Director of Public Prosecutions v Teoh

[2023] VCC 1183

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted

Suitable for Publication

AT MELBOURNE CRIMINAL DIVISION

CR 21-00920

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

POH TEOH

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHEREHELD:	Melbourne
DATEOFHEARING:	1 June 2023, 14 June 2023 and 5 July 2023
DATEOFSENTENCE:	5 July 2023
CASEMAYBECITEDAS:	DPP v Teoh
MEDIUMNEUTRALCITATION:	[2023] VCC 1183

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords: Conspiracy to possess a commercial quantity of a border controlled drug contrary to subsections 11.5(1) and 307.5(1) of the Criminal Code (Cth) – Sentence Indication – Lenient Sentence – Co-accused – Parity.

Cases Cited:            Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen

[2021] VSCA 175.

Sentence:Six years and 4 months imprisonment with a non-parole period fixed at 3 years and 10 months.

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APPEARANCES:	Counsel	Solicitors
Forthe Commonwealth	Mr R. Barry with Mr S. Thomas	Commonwealth Director of Public Prosecutions
Forthe Accused	Mr M. Kozlowski	Emma Turnbull Lawyers

HIS HONOUR:

1Poh Teoh, on 1 June 2023, you applied to the court for an indication of what sentence the court would likely impose if you pleaded guilty to the charge of conspiracy to import a border-controlled drug. The first of June 2023 was in fact supposed to be the first day of your trial. There had been an earlier adjourned trial and, in the months, leading up to the trial, there had been final directions hearings and cross-examinations pursuant to s 198, but as I said during the hearing at the sentence indication, I do not understand why you made the application so late. Also, the sentences imposed some time ago on your co-accused who pleaded guilty gave you and your lawyers a comprehensive guide to what sentences you would likely receive if you pleaded guilty.

2While management of an accused as a client is often a difficult task for defence lawyers, and more often the difficulties are not appreciated by others in the criminal justice system, that said, I struggle in this case to see why an indication was said to be necessary. That sense was reinforced when I gave the indication of a term of imprisonment of six years and four months with a non-parole period of three years and 10 months, which given what the co-accused had received, was almost self-evident. I then asked the standard question of what time was needed by your lawyers and you to absorb and respond to the indication - your counsel's response of, 'three minutes', meaning in effect no time was needed – it would be a plea and it would be a plea of guilty instantly.

3This reaffirmed my view that this was an application that unnecessarily exhausted precious court resources. As I have said, your sentence indication application came moments before the trial. While this whole process which resulted in your plea of guilty meant that a trial was not held, the judge, the courtrooms were ready for the trial, and they could not be used for any other trial as the court cannot simply require parties in other cases to be ready to be parachuted into the gap caused by your late plea.  There is great utility in

sentence indications, especially to deal with the unprecedented backlog of trials caused by the pandemic, but the real strength of sentence indications hearings is if an indication resolves the case early on, not in the hours before the trial.

4Of course, as well as the court, the prosecution had to go to the significant expense of briefing and preparing for a trial. This aspect of the matter was not the only disconcerting feature of this case. I made clear, however, in terms of the sentence that I indicated, those comments that I have made about its lateness only have impact in terms of its lateness. There is no extra sanction because you sought what you are entitled to, which is a sentence indication. The difficulty is it was done in the circumstance it was done, at the time it was done. The other disconcerting aspect related to the co-accused.

5I have referred to the fact that your co-accused were sentenced some time ago. With respect to those sentences, in my view, they were all remarkably lenient. I have read carefully the very lengthy sentencing remarks of the now retired Judge Stuart. With respect, his reasons for sentence comprehensively set out the gravity of this importation of just less than 20 kilograms of methylamphetamines, a quantity that was well over 20 or 25 times the threshold for large commercial quantity. His Honour was presented with the most unusual scenario of the main offenders being aged 19 and 16.

6Again, with respect, I can see His Honour's careful consideration, but I cannot see how his analysis of the gravity of the offending was in fact reflected in the sentences he imposed. Of note, the Commonwealth Director of Public Prosecutions did not appeal those sentences asserting manifest inadequacy. What flows from the sentences imposed upon your co-accused is the need for me to carefully calculate your sentence so as they could not give rise to a justifiable grievance held by you or by the co-accused. The parties before me agreed, that parity was important.

7Thus, by reason of the principles of parity, the sentences indicated to you were

in my view likewise lenient. The sentence should not be seen by anyone in the future as a guide to an appropriate sentence for conspiracy to bring vast quantities of methylamphetamines into Australia from overseas with the sole intent on making vast profits and all the while having criminal indifference to the havoc this drug wreaks on the Australian community. While a sentence imposed by a court or by an appellate court can be higher but appropriate, so as to avoid a second inadequate sentence just to ensure parity with the already inadequate sentence.

8However, after consideration of this point, I concluded the approach was not warranted here, but I must say, it was a close-run thing. The agreed facts and circumstances of your offending were set out in a detail and comprehensive summary tendered on the plea by the prosecutor. I have appended that document to these reasons. As a consequence, I can be concise in setting out your criminality. I will do that when referring specifically to the sentences imposed on the co-accused. As an overview, it must be understood that to be involved in a conspiracy to import such a large amount of methylamphetamines in a sophisticated international operation must result in significant imprisonment.

9The moderating factor, as I have said, is the sentences imposed by Judge Stuart. His sentences were for the more seriously implicated organiser, the 19-year-old Wentao Lin, with seven years and three months with a non-parole period of four years. Obviously, his sentences were much reduced due to his young age, notwithstanding his key role in the organisation of this importation. The next most seriously involved was Wei Xiang[1], who was, astonishingly, 16 years old. He was sentenced to four years in a Youth Justice Centre. The next was a female, Juanquin Lin, who was said to be the lowest in the hierarchy.

[1] A pseudonym.

