Director of Public Prosecutions v Solibun
[2021] VCC 2056
•17 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00034
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MACMILLAN LAWRENCE SOLIBUN |
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JUDGE: | HIS HONOUR JUDGE CAHILL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 December 2021 |
DATE OF SENTENCE: | 17 December 2021 |
CASE MAY BE CITED AS: | DPP v Solibun |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2056 |
REASONS FOR SENTENCE
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Subject: Importing in a marketable quantity of a border control drug contrary to Criminal Code (Cth)
Catchwords: Guilty plea – foreign national – Malaysia national – airline cabin crew member who couriered 203.23 g of heroin into Australia – no criminal record –– excellent work history – impressive progress to rehabilitate while on remand – strong family support excellent prospects of rehabilitation justifying shorter than usual minimum term
Legislation Cited: Commonwealth Crimes Act 1914 (Cth)
Cases Cited:R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238; Nguyen v R; Phommalysack v R (2011) 31 VR 673; Suky Lieu v The Queen [2016] VSCA 277; DPP(Cth) v Estrada [2014] VSCA128; Power v The Queen (1974) 131 CLR 623; Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175; R v Shi [2014] NSWCCA135;
Sentence: 5 years and 8 months imprisonment, non-parole period of 2 years and 10 months. Pre-Sentence detention of 1063 days.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. McMaster | Office of Public Prosecutions |
For the Accused | Ms K. McKay | Leanne Warren and Associates |
Ms A Sharpley
HIS HONOUR:
1MacMillan Lawrence Solibun, you have pleaded guilty to one charge of importing a marketable quantity of heroin.
2The circumstances of your offending are set out in the prosecution opening on plea.[1]
[1] Exhibit A, amended prosecution opening on plea dated 6 August 2020, amended 14 December 2021.
3It contains allegations against members of an international syndicate which imported and trafficked heroin within Australia between October 2018 and January 2019. Insofar as your involvement is concerned, it contains agreed facts.
4An annexure to the opening sets out the charges and summarises the offending of seven other members of the syndicate.[2]
[2] Exhibit B, annexure A.
5Michelle Tran was the Melbourne-based head of syndicate.
6Her supplier, “Mr Hanoi” was based in Malaysia. She used her ex-husband’s Vietnamese nephew “Johnny” and his associate, known as “The Manager”, who were both based overseas, to arrange for Malaysian airline cabin crew members, on flights from Malaysia to Australia, to covertly import “tickets” of heroin.
7One ticket, split into three packages, weighed one kilogram and contained between 70-80% pure heroin.
8Michelle Tran paid $155,000 for each ticket of heroin and when they arrived in Australia, sold them here for $195,000 each.
9You were one of the cabin crew which the syndicate used to import heroin.
10Your offending occurred on 10 October 2018.
11You dealt with a person known as “Steve4” (“Steve”).
12On 1 October 2018, using the code “Mandy”, you told him you had a work flight to Melbourne on 10 October 2018.
13On 9 October 2018, you exchanged messages with him about your departure.
14On 10 October 2018 at 9:00 PM, you arrived at Melbourne International Airport on a Malaysia Airlines flight. When you arrived, you messaged Steve to confirm your safe arrival and went to your hotel.
15Arrangements had been made for a woman, who was to provide you with $30,000, to meet you there at 10:45 PM. At that time, you went to the ground floor toilets where you delivered the heroin and collected $30,000 cash. Two minutes later, you messaged Steve it was “done”.
16Based on the price, the heroin you delivered is estimated to be 203.23 grams.
17Under federal law, a marketable quantity of heroin is 2 grams. A commercial quality of heroin is 1.5 kg.
18On 3 November 2018, you arrived at Sydney on a work flight. Australian Border Force officers randomly questioned you and took your mobile telephone. You were not detained.
19When Michelle Tran found out authorities had questioned you, she temporarily shut down business with Mr Hanoi.
20A subsequent examination of your phone revealed messages which confirmed your role in the importation on 10 October 2018.
21On 4 January 2019, police obtained a warrant for your arrest.
22When you arrived at Sydney on a work flight on 19 January 2019, police arrested you.
