Director of Public Prosecutions v Low
[2023] VCC 2318
•7 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-23-00510
CR-23-00514
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHYE GUAN LOW |
| WAI CHEE CHENG |
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JUDGE: | JUDGE DAWES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 November 2023, 29 November 2023 | |
DATE OF SENTENCE: | 7 December 2023 | |
CASE MAY BE CITED AS: | DPP v Low and Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2318 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempt to possess a commercial quantity of a border-controlled drug (heroin)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Kee Sen Goh v The Queen [2022] VSCA 24
Sentence:10 years’ imprisonment
NPP 6 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | Office of Public Prosecutions |
| For the Accused Low For the Accused Cheng | Mr T. Sullivan Ms A. Hughes | Ann Valos Criminal Lawyers Chris McLennan & Co |
HER HONOUR:
1Chye Guan Low, you have pleaded guilty to one charge of attempt to possess a commercial quantity of a border controlled drug, namely heroin, on 29 April 2022.
2Wai Chee Cheng, you have pleaded guilty to one charge of attempt to possess a commercial quantity of a border controlled drug, namely heroin, on 2 May 2022.
3The maximum penalty for this offence is life imprisonment.
4The circumstances of your offending were read to the court on 23 November 2023 in the summary of prosecution opening, which was subsequently amended on
29 November 2023. The amended summary is agreed to be an accurate account of events. A general summary of the facts is as follows.5On 25 January 2022, you, Mr Cheng, sent an image of a passport in the name of 'Kai Jie Chen' to you, Mr Low. The following day, mobile phone number 0474 245 003 was connected in the name of Kai Jie Chen, with an address in New South Wales.
6On 25 March 2022, a sea cargo consignment arrived at Melbourne. The goods within the consignment were recorded as 'new homewares and clothing'. The consignee and consignor were listed as different names at that time.
7On 7 April 2022, the consignment was examined by Australian Border Force and found to contain a number of wrapped packages containing bricks of pressed powder. Australian Federal Police (AFP) were notified. The following day, deconstruction of the consignment was performed. Seven cardboard boxes that contained 17 metal cases were searched, and 67 individually wrapped bricks of pressed powder were located.
8In total, the powder weighed 23.6195 kilograms. Subsequent analysis confirmed that the powder was heroin and had a purity of 76.5 per cent, with a measurement of uncertainty of plus or minus 4.7 per cent. The agreed pure weight of heroin contained in the consignment is 16.9588 kg.
9A commercial quantity of heroin is 1.5 kilograms. The total amount of pure heroin seized is 11.30 times a commercial quantity.
10On 12 April 2022, the consignment was released and collected by Professional Freight Services (PFS), who were involved in the consignment by Sahakij Logistics from Thailand. The freight service was provided with consignee details, at this stage being 'Tommy Tan' at an address in South Doncaster, Melbourne.
11A number of emails were received by the freight service from [email protected], enquiring about the consignment. Sahakij Logistics did not pay PFS for their services and requested payment of $1,851.96 to be collected from 'Tommy Tan'. A request from PFS for payment was sent to [email protected] on 25 April 2022.
12On 29 April 2022, you, Mr Low, attended at the ANZ Bank at Collins Place in Melbourne and deposited $1,851.96 in cash into the PFS account. You signed the deposit slip as 'Tommy Tan' and provided the same contact phone number which had previously been registered to Kai Jie Chen. The deposit slip was subsequently sent by [email protected] to PFS later that day. A request was made to change the delivery address to 'Tommy Tan' at 39 Lonsdale Street, Melbourne, with the same contact number that was registered to Kai Jie Chen.
13On 2 May 2022, a call was made to the same Kai Jie Chen contact number to confirm the delivery. This contact number was active in a phone located in your possession, Mr Low, on the date of your arrest, 10 June 2022.
14At approximately 9.35 am, you Mr Low, you Mr Cheng, and a third person, left your apartment at 39 Lonsdale Street, Melbourne via the lift and walked out of the front of the building.
15Approximately three minutes later, a PFS delivery driver arrived at the address to deliver the consignment. You, Mr Cheng, met the driver and escorted him into the building. You signed the delivery document in the name 'Tommy Tan' and were provided with a copy of it. The driver offered to help you take the 12 boxes contained in the consignment upstairs, but was told that you, Mr Cheng, had friends to assist you. Approximately 10 minutes later, you, Mr Cheng, and the third person began to move the boxes into the lift, to take them upstairs to your apartment.
