Director of Public Prosecutions v Yang

[2017] VCC 836

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-17-00400

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

SHUN LING EOH YANG

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2017
DATE OF SENTENCE:	21 June 2017
CASE MAY BE CITED AS:	DPP v Yang
MEDIUM NEUTRAL CITATION:	[2017] VCC 836

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords: Sentencing – Import a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code (Cth) by virtue of s 311.4 of the Criminal Code (Cth) – immediate custodial sentence opposed.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms R. Verdon	DPP (Cth)
For the Accused	Mr L. Gwynn	Lethbridges

Pages 1 - 1

 

 

HER HONOUR: 

1Shun Ling Eoh Yang, you have pleaded guilty in respect to Charge 1, importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code (Cth) by virtue of s 311.4 of the Criminal Code (Cth).

2You were a member of a drug syndicate involved in the importation of multiple consignments of border controlled drugs into Australia.  The offending took place between 25 April 2016 and 24 May 2016 and there are five consignments of methamphetamines involved.  They were from Malaysia and the United States imported into Melbourne.

3Your role in the syndicate was as an intermediary, providing addresses for the consignments of border controlled drugs to be sent to overseas syndicate members, as well as tracking and collecting consignments of border controlled drugs and unpacking and weighing the drugs from the consignments in preparation for distribution.

4In total there were five importations and the particulars of those are:

(i)     175.8 grams of pure methamphetamine on or about 25 April 2016;

(ii)     358.2 grams of pure methamphetamine on or about 15 May 2016;

(iii)    368 grams of pure methamphetamine on or about 16 May 2016;

(iv)    397.8 grams of pure methamphetamine on or about 24 May 2016; and

(v)     408 grams of pure methamphetamine on or about 24 May 2016

5A commercial quantity of methamphetamine is 750 grams. In total,
1,707.8 grams of pure methamphetamine was imported, and that represents 2.27 times the commercial quantity threshold for pure methamphetamine.

6The offending is serious and that is marked by the maximum penalty that is prescribed by Parliament, life imprisonment.

7You come before the court as a person with no prior criminal history and there are no other matters pending.

8I shall now proceed to sentence you on the basis of the summary of the prosecution opening for the plea that was read at the plea hearing and is an exhibit.  Your counsel, Mr Gwynn, did not take issue with the summary.

9The background to your arrest was that you are a Malaysian citizen who travelled to Australia on a tourist visa, arriving on 27 February 2016.

10On 25 May 2016 at around 1.21 am you were questioned by members of the Australian Border Force (ABF) at Melbourne Airport as you attempted to board a flight to Malaysia.

11An examination of your baggage, including an Apple iPhone 6 that you had in your possession, was conducted.  A review of the mobile phone by ABF members identified video footage that related to the consignment, assigned the number one in the opening, being deconstructed and the contents being weighed.

12The contents of the mobile phone were downloaded by ABF officers and those contents were later provided to the Australian Federal Police (AFP). 

13You were released by the ABF officers.  However, your flight had departed so you remained in Australia and returned to the Kew address of your
co-offender, Yih Wen Lim (Lim).  Later that night at about 10.32 pm AFP members executed a search warrant at the Kew address, following which you were arrested.  The other co-offenders, Yih Wen Lim and En Yao Teoh, were present but were not charged at that time.

14During the search of the unit AFP members seized a set of black Propert digital kitchen scales and fingerprint analysis of the scales identified fingerprints belonging to you. A red handled screwdriver, a Commonwealth Bank statement in your name with the address, 32 Oxley Street, Bundoora, and an Apple iPhone 6 using phone number 0434 440 988 were also seized.

15You participated in a record of interview on 26 May 2016, during which you admitted the Apple iPhone 6 that was seized belonged to you, that it was password protected and no-one else knew the password to the phone.  You confirmed that you were the user of the mobile phone.  You denied any involvement in importation of methamphetamine and made other denials.

16You have been charged with one charge of importation of a commercial quantity of a border controlled drug, based on it being a rolled up charge, and that is permissible by virtue of s.311.4 of the Criminal Code (Cth). It is permissible for the amount of drug to be bundled up and charged as one offence of importing a border controlled substance and a quantity imported being a commercial quantity.