10She also had an acquired brain injury, which made prison for her even harder.

She was sentenced to five years and six months with a non-parole period of three years. The roles of each of those offenders and your role were set out in detail in the prosecution opening, and in particular, in the prosecution's submissions on sentence at paragraphs 19 to 21, and with your role described in paragraph 22. You were an important and trusted participant in this importation. As part of the conspiracy, you liaised with those in Thailand who were managing importation, and you were to take the drugs from the other co-accused here in Australia to move the drugs further towards sales. You were an important conduit or intermediary.

11Your sentence must be for what you did, rather than some artificially defined role or by using some shortcut description, such as courier or intermediary. That task in determining roles, of course, is much harder because the earlier sentence was imposed by another judge. But what is clear from all the texts from overseas and internally in Australia is, as I have said, that yours was an important role, less culpable than Wentao Lin, and more akin to the female, Juanqin Lin. You employed sophisticated methods on multiple phones and SIM cards to avoid detection and to make any trail harder to follow.

12I have factored in your very late plea of guilty and given you the augmented utilitarian benefit, as was described in the Court of Appeal decisions in Worboyes and Chenhall.¹ As to your personal circumstances, there is little, if any, mitigatory - they are of little mitigatory consequence. You are 41. Like many involved in international drug trafficking enterprises, you have no prior convictions. Your lack of prior history is of more limited weight given the nature of your offending. You were raised in Malaysia in a large family. After school, you worked in factory jobs.

13You married in 2010 and had a child. You travelled to Australia on a tourist visa in 2013 without your wife and child. You overstayed your visa and remained in

¹ Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175.

Australia, abandoning any responsibilities for your child or wife. You had from 2013 no valid reason to remain in Australia. You have been in Australia in breach of Australian law for over a decade. You will be deported, no doubt, at the end of your sentence. In my view, little, if any, mitigation attaches to that fact. It seems, while in Australia, you drank to excess and possibly you have liver problems, but no medical evidence was forthcoming. You say you have difficulty in getting meals that suit your dietary requirements while in prison. All prisoners should be properly fed.

14That is the responsibility of the State. I sentence you on the basis that the State will meet its duty of care. Your time in prison is more difficult than others because of your limited English. That said, you have done courses in prison to your credit. You are isolated. The sentence I impose by order now is as I indicated. The charge, one, conspiracy to import a border-controlled drug, you are sentenced to six years and four months with a non-parole period fixed at three years and 10 months.

15A figure of 1,040 days has been reckoned as the time that should be declared as part of your sentence. That is, you have done 1,040 days already on remand and that figure having been reckoned, I declare that it is part of the sentence that I have just imposed. I ensure this declaration has entered into the records of the court so that the prison authorities are left in no doubt that you have done 1,040 days. Had you pleaded not guilty to these crimes, I would have imposed a sentence that, again, to a degree is restrained by parity. I would have imposed a sentence of eight years with a non-parole period of five years and two months. Those figures are truly artificial. Is there anything further required?

16MR BARRY: No, Your Honour.

17HIS HONOUR: Anything further required, Mr Kozlowski?

18MR KOZLOWSKI: No, Your Honour.

19HIS HONOUR: Thank you. Madam Interpreter, thank you very much. If there is any need for further clarification, Mr Kozlowski will no doubt remain in court and if you would not mind giving him some assistance in talking to his client.

20INTERPRETER: Yes, thank you, Your Honour.

21HIS HONOUR: Thank you.

- - -

IN THE COUNTY COURT OF VICTORIA  CR-21-00920 AT MELBOURNE

IN ITS CRIMINAL JURISDICTION BETWEEN:

THEQUEEN V

POH HONG TEOH SUMMARY OF PROSECUTION OPENING

INDICTMENT

1. It is alleged that between about 2 October 2019 and 31 October 2019, the accused conspired with the user of telecommunications service [phone], Wentao Lin, Juanqin Lin, [omitted] and unknown others to possess a substance, the substance having been unlawfully imported, the substance being a border-controlled drug, namely methamphetamine, and the quantity to be possessed being a commercial quantity contrary to sections 11.5(1) and 307.5(1) of the Criminal Code (Cth).

FACTS

1. On 4 October 2019, a consignment arrived at the Australian Border Force (ABF) Air Cargo Facility at Melbourne Airport from Thailand via DHL Freight. The consignment was a wooden crate described as containing two treadmills and had the following consignee and consignor details:

Consignee:

Oriental Spoon

354 La Trobe St, Melbourne VIC 3000, Australia

ATTN: Mr. Tree Six MB: 042-109519801

Consignor:

Mr Saw KALAY

120/189 Rajprarop Road, Thanonphayathair, Rajthevee, Bangkok

1. ABF examined the consignment, and it was found to contain two treadmills stacked on top of the other. Inserted between the two treadmills were four steel tubes. Each tube was sealed at both ends and had a thin round piece of metal attached to one end as a handle. Concealed within each of the 4 steel tubes were 6 individual blocks (24 blocks in total) of a substance.

¹ Subsequently confirmed to be mobile number 0421 095 198 (“198”).

FORENSIC ANALYSIS

1. Subsequent forensic analysis of the 24 blocks located inside the steel tubes revealed that they contained 23.956 kilograms of a substance of which 79.8%, or 19.117 kilograms, was pure methamphetamine.

1. On 14 October 2019, the Australian Federal Police (AFP) deconstructed the consignment and replaced the methamphetamine with an inert substance for the purposes of making a controlled delivery.

