Director of Public Prosecutions v Teo

[2019] VCC 1871

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00385

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACKSON TEO

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 November 2019
CASE MAY BE CITED AS:	DPP v Teo
MEDIUM NEUTRAL CITATION:	[2019] VCC 1871

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 J. Mackay
For the Accused	Mr A. Jackson

HIS HONOUR:

1Jackson Teo, after a jury trial, you were found guilty of importation of a commercial quantity of heroin.  The maximum penalty for this offence is life imprisonment.

2You have one prior conviction in Malaysia for self-administration of a drug; that is smoking methylamphetamines.  Although you received a period of imprisonment on that charge, I was urged by the parties to largely ignore it in the sentencing process.  I agree with this course.

3The facts upon which the jury verdict were founded may be briefly stated.  You are a Malaysian national.  Sometime before 19 March 2017, you were recruited along with Shi Lee (another Malaysia national) to travel to Australia on a Malaysia Airlines flight on 19 March; each carrying an identical black suitcase with a brass lock and each weighing approximately 28 kilograms.  Lee checked in bag 667 at the Malaysia Airlines counter at Kuala Lumpur airport.  You arrived at the airport at an appropriate time before your flight.  You were driven to the airport by a person who, once you were in the line for the check-in, provided you and Lee with a suitcase each to check in.  

4The person who provided you with the bag was identified by you as ‘Uncle’.  He is believed by the Crown to have been instrumental in planning and implementing the importation.  You checked in bag 670.  Bag 667 was never recovered.  As a consequence, the Crown did not allege that the bag checked in by Mr Lee contained any border-controlled drugs.  It was conclusively proved (and indeed, not disputed) that the suitcase you checked in contained 60 blocks of powder weighing just under 21 kilograms.  When the powder was analysed, it was found to be 75.2 per cent pure heroin weighing 15.7 kilograms.

5I note at this time that although Mr Lee was charged with a similar offence to you, the Crown did not proceed with that charge.

6When you arrived in Australia neither you nor Lee made any effort to collect the suitcases from the baggage carousel and take them through customs.  You had only some carry-on luggage.  Before you left the controlled part of the airport, you were questioned by Australian Border Force officials about the purpose of your trip.  You told them that you were here on a short tourist trip after winning a holiday through your work.

7As it turned out, bag 670 had not arrived into Australia on your flight.  In fact, it arrived the following day on 20 March 2017 when the heroin was discovered by Australian Border Force and Australian Federal Police personnel, when the unattended bag was passed to the ABF by airport personnel.  The link to you was easily made by the bag number and the computerised baggage identification tag which recorded your flight details.

8On the same flight, another person was travelling carrying two identical suitcases to those of you and Lee.  The evidence proved that those suitcases contained nothing of suspicion.  Rather, that person was instructed before he boarded the flight to Melbourne, to leave those two bags on the baggage carousel at Melbourne and to pick up the bags checked in by you and Mr Lee.

9When the three of you arrived in Melbourne, that other person went to the baggage carousel but was only able to find bag 667 along with the two bags he had checked in at Kuala Lumpur.  He was instructed to pick up bag 667 and one of his bags.  He did so, took both bags out of the airport and bag 667 was passed to another individual.  That bag was never recovered.  The other suitcase was recovered the following day by AFP members and, as I have said, found to contain nothing of suspicion.  In the end, the only bag recovered containing heroin was the suitcase that you had checked in.

10The Crown case for your physical conduct and participation in this venture was comprehensive; if not overwhelming.  The evidence produced at trial included all of your flight documents, your customs documents, and CCTV footage from both Kuala Lumpur and Melbourne International Airports.  Indeed, it is not surprising that the only issue for dispute and trial was whether you either knew or were reckless as to the contents of the suitcase you had checked in.

11There was no forensic or other evidence that you had packed the bag yourself or inspected its contents.  The Crown case for your guilt and the basis upon which I conclude you were found guilty, was that the jury was satisfied beyond reasonable doubt that you were reckless as to the contents of that bag.

12You were arrested a couple of days after you arrived in Melbourne.  You made a record of interview with AFP members.  Put simply, you denied knowledge or awareness of the contents of the bag.  You told police that you had won a trip to Australia from a person you knew as Uncle.  You could provide no further details about Uncle or your employment.  You said that your friend, Mr Lee, also won a trip.  You were unable to provide much detail of your travel plans, other than to tell police you were here for three to four days and you had done nothing since you arrived.  

13Your record of interview is also replete with unsophisticated prevarication.  I do not make that observation in any pejorative sense.  Rather, I simply outline the circumstances in which it was clearly rejected by the jury.  It is apparent that the jury rejected your explanation to the AFP and accepted the evidence called by the Crown beyond reasonable doubt.

14This is a serious example of importation of a commercial quantity of a border-controlled drug being heroin.  The amount of drug you imported is 10 times the threshold commercial quantity.  The wholesale value of the drug was estimated to be between $3.6m and $7.8m.  The street value was estimated to be up to $18m.

15I note that the Crown accepts the defence submission that you were a courier.  It is implicit in that finding that you acted with a view to receiving a financial gain, that is, some sort of payment for acting as a courier.  Getting paid to act as a courier is not the same as a finding that you had a financial interest or investment in the importation.  I am prepared to conclude that you were a courier and that you expected to receive payment for your role, but I also conclude that there is no evidence that you were involved in the overall planning and coordination of the importation, or that you were an investor expecting to receive a share of the profits on the eventual distribution of the drug after importation.