23At interview, you said:
·you were a Malaysian citizen;
·you had worked for Malaysian Airlines for 27 years;
·you were paid the equivalent of approximately $2,400 – $2,800AUD per month.
24You expressed surprise at the allegation you had imported heroin into Australia and maintained your innocence. You denied meeting anyone in Melbourne to exchange drugs for cash.
25After questioning, you were charged and remanded in custody.
26You were to stand trial on 15 February 2021. However, there were delays in listing the trial because of the COVID-19 related disruption to juries. The trial was ultimately listed to commence on 1 December 2021. A week before hand, the prosecution accepted your offer, made on 17 November 2021, to plead to the charge on the indictment.
Criminal record
27You have no criminal record.
Personal circumstances
28You were born on 19 September 1970 and are now aged 51 years. You were 48 years old when you offended.
29Ms McKay, who with Ms Sharpley, appeared on your behalf, told me you were born into a large Catholic family, the youngest of nine children, at Kampung Kibabaig in Sabah, Malaysian Borneo. I was told your father was a violent alcoholic who beat your mother and was physically abusive toward the children.
30You were largely raised by your older sister, Jovinia, who is 21 years’ your senior. When you were nine years old and doing badly at school, she sent you to live with her sister-in-law, Rita, in Penang. Rita ran a hostel from a home and had two older boys and two adult men as boarders. It was a challenging environment for you and, when you were 12 or 13, you went back to live with Jovinia at Kuala Lumpur. There, you went to school where you excelled in sports, including running, squash, soccer and swimming.
31At 18 years of age, after you graduated from school, you had a series of low-paid, low skilled jobs, at a restaurant and then a convenience store. You then worked for your sister at her commercial laundry for a year.
32At the age of 19, you obtained a position as a junior flight attendant with Malaysia Airlines.
33You had worked for the airline for 29 years until your arrest. During that time you were promoted to in-flight supervisor where you reported to the captain and the crew reported to you. In the years before your arrest, you also work part-time at a local restaurant which you had invested in with a friend.
34You married your wife, Michelle, whom you met at Malaysia Airlines, approximately 20 years ago. You have two sons, Malcolm, aged 17 and Mikael, aged 11. Your wife stopped working after Malcolm’s birth.
35For years prior to your arrest, your marriage had been failing. Your wife and you were effectively separated under the same roof while you continued to support the children and her.
36Since your arrest she has been diagnosed with a uterine fibroid which will require surgery.[3]
[3] Exhibit 1, letter of Dr Leong Wai Yew.
37Prior to your offending you were under some financial pressure. You had responsibility for house and car payments and, in 2017, you enrolled your sons at a private school because they had been doing poorly in the public system.
38You were taking as many international shifts as you could to maximise your salary and were generally home only for two days at a time.
39I was told a man contacted you with an offer to earn extra money and, initially, you refused. You said you eventually succumbed to his persistence.
40You said you never met anyone in person and were given instructions remotely. You said you weren’t told the package you imported contained heroin but you were “deeply suspicious” its contents were illegal and you were aware of the substantial risk that it contained a border-controlled drug.
41At the Melbourne Assessment Prison (‘MAP’), where you were initially remanded, you were prescribed anti-depressants for depression and anxiety. It was your first time in custody.[4] At the MAP, you attended the “inside peace” course.[5]
[4] Exhibit 20, GEO group medical certificate dated 30 April 2019.
[5] Exhibit 17, "inside peace" attendance certificate.
42Subsequently, at Fulham Correctional Centre, you have embraced many Christian faiths attending Catholic[6], Anglican[7] and Uniting[8] church services and ecumenical bible studies[9] when COVID-19 restrictions have allowed. You are also a founding member of the prison fellowship and gospel group which sings gospel music and hymns.[10]
[6] Exhibit 2, letter from Veronica Barnes, chaplain, Catholic prison ministry.
[7] Exhibit 4, letter from Heather Toms, Anglican prison chaplain.
[8] Exhibit 6, letter from Barbara Strickland, uniting Church chaplain.
[9] Exhibit 3, letter from Robyn Clark, Crossroads prison ministries and Exhibit 7 Bible studies completion certificate, Exhibit 12, 3 Crossroads certificates, Exhibit 14, Anglicare certificate of participation.