16At 10.14am, you, Mr Low, sent WhatsApp messages to your girlfriend, saying:
“· I need to tell you something, sit tight and don’t be scared.
· Please don’t be worry, the police is knocking at my door here, I need to leave. If I have the opportunity to come back, then I’ll be fine. In case I am arrested, please don’t wait for me. Initially I don’t plan to tell you anything as I don’t want you to worry when you can’t contact me. But I decided to tell you the whole thing. I need to stay low for a week, if the police didn’t get me in a week, then I’ll be fine. If you can’t contact me, don’t be worry, don’t be sad, please. From now on, don’t call me from your end. Baby I love you.”
17At 10.39 am, you, Mr Cheng, sent an image to you, Mr Low, of a transformer from the deconstructed consignment.
18At some point, you, Mr Low, returned to your address in Lonsdale Street. CCTV footage shows you leaving the apartment at around 11.30 am and taking the lift to the ground floor.
19At 2.18 pm, you, Mr Low, are depicted on CCTV footage disposing of a heavy box from the consignment. You both then removed and disposed of further boxes from the consignment, placing them into the refuse room at 39 Lonsdale Street. This occurred over several hours.
20Nearly six weeks later, on 10 June 2020, investigators executed a search warrant at an address in Box Hill North where both you, Mr Low, and you, Mr Cheng, were arrested. The bank receipt for the consignment deposit and the consignment delivery note were both located at the address.
21You, Mr Low, participated in a record of interview, and stated that you resided with two others at the Box Hill North address and that you had previously resided at the apartment at 39 Lonsdale Street, Melbourne. You confirmed that you owned the phones located in your bedroom, including the handset in which mobile phone number 0474 245 003 was registered to Kai Jie Chen. You denied using the alias, Tommy Tan.
22You, Mr Cheng, participated in a record of interview, and admitted that you signed for a box delivered on 2 May 2022 to 39 Lonsdale Street. You said that you believed the box would contain cigarettes, and that you would be paid $500 for collecting the box. Further, that you had been asked by a man to have the box sent to your home address. You asked if it was illegal and were told that it was a little bit of cigarettes and would be fine. You described the contents of the consignment as an electrical appliance wrapped in paper. You identified yourself from the relevant CCTV footage on 2 May 2022.
23While you both participated in your interviews and made some admissions, you did not admit the particulars of the offending to which you have now pleaded guilty. You were both charged by police on 10 June 2022 and remanded into custody, where you have remained since that time.
24A contested committal proceeded on 30 March 2023 for you, Mr Cheng. Cross‑examination related to your record of interview and to charges that ultimately did not proceed. You, Mr Low, did not participate in the cross‑examination of witnesses. You were both committed to stand trial on the same date and entered pleas of not guilty. Your matters were listed for an initial directions hearing in the County Court on 27 April 2023 and a case assessment hearing on 6 June 2023. You, Mr Low, entered your plea of guilty on 8 August 2023, and you, Mr Cheng, entered your plea of guilty on 22 August 2023. It is accepted by the prosecution that both of your guilty pleas were entered at an early stage and despite your counsel’s submission, Mr Low, I do not consider that the difference of two weeks amounts to a meaningful distinction.
25Your pleas of guilty have a significant utilitarian benefit. You have saved the court and the community the time and expense of running what may have been a complex and potentially lengthy trial. It also facilitates the efficient administration of justice, and you are entitled to a benefit for that. The utilitarian benefits of your pleas are to be enhanced by the fact that Worboyes[1] considerations are engaged.
[1]Worboyes v The Queen [2021] VSCA 169
26Your pleas of guilty show that you have both now accepted responsibility for your criminal conduct and are consistent with some remorse. However, neither of you have provided any specific explanation for your offending.
27You have both spent 545 days on remand. There is no dispute that this period of incarceration has been more onerous than for prisoners prior to the COVID‑19 pandemic. These conditions have added to your hardship in custody, particularly as this is the first time either of you have been incarcerated. While the additional restrictions are now reduced, the evolving nature of the pandemic has caused hardship during your incarceration, including time spent in isolation such as 14 days in quarantine upon your remand. These circumstances justify a sentencing benefit, and I take that into account.
