Director of Public Prosecutions v Ng

[2018] VCC 1270

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01987

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOON TECK NG

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 24, 26, 27, 30 April 2018 Plea: 2 August 2018
DATE OF SENTENCE:	10 August 2018
CASE MAY BE CITED AS:	DPP v Ng
MEDIUM NEUTRAL CITATION:	[2018] VCC 1270

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr R. Barry	Commonwealth Director of Public Prosecutions
For the Accused	Mr S. Moglia	Lethbridges Pty Ltd

HER HONOUR: 

1On 12 February 2017 you, Boon Teck Ng, and another man, Wei Hong Qui, checked in one after the other, a minute apart, at the same check-in counter at Kuala Lumpur International Airport on MH129 for a four day trip to Melbourne. 

2Each of you checked in a suitcase.  Each suitcase weighted just under 28 kilograms.  Twenty eight kilograms is the maximum baggage allowance for passengers travelling on economy tickets on Malaysia Airlines as you both were.

3Your tickets had been booked at the same time and through the same travel agency, six days earlier.  Visas to visit Australia had been issued a day apart, just days before that.  Each of you had with you vouchers in your names for the same two day tour to Phillip Island and the Great Ocean Road.  Each of you had a voucher for a hotel booking at the same hotel near Albert Park Lake. 

4Although you were seated apart from each other on the flight, when you landed at Melbourne International Airport, you joined up after you had disembarked and were seen walking through the concourse together to Customs and Immigration. 

5Neither of you went to the baggage carousel and collected the suitcases that you had checked in.  You each walked straight through with only your carry-on luggage.  Each of you was directed to submit to inspection of your travel documents and luggage by Australian Border Force officials.  Although the inspections took place at separate benches, you were seen at times gesturing to each other.  Nothing of interest was found on either of you and after the inspections concluded, you waited for each other and went out into the public arrivals area together.

6The suitcases checked in by you had been collected by a third passenger on the flight, Nicholas Kavvadas.  He had checked in two suitcases as his luggage onto the same flight.  One was identical to the suitcase checked in by you, the other identical to the suitcase checked in by Mr Qui except that Mr Kavvadas’ suitcases did not have padlocks on them and yours and Mr Qui’s did.  His suitcases weighed 20 kilograms in total.  Yours and Qui’s, as I have noted, weighed just under 28 kilograms each.  Yours each had an airline “heavy” tag as part of the luggage labelling affixed to the handles of the suitcases at the time of check-in.  His did not.

7Mr Kavvadas was also directed to submit his travel documentation and baggage for inspection.  On enquiry, he said the two suitcases that he had were his.

8Australian Border Force officials soon ascertained the two suitcases which
Mr Kavvadas had collected from the carousel contained heroin.

9The suitcases were full, literally full of heroin.  Later examination revealed the one checked in by you had 60 packages, weighing 21.9 kilograms of bulk powder and 13.4 kilograms of pure heroin.  The one checked in by Mr Qui had 64 packages, 22.6 kilograms of bulk powder and 16.3 kilograms pure heroin. Between the two suitcases therefore there were 124 packages containing 48.68 kilograms of bulk powder, of which 29.695 kilograms was pure heroin.  The depositions contained statements estimating the wholesale value to be between $11.43 and $15.24m and the street value between $79.4 and $117.59m.  The prosecution summary for your plea estimated the street value to be up to $50 million.  Even taking that lowest figure, $50 million, it is a breathtaking value, which highlights the huge scale and gravity of the offence.

10Upon discovering the heroin in the suitcases, Australian Border Force officials went immediately to the public arrivals area of the airport, where they located you and Mr Qui in the Optus shop.  You both agreed to go back into the arrivals hall, where you were each shown the suitcase that you had checked in, but not collected.

11Each of you denied ownership of the suitcase checked in in your name.  You, like Mr Qui, denied having packed the suitcase and any knowledge of its contents.

12All three of you, Kavvadas, Qui and you, were charged with importation of a commercial quantity of a border controlled drug.