[10] Exhibit 5 letter from Chris Poulios, activities and well-being supervisor.
43The Anglican chaplain wrote “I’ve noticed a man who has taken his faith journey seriously with the desire to move forward and be reconnected with his family. Laurence has been an active member and participant of the church services and plays at each service offering the gift of music.”[11]
[11] Exhibit 4.
44You were baptised on 11 June 2019.[12]
[12] Exhibit 13, certificate of baptism.
45You have completed all the prison education and vocational programs which have been made available to you.[13]
[13] Exhibit 9, summary of education modules completed, Exhibit 10, 14 Kangan Institute certificates, Exhibit 11, 7 Emmaus correspondence School NSW certificates.
46You have also completed the Salvation Army ‘Positive Lifestyle Program’[14] and the ‘Remand Coping Inside Prison’ program.[15]
[14] Exhibit 15, letter from Brett Woods, Salvation Army prison chaplain and certificate of completion.
[15] Exhibit 16, certificate of program completion.
47You have provided clean urine samples.[16]
[16] Exhibit 18, urine screens dated 5 February 2019, 29 March 2019, 24 January 2020 and 26 July 2021.
48In prison, you have worked in the woodwork factory and in horticulture. And you have been living in “The Lodge” which is a self-contained unit where a number of prisoners are housed together.
49As well addressing your own rehabilitation, you have been a notable mentor and major support to a number of other prisoners, to help them in their rehabilitation through your guitar playing, singing and cooking.[17]
[17] Exhibit 19, letters from Marian Holmes, Chol, Sonny-Puimaono, Brian Leyden, Duong Tran, Joey C, John F, Bond Uji, Tommy Chiu.
50You have been served you with a notice that you will be removed from Australia when you are eligible to be released from prison.[18]
[18] Exhibit 8, Australian border force section 254 migration act notice dated 28 February 2019.
51Your sister, Jovinia, wrote a very impressive reference on behalf of all your siblings.[19] She confirmed you were the sole breadwinner for your family and your wife is to undergo a major surgical procedure. She wrote, from her phone calls with you, three years detention has taught you a lot, separation from family and friends has been difficult for you and you have repented for your crime.
[19] Exhibit 22, letter from Jovinia Solibun.
52Your family has arranged work for you when you return to Malaysia.
53I was told your arrest has caused your wife to think about your marriage. In phone calls with you, she has told you she wants you home so that you can both live together.
Defence submissions
54Your counsel acknowledged your role as a courier for an international drug syndicate was substantial.
55Ms McKay submitted, while objectively serious, the gravity of your offending should be moderated considering you had no knowledge of the syndicate nor any involvement with it other than messaging your contact. She submitted that your fault was reckless rather than intentional.
56She submitted, considering unlike others, you used non-encrypted communication applications on a telephone subscribed in your name, there was a lack of sophistication to your offending.
57She also submitted that your financial gain was modest in the circumstances.
58In comprehensive written[20] and oral submissions, she relied on the following factors in mitigation of penalty:
[20] Exhibit 21, outline of police submissions.
·your guilty plea for its high utilitarian value;
·your lack of any criminal record;
·your impressive employment history;
·the additional hardship in prison for you;
oas a first time prisoner and a foreign national in prison;
oduring COVID-19 isolation; and
oisolation from family; and
·your excellent prospects of rehabilitation considering;
oyou are a first offender;
oyou have an excellent employment history;
oyou have no drug or alcohol issues;
oyou have undergone all available programs in prison and recommitted to your faith; and
oyou have strong family support.
59She acknowledged the appropriate sentence for you is a term of imprisonment with a non-parole period fixed.
60She also provided me with a table of Victorian Court of Appeal decisions[21] and sentences of this Court where the amount of border-controlled drug imported was between 100 and 300 grams. They identify a wide sentencing range of 30 months to 81 months imprisonment.
[21] Exhibit 23, table of cases – 100 – 300 g importations.
Prosecution Submissions
61Ms McMaster, who appeared for the Crown, in helpful written[22] and oral submissions, submitted an immediate term of imprisonment with a non-parole period is the only appropriate disposition in your case.