17In respect to the five consignments the opening details your involvement, and dealing with the consignments chronologically, the details are as follows:

Consignment on or about 25 April 2016 (Consignment 5 in the Opening)

18On 25 April 2016, ABF Melbourne seized a DHL consignment addressed to a Mr Chan at 30 Kent Road, Box Hill.  The consignment was sent from Malaysia and described as “Chinese praying stuff”.

19Following examination and analysis it was determined the consignment contained a quantity of white crystallised substance that was concealed within seaweed sheets and it weighed 219 grams.  The purity of methamphetamines was found to be 80.3 per cent, meaning that the pure weight of the methamphetamines was 175.8 grams. The opening detailed a number of messages that you communicated with other members of the syndicate through WeChat, an instant messenger service, in relation to that consignment over the days leading up to and following the delivery.

Consignment on or about 15 May 2016 (Consignment 4)

20On 15 May 2016 the ABF Sydney seized a FedEx consignment addressed to Melville at 30 Kent Road, Box Hill.  The consignment was sent from Riverside, California, in the name of James Chiang.

21ABF deconstructed that consignment and it was found to contain 446.2 grams of methamphetamines concealed inside a Sony DVD player.  The methamphetamine had a purity of 80.3 per cent, meaning the pure weight of the drug was 358.2 grams.

22You were in contact with the co-offender, Lim, and another person identified as Elizabethjingxin, via WeChat in relation to that package.

23On 12 May 2016 Lim sent the address to you and you forwarded that on to Elizabethjingxin immediately.  On 15 May 2016 you and Lim had a conversation via WeChat both by text message and audio message, during which you discussed the pending arrival of the consignment

24On the same day you and Elizabethjingxin had a conversation on WeChat where you discussed the fact the consignment had not yet arrived.  You and Lim discussed your concerns about the consignment not being passed and the difficulties that created and you both concluded Box Hill was no longer viable and you suggested another location.  You told Elizabethjingxin those consignments to Box Hill would not be passed and she responded, “So don’t send there next time".

Consignment on or about 16 May 2016 (Consignment 3)

25At about 12.49 pm on 16 May a FedEx consignment addressed to 2 Maple Crescent, St Albans, was successfully delivered.  The package was addressed to Melissa Dixon and sent from Riverside, California, in the name of James Chiang and the contents were described as “two firesticks".

26Earlier on 13 May 2016 at about 1.30 pm Elizabethjingxin had sent you a WeChat message detailing the consignment number.  During a conversation on 16 May 2016 you and Lim discussed concerns about the Box Hill consignment not being delivered but confirmed the addressee of the consignment to St Albans.

27You took a photograph at 4.15 pm on 16 May that showed a set of black Propert electronic scales on which was placed a clip seal bag containing a white crystalline substance displaying a weight of 459 grams.

28On the basis that the substance was at a purity of 80.3 per cent, the pure weight of methamphetamine was estimated to be approximately 368 grams.

Importation of 397.8 grams of pure methamphetamine on 24 May 2016 (Consignment 2)

29On 20 May 2016 you sent a message via WeChat to Lim where you said the “stuff” would be sent tomorrow and would arrive Tuesday. At about 12 pm on 24 May 2016, a delivery of a FedEx consignment was attempted at a residential address, 30 Oxley Avenue, Bundoora.  The package was addressed to Danny Kim and was sent from Riverside, California, in the name of David Nam.  The contents of the parcel were described as “Amazon firestick".

30In company with another Asian male you approached the FedEx driver to attempt to collect the package.  He became suspicious and told you he would need to call FedEx and arrange authorisation for the package to be left with you.

31At around this time you had conversations via WeChat with two syndicate members.  During the first you related what occurred.  During the second you sent details with a contact number for FedEx and the consignment number, receiver’s name and address.

32When the consignment was returned to FedEx it was handed over to the ABF, who deconstructed the package and found it to contain a white crystalline substance concealed within a DVD player.

33AFP examined the consignment and 495.4 grams was the gross weight and on further testing that was found to be a purity of 80.3 per cent, meaning the pure weight was 397.8 grams.

