Director of Public Prosecutions v Teh

[2016] VCC 768

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00428

DIRECTOR OF PUBLIC PROSECUTIONS (CWTH)

v

LIK KHUANGTEH

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2016
DATE OF SENTENCE:	6 June 2016
CASE MAY BE CITED AS:	DPP v Teh
MEDIUM NEUTRAL CITATION:	[2016] VCC 768

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cwth)	Ms S. Barnes	Commonwealth Director of Public Prosecutions
For the Accused	Mr G. Bailin	Victoria Legal Aid

HIS HONOUR:

1Mr Teh, you have pleaded guilty to one count of importing - you can remain seated, I will tell you when to stand if necessary.

2You have pleaded guilty to one count of importing a border-controlled drug.  You have heard the learned Crown prosecutor Ms Barnes tell this court that the maximum sentence for the offence that you have been charged with is two years' imprisonment.  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. 

3Mr Teh, at approximately 9.20 am, 20 past nine on 3 December last year, you arrived at the Melbourne Airport from Kuala Lumpur, in Malaysia of course.  You were travelling on a Malaysian passport.  On arrival, you attended the passport control queue and you produced a completed incoming passenger card.  You had answered all the questions on that incoming card in the negative.  Having collected your luggage, you proceeded to the Australia Border Force secondary examination area, where you were directed to an examination bench. 

4You told the officers at that counter that A, you had read and understood all of the questions on the incoming passenger card, you also told them that you had signed that card, and further, that you were aware of all of the contents of your luggage, as you yourself had packed that luggage. 

5The officer at the counter then conducted an ion scan trace-detection swab of your belongings.  That test produced a positive result to methylamphetamine.  You were questioned as to that test that revealed methylamphetamine.  You initially denied any contact with drugs.  You later admitted to having previously used methamphetamine. 

6Mr Teh, you were then taken to an interview room, and you told the Australian Federal Police officers that you had lost a large amount of money gambling, and that you wanted to start a life in Australia, possibly fruit-picking.  The investigating police officers advised you that they had a belief that you were carrying narcotic drugs.  At this time you then removed an ice pipe from your underwear.  The investigating police officers at this time arranged an interpreting service by way of telephone, to make sure you understood what was being said to you.  You were cautioned and advised of your rights using that interpreting service.

7You were again asked if you were carrying anything else, at which time you stood up, and you removed ten orange tablets from your pocket.  You advised the police officers that these tablets were to help you relax. 

8Mr Teh, you were then taken to a private room for the purpose of an external body search.  When this search was to begin, you then reached down to your shoe and removed a small package wrapped in purple wrapping paper.  You advised the police officers that this package contained ice.  On being swabbed, the contents of that small package proved to be methylamphetamine.

9In addition to advising the investigating policemen that you had come to Australia to sightsee as a tourist, you also advised them that you had a history of mental health issues.  I will come to that a little bit later, where sadly you attempted to take your life on two occasions.  I will speak more about that later.

10Mr Teh, you became confused and tired, which alerted the policemen that you may need some medical assistance, you had "become drowsy and were fading away, going off to sleep".  Ultimately you were taken to the Sunshine Hospital, where you were admitted to the emergency ward.  Later that evening you underwent a CT scan which revealed that there were foreign objects secreted in your rectum.

11Having been administered medication, you subsequently passed six cylindrical-shaped objects.  Tests conducted upon this material revealed the presence of yet more amphetamine.  The tests conducted on the orange tablets were inconclusive. 

12Ultimately you were interviewed, you revealed that you were a Malaysian citizen, that you worked as a carpenter making wardrobes, and not surprisingly you indicated you concern upon if and when you return to Malaysia, as to what might happen to you as a result of being intercepted by the Australian Federal Police.  During the interview, you made a no-comment record of interview, which is your right.

13The total pure-weight of the methamphetamine seized by the police officers was that of 4.1 grams.  The purity of this methamphetamine was found to be
80.3 per cent pure.