ACCUSED THE USER OF THE CONSIGNMENT MOBILE SERVICE 0421 095 198

1. It is alleged that the accused the user of telecommunications service 0421095198 (198) which was:

a.   The telephone number listed on the consignment;

b.   The number used to communicate by phone and short message service (SMS), with  a  female  based  in  Thailand  using  telecommunications  service

[phone] (159)2 as to:

i.   The drug consignment;

ii.   Delivery arrangements for the consignment;

iii.   The consignment containing a treadmill;

iv.   The accused liaising with 159’s “Australian Team”;

v.   Whether the DHL delivery driver was part of her “team” and whether he (the AFP posing as the DHL driver) knows about “the product”.

vi.   The “Australian Team” being tasked to dismember the treadmills, recover the drugs concealed within the treadmills; and discard the treadmills; and

vii.The accused meeting with a member of the “Australian Team” to collect the product: “After he have the products then call me, I meet somewhere to receive the products”.

c.   The number used to communicate with an AFP officer posing as a representative of courier company DHL, regarding the delivery of the drug consignment.

1. It is alleged that the accused was the user of the consignment mobile service 0421 095 198 based on, inter alia:

a.   Mobile number 0421 095 198 was subscribed to Rui HAN, [omitted] Spencer Street, Melbourne, Victoria 3000, however the service was not being used by HAN and was falsely subscribed in his name HAN on 18 October 2018 using identity documents stolen from him on 13 August 2018.

² Phone 159 is registered in Thailand to a Mr. Veasna SIN (SIN), Prem Ruethai Village, Soi 20 Yak 3, Nong Bon sub district, Praves District, Bangkok Metro, Thailand.

b.   Cell phone mapping data and other evidence establishes that the 198 mobile phone number was at the same geographical locations and at the same time as the accused’s legitimate mobile phone [phone] (‘727 phone’) subscribed in his name.

c.   Cell phone mapping data and other evidence establishes that the 198 mobile phone number was at the same geographical locations and at the same time as the accused’s legitimate mobile phone [phone] (‘724 phone’) subscribed in his name.

d.   The 724 number and the 198 number were both used in the same IMEI handset ending 933.

^e.     The 724 number and the 198 number were both used in the same IMEI handset ending 330.3

f.    The 724 number and the 198 number were both used in the same IMEI handset ending 570. The 198 number was used in the IMEI 570 handset on 31 October 2019.

g.   The accused was the user of mobile number 0411140329 (329)4. Between 17 August 2020, about 10:16pm and Wednesday 19 August 2020, about 2:35pm, telecommunications service 329 was used in mobile phone handset with IMEI 9335. Mobile phone handset with IMEI 933 is the device that telecommunications service 198 was used in on 16 October 2019 when the accused used it to communicate with Thai telecommunications service 159.

PRE-ARRIVAL AND DELIVERY OF THE CONSIGNMENT

1. Between 30 September 2019 and 8 October 2019, courier company DHL were contacted multiple times in relation to the consignment:

a.   Emails      were     sent     from     [omitted]  and [omitted]; and

b.   An unknown person identified as ‘Kulyaphat’ left the email address [omitted] and telecommunication services [phone] and

[phone].

1. 0396549930 was subscribed to Ahrang Pty. Ltd which is a company trading as Oriental Spoon, the name of the consignee.6 Service [phone] (879) is suspected to be a Thai telecommunication service, but the subscriber details are unknown.

³ The 198 number was placed and used in IMEI 330 handset from 27 September 2019 until 4 October 2019, 15

to 16 October 2019 and 25 October 2019.

⁴ Subscribed in the name Maya CHOI, 4/80 Collins Street, Melbourne, Victoria and connected on 15 February 2020; Telecommunications Service 0411140329 – Subscriber Result (EI-121 and EI-122).

⁵ EI-118 IMEI 354439060249330 – Results – 2020; EI-119 IMEI 354439060249330 – Results – 2020; EI-

120 IMEI 354439060249330 – Evidentiary Certificate – 2020.

⁶ EI-86 Statement of Sunho IM.

1. Prior to phone 198 being lawfully intercepted by police, there was phone contact between phone 198 and phone 159 including:

a.   On 2 October 2019, at 8:28pm phone 159 called phone 198. The call was answered and lasted one minute and 27 seconds;

b.   On 4 October 2019, the day the consignment arrived, phone 198 called phone

159. The call was answered and lasted one minute and 29 seconds;

c.   On 15 October 2019 at approximately 3:30pm phone 198 called phone 159. The call was not answered;

d.   On 15 October 2019 at approximately 3:31pm phone 198 called phone 159. The call was answered and lasted one minute and two seconds;

e.   On 15 October 2019 at approximately 4:01pm phone 198 called phone 159.

The call was answered and lasted 13 seconds; and

f.    On 15 October 2019 at approximately 4:38pm phone 198 called phone 159. The call was answered and lasted two minutes and 16 seconds.

1. Phone number 198 also had contact with another Thai telecommunications service

   [phone] (613) used by a person unknown on 4 October 2019:

a.   At approximately 3:26pm telecommunications service 198 called 613. The call was answered and lasted four minutes and six seconds;

b.   At approximately 3:40pm 613 called 198. The call was answered and lasted three minutes and 41 seconds; and

c.   At approximately 4:00pm phone 613 called telecommunications service 198. The call was answered and lasted and 51 seconds.

DELIVERY OF THE CONSIGNMENT

1. On 16 October 2019 at 1:14pm the accused, who it is alleged was the user of consignment service 0421 095 198, received an SMS from a Thai telecommunications service [phone] (159), which was being used by a female based in Thailand “Our Australian team will call you today”. Service 198 sent a return SMS to telecommunications service 159 saying “Great”.

1. At 2.33pm, an AFP member posing as a delivery driver rang the consignment mobile number 0421 095 198 offering to deliver the consignment. The accused answered the call, identifying himself as ‘Tree-Six’. The accused stated that he was familiar with the delivery of the consignment but needed to seek instructions stating, “Ah, I call someone to discuss, because I not, maybe no sure we can get there”.

1. At 2:36pm the accused used mobile service 198 to call telecommunications service 159 and had a conversation with a female, which included:

ACCUSED: You say your team will call me?

