Goh v The Queen
[2021] VSCA 231
•24 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0035
| KEE SEN GOH | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 24 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 231 |
| JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Meredith, 11 March 2021) |
---
CRIMINAL LAW – Leave to appeal – Sentence – Attempting to possess border controlled drug in commercial quantity – Applicant recruited and coordinated others to possess 8.31 kg of heroin – Expendable mid-level functionary – Guilty plea – Prior good character – Deportation – Good prospects of rehabilitation – Cooperation with authorities, including consenting to searches – Sentence of 11 years’ imprisonment with non-parole period of 6 years and 9 months – Whether sentence manifestly excessive – Reasonably arguable that sentence departs from current sentencing practices for offence – Leave to appeal granted.
---
| WRITTEN SUBMISSIONS: | Counsel | Solicitors |
| For the Applicant | Ms R Avis | Papa Hughes Lawyers |
| For the Respondent | Ms R Champion | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
McLEISH JA:
On 22 February 2021, the applicant pleaded guilty before a judge of the County Court to a single charge of attempting to possess a border controlled drug (heroin) in a commercial quantity.[1]
[1]Contrary to Criminal Code (Cth) ss 11.1(1) and 307.5(1) read with s 311.14.
On 11 March 2021, he was sentenced as follows:[2]
[2]DPP (Cth) v Goh (County Court of Victoria, Judge Meredith, 11 March 2021) (‘Sentencing Remarks’).
Charge on Indictment Offence Maximum Sentence Cumulation 1. Attempting to possess a border controlled drug in a commercial quantity Life imprisonment 11 years’ imprisonment Base Total Effective Sentence: 11 years’ imprisonment Non-Parole Period: 6 years and 9 months’ imprisonment Pre-sentence Detention Declared: 764 days Section 6AAA Statement: 14 years’ imprisonment with a non-parole period of 9 years and 6 months
The applicant’s co-offender, Kee Tan, earlier pleaded guilty to the same charge, although Tan’s charge related to a much smaller quantity of heroin. Tan was sentenced to 7 years’ imprisonment with a non-parole period of 4 years and 6 months.
The applicant now seeks leave to appeal against his sentence on a single ground: that the sentence is manifestly excessive. For the reasons that follow, leave to appeal will be granted.
Circumstances of offending
The applicant is a Malaysian national in his early thirties.
His offending came to light when, in February 2019, the Australian Border Force identified 12 suspicious inbound consignments. Of these, one was located in Sydney and nine were located at a courier service in Melbourne. Those ten consignments each contained a marketable quantity of heroin, together totalling 8.31 kilograms — more than five times the commercial quantity for that drug. The other two consignments could not be located.
The applicant, under the direction of unidentified others, made arrangements to possess the heroin. He recruited Tan and two others, and directed them to attend the courier service in Melbourne to collect the consignments. To facilitate collection, he provided them with mobile phones (corresponding to the contact numbers of the consignees) and documentation (purporting to be authorisations signed by the consignees). The applicant also planned to or actually collected other suspicious consignments which had not been intercepted by authorities, but he was not charged in respect of these other consignments.
Tan was arrested at the courier service on the morning on 6 February 2019. As the police were departing the courier service later that day they observed the applicant standing at the rear of a parked car and peering in. They approached him. The applicant told them that the car was his; he provided the police with his name and address, and permitted them to look at his phone. The contents of his phone aroused further suspicions and the applicant permitted the police to search his vehicle, and ultimately his premises. Police paused the latter search after they observed a large number of mobile phones in the applicant’s bedroom. They returned to complete the search after obtaining a warrant. At least five of the phones matched consignee contact details.
The applicant was duly arrested. In his record of interview, he made significant admissions, including as to his involvement in collecting or arranging to collect other suspicious packages, although he also told some lies and minimised aspects of his offending.