13You were remanded in custody, where you have remained ever since. 
You, Mr Ng, and Mr Qui were committed for trial on a straight hand-up brief and both at that stage indicated your intention to plead not guilty. 
Mr Kavvadas indicated his intention to plead guilty from a very early stage, and was sentenced by His Honour Judge Montgomery well before your trial commenced. 

14On the morning your trial was due to commence, Mr Qui entered a plea of guilty to the charge.  You, Mr Ng maintained your not guilty plea and were ultimately convicted by a jury of the charge.  That was not surprising.  The case against you was overwhelming, and your defence no more than a putting the prosecution to proof, in respect of your involvement in checking in the suitcase, and the inferences to be drawn about your knowledge or belief as to its contents.  When questioned at the airport, you denied the suitcase was yours, despite the existence of the unique identifier check-in baggage tag on it, and the finding of its counterpart with your boarding pass, in your possession, when you were arrested.  You denied knowledge of the contents of the suitcase.  You did not give evidence at trial, advance, or subject yourself to cross-examination on any explanation for your association with the heroin filled suitcase, or your arrival, along with Mr Qui and Mr Kavvadas in Australia on that flight.

15It was initially contemplated your plea would be heard, and sentence imposed at the same time as Mr Qui was dealt with.  That did not happen as, after verdict, your legal representatives expressed some concerns about your cognitive abilities, and made arrangements for a psychological assessment.

16That has now occurred, and a report has been provided by the clinical and forensic psychologist, Mr Jeffrey Cummins. Further oral evidence was adduced from Mr Cummins, both as additional evidence-in-chief, and in cross-examination. You report speaking little English, and the interview with
Mr Cummins was conducted with the assistance of a Mandarin speaking interpreter.

17Mr Cummins reported some difficulties in obtaining detailed information from you.  When he attempted to administer the Wechsler Intelligence Scale IV (Wais-IV) your test performance was characterised by marked comprehension difficulties and a very slow response time on all subtests. As a result, only 6 of the 10 standard subtests, and an additional comprehension subtest were administered. The results were very poor.

18Mr Cummins reported, at paragraph 33:

33.  Because Mr Ng was unable to complete all of the subtests, the test results were formally scored using a prorating method of scoring, which is a permitted method of scoring, but the results of such an approach need to be carefully evaluated if there are significant differences in the composite scores.  In this situation I did not determine there were clinically significant differences in composite scores (of relevance to the prorating method) and hence the test results should be regarded as being reliable and an accurate reflection of Mr Ng’s current cognitive and memory functioning as assessed using the WAIS-IV.

19On the prorating scoring methodology adopted by him, your full-scale IQ was 49.

20However Mr Cummins did not accept that as a reliable indicator of your actual, or functioning IQ.  His report continued, at paragraph 35:

35.  Clinically a full-scale IQ of 49 places him in the range of intellectual disability.  In my opinion, at interview he did not present as being intellectually disabled and he acknowledged he had obtained his driver’s license, which is typically unattainable by those who have an intellectual disability.  It is therefore my clinical opinion that his practical level of intellectual functioning (making some allowance for his very low level of comprehension and his slowed speed of information processing) is within the borderline range, reflective of an IQ score between 70 and 79.

21He did not resile from that position in oral evidence.  Mr Cummins confirmed his opinion you did not present as a person with an intellectual disability, and that your practical functioning he assessed, as a matter of clinical judgment, to be in the borderline range.  Indicators of a higher level of functioning than intellectual disability that he took into account included, in addition to holding a drivers licence, your history of employment, the fact you had been in two long term relationships, the way you spoke about your life in general and the way you spoke to him.  Although Mr Cummins initially described you in oral evidence as having had “some employment”, I note you had described, and Mr Cummins had reported, you had been in continuous employment since leaving school, and that although you had changed jobs often, you reported doing so by choice. That is because you were bored, or wanted something different.  He also reported you said that you had had no trouble in finding another job after leaving a previous one.

