Director of Public Prosecutions v Wee
[2023] VCC 1409
•16 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01825
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NYET LUNG WEE |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2023 | |
DATE OF SENTENCE: | 16 August 2023 | |
CASE MAY BE CITED AS: | DPP v Wee | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1409 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Trafficking in a drug of dependence – Possessing an implement intending to make a false document – Possessing a false document – Negligently dealing with proceeds of crime – Making a false document – Trafficking limited to a single act on one day – Early guilty plea – No prior convictions – Burdensome time in custody
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991
Cases Cited:Vincent v The Queen [2021] VSCA 99; Gregory (a pseudonym) v R (2017) 268 A Crim R; Worboyes v The Queen (2021) 96 MVR 344
Sentence: 1 year and 10 months’ imprisonment with a non-parole period of 15 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Cookson Ms L Zubreckyj | Office of Public Prosecutions |
| For the Accused | Mr K McLaughlin | Nelson Brown Legal |
HIS HONOUR:
1Nyet Lung Wee, you have pleaded guilty to the following five charges on Indictment No. M12521278:
(i)Charge 1 – trafficking in a drug of dependence, namely 1,4-Butandiol, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
(ii)Charge 2 – possessing an implement intending to make a false document, contrary to s 83A(5A) of the Crimes Act 1958.
(iii)Charge 3 – a rolled-up charge of possessing a false document, contrary to s 83A(5) of the Crimes Act.
(iv)Charge 4 – a rolled-up charge of negligently dealing with proceeds of crime contrary to s 194(4) of the CrimesAct.
(v)Charge 5 – a rolled-up charge of making a false document, contrary to s 83A(1) of the Crimes Act.
2Charge 1 carries a maximum penalty of 15 years’ imprisonment. Charges 2, 3 and 5 carry a maximum penalty of 10 years’ imprisonment, and Charge 4 carries a maximum penalty of 5 years’ imprisonment.
Circumstances of the offending
3Mr Cookson read out in Court an agreed factual summary of your offending.[1]
[1]Exhibit A.
4At the time of the offending, you were 37 years of age and were residing in a Southbank apartment.
5Boon Lye (‘Lye’) was also a resident at the same apartment and was known by his English name “Jack”. Lye is alleged to have been involved in a significant drug trafficking business involving the sale of 1,4 Butanediol through Australia Post.
6On 7 December 2021, police attended and executed a search warrant at the Southbank apartment. The warrant came about as part of the Victorian Police Major Drug Squad Operation MDS-SIXERS-2021, which was targeted at Lye and Tess Rowlett (‘Rowlett’).
7You were located asleep in one of the bedrooms. Lye was also present.
8A search of the property revealed a significant quantity of paraphernalia relating to the trafficking of 1,4 Butanediol. This included carboys used to move quantities of liquid, sim cards, visa cards and electronic devices. These items are alleged to be part of the trafficking operation run by Lye.
9A Fanta bottle was located in the kitchen containing a quantity of clear liquid. Analysis confirmed this to be 1,4 Butanediol with a weight of 1972.9 grams.[2] Your left thumb fingerprint was located on the rear of the Fanta Bottle. (Charge 1 – Traffick Drug of Dependence)
[2]A commercial quantity of 1,4 Butanediol is 2 kg.
10A search of your bedroom revealed items, including two mobile phones, SIM cards, USB and hard drives, eight fully or partially scrubbed driving licences, a laptop, paperwork in a pencil case and a case containing fraudulent identifications. Also found in the bedroom was:
(i)an industrial embosser machine. (Charge 2 – Possess Implement intending to make a false document)
(ii)six fraudulently created driver’s licences. Four of them had your image, and the other had Mr Zheqi Hu’s image.[3] (Charge 3 – Possessing false document)
(iii)twenty-three Medicare Cards and Bank Cards which were not in your name.[4] (Charge 4 – Negligently Deal with Proceeds of Crime)
[3]See Schedule A of the Indictment.
[4]See Schedule B of the Indictment.
11Following the execution of the search warrant, you were conveyed to Richmond Police Station.
12Investigators analysed the two Samsung mobiles phone seized from your bedroom and identified the following amongst its contents:
(a) contact information for Raymond N L Wee;
(b) images of numerous IDs and driver’s licence templates;
(c) images of you wearing a black wig;
(d) images of a fraudulently created identification bearing your image in the black wig, with the name Lourdes Jr Villar Asence.
13In your initial police interview on 7 December 2021, you were less than forthcoming. You said:
(i)Jack helped you with securing accommodation in the Southbank apartment as you had nowhere to live;
(ii)not all the items located in your room belonged to you;
(iii)you didn’t pay any attention to the containers found in the apartment and did not know who they belonged to;
(iv)that you did not make any cards.
14You were interviewed again by police on 21 February 2022 and gave the following answers:
(i)you relied on Jack as you didn’t have work during the pandemic, and he had given you a place to stay;
(ii)Jack would ask you to edit photos for him and provided you with a printer and a laptop;
(iii)Jack’s real name was Lye;
(iv)you would receive between $150 and $300 for each photo you would edit for Jack;
(v)some of the photo edits involved putting images on fake driver’s licences;
(vi)you were aware Jack was going to the post office to collect some parcels;
(vii)when asked about an intercepted parcel containing 160 litres of 1,4 Butanediol in the name of Yong Rok Song, you said “this man, Yong Rok Son, this person is the – buy from dark web”;
(viii)you didn’t know the parcels contained drugs, but that you did make a false identification for Yong Rok Song and now understood how it was used;
(ix)you created two false identifications, in the name of Deng Long Feng and Yong Rok Song. (Charge 5 – Make False Document) Jack had asked you to print these identifications, which you did and gave them to Jack;
(x)although you consumed drugs, you did not sell drugs.