Judge’s sentencing remarks
After outlining the offending, the judge recognised the applicant’s cooperation in his own apprehension. He noted that the applicant had volunteered information when questioned outside the courier service, and consented to various searches. He did not attempt to leave the scene when approached by police, as he could lawfully have done, nor did he seek to destroy or withhold incriminating evidence.[3] The prosecutor had accepted that the applicant provided significant assistance to authorities in their investigations.[4]
[3]Sentencing Remarks [25].
[4]Ibid [13].
The judge also recognised the applicant’s guilty plea, albeit well after a contested committal, as evidence of some remorse, and a desire to facilitate the course of justice by sparing the time and costs of a trial.[5]
[5]Ibid [26].
The judge noted that the applicant lacked prior convictions and came from a relatively impoverished background. His father was a gambler. The applicant had completed high school and a tertiary qualification in business management in Malaysia. He was residing in Australia and enrolled in culinary studies at the time of the offences. His Australian student visa had now been cancelled.[6]
[6]Ibid [27]–[30].
The applicant was experiencing financial difficulties while studying in Australia and working in food delivery, and was recruited into the drug enterprise at that time. He was financially motivated to offend, although his actual gain was to be modest, about $4,000 less whatever he paid out of that amount to those he recruited.[7]
[7]Ibid [40].
The judge assessed the applicant’s prospects of rehabilitation as positive, noting his productive use of time in custody and lack of prior convictions. In this regard, the judge also referred to a letter written by the applicant to the Court, which the judge described as illustrating the applicant’s ‘increased insight into the seriousness of and reasons for’ his offending.[8]
[8]Ibid [36].
The judge referred to a report prepared by psychologist Ms Gina Cidoni, and accepted that the applicant presented with an adjustment disorder, involving persistent negative emotional states, impaired judgment and functioning. The judge accepted that this disorder, along with his financial difficulties, contextualised the applicant’s offending. However, he found that it was of little mitigatory weight, because the applicant involved himself in a serious criminal operation for financial gain, knowing that his conduct was wrong.[9]
[9]Ibid [32]–[34].
The judge took into account that this was the applicant’s first experience of prison, and that it would be more burdensome for him because of the ongoing pandemic and his adjustment disorder.[10] The judge also took account of the inevitability of the applicant’s deportation, the mitigatory weight of which was somewhat lessened given his relatively recent arrival in Australia before offending.[11]
[10]Ibid [34].
[11]Ibid [35].
The judge emphasised the seriousness of the offence, illustrated by the maximum penalty of life imprisonment,[12] and the importance of general deterrence in sentencing for drug importation offences. He described the quantity of drugs — 8.31 kg — as ‘not insubstantial’ and noted that it was more than five times the commercial quantity threshold.[13] The applicant’s offending was planned, and involved the recruitment, direction and payment of his co-offenders. It also involved supplying them with materials to facilitate the collections. He played an active role in the enterprise. That role involved a degree of agency and responsibility, even while acting under the direction of unidentified others. The applicant’s role was thus something more than a ‘mere courier or collector’, such as Tan. Nonetheless, the applicant’s modest financial interest in the enterprise suggested he was an ‘expendable functionary’.[14] At the same time, given the extent of the applicant’s involvement in a complicated and clandestine operation, the judge considered his recklessness as to the possibility that the substance he was seeking to possess was a border controlled drug to be of a ‘high order’.[15]
[12]Ibid [45].
[13]Ibid [37].
[14]Ibid [38]–[39].
[15]Ibid [42].
Finally, the judge addressed the issue of parity. He considered there to be relevant differences between the applicant’s and Tan’s offending which justified disparate sentences. Tan played a lesser role in the enterprise and was sentenced in respect of a significantly lesser quantity of heroin than the applicant. He also pleaded guilty earlier, although he did not offer cooperation to authorities as the applicant had.[16]
[16]Ibid [44].
Ultimately the judge imposed the sentence described above, characterising the non-parole period as ‘representing the opportunity of a significant period on parole’.[17]
[17]Ibid [48].