22Mr Cummins asked you a number of general knowledge and orientation questions.  Although your answers to those were poor, I am not satisfied they shed any meaningful light on your actual intellectual abilities.  You knew you were in custody at Port Phillip Prison.  On enquiry, you said you did not know where Port Phillip Prison was but you added that that was because you did not know the cities in Australia.  You said you did not know the name of the Prime Minister of Australia.  Although you could correctly name the previous Prime Minister of Malaysia, you were unable to name the current Prime Minister. 
I note Najib Razak, the former prime minister, who had held office since 2009, was defeated at election only 3 months ago, 15 months after your remand in custody in Australia.  You said you did not know the name of the President of the United States.  Whilst he was elected before you were arrested, and it might be assumed most English speaking Australians would know his name, I have no basis for assessing whether Mr Trump looms as prominently in the public domain in Malaysia as it does in Australia.  You were able to identify the year as 2018, and said the month was June (in fact it was July 2 when you were interviewed).  Your estimate of the time you had been in custody at Fulham and Port Phillip Prison was poor, overall estimating a much lower time than you had been in remand altogether.

23Even if all your answers were truthful they are as easily attributable to cultural and environmental factors, as to impaired intellectual functioning.  You speak Hokkien dialect Mandarin, you reported your reading and writing skills in that language to be poor, and you left school at 15.  You reported you had been employed in unskilled or semi-unskilled work since leaving school.

24You reported being unable to read and write English, and have not apparently picked up even limited spoken English skills or comprehension of spoken English since your remand 18 months ago.  You report you have, as a result, been isolated in custody since your remand.  You report very limited telephone contact with one family member and none with any friends in Malaysia, since your remand.  Mr Cummins noted a marked passivity in your demeanour and you reported very little information being available to you in Mandarin whilst in custody.  The matters I have detailed are consistent with a lack of curiosity about the wider world and significant isolation by reason of language barriers since your remand in custody, and provide what appear to be a reasonable alternative explanation for your answers to those general knowledge questions.  Your answers do not provide any support for an assessment that you labour under an intellectual disability, or function, at best, at the level of borderline intelligence.

25Mr Cummins expressed the opinion that any person assessed with the level of intellectual functioning within the borderline range or below “typically experiences difficulties with decision-making and is vulnerable to adverse influence from others and therefore has a tendency to be relatively easily persuaded.”

26Mr Moglia asked Mr Cummins a series of questions directed to your capacity, when confronted with something “out of routine”, to exercise rational judgment.  He asked whether your likely level of intellectual functioning would be in the intellectually disabled, not borderline range, if confronted with unfamiliar, or non-routine, activities.  As I indicated in the course of evidence, the higher the level of abstraction of such questions, the less assistance I was able to gain from any answers given to them.

27Mr Moglia directed questions in this vein to your capacity to make rational decisions when performing an unfamiliar, non-routine activity, such as checking in your suitcase at Kuala Lumpur International Airport on 12 February last year.

28As became clear in the course of Mr Cummins’ evidence in the plea, you had not given any account of your involvement in the offence to Mr Cummins. 
No explanation was advanced to Mr Cummins, or to the court, for how you came to be at KLIA, in a check-in queue with your co-accused Qui, with a passport, a return ticket to Melbourne, a voucher for hotel accommodation in Melbourne and a 2 day tour to the Great Ocean Road and Philip Island, checking in a suitcase weighing just under 28 kilograms which contained that large quantity of high percentage purity heroin.  Nor was any explanation advanced as to what led you to leave the suitcase on the carousel when you arrived in Melbourne.

29In the absence of any explanation for or account of your participation overall, questions directed to whether you were more likely to be functioning at the level of intellectual disability than borderline intelligence, whilst at the check-in desk, or when asked questions such as whether the suitcase you checked in was yours, whether you had packed it and were aware of its contents can only lead to answers which could be characterised as unhelpfully speculative.  Without an explanation, or a context, no meaningful conclusions can be drawn as to your level of functioning at the check-in counter.