28You have pleaded guilty to committing the same offence, but on different dates. Offending of this type is serious and often difficult to detect. On any view, this is a substantial importation of a border controlled drug, involving high level criminality. While the quantity of the heroin detected is central to an evaluation of the objective gravity of the offending conduct, so too are the roles played by both of you. Your moral culpability relates to a blend of these factors, together with your individual personal circumstances.
29While the roles that each of you played in this attempted importation involved different conduct, I am unable to draw any practical distinction between your respective roles from a sentencing perspective.
30Both of your guilty pleas have been put on a 'reckless' basis. This means that both you, Mr Low, and you, Mr Cheng, realised that there was a substantial risk which involved a reasonably sizeable importation of a narcotic substance. You both proceeded with your involvement in the importation, regardless of this. I accept that neither of you had knowledge of the precise quantity of the narcotic substance. The prosecutor had no issue with the pleas put on a reckless basis in both your cases, as there is no evidence of actual knowledge of the quantity of drugs in the consignment.
31Your overt acts support the reckless state of mind that you both admit. You both used a false name to conceal your identities. You, Mr Low, must have realised by at least 29 April that this was a sizeable importation, given the cost to secure the delivery. Further, your text message to your girlfriend on 2 May demonstrates the extreme risk that you knew you were taking. It is admitted that you, Mr Cheng, provided your residential address for the delivery of the material. On 2 May you collected a number of heavy boxes which you knew may contain narcotic substances. You moved the boxes, opened at least one of them and photographically reported your concerns about the contents to Mr Low.
32I am satisfied that the activities that both of you took were essential to the importation. Both of you took significant practical steps to effect it. However, I am not satisfied that either of you were principals in the enterprise or at a managerial level. It seems likely that you carried out the orders of those above you in the hierarchy. Notwithstanding this, your involvements are clearly above the level of mere couriers and involved in your case, Mr Low, some input into the organisation of the importation, and in your case, Mr Cheng, supplying an address for the delivery and involvement in the collection and unpacking of boxes and reporting of the contents. As I have said, I am unable to draw any practical distinction from a sentencing perspective between your respective roles.
33When considering your record of interview, Mr Cheng, I do not accept your assertion that you believed the consignment contained cigarettes and this is not relied on. However, your counsel submitted that you were paid $500 for your assistance in the importation, which also formed part of your interview. I do not accept this either, as the reference to $500 was part of your assertion that that you believed this was a cigarette importation and that you would receive that amount of money for collecting one box.
34Your counsel, Mr Low, asserted from the bar table at the conclusion of the plea hearing that you expected to be paid $500 for your assistance. This assertion is unsupported by evidence and I am unable to accept it. You clearly knew you were taking a great risk, as demonstrated in your text message to your girlfriend and by your plea of guilty.
35Ultimately, I am unable to reach any positive conclusion about the benefits that either of you did or expected to receive. I consider that to run the risk that you both did, the financial reward expected would likely to be greater than the asserted $500. However, there are no obvious signs of enrichment in the evidence as it concerns either of you. Nor is there is there any evidence that either of you lived an extravagant lifestyle or that you had access to large sums of money.
Personal circumstances
Mr Low
36You were born in February 1986 and raised in Penang, Malaysia. You are now 37 years of age and are one of a sibship of three. Your father was employed as a painter and decorator and died in 2015. Your mother still resides in the same apartment where you grew up. Your two sisters reside in Penang, and you speak to your family on the telephone, almost daily. They are aware of your current situation.
37You grew up in fairly impoverished circumstances. You finished school at around the age of 10 and then assisted your mother, working as a street vendor. Your disadvantaged childhood is relevant when considering your general circumstances. You are a mechanic by trade and have worked on motorbikes since your late teenage years and early twenties. You were involved in other retail businesses before you came to Australia.
38You moved to live in Australia in 2014 on a bridging visa, hoping to succeed here in business. That visa was not renewed, and you have been an unlawful non-citizen since November 2016. After leaving Malaysia you maintained a relationship with your girlfriend, although that relationship has now ended.
39You have a background of some drug use, in the environment where others also took drugs. You do not use them while in prison, and I am told you have provided negative screen tests. You do not nominate drug use as your motivation for your offending, but rather you were motivated to earn money.
40You worked as a plasterer since your arrival in Australia. You are currently employed in custody at Fulham Prison in the garden and have been so for more than a year. You have undertaken a number of educational and vocational courses through the Kangan Institute, including courses to improve your English language. I am told that your language has improved and that you can now talk in the 'yard' to other people, although it appears that your capacity to communicate is only on a 'social' level.