Proposed ground of appeal
As mentioned, the applicant seeks leave to appeal against his sentence on a single ground of manifest excess, as follows:
1. The total effective sentence and non-parole period fixed is manifestly excessive.
Particulars:
a.The Learned Sentencing Judge gave insufficient weight to:
i. The applicant’s cooperation with law enforcement agencies.
ii. The applicant’s plea of guilty.
iii. The applicant’s personal circumstances.
iv. That any period of custody would be more onerous upon the applicant.
b.The Learned Sentencing Judge gave excessive weight to:
i. General deterrence; and
ii. Specific deterrence.
c. The sentence imposed is more severe than … was necessary to achieve the purpose for which the sentence was imposed.
Parties’ submissions
The applicant submitted that the sentence imposed was manifestly excessive, and outside the range reasonably available once the applicant’s significant mitigatory factors were properly accounted for. A number of such factors were mentioned. Three in particular were relied upon.
The first factor was the ‘significant cooperation’ the applicant provided to the investigating authorities.[18] This cooperation expedited and facilitated the investigation, and bolstered the case against him. Had he chosen to depart the courier service after the police encountered him, they would have been powerless to arrest him. Instead, he voluntarily led the police, almost immediately, to a body of incriminating evidence and so brought on his own arrest.
[18]Crimes Act 1914 (Cth) s 16A(2)(h).
Although the applicant’s proposed ground is a manifest excess ground, embedded in it is a parity complaint. It was said that, having cooperated to the extent he did (when Tan did not cooperate at all), the disparity between his and Tan’s sentences was not reasonably open, even accounting for the relevant differences in their roles and the quantities of heroin for which they were sentenced.
Secondly, the applicant referred to his guilty plea. It was said that the judge insufficiently accounted for his plea, which ought to have carried added weight given pandemic–related delays. In respect of this factor too, there was an embedded parity complaint, in that it was said that the judge unfairly characterised Tan’s guilty plea as ‘earlier’ than that of the applicant even though each guilty plea had come at the same stage of their respective proceedings.
The third factor was the inevitability of the applicant’s deportation. It was said that the judge unduly minimised this factor, and the significance of the applicant’s loss of the opportunity to settle permanently in Australia.
Finally, reliance was placed on what was said to be a comparable sentence imposed in New South Wales in R v Tran.[19] There, three co-offenders who pleaded guilty to similar offending to that of the applicant, in respect of a slightly lesser quantity of heroin, were each sentenced to terms of imprisonment some years less than the term imposed on the applicant.
[19][2013] NSWCCA 136 (‘Tran’).
The respondent contended that the sentence was within the permissible range and that the mitigatory factors pointed to by the applicant were each referred to and adequately accounted for by the judge. This could be seen, in particular, by the imposition of a non-parole period which could properly be described as ‘lenient’.
It was said that the judge expressly took the applicant’s cooperation into account in sentencing. But his cooperation was not the only source of evidence against him, and while it was facilitative of his apprehension and arrest, it could not be said that his offending would not have been discovered without it.[20] Further, his cooperation was not absolute: as the judge recorded, his record of interview contained a mixture of admissions and obfuscation.
[20]Cf R v Doran [2005] VSCA 271.
Further, it was said that the applicant’s cooperation (which was a factor in his favour but not Tan’s) did not mean that the disparity between his and Tan’s sentences was not reasonably open. The parity principle was expressly, and thoughtfully, considered by the judge, and the difference between the sentences was open because:
(a) the applicant’s offending involved a level of agency, coordination and responsibility, whereas Tan was a ‘mere courier’ or ‘collector’;
(b) the applicant was sentenced in respect of ten packages and 8.3 kilograms of heroin, as opposed to three packages and 2.5 kilograms in Tan’s case;
(c) the judge found the applicant’s level of recklessness to be of a ‘high order’, a finding not made in respect of Tan; and
(d) the applicant indicated his intention to plead guilty 15 months after committal, whereas Tan was sentenced 4 months after committal.