Female:        Yeah. Today

ACCUSED:    Then I just received a call from the DHL

Female:        Ah. No no no, not DHL, our team. ACCUSED: Are you sure it's your guy Female:   yeah yeah yeah

ACCUSED: But he say its from DHL

Female:Um he will meet you...after meet you he will go to take product at DHL and and ah.

ACCUSED: Ah wait for a minute. The guy is Australian? Or Thailand?

Female:        Yeah, Australian. Australian

ACCUSED: Australian guy

Female.        Yes

ACCUSED:They are saying he will send the things for me Friday but he is saying he is from DHL. I don't know. We didn't go to DHL or go to warehouse.

Female:        Mm. Yeah, I understand your side, yeah. ACCUSED: What the guy number? Phone number? Female:     Ah, his number?

ACCUSED: Yeah, yeah.

Female:        Yeah, okay. I sent to you by message

ACCUSED: Yeah.

Female:        Is that okay?

ACCUSED: So the guy is your team member? Female:  Yeah.

ACCUSED: Yeah okay okay. You send the number.

Female:        Okay.

ACCUSED: Then I confirm the number and call back.

Female:    Okay thank you. Yeah.

1. At    3.29pm     the     accused    using     telecommunications     service     198     called telecommunications service 159 and had a conversation with a female, which included:

Female: Hello ACCUSED: Hello Female:    Yeah.

ACCUSED: Yeah I not received any number.

Female:Ah, not yet, not yet, not yet, not yet. I don't know. Not yet. I'm waiting for cellphone number.

ACCUSED:Oh. Then I just want to ask you that the guy is your … your team member?

Female:    Yeah but I don't, I no have his number.

ACCUSED: He work for you?

Female:        Ah. Agents… ah, agent [inaudible] … agents, ah shipping.

ACCUSED: Shipping. Female:  Yeah.

ACCUSED: Then he don't know about the product?

Female:        Yes yes yeah yeah ACCUSED: He know or don't know Female:  Ah he, he know. Ah.

ACCUSED: He know. Female:  Yeah.

ACCUSED: He know about the product?

Female:About the product? Umm. 100, not 100, 100%. He only, ah, take product and deliver it to you.

ACCUSED: So. No, no can we?

Female:        no no no

ACCUSED: [Inaudible] I tell you, you listen. [Inaudible] we not go to the warehouse [inaudible] or deliver to the home. We only meet somewhere to take the product. We didn't go to the warehouse. We didn’t go to DHL warehouse.

Female:        [Inaudible]

ACCUSED:You not send to my house, I didn't receive at home. I only meet you somewhere to take the product.

Female:        Mm. Yeah, yeah [inaudible].

ACCUSED:So, you. I just meet up the guy somewhere to take the thing but we didn't follow the guy go to the DHL warehouse.

Female:        Okay. Wait, wait.

ACCUSED: So you, you, just send me the … Female:  [Inaudible] number, phone number. ACCUSED: … the phone number then I call back. Female: Yes I'm waiting

ACCUSED: And the name, the name and the phone number.

Female:        Yes ACCUSED: [Inaudible] Female:  [Inaudible]

ACCUSED: Okay, okay. I'll wait for your message.

Female:        Okay, okay. Thank you.

ACCUSED: Bye.

1. From 3:41pm the accused, using telecommunications service 198, and the female, using telecommunications service 159, had the following conversation via SMS:

Female:We’ve completed the process, so you just receive the item as if nothing happened7

⁷ EI-89 TS Warrant A12217 – Transcript – Session 00013.

ACCUSED:My boss told me, I not go to pick up from DHL Warehouse & not sending to my place. Only your team member bring the products out from DHL, and we meet up somewhere for handling.8

Female:        Yes. I understand9

ACCUSED:I need to know about the Quantity, size, contact number, place and time .10

ACCUSED: I can provide place and time for meet up11

Female:        Treadmill 1 machine. Size about12

ACCUSED:Can your team member remove & throw away the treadmill? We just need the stuff13

Female:        Size 1mX2m and weight 480kg14

ACCUSED:You text me your Australia team member contact number to me. Make sure he know the stuff in side the packages. I’ll discuss with him regard handling matter. I’ll call him for more details.15

Female:        Ok.16

1. On 16 October from about 6:40pm telecommunication service 198 web usage data showed it was connecting to cell towers in the areas of Chadstone Centre, Armadale and the West Gate Bridge, indicating the handset travelled from the vicinity of 26 Edith Street where the accused resided towards the Melbourne central business district (CBD). Telecommunication service 727 web usage data shows this service was also connecting to cell towers in the areas of Chadstone Centre indicating the handset travelled from the vicinity of 26 Edith Street towards the Melbourne CBD.

1. At 7:00pm telecommunication service 159 sent the following SMS to telecommunication service 198:

Service159: Our team, who will bring you the treadmill, will not know about your goods, he will just find the treadmill in the DHL warehouse and deliver it to you, after you receive this treadmill we will let you know again, How do you disassemble17

⁸ EI-89 TS Warrant A12217 – Transcript – Session 00014.

⁹ EI-89 TS Warrant A12217 – Transcript – Session 00015.

¹⁰ EI-89 TS Warrant A12217 – Transcript – Session 00016.

¹¹ EI-89 TS Warrant A12217 – Transcript – Session 00017.

¹² EI-89 TS Warrant A12217 – Transcript – Session 00018.

¹³ EI-89 TS Warrant A12217 – Transcript – Session 00019.

¹⁴ EI-89 TS Warrant A12217 – Transcript – Session 00020.

¹⁵ EI-89 TS Warrant A12217 – Transcript – Session 00021.

¹⁶ EI-89 TS Warrant A12217 – Transcript – Session 00022.

¹⁷ EI-89 TS Warrant A12217 – Transcript – Session 00028.