30If anything, the exercise of what can only be seen as a conscious choice not to give an account to Mr Cummins or the court of how you came to be involved in the importation indicates, to me, a capacity to make a considered decision inconsistent with an IQ in the intellectually disabled range, and perhaps even in the borderline range.  This capacity to make choices about what to say, and not to say, indicative of a higher level of intellectual functioning than assessed by Mr Cummins is in my view consistent with your conduct highlighted by Mr Barry in the course of submissions.  In particular the explanation you advanced for not telling your parents in Malaysia that you were in custody in Australia, charged with importation of a commercial quantity of heroin, instead, directing your sister to tell them you were working in Australia. 

31I am not satisfied therefore that Mr Cummins’ evidence provides any basis for a finding you suffer an intellectual impairment.  It follows that the basis for seeking to invoke any of the principles in R v Verdins[1] or Muldrock v The Queen[2] is not established.

[1] [2007] 16 VR 269,

[2] [2011] HCA 39; 244 CLR 120

32I am not satisfied, on the basis of Mr Cummins’ report and opinion that you, as opposed to persons with an intellectual impairment or assessed as having a borderline intellectual functioning, experience difficulties in decision-making, that you are vulnerable to adverse influence from others or have a tendency to be relatively easily persuaded.  Even if there were evidence of those matters, there is no evidence to establish any connection between those characteristics and the offending of which the jury has found you guilty.

33You have advanced no explanation for your role or involvement, and said nothing to provide any evidentiary foundation which would enliven any of the six limbs of Verdins, or the principles in Muldrock.

34As I said when sentencing your co-offender Mr Qui, this is a very serious charge.  The maximum sentence for importation of a commercial quantity of a border controlled drug into Australia is life imprisonment.  That is one measure of the seriousness with which Parliament and the community regards such an offence.  The untold harm that drugs such as heroin do to our community, the destruction of the lives of those who are addicts, the destruction of the lives of the families around them, the impact on the people who are the victims of the crimes they commit in order to support their habits and the crimes committed by those who seek to profit in this pernicious trade are well-known and well documented.  It is clear that any sentence imposed must reflect that and that general deterrence is often the most significant sentencing factor to act as a deterrent to anyone who thinks that they can lend themselves to such a trade.

35You come before the court as a man now 35 years of age, 33 at the time of the commission of the offence and arrest.  Like your co-offender Mr Qui, you are a man of mature years.  Like him, you are a Malaysia national. Like him you left school young, and like him you report having maintained regular employment since leaving school.  Although you report frequent changes of employment, and all your work appears to be of an unskilled or semi-skilled nature, I have already noted that you reported having had no trouble obtaining or maintaining employment.  And although you reported frequent changes of job, that appeared to be a result of your choice to change jobs when it suited you to do so, and not by reason of any inability to perform the work required of you.  Again that is inconsistent with impaired intellectual functioning. 

36Like your co-offender Mr Qui, it would appear, consistently with the ease with which you obtained your visitor's Visa to come to Australia, you have no previous convictions in Malaysia.  There has been no problem with your conduct in custody for the 18 months that you have been in this country.

37You come to be sentenced therefore as a person of mature years, not previously in trouble, and who is facing a lengthy term of imprisonment in what to you is a foreign country, isolated from family and friends.  Unlike your co-offender Mr Qui, you have apparently learned no or very little English whilst in custody.  This no doubt adds to the isolation of incarceration flowing from the absence of family or friends in this country. And, of course, this is your first time in custody.  I take those matters into account as either positive matters counting in your favour or hardships which operate to reduce or mitigate the harshness of the sentence otherwise appropriate.  Dealing with the isolation aspect, although I take that into account in the way I have said, it must also be noted that you must have come here knowing that if caught in Australia, you would face a lengthy term of imprisonment, in this country, without family support and without language.  As I said when sentencing your co-offender, Mr Qui, that may, however, be seen to be a better alternative than the consequences had you been caught in your own country with that amount of heroin. 

