Director of Public Prosecutions v Tan

[2015] VCC 523

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00576

DIRECTOR OF PUBLIC PROSECUTIONS

v

YEAN NGEE TAN

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 May 2015
CASE MAY BE CITED AS:	DPP v Tan
MEDIUM NEUTRAL CITATION:	[2015] VCC 523

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes
For the Accused	Mr J. Gullaci

HIS HONOUR:

1Mr Tan, you have pleaded guilty to one count of attempting to possess a marketable quantity of an unlawfully imported substance, namely heroin.  You have heard the learned prosecutor, Ms Holmes, tell this court that the maximum sentence that can be imposed for this offence is that of 25 years' imprisonment.  That sentence as a maximum should indicate to you and to the community that this indeed a very serious offence.  Mr Tan, for having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.

2Mr Tan, at the time of committing this offence, and I am quoting directly from Ms Holmes' prepared summary, you then resided at 55 Warmington Street, Sunshine West and that was for the purposes of receiving packages containing drugs on behalf of a man that you called Bigfoot. 

3You had arrived in Australia in 17 August 2013.  On 9 January 2014, approximately five months later, staff at what is called the Melbourne Gateway Facility where domestic mail and international mail is screened, advice was given to the Australian Federal Police that those at the Gateway Facility had identified approximately 1.5 kilograms of heroin concealed in a parcel within that mail service.  The parcel had been sent with the following details: the consignee was Mr Alex Tan of 55 Warmming Road, West Sunshine, Victoria, 3020.  A phone number was also given.  The sender of that parcel was said to be a Jessie Lim, giving the address of 118 Lintang Kurau Chaileng Prai, Penang in Malaysia. 

4The declaration on the parcel stated that that parcel contained dry food.  Upon examination, the parcel contained a cardboard box which was labelled "Home theatre system".  Within the cardboard box, there was a bamboo cane basket hamper with boxed foodstuffs within that hamper containing various packets, dry biscuits, muesli bars, chocolate and two commercially sealed plastic bags labelled "Old Town White Coffee".  The hamper was wrapped in a red and white spotted see-through mesh, a decorative type of wrapping.

5X-ray imaging of the two coffee bags revealed anomalies and presumptive testing of sachets contained within the bags revealed they contained heroin.  The parcel was later analysed and found to contain 1.3693 kilograms of white powder.  That equated to 926.9 grams of pure heroin.  So in the vernacular, there was some sort of cutting material added, obviously, making up the difference in those two weights. 

6Enquiries by police revealed that the address of 45 Warmming Road did not exist.  That the likely address for the consignee was 55 Warmington Road, Sunshine West, Victoria. 

7On 10 January 2014, in preparation for a planned controlled delivery, two federal agents called the phone number of the consignee that was shown on the package.  The first agent had a conversation in English with the person who answered the phone.  That person was an individual who spoke very little English and that person advised he spoke Hong Kong. 

8Later in the day, a Cantonese speaking agent had a further conversation with the consignee.  In that conversation, the consignee stated that - that is the voice on the other end of the phone of course - he was not Alex Tan.  Alex was his friend.  Alex would be back later in the day.  The consignee then stated that the correct address for the parcel was in fact 55 Warmington Road,  Sunshine West in Victoria.  Mr Tan, at a later time you admitted being the person or the recipient of those phone calls.

9On 13 January 2014, at approximately 10.15 am, two federal agents wearing plain clothes attended at 55 Warmington Road, Sunshine West to effect a controlled delivery of that parcel.  One of the agents knocked on the front door of the premises.  He was holding a plastic delivery box which contained a cardboard box wrapped in brown paper.  You, Mr Tan, answered the front door.  When the Australian Federal Police agent advised that he had a parcel for Alex Tan, you stated that Alex Tan was your brother.  The agent requested that you provide your driver's licence and sign for the package.  You then looked at the box, turned around and ran back into the house. 

10Both agents entered the premises following you into the house through the kitchen and out into the back garden.  You had closed the security door behind you when you went into the back garden.  I will stop there.  There was other material contained in the summary but there is no point in me going through that at this point in time.

11A short time later you were arrested.  Further investigations revealed that you were an unlawful non-citizen as your visa had expired on 17 November 2013.  Mr Tan, you were subsequently taken to the Australian Federal Police offices here in Melbourne, which is just around the corner from this building, where a record of interview was conducted.  A Cantonese speaking interpreter assisted with that record of interview.  Among other things, you said during that record of interview when shown a copy of the rental tenancy agreement, you stated, "No, no, all this was arranged by a friend."  Your friend Bigfoot and yourself lived at that address. 