1. Between 6:45pm and 7:05pm telephone intercepts indicate that phone 198 travelled from 26 Edith Street towards the Melbourne Central Business District and travelled at 7:25pm to Avalon Airport.

1. From about 7:17pm web usage data for the consignment telecommunication service 198 shows it was connecting to cell towers in the areas of the West Gate Bridge, Laverton South, Little River and Lara, indicating the handset travelled from the Melbourne CBD over the West Gate Bridge in the direction of Avalon Airport, Lara.

1. From about 7:30pm web usage data for the accused’s telecommunication service 727 shows it was connecting to cell towers in the areas of Hoppers Crossing, Werribee and Avalon Airbase, indicating the handset had travelled from the Chadstone area, through the Melbourne CBD, and on towards Avalon Airport, Lara.

1. At 8:02pm the accused, using telecommunication service 198, sent an SMS to telecommunication service 159 which was sent through a cell tower in the Lara area18.

ACCUSED:So I no need to follow your team member to the DHL warehouse to pick up? Then you ask your team to pick up from DHL. After he have the products then call me, I meet somewhere to receive the products19

1. At 8:58pm a charge was made on the accused’s CBA bank account in the amount of AUD$6 payable to AVALON NO 1 PTY LTD LARA VI AUS20 which is a registered entity of Avalon Airport Holdings Pty Ltd21.

1. At about 9:10pm web usage data for telecommunication service 198 shows the service connecting to cell towers in the areas of Little River, Werribee, Altona Meadows, the West Gate Bridge, and Port Melbourne, indicating it was travelling towards the Melbourne CBD from the Avalon Airport area. At about 9:30pm web usage data for telecommunication service 727 shows it was connecting to cell towers in the areas of Yarraville West, the West Gate Bridge, Spotswood, and Port Melbourne, indicating it had travelled from the area of Avalon Airport back toward the Melbourne CBD area.

1. At 10:25pm and 10:35pm web usage data revealed phone 198 was in the vicinity of 26 Edith Street where the accused resided. Between approximately 10:45pm and 10:55pm web usage data revealed phone 727 was in the vicinity of 26 Edith Street.

1. On 18 October 2019 at 6:09pm telecommunication service 159 sent two SMS messages to the accused who was using telecommunication service 198:

The person who will bring you the treadmill does not know about the things in the machine, you should not ask him, after you receive the treadmill we will let you know to get the things in it.22

¹⁸ EI-197 TS 0421095198 - IDW SMS – Results_Formatted for court_UTC Adjusted.

¹⁹ EI-89 TS Warrant A12217 – Transcript – Session 00031.

²⁰ EI-136 CBA List of transactions for account 10669213.

²¹ EI-173 Company Extract for Avalon No 1 Pty Ltd.

²² EI-89 TS Warrant A12217 – Transcript – Session 00067.

And:

Address:

101-111 South Centre Road Melbourne Airport VIC 3045 CONTACT: MATTHEW TEL: [phone]

TSL REF# S1169723

1. At 8:08pm, telecommunication service 198 web usage data identified that it stopped being used in IMEI 933. At the time it was connected to a cell tower identified as Noble Park Station. At about 9:52pm telecommunication service 724 web usage data showed that the service started being used in IMEI 933 and it attempted to call telecommunication service [phone]. At the time it connected to a cell tower identified as Noble Park Station.

1. On 19 October 2019, at about 12:36am telecommunication service 724 web usage data identified it stopped being used in IMEI 933.

1. Telecommunication service 198 web usage data for identifies it intermittently connected to cell towers, on 19 October 2019 between about 3:27pm and 3:48pm, then again on 20 October 2019 between about 12:59pm and 1:03pm25.

1. On Monday 21 October 2019 about 12:34am telecommunication service 724 web usage data showed it again started being used in IMEI 93326.

1. Between about 1:45am and 10:10am, web usage data connecting to cell towers identifies telecommunication service 727 and telecommunication service 724 travelled from Melbourne to Sydney via the Hume Highway. Later that day, the accused checked in to the Great Southern Hotel in Sydney under the name Poh Hong TEOH, provided his Victoria Driver Licence as proof of identity,27 and paid for the booking via his CBA account28. He gave his mobile as 0421577727, address as [omitted] Swanston Street, Parkville NSW and email as [omitted].

1. At 3:46pm on 21 October, web usage data for telecommunication service 727 showed it was connecting to cell towers recorded as “Central Square-O:S1402-OU09-B-3” and “Central Square-O:S1402-OU21-A-1”29.

²³ EI-89 TS Warrant A12217 – Transcript – Session 00070.

²⁴ EI-236 TS 0401977724_CDR Voice_Results_Formatted for Court_UTC Adjusted.

²⁵ EI-253 TS 0421095198_CDR Web Usage Results_2_Formatted for Court_UTC Adjusted.

²⁶ EI-256 TS 0421577727_CDR Web Usage Results_2_Formatted for Court_UTC Adjusted; EI-236 TS 0401977724_CDR Voice_Results_Formatted for Court_UTC Adjusted.

²⁷ EI-152 SMJY010 - Copy of Victorian Driver's Licence 017699808.

²⁸ EI-142 Statement of Sung YOUN dated 1 February 2021; EI-151 SMJY009 - Great Southern Hotel, Poh TEOH registration card; EI-153 SMJY011 - Great Southern Hotel, Poh TEOH tax invoice re EI-151.

²⁹ EI-256 TS 0421577727_CDR Web Usage Results_2_Formatted for Court_UTC Adjusted.

1. At about 4:21pm telecommunication service 198 received a SMS from telecommunication service 0423746337. The cell tower through which telecommunication service 198 received the SMS is recorded as “Central Square- O:S1402-OL07-A-3”30. Web usage data for telecommunication service 198 identifies a connection with the same cell tower at this time31. This is the only time telecommunication service has a record for 21 October 2019. Telecommunication service 198 was being used in IMEI 933 at this time.

