phones.  When police called the mobile number, you were observed to reach into your pocket and answer a phone – you then left the area. 

9Soon after, you were arrested and found to be in possession of two mobile phones, including one which was connected to the mobile phone number.  You participated in a record of interview and told AFP officers that:

·A person from Malaysia had offered you $500 to collect the package from the address.  You had been introduced to this person by a friend in Malaysia, and you communicated through WeChat.  That person had sent you a SIM card for the  phone and asked you to call TNT to check if the parcel had arrived.  You were asked by that person to collect the parcel then await instructions on WeChat as to what to do with it

·You did not know what was in the parcel – if you had known it was drugs you would not have agreed to pick it up

10The phone containing the SIM for the mobile number was forensically examined.  Police located two WeChat message threads and Facebook Messenger chat threads which showed communications between you, Wai Loon Chong, Wei Hiung Wong and a third user, using the moniker 'Water8', who has not been identified.

11Those messages included:

I.A message thread on WeChat, dated 27 February 2020, containing a mixture of recorded audio and picture messages between you and Chong, referring to whether you were prepared to take the risk in receiving the parcel and discussing why the driver was insisting that it was necessary for it to be collected rather than dropping it off;

II.A message thread on Facebook Messenger, dated 29 February, between you and Chong, discussing the 'reward' or amount to be earnt, the drug business and discussing why the parcel had not been delivered; and

III.A message thread on WeChat, dated 2 March 2020, between you and two other users, discussing whether you had been contacted regarding arrival of the parcel at the address and encouraging you to call TNT, concerns about you seeing police and you saying that you turned around and had hidden at home. 

12Police also conducted an examination of your iPad that was located at your home.  It revealed you had accessed the TNT Express website approximately 60 times between 21 February and 3 March 2020.

13On 4 March 2020, following your arrest, Chong and Wong booked tickets on a flight to Kuala Lumpur; they departed Australia the next day and have not returned.

14There are a number of factors relevant to determination of the seriousness of offending of this kind, including the weight and value of the drugs, your role and motivation for participation in the offending.

I.Weight and value

15Forensic examination of the white crystalline material located inside the metal rollers revealed:

a)The gross weight of the crystalline material was 1000.2 grams;

b)The crystalline material contained methamphetamine, with a purity of 80 per cent;

c)The pure weight of the methylamphetamine was 800.1 grams, which is 1.06 times the commercial quantity.

16The prosecution conceded that the offending falls at the lower end of objective seriousness for this type of offence, based on the quantity imported.

17The wholesale value of the drugs was estimated, at this weight and purity, as between $89,304 and $196,460, with a street value of between  $180,036 and $400,080.  This amount of drug would generate 10,002 individual dosages.

II.Role

18As to your role, in determination of it, the prosecution referred to a number of matters including :

·Multiple conversations between you and the delivery driver about arrangements for where the consignment was to be delivered;

·Observations of you in the vicinity of the delivery address on multiple occasions when delivery was being attempted;

·Your agreement to collect the package, receipt by you of and your use of a SIM card to facilitate communication;

·Your contact with three others about aspects of the parcel, including the timing of its arrival, arrangements for its delivery, delays, the reward expected and concerns regarding police detection;

·Your reference to 'drug business' in communications on 29 February;

·The number of times that you checked the TNT website over a period of 11 days;

·Knowledge the parcel in your name would be delivered to an address that was not yours;

·Denials in your record of interview relating to previous attendances at the address and regarding your contact with TNT.

19Further, it was submitted that given those matters, I should reject your account in your interview that your extent of knowledge of what was in the parcel was that it contained material illegal to import, such as herbal medicines, but not drugs.

20Your counsel submitted that there were features of your offending suggesting that you were a courier:  the package was in your name, it was accepted you intended to pass the package on to others, and although given the number of times you attempted to collect the package you were determined, your role did not extend any further.  It was also submitted that it was not until 29 February that you became reckless as to the contents being drugs, with prior knowledge of contents limited to some other, though illegal commodity.  Reference was also made to your involvement over a five day period, a relatively short time, and the relatively small amount of reward you were expecting.

21As I indicated in the course of argument, I regard your involvement as more sophisticated than someone who merely takes a package for someone else, given the level of contact you had with the company delivering it, arrangements that you were trying to make for collection and your presence in that vicinity.  Clearly, your awareness of police presence and discussions regarding the 'drug business' suggest recklessness or knowledge to the parcel contained drugs, though not the amount or other details.  In any event, neither party submitted that this factor would, in the circumstances of this case, have a significant bearing on the ultimate sentence I impose, and I agree with that submission. 

III.Motivation

22As to your motivation, it was not suggested that you were involved for any reason other than financial reward, though it was submitted the riches to be obtained were comparatively less than those who were motivated to be involved for significant sums commensurate with the value of the commodity.

Factors Personal to the Offender

The Character, Antecedents, Age, Means, and Physical or Mental Condition – s.16A(2)(m)

23You were born in Penang in August 1981 and are currently a Malaysian citizen.  At the time of the offending, you were in Australia on a student visa.  You are 39 years old and were aged 38 at the time of the offending.  You are the oldest of four children – your father passed away when you were aged 11, and you remained living in Malaysia with your mother, two sisters and brother.