12When questioned about who Bigfoot was, you stated you did not know Bigfoot's real name and did not know his phone number.  You also said Bigfoot did not sleep at the house, that is, at 55 Warmington Road, that he came there once every two or three weeks.  He sometimes brought food and money.  You said that everything had been organised by Bigfoot.  You also said sometimes he, that is he, Bigfoot, would - I beg your pardon - you sometimes said that you would be given $2,000, sometimes 3,000, by Bigfoot about once a month.  In total you had received about three or five thousand dollars, that is, for you to buy food.  You said, "For me to buy things."  You had not done any work for the money.  Again, quoting you, you said this, "I just told him I have no money so he give me money and asked me to stay here for the time being."  You further indicated the money had been loaned to you.  You indicated that a friend in Malaysia had introduced you to Bigfoot and you used this word, Bigfoot had "referred" for you to come to Australia.  I assume that means arranged.  You used the word "referred".

13You had come to Australia on the promise of work and you were looking for work.  Bigfoot had told you that no work was available and asked you to wait and you had been waiting for about three months at 55 Warmington Road.  You had been given housing at that address. 

14With respect to the arrangement between yourself and Bigfoot to collect parcels, you said words to this effect, Bigfoot had told you that if anything was delivered here, quoting you directly, "Just tell him deliver it here" and then Bigfoot also told you, again quoting you, "After you receive the parcel, leave it here.  I will come to collect it."  "Bigfoot would", again quoting you, "come by himself.  He had the house key."  You were not going to get paid to take the package.  You admitted you had received one parcel at the address and stated, "Only one.  That was the only one to be delivered."

15As to Alex Tan, you said Alex Tan was a friend.  You said you did not know where Alex Tan was now and you could not supply any further details about Alex Tan.  You did admit to receiving phone calls from a delivery company in the previous week in English and in Cantonese clarifying the address and that is what I referred to earlier.  And you also said that when you were asked, you told a Cantonese speaking agent, the man on the phone, that Alex Tan was your friend.  You used these words, "I said he's a friend who is going to find me a job."

16Mr Tan, you are now aged 44, having been born on 23 July 1970.  You are a married man with four young children.  Your wife and children continue to reside in Malaysia.  Not surprisingly, your wife indicates that she finds it difficult working as a bookkeeper and also raising four young children on her own.  Until recent times, whilst you were resident in Malaysia, you worked as a welder in the metal industry.  Unfortunately you suffered a severe injury to one of your hands thus curtailing your capacity as a welder.  The prospect for other work as bleak. 

17Mr Gullaci tells me at first you managed to support yourself and your family on accumulated savings.  However, not surprisingly these funds became exhausted and you sought work wherever you could.  It was in this climate that you came in contact with Bigfoot or his cohorts.  You told the investigating police officers that one of your friends introduced you to Bigfoot in Malaysia.  I take issue as an aside with that person being called a friend.  But nevertheless, you say a friend introduced you. 

18You were told that work was available to you here in Australia.  Having arrived in Australia, you were then told that work was not available yet but you were asked to wait, as I mentioned earlier.  You resided at 55 Warmington Avenue, West Sunshine and you told the investigating police officers, as I said earlier, that Bigfoot lent you money during your stay at this premises.  You bought food, on occasions.  No, he bought food for you on occasions and told you stay at this address whilst waiting to get a job.  As I mentioned earlier, you told the investigating police officers that you had been waiting at this house for three months at the time that you were arrested.  I think that might be a bit in error but I do not think there is much point in making an issue of that. 

19As I said earlier, when contacted by the people at the parcel delivery service, you told those officers that Alex was your brother and/or your friend and you gave instructions for the parcel to be delivered to 55 Warmington Avenue.  As we have already discussed, the parcel was delivered and you now find yourself facing the very serious charge of attempting to possess a marketable quantity of imported substance, namely heroin. 

20You told the investigating police officers that you were terrified at the time of the delivery.  I infer that you had knowledge of the insidious nature of what was in fact occurring.  Your real concern and fear is indicative of your knowledge.  That is, that this parcel contained illicit substance, that is, drugs. 

21Mr Tan, all too often courts such as this court hear of individuals who have unfortunately found themselves for whatever reason in indigent circumstances.  So there is no misunderstanding of indigent, straitened or poor financial circumstances.  Frequently money lost at casinos or money lost gambling or, in your instance, assuming you have told us the truth, you have lost your employment and of course find yourself in poor financial circumstances.  We hear how such people are identified and are then propositioned by persons within the drug industry to then become involved in trafficking or as in your case the stoolie in a drug importation racket into this country.

22The "Bigfoots" hide behind those in straitened circumstances.  Those wretches, that is the Bigfoots, are indeed difficult to uncover by authorities.  All too often they hide behind unfortunate individuals such as yourself.  Your work related injury has now had devastating effects on your personal circumstance.  I accept that both you and your wife were struggling financially, having four young children in any society in addition to maintaining one's own personal self and wife, children are expensive, food is expensive, clothing is expensive and to have no income obviously one has to undergo in those unhappy circumstances severe financial personal difficulties.