[22] Exhibit C, prosecution sentencing submissions.
62She confirmed you will be deported to Malaysia when you are eligible for release from prison.
63She submitted general deterrence and denunciation are prime sentencing considerations for drug importation offences, and stern punishment will be warranted in almost every case.[23]
[23]Wong v R (2001) 2007 CLR 584; Lieu v The Queen [2016] VSCA 277.
64She also submitted your prior good character is to be given less weight as a mitigating factor.[24]
[24]Nguyen & Phommalysack v The Queen (2011) 31 VR 673.
65She submitted the quantity of drug you imported, 203.23 grams of pure heroin, which is 100 times the marketable quantity, and your integral role as an international courier for a sophisticated international drug syndicate, are relevant to the assessment of the objective criminality of your offending.
66She also submitted that you offended in circumstances, where, as an experienced and senior member of an international airline cabin crew, you were well aware of the risk of unlawful drug importations, and were motivated by financial gain, are relevant to the assessment of your moral culpability.
67She acknowledged your guilty plea, although not made early, has significant utilitarian value, particularly, in the context of COVID-19 related disruptions to court operations.[25]
[25]Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175.
68She provided me with a table of appellate decisions from Victoria, Queensland and New South Wales,[26] in relation to the offense importing a marketable quantity of a border-controlled drug. They identify a sentencing range from 5 years to 9 years’ imprisonment.
[26] Exhibit D.
Analysis
69The maximum penalty of 25 years imprisonment demonstrates the inherent seriousness of importing a marketable quantity of a border-controlled drug. It serves as a yardstick and a basis for comparison between your case and the worst case.[27]
[27]Markarian v The Queen (2005) 228 CLR 357.
Sentencing Principles
70The sentencing principles in drug importation cases are well-established:
·the offender’s role and involvement in the enterprise, the sophistication of the enterprise and the amount of drugs involved are relevant to the assessment of the seriousness of the offending;
·because of the difficulty in detecting the offending and the great harm stemming from the distribution of illicit drugs in the community, significant weight is attached to the principle of general deterrence;
·for involvement at any level, an offender should expect a significant sentence;
·as a matter of common sense, it should be inferred, unless there is evidence to the contrary, the person who is importing drugs is doing so for profit; and
·prior good character is generally to be given less weight, as a mitigating factor.[28]
[28] R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238, at [72]followed in Nguyen v R; Phommalysack v R (2011) 31 VR 673 at [34] and Suky Lieu v The Queen [2016] VSCA 277, at [41]-[43].
Quality and Value of the Drugs
71The quantity and value of the drugs you imported was significant.
72The quantity was 203.23 grams, which is a substantial multiple of a marketable quantity and 0.135 multiple of a commercial quantity.
73The wholesale value was $30,000. Its street value would have been around three to four times greater.
Role and Involvement
74You were an international courier for a sophisticated, transnational drug syndicate. You were entrusted with the responsibility to transport heroin from Malaysia into Australia, deliver it to a syndicate member and return cash to the syndicate in Malaysia.
75There was a degree of planning and co-ordination to your offending, which involved international travel and separation of the Malaysian side, including you, from the Australian side, to reduce the risks of detection.
76While you were not expressly told you were carrying heroin, from your long experience as a senior flight attendant you would have been well aware there was a substantial risk the item you were given contained a border-controlled drug and, nonetheless, you took that risk.
77The risk you took was very high. You took it for personal financial reward. While, as the sole provider for your wife and children, you were under some financial stress, there are no are extenuating circumstances to your offending.
78Illicit drug organisations can only prosper because people are willing to undertake a role like yours; regardless of the level of involvement, persons who participate in the illicit drug trade should expect heavy penalties.[29]
[29]R v Shi [2014] NSWCCA135 at [34].
Mitigating Factors
79I accept your early guilty plea has significant utilitarian value.
80In the decision of Suky Lieu the Victorian Court of Appeal said:
“Drug importation and drug trafficking charges are notoriously difficult and expensive to prosecute. Contested trials on those charges can occupy the time of the courts, and of the law enforcement officers, for a considerable period, and can be a substantial burden on the community. It is for these reasons that it is important that sentences imposed in cases such as this, after a plea of guilty, are such as to reflect the value of those plays as mitigating circumstances.”[30]
[30] Suky Lieu v The Queen [2016] VSCA 277 at [56].