41Your mother is currently in poor health. This is of concern to you. I accept that the burden of imprisonment will be more significant for you, given that your mother has health issues, and you feel that you may be contributing to her difficulties. However, I note that her health issues have been ongoing for some time and you were aware of these issues prior to this offending.
42You previously provided your family with some financial assistance, which was beneficial to them. This has ceased now that you are incarcerated. Your inability to assist your family will continue, and I accept that it will increase both your and your family’s level of hardship. You will all suffer as a result and the burden of imprisonment will be more significant for you in these circumstances.
43You have very few friends in Australia, and do not receive visitors. Your family reside in Malaysia, and there is little prospect of them visiting you. I accept that the isolation from your family means that any sentence of imprisonment will be more onerous than it might be for other people.
44In discussion with your counsel, you have expressed your remorse, saying that you are 'really regretful for your serious offending'. You accept responsibility, for which you will have to 'pay'. I am told that you look forward to returning to your family in Malaysia at the earliest opportunity.
Mr Cheng
45You were born in Malaysia in November 1995 and have just turned 28 years old. You are the youngest of two sons. You have maintained a relationship with your parents, although they separated when you were young. Your father did not work or have stable accommodation. Your mother worked long hours. Your family was not financially well off and as a child, you often survived without food. You were not abused during your childhood.
46You left school at 11 years of age, and between the ages of 14 and 17 became homeless. You would spend time at friends’ homes and at your grandparents’ house, and on occasions you would sleep on the streets. During your teenage years, you had limited contact with your family, as your relationship was not strong. You underwent deprivation in your childhood, which was not insignificant and is relevant as part of your general circumstances.
47You have eventually rebuilt your relationship with your parents. Due to ill health, they have both been unable to work, and previously you have financially assisted them. Being unable to continue to do so has caused hardship to you all. Your parents are aware of your current circumstances and remain supportive of you. Your incarceration has caused a degree of hardship on your family, as the financial assistance you provided to them was beneficial and I am told this will increase the burden of imprisonment on you. You feel a lot of shame for your misconduct, and I accept that this is consistent with remorse.
48You have a close relationship with your brother, who now resides in Singapore. Your brother will assist and support you to return to Malaysia upon your release from custody. You have a girlfriend who resides in Taiwan, with whom you have frequent contact and hope to maintain a relationship.
49While in custody, you have remained in contact with your girlfriend and family, although you had difficulty in arranging Zoom calls for a long time. Your family reside overseas, and there is little prospect of them visiting you. I accept that the isolation from your family means that any sentence of imprisonment will be more onerous than it might be for other people.
50At the age of 16 you began to use ecstasy and methylamphetamine on a frequent basis. At the age of 18 you moved to Singapore and ceased your drug use while you resided there. You remained in Singapore until you were 20 years of age, and then moved to Australia in 2016 to pursue a better life. You were originally placed on a tourist visa and then obtained a bridging visa that lapsed. You have been an unlawful non-citizen since 23 April 2020. You had sought a protection visa as a result of a gambling debt, although this was not granted at the time of your arrest.
51You first resided in Sydney and worked as a plasterer for around five years. You were in a relationship at the time. Your capacity to work suffered during the pandemic. You were also owed money from your employer, which led to financial difficulties. You separated from your partner, and in 2021 you moved to Melbourne.
52Upon your arrival here you secured rental accommodation in Lonsdale Street. You held a number of odd jobs, including waste-cleaning and plastering. You were offered drugs by a friend and at the time of your offending you had recommenced your use of methylamphetamine. You remained financially strained, due to COVID-related issues, being unable to find consistent employment and having a gambling addiction. All of these factors motivated you to engage in your offending.
53You had previously met Mr Low and he instructed you to forward a photograph of a passport to him in January 2022. You were aware that the holder of the passport had gone missing. You were approached by an unknown contact who asked to have a delivery sent to your address, in exchange for payment. You accepted the job and signed for the delivery, in accordance with the summary of prosecution opening.
54You have worked in various roles while incarcerated. You are currently at the Metropolitan Remand Centre and grow vegetables. Your English is poor, and you have attempted to undertake classes in the English language while in custody, although this has not yet been arranged as there has been some confusion with your application. The difficulty that results from your ability to communicate with others is relevant. You have also sought assistance regarding your drug use and have recently been placed on buprenorphine.