23You now find yourself incarcerated in Australia a long way from home and further, you are isolated within the prison system as you have no or very little English.  Your time in custody will thus be particularly hard as it will be very difficult for you to communicate with others, other prisoners.  The warders who are looking after you and any other individual you come across.  You are isolated.  I accept this is a significant factor and am conscious of this difficulty that you are suffering as distinct from other English speaking prisoners and I take that into account, endeavouring to find a just and proper penalty. 

24In this instance, fortunately the package was intercepted by the federal police officers, thus preventing this insidious drug, I use the word insidious, quoting Mr Justice Tadgell who some years ago was on the Court of Appeal here.  He called it an insidious drug.  I have no difficulty in it being called an insidious drug.  Those drugs that you were part and parcel of in terms of receiving this parcel happily did not reach the streets of Melbourne. 

25Your counsel, Mr Gullaci, in his eloquent plea on your behalf expresses your remorse to this court.  Mr Tan, you have pleaded guilty to this offence.  That plea is an indication of your remorse.  It was raised by Mr Gullaci and I feel I should mention it, the plea did not come at the first opportunity in the sense of straight after being arrested but both ends of the Bar table, prosecution and defence, said there was at least reasonable grounds for negotiations to take place prior to the plea being given.  So I am treating it as though it was given at the first opportunity.  That is, your plea. 

26Your record of interview indicates a guarded version of the reality of what occurred.  It is the Bigfoots of this world that should stand with you before this court and for sentencing.  The prosecutor and myself and no doubt Mr Gullaci are fully aware of the violence that those persons are capable of dishing out and for that very reason they are rarely disclosed.  That is no reflection upon you. 

27Could you stand up please, Mr Tan?  The effects of your incarceration has had devastating effects upon your family, your wife and your four children.  This devastating effect is confirmed by the letter produced by Mr Gullaci from your wife.  She having written from back at home in Malaysia.  That letter is an exhibit.  I believe your loss of liberty to this point has indeed had some effect upon you in terms of you returning to such criminal behaviour.  I get the impression you are so ashamed of yourself and genuinely remorseful, I hope not for being caught but for the whole circumstance and I would like to think you will not involve yourself in such criminal activity in the future.  You also understand that the appropriate time, you will be deported from this country. 

28Mr Tan, you have no prior convictions in Australia and there is no prior convictions alleged from anywhere, from any other country.  Your instructions to Mr Gullaci are and I assume they are correct, I see no reason to take exception to them, that you have been an industrious man.  I accept you have a good work ethic, that you worked hard to support yourself and your family only to find your working life severely interrupted by a workplace injury.  I accept that if suitable employment is available, you will return to the workforce when you return home to Malaysia.  Those comments reflect your attempt hopefully to rehabilitate yourself when you return home. 

29Mr Tan, this is very serious offending as has been said on a number of occasions by me.  As you heard the learned prosecutor Ms Holmes directed me to provisions of the Commonwealth Crimes Act, s.16 in particular, 16A.  I am required by this section to impose a sentence which fits the crime and also pursuant to s.16A(2), Ms Holmes raised it so I am commenting to you on it and there are a number of matters that I am to have regard to.  There are numerous considerations which appear to be relevant to this particular offending and I believe I have gone through each of those as I have addressed you this morning.  Section 16 does not raise in specific terms as it does the considerations that must be taken into account but it does not speak of general deterrence being significant in cases such as this. 

30I do not know if you are aware of what has been on all of our news programs currently but here in Australia the importation of drugs into Australia from another country into this place has caused great anguish and heartache to many.  A comment only, you may indeed be very fortunate that you find yourself subject to Australian law, not to international law for this offending. 

31For this offence you will be convicted and sentenced to be imprisoned for a period of five years.  You are to serve a minimum term of three years and six months before being considered as eligible for parole.  Now this may not affect you but I will say it for the record, normally there are other utterances and comments that judges in my position under this Act make, but I have been reassured by the prosecutor and defence counsel that what I have said was sufficient in your circumstance.  That is correct, is it not?

32MS HOLMES:  Yes, Your Honour.

33HIS HONOUR:  Pursuant to s.18 of the Penalties and Sentences Act or the Sentencing Act, you are to be given credit for having served 473 days of imprisonment and pursuant to s.6AAA, a section I find difficult all too often to fully comprehend, it is crystal ball gazing.  I have spoken at length with other judges, Mr Justice Kaye in particular.  He finds it quite torturous.  I think I would have imposed seven years' and six months' imprisonment had you pleaded not guilty.  That is not what he has been imposed.  That is what I would have imposed had he pleaded not guilty with a minimum term of five years. 

34There are no other orders sought, are there, Ms Holmes?

35MS HOLMES:  No, Your Honour.  It's automatic forfeiture under the ‑ ‑ ‑

36HIS HONOUR:  Thank you.

37MS HOLMES:  ‑ ‑ ‑ Commonwealth law so yes, thank you.