Finally, the respondent submitted that the sentences in Tran reflected the fact that those offenders were all 20 years old and each had different roles. The sentence of 9 years’ imprisonment imposed on the offender Nguyen in that case was said to be most relevant because his role was roughly equivalent to that of the applicant.
Consideration
There is no doubt that this was serious offending and that the applicant’s moral culpability was high. It is trite that illegal drug offending of this kind demands general deterrence and public denunciation, consistently with the fact that Parliament has fixed a maximum penalty of life imprisonment.[21] At the same time, the kinds of conduct which can be engaged in as part of the offences of possessing (or importing) border controlled drugs vary widely, ranging from minor spontaneous assistance to careful execution and oversight of a sophisticated organisational plan. Of course, the weight of drugs (and its relation to the commercial quantity) involved may also vary considerably. Here the applicant’s involvement was significant, rather than at the lower level, but he was not a key figure in the operation, as his expected financial gain revealed. The quantity of drugs involved, while well above the commercial quantity threshold, was much less than in some other cases.
[21]Schanker v the Queen [2018] VSCA 94, [229] (Tate and McLeish JJA and Kidd AJA) (‘Schanker’).
The applicant was able to call in aid his cooperation with authorities. While it was accompanied by lies and evasion, he was sentenced on the basis that the cooperation was of significant assistance. The other mitigatory features of the case were unremarkable in cases of this kind but still carried weight, including the plea of guilty, the likelihood of deportation and the applicant’s remorse and good prospects of rehabilitation.
The offending in this case was neither at the lower nor the higher end of seriousness for the offence, in terms of the level of involvement of the applicant and the quantity of drugs involved. The applicant had significant factors in mitigation to which he could point. It is helpful in that context to have regard to any established sentencing practice for the offence.
There has been said to be some difficulty in identifying an established pattern of sentences for the specific offence of possession of a border controlled drug, necessitating consideration also of sentences for importing a border controlled drug, which involves very similar conduct and carries the same maximum penalty.[22] In that context, the prosecutor drew the judge’s attention to three cases, namely Tran (already mentioned), Kev v The Queen[23] and Obiekwe v The Queen.[24]
[22]Ibid [224] (Tate and McLeish JJA and Kidd AJA).
[23][2015] VSCA 232 (‘Kev’).
[24][2018] NSWCCA 55 (‘Obiekwe’).
Tran involved the importation of 6.25 kilograms of heroin (about four times the commercial quantity). Of the three offenders in Tran, the closest to the present case was Nguyen. He had important organisational and recruiting roles. His 9 year sentence was described on appeal as ‘lenient’.[25] He had the considerable advantage of youth, being 20 years old when he offended.
[25]Tran [2013] NSWCCA 136, [50] (Fullerton J, Macfarlan JA agreeing at [1], Adamson J agreeing at [54]).
Kev involved two offenders who were sentenced to 14 years and 9 months’ imprisonment after a trial, which is similar to the sentence the judge would have imposed on the applicant had he not pleaded guilty. Kev involved importation of a larger quantity of heroin, 12.36 kilograms (or about eight times the commercial quantity). Both offenders had trusted and significant roles in the wider organisation.
In Obiekwe, a 12 year sentence was imposed, after a guilty plea, for importing 17.43 kilograms (or 23 times the commercial quantity) of methamphetamine. Obiekwe was solely in charge of getting the imported consignment to the delivery address once it arrived in Australia; this had involved multiple communications and arrangements including the recruitment of a person to accept delivery.
If these decisions encapsulated established sentencing practices for possessing a commercial quantity of a border controlled drug, it would be impossible to say that the applicant’s sentence was out of step with those practices; at most, the sentences in Kev and especially Obiekwe might to be said to be somewhat more lenient than that imposed on the applicant. However, consideration of other cases tends to suggest that the manifest excess argument may have substance.