1. On 22 October 2019, DHL advised the AFP that they had been contacted by ‘Matt’ from Direct Couriers, a legitimate delivery company, to advise that Direct Couriers was to be called in relation to delivering the consignment. “Matt” from Direct Couriers then assisted the AFP by engaging in communications and making arrangements regarding the delivery of the fully substituted consignment.

1. Subsequently, Matt engaged with a freight forwarding business called TSL Australia, a freight forwarding business acting on behalf of the consignor. TSL provided instructions to Direct Couriers requesting that Direct Couriers collect the consignment from DHL and hold it in their warehouse for up to two weeks. Under the direction of AFP, Matt communicated with TSL informing them that Direct Couriers had collected the consignment and that it had been moved to the Direct Couriers warehouse32.

1. On 25 October 2019, at approximately 2:20pm the accused used phone 198 to call a female using telecommunications service 916.33 The purpose of the call was for the accused, at the direction of his boss, to arrange to take money to the female as follows:34

Yeah, my my boss told me to take money for you. I can make the same place – Springvale.

I just nearby the Springvale, the temple there. 9 o’clock okay?

Okay, aah, also need after you text me the…money No no serial number.

1. At 6:50pm the accused used telecommunication service 198 to send an SMS to telecommunication service 247 stating ‘9pm ^‘35 It is alleged that phone 247 is the number for the ‘boss’ who TEOH referred to in his earlier call to phone 916. The named subscriber on phone 247 departed Australia on 16 October 2019.

1. On 25 October 2019 at approximately 8:24pm the accused used service 198 to call phone 916. During the call, the accused and the unknown female reconfirmed the meeting time and place and discussed the serial number referred to in their earlier conversation36:

³⁰ EI-197 TS 0421095198 - IDW SMS – Results_Formatted for court_UTC Adjusted.

³¹ EI-253 TS 0421095198_CDR Web Usage Results_2_Formatted for Court_UTC Adjusted.

³² EI-109 Statement of Matthew BAGLIN, dated 30 January 2020.

³³ Phone 916 was subscribed in the name Mr. Louis SHEPARD of 35 Bendigo-Pyramid Road, Prairie, Victoria 3572.

³⁴ EI-154 TS Warrant A12217 – Transcript – Session 00090.

³⁵ EI-154 TS Warrant A12217 – Transcript –Session 00105.

³⁶ EI-154 TS Warrant A12217 – Transcript – Session 00111.

ACCUSED:    You send me the serial number?

UF1:              You want I send you or you want I tell you now? ACCUSED:  Ah, you can tell me now.

UF1:               Yeah okay, wait wait. I just get my friend just drop me home.

We stay in the car and talk (giggles).

ACCUSED:    Okay.

UF1:              Yeah that’s why I don’t know what time (inaudible). ACCUSED:  Okay.

UF1:              AB16271564737

ACCUSED:    Okay. I see you 9 o’clock.

1. About 9:00pm telecommunication service 198 called phone 916 during which the accused and the unknown female confirmed they were both at the meeting place and the content of the call indicated the meeting then took place.38

1. On 28 October 2019, Wentao LIN (W LIN) sent Ms Juanqin LIN (J LIN) audio messages via a WeChat conversation asking her to try to find him a property to rent with two to three rooms, from 28 October until 2 November 2019. W LIN advised J LIN that the property could be an Airbnb house, reminded her that it needed to be remote and indicated he would pay her $1,000 for her efforts.

1. On the same day, W LIN and [omitted] travelled from Sydney to Melbourne. W LIN had made the booking for the flights via an App based in China. W LIN did not travel with any luggage and [omitted] travelled with only a shopping bag. They arrived in Melbourne at approximately 1:00pm and caught a taxi from the airport.

1. Between 1:00pm and 2:00pm on 28 October 2019, J LIN (using mobile 807) booked 5 nights’ rental accommodation for 2 guests at 66 Airlie Street, South Yarra via Little Stay, with check-in that day. The booking was made using the name “Shin Shin” at a cost of $1,224.22.

1. “Shin Shin” and Little Stay then arranged for a representative of Little Stay to meet the two guests at [omitted] Airlie Street and give them access to the property. At around 4:30pm, Little Stay representative Javier BONILLA attended [omitted] Airlie Street to meet Airbnb user “Shin Shin”. BONILLA advised:

a.   When he arrived, two males and a female were waiting for him at the address;

³⁷ It is alleged that the serial number - AB162715647 - is a security code that had to match before the accused and the female could meet for the accused to give her money on behalf of his boss.

³⁸ EI-154 TS Warrant A12217 – Transcript –Session 00116

b.   None of the three spoke very good English but one of the males, W LIN (who was distinguishable by his ‘Fendi’ brand clothing) spoke better English than the other male;

c.   Once inside the property W LIN closed all the blinds, explaining that he liked to walk around the house naked so needed the privacy;

d.   He showed them how to use the parking permit;

e.   He said that W LIN stated:

i.   He had made the booking, and they were from China;

ii.   He had arrived earlier in the day from China and wanted to get into the house so he could rest;

iii.   The girl was his cousin and she lived in Melbourne, but he did not want to stay with the family and bother them; and

iv.   He wanted BONILLA to show them around the property, asked if BONILLA was staying at the property and if he would be there the next day and asked BONILLA to show them how to use the parking permit.

1. On 29 October 2019, J LIN sent a WeChat message to W LIN asking, “Have the merchandise arrived today?”

1. On 29 October 2019, TSL Australia contacted Direct Couriers who processed an order for delivery of the consignment to [omitted] Airlie Street with instructions to call “Tony” on telecommunication service 0452 366 656 (656). This service was subscribed to [omitted], [omitted] Churchill Avenue, Strathfield, NSW a week earlier on 22 October 2019. [omitted] is the father of [omitted] but [omitted] used the 656 service.