16The principles for sentencing in cases in importation cases require that:

(a)     General deterrence is to be given chief weight on sentence.  The offence of importation is mostly difficult to detect.  The social consequences that follow the dissemination of such drugs into our community are dire and well known.  Accordingly, stern punishment will be warranted in almost every case;

(b)     Involvement at any level must attract a significant sentence otherwise the interests of deterrence are not served; and

(c)        Factors personal to the offender are therefore given less weight than might otherwise be given.

17When I take into account the amount of the drug involved in the importation, and your role in it, I can only conclude that this is an objectively serious example of this type of offending.  Although your role was limited to that of courier, you were a willing participant in a scheme that involved a considerable degree of planning, and, to your knowledge, a degree of sophistication.  This was not a simple plan of you checking in a bag and carrying the bag through at the other end.  In this plan you checked in the bag, you were to leave the bag at the airport, and it was to be picked up by another.  

18You understood this strategy and you played your part in its execution, being reckless as to the contents of that suitcase, being a border-controlled drug.  Your offending must be met by principles of deterrence, denunciation and to an extent, protection of the community.

19I now turn to your personal circumstances.  You are 28 years of age and were born on 3 May 1991.  You were 25 years old when this offence was committed.  You were born and raised in Batu Pahat at the very south of Malaysia.  Your parents are still alive.  You have one sister.  Your parents separated when you were young, and you were raised by your mother who works as a tailor.

20You have had a very limited education and you left school when you were 13.  You worked as a dishwasher and a foot masseur in Malaysia and Singapore until you became involved in the sale and repairs of mobile phones in 2014.  You were still working in this field until you travelled to Australia in 2017.  I am told that you used the drug methylamphetamine as a 'social user', but that you do not drink, you do not consume other drugs and you do not gamble.

21You have now been in custody since you were arrested on 21 March 2017.  Your time in custody has been more difficult for the fact that you have had no personal visits and little money to make international calls to your mother and sister.  You speak to your mother and sister once a week for about 12 minutes.  This takes most of the money that you earn in prison.  You are a Mandarin speaker and there are a few others who you can speak to in prison in your first language.  You have limited English skills.  Notwithstanding this you have completed a wide range of courses.  Certificates relating to your achievements were provided on the plea.

22In a concise plea conducted on your behalf, Mr Jackson submitted that five matters should mitigate the sentence imposed upon you:

(1)Your role in the importation should be viewed as that of a courier;

(2)Your involvement taken in steps to affect the importation was limited to occurring in the minutes before and at check-in of the bag provided to you by Uncle;

(3)You have a modest prior criminal history;

(4)The efforts you have made to rehabilitate yourself in custody should be taken into account; and

(5)You have suffered family, cultural and language isolation whilst in prison.

23Mr Jackson submitted that you were still a relatively young man at the time of your offending and that you have good prospects for your rehabilitation.  Mr Jackson stated that as you have no immigration status in Australia and no expectation that you will obtain such status, you will be deported at the end of your sentence.

24I accept all of these matters and I will give them each the weight that can be afforded to them according to the principles I have outlined.  I accept that your prospects for rehabilitation are good.

25Mr Gullaci, who appeared to prosecute the trial and the plea, submitted that I must have regard to the factors provided in s.16A(2)(k) of the Crimes Act 1914 in achieving adequate punishment for your offending, namely:

(1)I must have regard to the objective seriousness of this offending;

(2)Your high moral culpability;

(3)The overriding importance of general deterrence;

(4)The maximum penalty for this offence; and

(5)The need to denounce your conduct.

26To this end the Crown adds that by conducting a trial, there was no evidence of contrition, remorse or insight.  The Crown recognises that you were still a relatively young man at the time you committed this offence and that this factor ought to be taken into account.  The Crown, as I have already stated, considers limited use can be made of your prior conviction and because of your age in this matter, specific deterrence may have less work to do here.  Furthermore, the Crown submits that serving a period of imprisonment in Australia will be more difficult for you than other offenders given your limited language skills and the cultural and family separation you will endure.

27The Crown provided a table of comparative cases.  This table provides examples of sentences imposed in broadly similar matters.  Mr Gullaci submitted that these examples may provide guidance as to the identification and application of relevant sentencing principles and as to discernible sentencing practices and possible ranges of sentences.

28I have read each of the examples provided in the table.  During the course of the plea there was discussion in relation to the cases of Wu and Tsai (both pleas of guilty) and Sok & Kev. This last case, Sok & Kev, was perhaps the most similar to your own in respect to the type and quantity of drug and to the fact that the accused in that case also pleaded not guilty.  

29Even so, the case of Sok & Kev does not present a precise likeness to your own situation, as both accused were older, the case involved receiving five parcels of heroin mailed from Cambodia and both offenders had been involved in the planning and importation of the drug; and one offender had travelled to Cambodia with the knowledge of the other, to arrange the importation of the drugs.  Accordingly, I find in the end that this case is only of very limited assistance in determining the appropriate sentence to impose upon you.

30In the end I must impose the sentence which according to all of the objective and personal circumstances is just and proportionate in this case. 

31On the charge of importing a commercial quantity of a border-controlled drug, you are convicted and sentenced to a term of 12 years and four months;

32That sentence commences today.

33I order that you serve a non-parole period of eight years and three months before you are eligible for parole;

34I declare the period of 968 days excluding today reckoned as already served. 

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