38Your role in the offending is, of course, that of courier.  It was not put by the prosecution that you had any role other than that.  What you did and did not do is entirely consistent with that role of courier.  Again, as I said in respect of the sentence imposed, or the way to take that into account when imposing on your co-offender Mr Qui, it is an important, trusted, facilitating role and must be punished accordingly.

39Essentially for the same reasons I expressed when dealing with Mr Qui, I do not consider that considerations of parity point to a lesser sentence being imposed upon you than that imposed on Mr Kavvadas.  True it is your suitcase was only one of the two he collected, so the quantity of heroin he imported by collecting both suitcases was double the weight of what you personally imported.  Whilst the weight of the drug imported is relevant to the assessment of the gravity of the offending, it is not the sole determinative factor in assessing relative roles or culpability, or determining sentence.  The quantity of heroin in the suitcase checked in by you was over eight times a commercial quantity.  A bare arithmetic calculation of the multiplier by which an amount of heroin imported exceeds a commercial quantity has limited significance when one is looking at the quantities brought in by you and Qui and collected by Kavvadas.

40Again as I said, and for the reasons I expressed when sentencing Qui, I do not consider that to be in the significant distinction, which would justify a reduction in the assessment of your moral culpability compared to that of Kavvadas in relation to your state of mind, as to the nature of the substance imported. I adopt what I said when sentencing Mr Qui, namely:

Mr Kavvadas admitted he went to Kuala Lumpur in order to play the role he did in bringing the heroin into Australia.  He admitted that he was actually aware, or believed the substance he was to collect from the luggage carousel, was heroin.  You came to Australia in order to play the role you did in bringing the heroin into Australia.  Your state of mind in respect of the nature of the substance imported was said to be reckless, not intentional, that is, that you were aware that there was a substantial risk that the substance was heroin.  There is no difference in the respective states of mind in relation the nature of the substance, in my view, which would justify a lesser sentence for you than that imposed on Mr Kavvadas by reason of that.

41I also adopt what I said when sentencing Mr Qui, namely:

The role and culpability of all three of you, Kavvadas, Ng and yourself, must be assessed in the context of the larger operation.  True it is, Mr Kavvadas collected two suitcases full of heroin, being the two suitcases that you and Mr Ng individually checked in.  You and Ng checked in together, or a minute apart, one after another at the same Malaysian Airlines check-in counter in Kuala Lumpur.  On disembarkation at Tullamarine, you paired up and walked into the Arrivals Hall together.  You waited for each other after the original baggage inspection and went on to the public arrivals area of Melbourne International Airport together.  You were together in the Optus shop when approached by Australian Border Force officials shortly after that.  You gave the same hotel address as your address in Melbourne on your arriving passenger card.  You were booked to take the two-day tour together and to return to Kuala Lumpur on the same flight on 16 February 2017.  In my view again, the inference is inescapable that you knew that you were part of a larger operation and that your co-traveller and co-offender, Mr Ng, was also a courier.

The co-offender, Mr Kavvadas, made full admissions from the time your suitcase was opened in the baggage inspection area and the heroin was revealed.  He indicated his intention to plead guilty at the first opportunity and made good on that promise.  He was sentenced by His Honour Judge Montgomery on 16 October last year to nine years' imprisonment, with a non-parole period of five years and nine months.  His Honour declared that but for his plea of guilty, Mr Kavvadas would have received a sentence of 13 years, with a non-parole period of 10.

There are some common features and some differences between your circumstances and those of Mr Kavvadas.

You both come before the court as first offenders.  Whilst that is clearly a significant factor for both of you, it must also be borne in mind that absence of convictions is very often a precondition for selection to play the role of courier.  Hence, as in white collar crime, absence of previous convictions, if it enables the offender to be in a position where he can commit the offence, does not carry as much weight as it otherwise might. 

42Those paragraphs from my reasons for sentence for Mr Qui apply equally to you, Mr Ng, and I adopt them. 