34The opening then details a number of WeChat messages sent between yourself and other members of the drug syndicate concerning this consignment.  During conversations you suggested that the Bundoora address be used instead of the Box Hill address.  You sent the details for 30 Oxley Avenue, Bundoora, to Elizabethjingxin.  You and Elizabethjingxin discussed how much stock there should be, namely 1 kilogram, and on 24 May 2016, Elizabethjingxin sent you a WeChat message detailing one is Danny Kim and one is Molly Smith.

35AFP members were able to confirm that phone calls were made from your phone to FedEx on both 24 and 25 May 2016.  A notation dated 25 May 2016 notes the consignee, Danny Kim, had called and requested that delivery of the package be reattempted the following day, but this did not occur as the package had been provided to the AFP.

Importation of 408 grams of pure methamphetamine on or about 24 May 2016 (Consignment 1)

36On 17 March 2016 your co-offender, Lim, rented a room at 7 Anna Street, Bundoora, and paid two months’ rent in advance.  He never occupied that room, but did not return his keys.

37On 24 May 2016 at about 11.52 am a FedEx consignment was successfully delivered to that address.  The package was addressed to Molly Smith and was sent from Riverside, California in the name of David Nam.  The contents were described as “Amazon firestick". 

38WeChat messages sent from you to other members of the drug syndicate in relation to this consignment were detailed in the opening.  Lim sent you the address on 18 May 2016 and you immediately forwarded the address details to Elizabethjingxin. 

39On 21 May 2016 you and Elizabethjingxin engaged in conversation during which you discussed there should be stuff of 1 kilogram, and on 25 May 2016, the day the consignment was delivered, Elizabethjingxin had sent two messages to you saying one is David Kim and one is Molly Smith.

40On 24 May 2016 you had a conversation with Lim by way of text and audio messages confirming the drug had arrived. There was a video file on your phone showing footage taken between 3.11 pm and 3.23 pm on 24 May 2016 that showed the consignment being deconstructed inside Lim’s Kew address.  A Sony DVD player was taken apart with the red handled screwdriver and a large plastic clip seal bag containing a white crystalline substance was removed from inside the DVD player.

41The substance was weighed on the electronic kitchen scales that showed the substance weighed 511 grams.

42Given similarities between earlier consignments, at an estimate the calculated purity was 80.3 per cent and therefore the estimated weight of pure methamphetamines is approximately 408 grams.  That is the factual basis upon which you will be sentenced.

43Mr Eoh Yang, your offending is serious, involving, as it does, a total estimated importation of 1,707.8 grams of pure methamphetamines, which is 2.27 times the commercial quantity threshold of pure methamphetamine (750 grams).

44I consider that your role was an important one.  You were a trusted member of this drug importation syndicate.  Mr Gwynn, on your behalf, accepted that you were an intermediary who liaised between members of the syndicate both here in Australia and overseas.  He explained that you knew Lim from living in Penang and that you were at school together.  The other person identified as Elizabethjingxin is also known to you through your schooling together in Penang.

45I am satisfied that you were not responsible as the architect of this drug importation scheme but nonetheless I consider that you played a major role here in Victoria and I consider that your moral culpability is high and you will be sentenced on that basis.  Having regard to the nature of the importations and the quantity of the drug imported, well in excess of a commercial quantity, I consider this to be a serious example of this sort of serious offending.

46I will now detail what has happened to the co-offenders, Yih Wen Lim and En Yao Teoh, because I must have regard to parity when sentencing you in respect to your role.  Lim's sentence is of particular relevance.

47

The co-offenders, Lim and Teoh, were sentenced by this court on 29 March 2017.  Lim pleaded guilty in respect to a charge of importing a commercial quantity of border controlled drug that included five importations that took place between 25 April 2016 and 5 August 2016, and involved him importing the substances methamphetamine and heroin, and the quantity imported was a commercial quantity.  Lim also pleaded guilty to a charge of possession of a marketable quantity of a border controlled drug, methamphetamine, on

25 May 2016, and the amount of methamphetamine was 79.6 grams.

48Teoh pleaded guilty to importing a marketable quantity of a border controlled drug, namely heroin, between 2 August 2016 and 5 August 2016 and the amount of heroin was 233 grams

49Lim was sentenced to ten years’ imprisonment on the charge of importation of a commercial quantity of a border controlled drug and five years’ imprisonment in respect to possess a marketable quantity of border controlled drug.  The total effective sentence was 12 years’ imprisonment with a non-parole period fixed at nine years.  He has lodged an appeal against sentence in respect to the sentence imposed for possession of a marketable quantity of border controlled drug, and that appeal is yet to be dealt with.