Personal circumstances
15You are 39 years of age and have no prior convictions.
16You were born in Malaysia and lived with your parents and three younger siblings. Your father worked as a long-distance bus driver. Your mother, who suffers with asthma, did not work. You grew up in an impoverished environment. While attending school, you also worked part-time in a café to assist the family financially. You left school at the age of 14 to commence employment and support your parents financially. You held various jobs, including installing and preparing advertisements and installing audio accessories in vehicles.
17Unfortunately, your father passed away in 2017. That same year, you arrived in Australia on a tourist visa. That visa expired, and you have been living in Australia illegally. Upon your release from custody, you will be deported back to Malaysia, where your mother and siblings continue to live. The fact of your deportation is not a matter relied upon in mitigation.
18Upon arrival in Melbourne, you undertook some employment in renovations. The Court was told that you met Lye through a mutual friend. You began living with Lye around the onset of the pandemic in 2020. You had been using methylamphetamine in the past, but your usage increased during the pandemic. Lye assisted you with the provision of methylamphetamine and provided you with food and rent-free accommodation.
Objective gravity
19While the weight of drugs involved in trafficking is a very significant matter, it is one of many factors to be taken into account.[5] Other factors such as motivation for the offending, role and duration are important indicators.[6]
[5]See e.g., Vincent v The Queen [2021] VSCA 99 at [45].
[6]Gregory (a pseudonym) v R (2017) 268 A Crim R, [24].
20You were involved in trafficking a quantity just short of a commercial quantity. However, it is accepted that your role in the trafficking falls toward the lower end. By your plea, you accept trafficking in 1,4-Butanediol by assisting in transferring the liquid from one container into a bottle knowing that it was for onward sale. This was a single act limited to one day. You did not source the drug of dependence and your role in the trafficking didn’t yield any personal commercial benefit.
21It is not suggested that you had knowledge of the larger criminal enterprise involving Lye.
22In respect of charges 2 - 5, you accept that you were paid on occasions to produce false identification. The equipment for producing these documents was provided by Lye. While you may have turned a blind eye as to why you were producing these documents, the consequence of your offending was that you were aiding the carrying on of a drug trafficking business.
23I was told by Mr McLaughlin, who appeared on your behalf, that you felt obligated in assisting Lye as he had given you a roof over your head during the pandemic and provided you with food. You were concerned that you had nowhere else to live and went along with your offending conduct. You also relied upon Lye for your supply of methylamphetamine.
24Offences involving trafficking of drugs of dependence, or the production of false identification material to aid such trafficking, are serious and general deterrence assumes real significance.
Matters in mitigation
25Your pleas of guilty were entered at a relatively early stage in this Court. I understand that you were always prepared to plead guilty to the false identification offences. By pleading guilty, you have facilitated the course of justice and have taken responsibility for your actions. You have also saved the community the time and cost of a trial. The utilitarian benefit of your pleas is heightened in the current environment when this Court is facing a considerable backlog of trials.[7] Your plea of guilty is demonstrative of a degree of remorse.
[7]Worboyes v The Queen (2021) 96 MVR 344.
26You have been in custody since 7 December 2021. I accept that your time in custody has been more burdensome because of the pandemic. There was the initial isolation period and you have endured a number of lockdowns. You do not speak English, which has led to a greater degree of isolation. You have received no visits. It is only since December 2022 that you have been able to speak to your mother on the phone. She is aware that you are in custody.
27You have no prior convictions and hopefully the sentence that this Court will impose will act as a real deterrent and motivate you to live a law-abiding life in Malaysia. It is difficult to assess your rehabilitation prospects. However, I accept that your lack of prior history and your work ethic in Malaysia, along with the family support that you will return to, suggest that you have decent prospects of rehabilitation. Clearly, you must ensure that you continue to refrain from using any illicit substances. In that regard I was provided with the results of a clean urine screen undertaken by you on remand.[8]
[8]Exhibit 2.
Sentence
28Having considered all relevant matters, Mr Wee you are sentenced as follows:
· On Charge 1, you are convicted and sentenced to 18 months’ imprisonment.
· On Charge 2, you are convicted and sentenced to 6 months’ imprisonment.
· On Charge 3, you are convicted and sentenced to 6 months’ imprisonment.
· On Charge 4, you are convicted and sentenced to 4 months’ imprisonment.
· On Charge 5, you are convicted and sentenced to 6 months’ imprisonment.
29The sentence on Charge 1 will be the base sentence. 1 month of the sentence on charges 2, 3, 4 and 5 will be served cumulatively upon the base sentence and on each other. This makes a total effective sentence of 1 year and 10 months’ imprisonment.
30I set a non-parole period of 15 months.
Pre-sentence detention
31Pursuant to s 18 of the Sentencing Act 1991, the period of 617 days of pre-sentence detention is declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
32Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 2 years and 10 months’ imprisonment with a non-parole period of 2 years.
Other orders
33I grant the forfeiture and disposal orders sought. The Samsung mobile phone is clearly tainted property and will form part of the forfeiture order.
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