14Mr Teh, you were born in Penang, Malaysia, on 23 November 1980.  You are now age 35, you have an older brother, Sheng, and a young sister Ching.  Your mother and father still live in Penang.  It is said that they are hardworking, middle-class citizens, and you had a relatively happy childhood.  You completed the equivalent of Year 11, that is the equivalent to Year 11 here in Australia, at secondary school, when you then moved from Penang to Kuala Lumpur and became a telephone technician, if I might call you that.  After four years working as a technician, you then moved back to Penang, where you operated a mobile hair salon for between five and six years. 

15At this time, you married your long-time girlfriend.  Your girlfriend and yourself ran the mobile hair salon.  This relationship ended amicably after two or three years.  The relationship having ended, you then moved to Singapore, where you managed a restaurant for over two and a half years.  At this time you married again.  This relationship was, unhappily, volatile.  Both you and your wife suffered from mental health issues.  You attended the medical profession, including psychiatric services, to attend to your health, in particular your depression.

16Over the next three years, dating from the latter part of 2012, you were prescribed antidepressant medication, and you were admitted to short in-patient psychiatric admission during that period.  You were prescribed antipsychotic medication.  Some of this kind of medication was in fact in your possession when you arrived here in Australia. 

17During 2013, in the midst of your volatile relationship with your second wife, you, on two occasions, attempted to take your life.  You were hospitalised on each of those attempts.  This marriage ended, and you then moved to Taiwan to create a new life for yourself.  You commenced working as a real estate agent, a position at which you excelled.  You worked in real estate for three years, and met your third wife, Lee Cheng Ling.  Your wife Lee still resides in Taiwan.

18Your second wife, that is the wife from Singapore, had destroyed much of your personal property, including your passport.  You moved back to Malaysia with Lee in February 2015 in order to get a new passport so that you could apply for permanent residency in Taiwan.  You had accumulated significant savings because of your success as a real estate agent.  You had that wealth with you when you arrived back in Malaysia.

19You formed a partnership, and with that partner, you set up a business in Malaysia, and you used a portion of those savings that I have just mentioned to set that business up.  This business operated for approximately two months, when unhappily, your business partner, to put it bluntly, took off, taking with him the majority of your customers.

20Foolishly, you, Mr Teh, then turned to gambling, and virtually lost the lot.  You were down to zero.  Following this loss you then began using amphetamine, or methamphetamine, and quickly developed a daily habit, using approximately five grams per week.  Your wife Ling endeavoured to help you.  She ultimately had to return to Taiwan, as her visitor's visa to Malaysia had expired.  Ling had assisted you to find work as a carpenter, where you commenced work, as I said earlier, as a cabinet-maker, or wardrobe maker, earning approximately $300 a week.  Eventually you obtained a new Malaysian passport to replace the one burnt by wife number two, and you decided to come to Australia for five or six days, a short period, to see whether you liked it here, and if there were any opportunities so that you might relocate.  The five or six apparently became about half of that because you missed the plane, and if I remember properly, Mr Bailin said you probably missed the plane because you were abusing drugs, perhaps you slept in, I do not know.

21You were still using methamphetamine, and your supply of methamphetamine was what was detected by the investigating policemen when you arrived here in Australia.  You brought your methamphetamine with you as you did not have a supplier, or a supplier known to you, here in Australia.

22In the sentencing submissions that the prosecutor handed up to me when we were together on Friday, made this concession.  That is, that you are considered to be an importer of this drug for personal use.  Paragraph 13 of
Ms Barnes' submissions reads, and I quote "It is not submitted that the offender's conduct involved commercial intent".  So they accept it was drugs you brought in for your own personal use.