50Teoh was sentenced to five years’ imprisonment, to serve three years’ in respect to the charge of import a marketable quantity of a border controlled drug.

51I will now turn to your personal history.  You are 23 and you were 22 at the time of your arrest.  You were born in Penang, Malaysia, and are one of two children.   Your parents are alive and living in Penang.  Your father was diagnosed with tuberculosis about three years ago and is in poor health.  He is no longer employed and is being cared for by your mother.  Your older sister lives in China and is a marketing manager for a textile company.  Your parents are ignorant as to why it is that you have remained in Australia.  Your sister is fully aware of the charge and keeps in regular contact with you by telephone.

52Your history in Malaysia is unremarkable.  You completed the equivalent of Year 10 and thereafter worked in various roles as a labourer, kitchen hand and delivery driver.

53You travelled to Australia on a tourist visa and were legally in Australia when you offended.  When you were first questioned by the AFP at the airport you had made up your mind to go home to Malaysia as you did not want to be involved any further with the drug importations.  You had been staying with Lim at his place in Kew, sleeping on the couch.

54The motivation for your offending was that you were earning very low wages in Penang and you had worked in Sydney as a kitchen hand where you had the capacity to earn more money.  Before travelling to Australia you were contacted in Penang, Malaysia, and made an offer by another person, who you describe as being “the boss”, to work in Australia.  You believed when you first left Penang that you would be working in the restaurant trade again and your plan was to earn good money and remit moneys back to your parents in Malaysia.  On your arrival it became obvious that the work to be undertaken was not legitimate.  However, you were attracted to making a lot of money and so became involved with the drug syndicate.

55The evidential material shows you were actively involved in the syndicate, importing methamphetamine from 25 April 2016.

56Mr Gwynn, on your behalf, highlighted a number of matters in mitigation.  I accept that your plea of guilty was entered at a relatively early stage following negotiations that happened after the contested committal on 3 March 2017.  There is utility in your plea.  Through your plea you have spared the State the expense and inconvenience of a trial.  You have facilitated justice.  Your sentence will be discounted accordingly.

57I also accept the plea is represents a degree of remorse and that you now accept what you did was wrong.

58I have had read the letter from your sister, Chen, dated 8 June 2017.  You have expressed to Chen your guilt and shame for being involved in this offending.  She states in her letter that she is shocked that you are involved in this drug importation and says that she did not consider you to be the type of person who would commit such offending.

59Since your arrest you have been held in custody on remand, initially at Port Phillip Prison for a few months and then at Marngoneet Prison.  You are isolated within the prison.  Your English is poor.  Apart from telephone contact with your sister, Chen, you have no other contact with relatives or friends and there have been no prison visits.

60You attempted two English classes whilst on remand at Port Phillip Prison but that stopped when you were transferred to Marngoneet Prison.

61Currently you are working in the kitchen and that means you are unable to take up further English classes.  You are responsible for preparing lunches in the prison.

62You have been able to complete a Certificate II in Cleaning Operations whilst in prison.

63I accept that your time in custody has been, and will continue to be, particularly difficult.  You are very anxious about your father, given his poor health and you are concerned that there is a very real prospect that you will not see your father alive again and that is weighing heavily upon you.

64You are no longer able to support your parents financially.  You worry further, in the event that they are told about your current circumstances, this will cause your father further distress, and in his frail condition may cause him great anxiety.

65This information was given to the court by Mr Gwynn, not on the basis that it constitutes hardship but on the basis that it is a factor that must be taken into account, and I accept that because of your particular personal circumstances your time in custody will be more burdensome than otherwise.

66This is your first time ever in custody.

67I accept that your arrest and time spent in custody has been a real punishment for you and that you have now had time to reflect on your offending. You are now more focussed on the future and it is unlikely that you will re-offend in this nature again.