81There is additional utilitarian value to your plea, made during the public-health pandemic, because it alleviates the current strain on the justice system.[31]
[31] Worboyes [2021] VSCA 169, [35] and [39], Chenhall v R [2021] VSCA 175, [29].
82I accept your guilty plea is also evidence of acceptance of responsibility for your actions and some remorse.
83I also accept, because of the impact of COVID-19, the burden of imprisonment has been greater due to the removal of prison visits, reduction in programs and increased isolation.[32]
[32] R v Biba [2021] VSCA 327.
84I accept your isolation from family and friends has made prison harder for you but, because you came to Australia to commit a serious crime, intending afterwards to return to your home, little weight can be attributed to it.[33]
[33]DPP(Cth) v Estrada [2014] VSCA 128.
85I also accept, during your time on remand custody, you have taken every available step to repent and to advance your rehabilitation.
86With your strong family support in Malaysia, I accept you have excellent prospects of rehabilitation.
87Because of the seriousness of your offending, your otherwise good character is of less relevance, but it is nevertheless a factor I take into account in concluding you are unlikely to reoffend.
88I have moderated your head sentence and non-parole period to take account of the mitigating factors I have identified.
Parity
89I have already sentenced seven other syndicate members including its Melbourne head, Michelle Tran.
90Accordingly, I must have regard to the parity principle.
91Most comparable to you was Beng Goh who pleaded guilty to a charge of trafficking a marketable quantity of a border-controlled drug. He came to Melbourne where he collected a ticket, that is one kilogram, of unlawfully imported heroin and delivered it to a customer. He was caught with $155,000, the payment he collected from the customer, when he was arrested. He made an early guilty plea. His role was at a similar, if not slightly lower, level to yours. He was a Malaysian national whose only purpose for traveling to Australia was to commit his crime. He was a 44-year old businessman who was of first time offender. His progress to rehabilitate in prison was exceptional. I sentenced him to 6 years imprisonment and, to reflect his excellent prospects of rehabilitation, I imposed a shorter than usual minimum term of 3 years.
Comparable Cases
92I have read all cases referred to by both cCounsel and used them to identify the sentencing principles and, making adjustments for the differences in the circumstances the offending and the offender, I have also used them as a yardstick to measure your sentence.
93In doing so, I recognise the limitations of the use of comparable cases which the High Court has identified.
Federal Offending
94As a federal offender, you fall to be sentenced under Part 1B of the Commonwealth Crimes Act 1914 (Cth).
95I must impose a sentence that is of appropriate severity in all of the circumstances.[34]
[34]Commonwealth Crimes Act 1914 (Cth), s 16 A (1).
96In determining your sentence I have taken into account the matters listed in subsection (16A)(2), insofar as they are relevant and known to the Court.
97I must not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate.[35] No other sentence is appropriate in your case.
[35]Commonwealth Crimes Act 1914 (Cth), s 17 A (1).
98Considering the seriousness of your offending, I must impose a sentence of imprisonment which, under federal law, requires me to fix a non-parole period.
99Because of your impressive behaviour in gaol and your excellent prospects of rehabilitation, I will fix a shorter than usual minimum term “to provide for mitigation of your punishment, in favour of your rehabilitation through conditional freedom on parole”.[36]
[36]Power v The Queen (1974) 131 CLR 623 at 628 – 629.
100Mr Solibun, by the sentence I impose, I must denounce your conduct, punish you and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
101Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, for the offence of importing a marketable quantity of a border control drug, I sentence you to 5 years’ and 8 months’ imprisonment which is to commence today.
102I fix a minimum non-parole period of 2 years’ and 10 months’.
103I declare you have served 1063 days of your sentence by way of pre-sentence detention.
104While there is some artificiality to the process, I declare but for your plea of guilty, I would have sentenced you to 7 years’ and 8 months’ imprisonment and fixed a minimum non-parole period of 4 years’ and 8 months’.
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