CONTROLLED DELIVERY

1. On 31 October 2019 at 7:45am, AFP Federal Agent [omitted], purporting to be a Direct Couriers delivery driver, called telecommunications service 656 used by [omitted] and confirmed that he was speaking with “Tony”. He advised “Tony” that he would deliver the consignment to the [omitted] Airlie Street delivery address within 30 minutes.

1. About 8:17am, [omitted] and another AFP officer [omitted] drove a Mitsubishi truck containing the consignment to Clowes Street, South Yarra at the intersection of Airlie Street. [omitted] parked the truck outside [omitted] Clowes Street east of the intersection with Airlie Street. At this time, [omitted] was standing on the southeast corner of Clowes Street and Airlie Street and W LIN was seated in a small park area on the north side of Clowes Street.

1. At about 8:24am, telecommunications service 656 used by [omitted] received a call from service 0404 659 666 (666) which was being used by W LIN. The 666 service had been subscribed to Zhengyi TANG, 5 Gloucester Street, Rockdale, NSW on 30 September 2019. During the call W LIN asked:

“How’s the status there?” [omitted] replied:

“You go back. Don’t come back. Take a walk. Just hang around in the neighbourhood for the meanwhile, just don’t come back. Need for wait a sec. The car, it couldn’t be driven up now. I don’t know. What do you reckon?”

1. Shortly after [omitted] approached [omitted], who identified himself as Tony and as the recipient of the consignment.

1. At 8:27am [omitted] called W LIN and the pair discussed where to place the consignment once it was unloaded from the truck. At the end of the call, W LIN stated, “No worries, I’ll come over. I’m coming over.”

1. Before the consignment was unloaded, [omitted] asked to view it. [omitted] lowered the truck tailgate halfway and [omitted] climbed into the truck and inspected the consignment. [omitted] then handed [omitted] the Direct Couriers Delivery Manifest and Delivery Invoice Sheet confirming receipt of the consignment which [omitted] signed and returned to [omitted].

1. At this time, W LIN approached from the park area and arrived at the rear of the truck. W LIN then became involved in the conversation between [omitted] and [omitted]. During this conversation, [omitted] observed that [omitted] and LIN appeared to be discussing the logistics of moving the consignment due to the steep incline and safety issues.

1. At 8.36am, the consignment was unloaded from the truck, and [omitted] and W LIN assisted [omitted] and [omitted] move it from outside Clowes Street and place it on the road outside of [omitted] Airlie Street. At about 8:41am [omitted] and [omitted] departed [omitted] Airlie Street in the truck.

1. At 8:46am, W LIN and [omitted] removed the lid from the consignment and placed it in the front yard of [omitted] Airlie Street. They continued to dismantle the wooden consignment crate, carrying the parts into the front yard of [omitted] Airlie Street, and placing some of the wood and packaging material into the rubbish bins of [omitted] Airlie Street. At about 9:22am W LIN and [omitted] took the two treadmills and the four steel tubes containing the inert substance that had been inside the consignment into [omitted] Airlie Street.

1. At about 9.41am, J LIN arrived at Airlie Street and entered [omitted] Airlie Street premises. At 11:45am she drove away from the premises.

1. Following receipt of the consignment, [omitted] had three telephone conversations with the Thai consignor (“879”) and another Thai syndicate member (“193”) regarding the delivery:

a.   At 11:28am, caller “193” asked “Is that Tony?” [omitted] replied “Yes”. “193” said: “Have you received the goods this morning?” [omitted] responded, “Yes I have received it”. “193” asked “Could you please tell that person in Thailand that client that seller. Just let them know that you’ve received the goods. He/she doesn’t believe us”. [omitted] replied “Alright I’ll let him/her know”; and

b.   At 12:03pm, Thai caller “879” called [omitted] and, after confirmation that she was speaking with “Mr Tony”, asked: “Did you got the wooden case?” [omitted] advised her he would call her back.

c.   At 12:05pm “879” called again and asked: “This morning you got the wooden case already?” [omitted] replied, “Yeah I got this the…Got it already”.

1. At 12:19pm CCTV footage captured J LIN attending Port Melbourne Bunnings where she purchased an angle grinder and sent a photo of the angle grinder and discs to W LIN. J LIN then returned to [omitted] Airlie Street with the angle grinder.

1. WeChat App Videos located on J LIN’s phone revealed she sent the following videos and messages to an unknown person at 1:57pm:

a.   A video of W LIN seated in the lounge room at 1:57pm with the sound of grinding heard in the background;

b.   A message “Both of us are just sitting here”;

c.   A video clip sent some 30 seconds later showed two of the black steel beams from the consignment leaning against a wall outside the bathroom of [omitted] Airlie Street. The bathroom door is closed, and a power tool is operating. J LIN’s shadow is visible with her holding her phone; and

d.   A message was then sent, “Others are working hard”.

1. At 3:49pm a text message was sent from [omitted] (656) to Thai telecommunications service 879, which read, “Where did you put the things? So how…how many are you put in there I can’t find other things” Shortly after, a text message was sent from [omitted] (656) to service 879 “Is there only four black rectangular tubes?”

1. At 3:50pm, mobile service 656 called service 879. The user of service 656 identified himself as “Tony” and asked the user of service 879 “How many things are you put in? … [pause] I can’t find other things”. The user of telecommunications service 879 advised, “I am a logistic company, I am not shipper” to which telecommunications service 656 replied “Sorry” and “I think you are my company”.