23In sentencing an offender such as yourself, the Commonwealth Crimes Act, I will not go into the finer detail, s.16A sets out the relevant factors to be taken into account in sentencing.  Further, Mr Teh, I assure you that I have taken into account all that has been said on your behalf by your counsel, Mr Bailin, in his eloquent plea to this court.  Whilst recognising the drugs imported by you were no doubt for your personal use, it is important that any penalty imposed reflects the principles of general deterrence.  This type of conduct is to be condemned.  Your sentence must deter others when they look at what happened to you from behaving as you have behaved on this occasion.  Any would-be drug trafficker must recognise the severity of sentencing such as what has happened here, in an attempt by the courts to dissuade others from embarking on enterprises such as what you have done. 

24I have already mentioned that you receive credit for your early plea of guilty, and I remind you of that.

25Whilst you exercised your right to silence when interviewed, you did volunteer the ice pipe, you did volunteer the orange-coloured tablets, I am not sure that I can do justice to the pronunciation, so I will spell it for the typist's sake, those orange-coloured tablets are Nimetazepam.  You volunteered the purple wrapper containing methamphetamine, and you also provided to the police officers, in conducting their investigation, all the material that verified your access to funds.  I do not wish to embarrass you in any way, but the amount revealed was indeed very modest.  Just so you understand, if you had large sums of money, perhaps their attitude might have been different.  But it confirms, right from the beginning, that it is for personal use, that is these drugs, not for commercial activity.

26The principles of specific deterrence, I believe, have already hit home with you in that you have been in custody since landing in Australia, so it has not been much of a sightseeing visit for you, you have done not much more than see the inside of a prison and the inside of prison vans. 

27I have spoken of your mental health issues that apparently emerged during your second marriage.  Mr Bailin does not raise your past mental health difficulties in mitigation of any penalty that may be imposed.  Perhaps you do not fully understand that, if you need to ask anything about that, I am sure Mr Bailin will explain it to you.

28Mr Teh, I am also aware of the relevant discomfort that follows from the recent riots at the Melbourne Remand Centre.  You, in a sense, are an innocent victim of the misbehaviour of other prisoners in that prison.  I do take into account for a significant period of your incarceration whilst at the Melbourne Remand Centre were spent in lockdown, which initially was 23 hours in your cell and one hour out.  And as I understand it, as time has passed, the hours out of your cell have slowly increased.  But I take into account the inconvenience that was through no fault of your own brought upon you because of the misbehaviour of others.

29You were also isolated from others in terms of your limited English and your remoteness from your family.  The tyranny of distance has meant that you have no visitation rights from your family.  I further am aware that you have genuine concern for your personal circumstances on your return to Malaysia arising from this offending.  Perhaps you have got a better idea than we have of the difficulties that you might encounter, but they are beyond our control, I certainly do not understand them.

30Mr Teh, you have no prior convictions, it is understood that this is your first encounter with the criminal justice system in any country, and you have been in a number of countries. Mr Teh on the one count on the indictment, that is, of importing this border-controlled drug, you will be convicted and sentenced to be imprisoned for a period of six months. Pursuant to s.16E of the Crimes Act, that is the Commonwealth Crimes Act, you are to be given credit for having served 185 days of imprisonment.  That means that your prison sentence is very, very nearly finished already.  But Mr Bailin will speak to you about that if necessary when he comes to see you.

31I think all that is left now is for me to mentioned s.6AAA. Pursuant to s.6AAA, that is of the Victorian Crimes Act, or per the Sentencing Act, had it not been for the plea of guilty, I would have imposed a sentence of 12 months' imprisonment with the appropriate recognisance terms attached thereto.  No other orders sought?

32MS BARNES:  No, Your Honour.

33HIS HONOUR:  Thank you.  Thanks, Mr Bailin.

34MR BAILIN:  Thank you, Your Honour.

35HIS HONOUR:  Thank you, you are going down to see him?

36MR BAILIN:  Yes.

37HIS HONOUR:  Your barrister, Mr Bailin, is coming down to see you in a few moments time.

38MR BAILIN:  If I might be excused, Your Honour?

39MS BARNES:  May I be excused, Your Honour?

40HIS HONOUR:  Thanks for your help, thanks for your help.

41MS BARNES:  Thank you, Your Honour.

42(At this stage the court proceeded with another matter.)

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