In Udunna v The Queen,[26] a sentence of 10 years was imposed after a trial on a charge of aiding and abetting an attempt to possess 142 kilograms of methamphetamine (about 228 times the commercial quantity). Udunna had an important role as a trusted aide to a key figure in the importation. This enterprise was on a very significant scale, involving numerous participants. The offending spanned six weeks. The very large quantity of drugs involved and the not guilty plea serve to further distinguish the case.
[26][2020] NSWCCA 304.
In Hoang v The Queen,[27] a 9 year sentence was imposed on the 20 year old principal in a criminal enterprise who stood to make a substantial profit from attempting to possess 3.375 kilograms of cocaine (about one-and-a-half times the commercial quantity). Although Hoang had the benefit of youth, and the quantity of drugs involved was lower, his role was considerably more significant than that of the present applicant.
[27][2018] VSCA 86.
Lau v The Queen,[28] which was a parity appeal, saw a ‘crucial’ but ‘low level’ offender who attempted to possess 102 kilograms of heroin resentenced to 10 years’ imprisonment after a trial. The not guilty plea and quantity of drugs involved sit uncomfortably with the present sentence, albeit that the result was necessarily influenced substantially by the co-offender’s sentence (Lau’s sentence at trial had been 11 years’ imprisonment).[29]
[28][2014] NSWCCA 179.
[29]See Lau [2014] NSWCCA 179, [124] (Hoeben CJ at CL, Harrison J and McCallum J agreeing at [130] and [131]).
Similarly, in Dao v The Queen,[30] a low level involvement in an attempt to possess 22.3 kilograms of methamphetamine (about 29 times the commercial quantity) attracted a 10 year sentence, this time after a guilty plea. Again the quantity of drugs in Dao was significantly greater than that in the present case.
[30][2011] NSWCCA 183.
Finally, Luong v Director of Public Prosecutions (Cth)[31] concerned three charges of attempting to possess border controlled drugs, namely 21.8 kilograms of methamphetamine (29 times the commercial quantity), 6.3 kilograms of MDMA (12 times) and 29.1 kilograms of cocaine (14 times). A sentence of 15 years’ imprisonment was imposed after a trial and upheld on appeal, again only a little longer than the sentence the judge would have imposed on the applicant had he not pleaded guilty. Luong concerned ‘not insignificant’ involvement in offending on a ‘massive’ scale.[32]
[31](2013) 46 VR 780.
[32]Ibid 803 [120], 807 [142] (Williams AJA, Redlich JA agreeing at 781 [2], Coghlan JA agreeing at 802 [109]).
This necessarily brief review, which extends to decisions which the sentencing judge did not have drawn to his attention, suffices to suggest that it is reasonably arguable that the sentence imposed in this case was inconsistent with current sentencing practices for the offence of attempting to possess a border controlled drug.[33] Although only one factor bearing on sentence, this gives rise to the possibility that something went wrong in the exercise of the sentencing discretion, so as to make the sentence manifestly excessive. That is especially so given the significant assistance the applicant was found to have given the authorities. Leave to appeal should be granted to enable these matters to be fully explored.
[33]See also DPP (Cth) v Thomas (2016) 53 VR 546, 612–14 [192]–[199] and the cases cited there and at 627–30 [260]–[270] (Redlich, Santamaria and McLeish JJA); and R v Franze [2013] VSC 421, Beqiri v The Queen (2017) 270 A Crim R 523; [2017] VSCA 112, Saab v The Queen [2012] VSCA 165 and Banker v The Queen [2016] QCA 74, discussed in Schanker [2018] VSCA 94, [216]–[220] (Tate and McLeish JJA and Kidd AJA).
In the circumstances, it is not necessary to evaluate the merits of the applicant’s parity argument, which forms part of the manifest excess ground. Along with the identification and evaluation of any relevant current sentencing practices, that will form a relevant issue at the hearing of the appeal.
- - -
15
0