24You came to Australia in early 2015 to join your brother and sister, who were both living here – at this time your wife had gone to the United States.  When you arrived, you lived with your sister, and spent your time studying, working and socialising with your family.  Your brother returned to Malaysia before you were arrested, though your sister remains here and is supportive of you.  I received a character reference from her, and she attended court through the relevant link.

25You completed your schooling, then commenced working in a restaurant – you managed to work your way up from a kitchen hand to chef over a period of about nine years.  You commenced your own business when you were 27, in mobile phone repairs but closed that business after about five years.  When you were 32, you commenced working for a fruit and vegetable wholesaler and had responsibility for a number of staff – you worked there for two years before coming to Australia.

26You came here intending to study English and business – you completed a Business Management Course at College; however, your further studies were interrupted when you were arrested.  You were able to work part time while you were studying as a chef in two different restaurants and as an Uber driver, though you were struggling to make money.  You became involved with this offending as you were unable to earn as much as you had anticipated with Uber Eats – when you approached one of the people at a restaurant where you had previously worked, seeking your old job or more hours, you were told you would be paid if you picked up a package that would be in your name.

27You have never had issues with alcohol or drugs.

28You have no prior convictions in Australia, and this is your first time in custody.

Prospects of Deportation

29The prosecution conceded that your imprisonment will weigh more heavily upon you because of the imminent likelihood of deportation.  I accept that your deportation is relevant in two ways:

i.There is additional burden of hardship and anxiety caused during your service of your sentence with the prospect of you being deported; and

ii.you will lose the opportunity to settle permanently in Australia. 

30However, your counsel conceded that you are unlikely to face particular hardship in Malaysia if deported, as you have family members there, and it was not suggested you would face persecution or be in danger there.  Further, it was conceded that although you will lose the opportunity to stay in Australia, you had not established strong links to this country or have children or your partner residing here, and that you would be forced to leave them.

31I take both those factors into account in the sentence I impose.

COVID-19

32It was not in dispute that I should take into account the impact of the COVID-19 pandemic on the time you spend in custody.  Your sister is unable to visit you face to face and programs available are limited.  Further, although you do not fall into a high risk category of being infected, movement around the prison and closeness to others is more restricted in this environment. 

33Additionally, this is your first time in custody, and your capacity to adapt to that with these restrictions is more difficult.

Guilty Plea – s.16A(2)(g)

34You have pleaded guilty to these matters at an early opportunity.  I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  This is particularly so in the current COVID environment where the courts are experiencing significant delays and an increasing backlog of trials.  I accept that your plea is also indicative of remorse. 

Prospects of Rehabilitation – s.16A(2)(n)

35The prosecution did not dispute, and I accept that you have good prospects of rehabilitation.  I note however that this should not be permitted to outweigh the need for general deterrence and denunciation.

Specific Deterrence – s.16A(2)(j)

36Given your good rehabilitation prospects, age and lack of priors, specific deterrence has less significance as a sentencing factor in this matter.

Need for General Deterrence and Denunciation – s.16A(2)(ja)

37Principles of general deterrence and denunciation are prime considerations in sentencing for this offence, given the difficulties in detecting it, as well as the social consequences that flow from the movement of such drugs into Australia and their distribution within this country.  Those who are involved at any level in this kind of offence should know that they run the risk of incurring a substantial sentence if they are apprehended.

Comparative cases

38I was provided with a table of cases by the prosecution, and regard them of assistance as both comparative decisions, and for their application of the relevant sentencing principles in matters of this kind.

39You counsel conceded the only appropriate disposition was a term of imprisonment with a non-parole period.  Given the serious nature of this offending, as well as important principles of denunciation and general deterrence, I regard such a course as being the only option available to me.  I do however take into account in mitigation your pela of guilty and other matters set out in these reasons and under the legislation.

40In respect of the offence for which you are before the court, I propose to sentence you to a term of imprisonment of seven years, with a non-parole period of four years 

41Could someone please indicate to me what the pre-sentence detention is?

42MR BARKER:  It is 205 days, not including today, Your Honour. 

43HER HONOUR:  All right, I declare 205 days pre-sentence detention.  Are there any other matters that I need to raise?

44MS JAMES:  Nothing further, Your Honour, thank you.

45MR BARKER:  No, Your Honour.

46HER HONOUR:  Thank you. 

47MR BARKER:  I wonder whether before Your Honour leaves the Bench, whether Your Honour would ask for the link to stay in place with the interpreter and Mr Loo on it, for me to quickly make sure he understands a couple of the pivotal (indistinct).

48HER HONOUR:  Yes, sure.  You will have to liaise just with my tipstaff, but I if leave the meeting, that will not make a difference to that.  Thank you.

49MR BARKER:  Thank you, Your Honour.

50MS JAMES: Apologies, Your Honour. Just very briefly, was Your Honour minded to make a s.6AAA statement?

51HER HONOUR: Yes, sorry, yes. Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a period of imprisonment of 10 years, with a non-parole period of five years and six months.  Thank you.

52MS JAMES:  Thank you, Your Honour.

53MR BARKER:  As the court pleases.

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