1. At approximately 4:00pm, police entered the property where they found:

a.   The inert substance in the reconstructed clip seal packaging stacked neatly on two shelves in a dining room cupboard;

b.   The four steel pipes, within which the inert substance had been concealed, in the backyard with each pipe empty and having an end cut off;

c.   Three of the four tops of the steel pipes, spare grinder cutters and a key used to tighten grinder cutters to the grinder, in the hallway;

d.   The angle grinder in the bathroom with the toilet constantly running (it had been manually interfered with) and the fan operating. The grinder was located on the bathroom floor still plugged in; and

e.   The two treadmills that had been in the consignment partially dis-assembled on the back veranda, with the base having been unscrewed and removed. Police suspect that the treadmills were dis-assembled to look for further contraband.

SEARCH WARRANT - 26 Edith Street

1. On 31 October 2019 a search warrant was conducted at the residential premises of the accused during which police seized including:

^a.     Optus receipt dated 17 October 2019 in the name Poh TEOH, 26 Edith Street39

relating to the purchase and delivery of:

i.   1x Optus 3in1 SIM kit CON – DIRECT, SIM 8961025719506325373;

and

ii.   1x    Apple    iPhone    11    Pro    Max    64GB   Midnight    GN,   IMEI 353922102771084;

^b.    Optus SIM starter kit with SIM serial number 571950632537340 which relates to TS 600 subscribed to the accused;41

c.   Optus Mobile delivery note dated 9 October 2019 and addressed to Poh TEOH, 26 Edith Street42 relating to the delivery of 1x Apple iPhone 11 Pro Max 64GB Silver, IMEI 353926101488640 which is the handset that telecommunication service 727 (registered to the accused) was placed into on 31 October 2019;

³⁹ EI-51 Optus purchase receipt in the name of Poh TEOH

⁴⁰ EI-52 Optus SIM starter kit with SIM

⁴¹ EI-199 SIM 5719506325373 – Subscriber Result_TS 0411734600; EI-200 SIM 5719506325373 – Evidentiary

Certificate.

⁴² EI-80 Optus Mobile delivery note in the name of Poh TEOH

^d.    Optus prepaid mobile phone SIM with handwritten number 043298579543. This number was falsely subscribed to Kok Wai KHOO, 703/280 Spencer Street, Melbourne on 27 September 201944. SIM number 5818416621838, marked on the packaging, confirmed the SIM is associated with telecommunication service 795;45

^e.     Optus prepaid mobile phone SIM with handwritten number 042298018846. This was falsely subscribed to Yanpeng LI, 17 Byron Street, Coogee, NSW 2034, starting 27 September 201947. The SIM number 5818416621820, marked on the packaging, confirmed the SIM is associated with telecommunication service 188;48

f.    0432985795 and 0422980188 were subscribed with false details as the subscribers, and their associated details, were not identified as being associated with the accused, both services commenced on 27 September 2019 after both KHOO and LI had departed Australia and the street number of the subscriber address for telecommunication service 795 is the same street number as telecommunication service 198 and seven other telecommunication services subscribed in the name of Rui HAN;

g.   Post-It note from The Great Southern Hotel with handwriting including 0432523627 and 048117305249. Both numbers were subscribed in the name of the accused;

^h.    Aquarius X2 android mobile phone box (empty) for phone with two IMEI's - 3580980927725400 and 358098092823543;50

^i.     Silver/White Apple iPad mini;51

^j.     Apple iPhone black;52

k.   Samsung mobile phone, white;53 and

⁴³ EI-79 Optus prepaid mobile phone SIM – 0432985795

⁴⁴ EI-188 Telecommunications Service 0432985795 - Subscriber Result Cover; EI-189 Telecommunications Service 0432985795 - Subscriber Result; EI-190 Telecommunications Service 0432985795 - Evidentiary Certificate.

⁴⁵ EI-201 SIM 5818416621838 – Subscriber Result_TS 043298579; EI-202 SIM 5818416621838 – Evidentiary

Certificate.

⁴⁶ EI-81 Optus prepaid mobile phone SIM – 0422980188

⁴⁷ EI-191 Telecommunications Service 0422980188 - Subscriber Result Cover; EI-192 Telecommunications Service 0422980188 - Subscriber Result; EI-193 Telecommunications Service 0422980188 - Evidentiary Certificate.

⁴⁸ EI-203  SIM 5818416621820 – Subscriber Result_TS 0422980188; EI-204  SIM 5818416621820 –

Evidentiary Certificate.

⁴⁹ EI-53 Post it note from The Great Southern Hotel.

⁵⁰ EI-54 Aquarius X2 android mobile phone box.

⁵¹ EI-77 Silver/White Apple iPad mini.

⁵² EI-45 Apple iPhone black, IMEI 957.

⁵³ EI-46 Samsung mobile phone white.

l.    Samsung mobile phone, black54.

ANALYSIS OF APPLE IPHONE BLACK

1. The Apple iPhone mobile handset was assigned IMEI 95755 and contained SIM card with IMSI number 505025812543520 which related to the consignment telecommunication service 19856. This was the consignment number which was used by the accused to facilitate the attempted possession of the border-controlled drugs.

RECORD OF INTERVIEW

1. During an interview with police, the accused:

a.   Stated he used email address [omitted];

b.   Stated his current mobile phone number was 0411140329;

c.   Stated the mobile phone was not registered in his name and he does not know the person Maya CHOI; and

d.   Stated he uses the English name Daniel.

NOTICE OF INCRIMINATING CONDUCT

1. A Notice of Incriminating conduct has been filed in relation to the activities of the accused following the arrest of W LIN, J LIN and [omitted] in avoiding police and attempting to depart Australia.

VALUATION

1. The estimated wholesale value of the imported drugs is between $1,792,500.00 and

   $2,868,000.00.

Krista Breckweg Commonwealth Director of Public Prosecutions

21 October 2021

⁵⁴ EI-47 Samsung mobile phone black

⁵⁵ EI-181 Statement of Keith FELL, dated 13 April 2021.

⁵⁶ EI-87 Statement of Bryn DANIEL, dated 15 October 2020.