55You have a small number of friends here in Australia. You have been lonely and asked for a friend of a friend to visit you. Unfortunately, this resulted in your being placed in isolation for one week. You have undergone two periods of isolation while in custody, totalling three weeks.
Joint circumstances:
56You had both planned to remain in Australia but understand that your offending prevents you from accessing this opportunity. Given that you are both unlawful non-citizens, you expect to be deported at the conclusion of your sentence or at an earlier date, as determined by the Adult Parole Board. It is well accepted that the prospect of deportation is a relevant consideration in the sentencing process. Despite neither of you having a current visa, I accept that the loss of opportunity to seek to remain here, as a result of your offending, will have an impact on your period of incarceration. You both accept that any hope you had for a successful life in Australia has now gone. I take that into account, as it increases the burden of the sentence I impose.
57Neither of you have a history of criminal activity nor any matters outstanding. This is the first time that you have been incarcerated. However, the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence.
58It is, however, relevant when considering your rehabilitation prospects. Neither of you have been in trouble before. While you have both used drugs, you have both been abstinent from drug use at times. You, Mr Cheng, have a history of gambling problems. You both have the ongoing support of your family and you, Mr Cheng, of your girlfriend. You both have a strong work history and both expect to return to Malaysia, where your families reside. I accept that a lengthy term of imprisonment will have a salient effect on you both and that your prospects are positive.
59The Court of Appeal confirmed in Kee Sen Goh v The Queen[2] that 'Offending of this kind requires giving real weight to general deterrence and public denunciation, consistently with the maximum penalty of life imprisonment'.
[2] [2022] VSCA 24 [60].
60Accordingly, general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment. The community expects that those who elect to engage in serious drug enterprises be denounced and punished for this offending. It is conceded that a substantial term of imprisonment is the only appropriate disposition. I do not think there is additional need for specific deterrence, given the length of the sentence I will impose.
61I have considered the sentencing principles outlined in s16A(2) of the Crimes Act 1914 (Cth), being a non-exhaustive list of matters the court must take into account. I take into account the maximum penalty for the offence. I have considered the cases to which I was referred.
62I have taken into account the principle of parity when fixing sentence for you both. It does not amount to a mathematical equation and I am required to balance a number of factors in this case. I have concluded that your moral culpability for your offending is similar. Given my conclusion about your respective roles and your personal circumstances overall, I intend to impose the same sentence for you both.
63I will wait for the interpreters to let me know that they are ready to have the sentence imposed. Thank you. While that is being finished, are there any other orders that are sought, other than a term of imprisonment as the sentences in this case, Mr Teo?
64MR TEO: No, Your Honour.
65HER HONOUR: All right, thank you. Mr Low and Mr Cheng, as I said, I intend to impose the same sentence for you both.
66Each of you are convicted and sentenced to 10 years' imprisonment.
67I set a non-parole period for each of you of six years and six months' imprisonment.
68I enter in the records of the court that you have both served 545 days by way of pre-sentence detention.
69The declaration that I make under s6AAA is, had the matter not proceeded as pleas of guilty, I would have imposed a sentence of 12 years and six months with a non-parole period of eight years and six months. Thank you, you can have a seat, Mr Cheng.
70What I will do now is, Ms Hughes, if you would like to just approach your client and have a word to him I am happy with that, and then in your case, Mr Sullivan, when I leave the bench I am happy for you to use the interpreter with your client, if that is of assistance.
71MR SULLIVAN: Thank you, Your Honour.
72HER HONOUR: Do you want to just approach him now?
73MS HUGHES: Thank you, Your Honour.
74HER HONOUR: Do you need the assistance of the interpreter to see your client again?
75MS HUGHES: I will speak with him briefly after court, but I appreciate that opportunity, Your Honour.
76HER HONOUR: All right. I just wonder, Madam Interpreter, if you would be able to wait here until Mr Cheng is excused from downstairs, thank you. I will now ask for Mr Cheng to be removed from the dock. When I leave the bench, Mr Teo, if you and your instructor could leave, and then I will give you a chance to speak, Mr Sullivan, with your client for as long as you need.
77MR SULLIVAN: Thank you, Your Honour.
78HER HONOUR: Can I also thank Mr Doherty and Ms Ebeling. They will need to stay here until we cut the link. If there is any issue let me know and I will come back in. Otherwise, I will wait outside.
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