68I have noted that there is no suggestion of any involvement with drugs or alcohol or any other matter that would have caused you to be involved in this offending.  Your involvement in this offending was motivated purely by financial gain.

69You anticipate once your sentence is completed that you will be deported and that you will never be able to return to Australia.

70You are a relatively young man with no prior criminal history.  You are a person of otherwise good character.  That, sadly, is very often the case with this sort of offending.  Criminal syndicates often target individuals like you to carry out their business.  Nonetheless, you are entitled to have taken into consideration that you were a person who was otherwise of good character before this offending.

71I have taken into account your relative youth.  However, this is serious offending and, as has often been said where such offending is involved, where it is so serious it does diminish the effects of youth. Overall I have formed the view that you are a person who is relatively young and immature and subject to influence of others who encouraged you to become involved in this offending.  Overall, given your attitude following your arrest as evidenced in your sister's letter, I consider your future prospects for rehabilitation are excellent.

72It is important when sentencing you that the court imposes just punishment.  Because of the serious nature of your offending I consider that a term of imprisonment is the only appropriate punishment.

73Insofar as parity is concerned I have had regard to the sentence imposed on Lim.  He is a man who is a couple of years older than you.  I considered his role to be the key intermediary in Australia.  He was aware of your arrest and the circumstances of your arrest but continued to be involved in the offending following your arrest up until 5 August 2016.  He was involved in five consignments of a border controlled drug, which included both methamphetamine and heroin and also he had in his possession methamphetamine that was subject to a different charge.  He leased the property at 30 Kent Road, Box Hill, and was an active participant in the conspiracy to import the border controlled drugs, liaising between yourself and other intermediaries involved in this drug syndicate.  I consider his offending to be more serious.

74Mr Eoh Yang, I will now impose the formal Court orders.  Could you please stand.  On the one charge of importation of a commercial quantity of a border controlled drug you will be convicted and sentenced to eight years and six months' imprisonment and I fix a non-parole period of six years’ imprisonment.

75I make the following the declaration. Pursuant to s 6AAA of the Sentencing Act1991, but for your plea of guilty I would have imposed a term of 11 years, to serve seven years' imprisonment.

76Pre-sentence detention?  Is that 392 days?

77MS VERDON:  I have 391 days, Your Honour.

78HER HONOUR:  Ninety-one.

79MS VERDON:  Not including today's date.

80HER HONOUR:  All right.

81MR GWYNN:  I agree with that calculation, Your Honour, not including today.

82

HER HONOUR:  All right.  I make the following declaration of pre-sentence detention.  I direct that 391 days of pre-sentence detention be entered into the records of the court as being time served already in respect to the sentence imposed today. Just to make it clear, I consider that the circumstances of Mr Eoh Yang are different from Mr Lim and his role is relatively less than

Mr Lim and that justifies the disparity in sentence between the two men.  I think that covers everything.

83MS VERDON:  Yes, Your Honour.

84HER HONOUR:  There were no ancillary orders?  No, all right.  Did you want to spend some time with your client before he is taken downstairs and use the aid of the interpreter?

85MR GWYNN:   I would be very grateful, Your Honour.

86HER HONOUR:  Yes.

87MR GWYNN:  The interpreter has been booked for that purpose so I am grateful to my learned friend for arranging that so that I can speak to him here.

88HER HONOUR:  All right, that is good, that is good.

89MR GWYNN:  And my instructor and I will be speaking to him next week in any event.

90HER HONOUR:  All right.

91MR GWYNN:  Thank you, Your Honour.

92HER HONOUR:  All right, so, Mr Yang, thank you very much for your patience and interpretation this morning.  I know it is difficult when that complex factual matrix has to be explained, but it is important that the person understands why they are being sentenced, what for and they have a proper understanding, so thank you for assisting me.  I will leave the Bench and if you could please assist Mr Gwynn so he can speak with Mr Eoh Yang.

93INTERPRETER:  Yes, I will, Your Honour.

94HER HONOUR:  And otherwise, Ms Verdon, you are excused.

95MS VERDON:  Thank you, Your Honour.

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