43Kavvadas was entitled to call in aid his youth.  He was 20 at the time of offending and sentencing, and his efforts to rehabilitate himself between arrest and sentence, led to his obtaining the benefit of the additional weight to be given to encouraging the prospects for rehabilitation already commenced in a young offender.

44When sentencing Qui, I said I saw no basis for distinguishing between his role and that of Kavvadas. The same applies here.  Again, so far as you are concerned, I am satisfied that the difference in quantity is of little moment, given the amount by which the weight of heroin in your suitcase alone exceeded the commercial quantity.  I have already noted that for you, that was by a multiplier of eight and I note that for Mr Qui, it was by a multiplier of 10.  For both of you, that amount is well in excess of the minimum weight required to constitute a commercial quantity and, in my view, the statements of principle about the commercial aspects of an importation of that size and of the need for deterrence and punishment, are as apposite for 16 kilograms of pure heroin as they are for 30 kilograms.

45Like Qui, you are facing deportation at the expiration of that part of your sentence which the proper authorities determine you must serve in custody following the fixing by me of a head sentence with a non-parole period.  On the material before me, I am not able to make any findings as to whether you will have family support upon your return which is a distinguishing feature from your circumstance and Mr Qui's, but one which does not operate to your detriment. 

46I can make no findings generally as to your prospects for rehabilitation, other than what flows from the fact that you have no previous convictions, as my knowledge about your circumstances comes only from the history provided to Mr Cummins and by conscious choice, nothing about the circumstances which gave rise to the offending was placed before me.

47Both Kavvadas and Qui pleaded guilty.  Kavvadas having made full admissions from the outset, pleaded guilty at the first opportunity. Qui pleaded on the morning the trial was due to commence.  Each was entitled to a reduction in the sentence as a result.  Kavvadas was entitled to a greater reduction by reason of his admissions and early plea.

48They therefore are significant distinguishing features between them and you.

49Even without the distinguishing feature of the considerable discount to which each of Kavvadas and Qui was entitled by reason of their guilty plea, I am, for the reasons I have expressed, of the clear view that your sentence should exceed that yardstick of the sentence imposed on Mr Kavvadas.  When the significant discounting factor of the guilty plea is removed from consideration of the appropriate sentence for you, the conclusion that your sentence should exceed the yardstick of that imposed upon Kavvadas is fortified in my view.  I am also of the view that your sentence should exceed the yardstick of the sentence imposed upon Qui because of the discount he is entitled to for his guilty plea.  In my view, there is nothing to distinguish in your personal circumstances and Mr Qui's, or your role and Mr Qui's, which would justify disparate treatment of the two of you.  He has obtained, as was his entitlement, the benefit of this guilty plea in a reduced sentence, hence your sentence must be greater than his.

50Could you now please stand?

51Boon Teck Ng, on the charge of importation of a commercial quantity of heroin, of which the jury found you guilty, you are convicted.  You are sentenced to be imprisoned for a period of 13 years, and I direct that you are to serve nine years before eligible for parole.  The sentence is to commence today.  I declare that you have spent 543 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

52Is the sentence pronounced in correct form, Mr Barry, for Commonwealth purposes?

53MR BARRY:  Yes, Your Honour.

54HER HONOUR:  Any further orders required to be made?

55MR BARRY:  No, Your Honour.

56HER HONOUR:  Do you agree, Mr Moglia, that the sentence is pronounced in a correct form for a Commonwealth sentence?

57MR MOGLIA:  It seems that way.

58HER HONOUR:  Any further orders that are required to be made.

59MR MOGLIA:  No.

60HER HONOUR:  Thank you for your assistance. 

61MR MOGLIA:  As Your Honour pleases.

62HER HONOUR:  Thank you.  Could you remove Mr Ng please?  I am afraid, Mr Moglia, I am hot courting with Judge Cahill so I cannot stay on the Bench for you to speak to Mr Ng so you will have to go downstairs. 

63MR MOGLIA:  Thank you, arrangements have been made.  Thank you, Your Honour.

64HER HONOUR:  Thank you very much.  Adjourn.

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