Koh v R
[2013] NSWCCA 287
•22 November 2013
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Koh v R [2013] NSWCCA 287 Hearing dates: 25 October 2013 Decision date: 22 November 2013 Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Latham J at [145]Decision: Application for extension of time to appeal against sentence refused
Catchwords: CRIMINAL LAW - appeal - sentence - application for extension of time to appeal - Applicant sentenced in June 2011 - alleged Muldrock error - knowingly taking part in supply of large commercial quantity of prohibited drug - 2,272.612 kilograms of 100% pure MDP2P - more than 4,000 times large commercial quantity - capable of providing 2,454 kilograms of pure MDMA - total street value about $500 million - Applicant travels to Australia to perform range of activities related to offence - Muldrock error not demonstrated - no error in assessment of objective seriousness - sentence not manifestly excessive - lesser sentence not warranted in any event - no merit in proposed grounds of appeal - extension of time to appeal refused Legislation Cited: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Prisoners (Interstate Transfer) Act 1983 (Vic)Cases Cited: Abdul v R [2013] NSWCCA 247
Bolt v R [2012] NSWCCA 50
George v R [2013] NSWCCA 263
Magaming v The Queen [2013] HCA 40; 87 ALJR 1060
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Nguyen v R; Phommalysack v R [2011] VSCA 32; 31 VR 673
Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505
R v Koh [2007] VCC 1484
R v Li [2008] VCC 901
R v Nguyen [2010] NSWCCA 238; 205 A Crim R 106
R v Niketic [2002] NSWCCA 425
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Weininger v The Queen [2003] HCA 14; 212 CLR 629
Wong v The Queen [2001] HCA 64; 207 CLR 584Texts Cited: --- Category: Principal judgment Parties: Keng Chuan Koh (Applicant)
Regina (Respondent)Representation: Counsel:
Ms BJ Rigg (Applicant)
Ms M Cinque (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2010/23722 Publication restriction: --- Decision under appeal
- Citation:
- ---
- Date of Decision:
- 2011-06-10 00:00:00
- Before:
- Her Honour Judge Woodburne SC
- File Number(s):
- 2010/23722
Judgment
HOEBEN CJ at CL: I agree with Johnson J.
JOHNSON J: The Applicant, Keng Chuan Koh, applies for an extension of time to seek leave to appeal against sentence imposed in the Sydney District Court on 10 June 2011.
The Applicant pleaded guilty to an offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug contrary to s.25(2) and s.33 Drug Misuse and Trafficking Act 1985 ("DMT Act"), for which the maximum penalty is life imprisonment and a standard non-parole period of 15 years has been set.
The offence involved 2,272.612 kilograms of 3, 4 - Methylenedioxy-phenyl-2-propanone ("MDP2P"), a prohibited drug. The large commercial quantity for this prohibited drug is 500 grams. Accordingly, the Applicant's offence involved a quantity more than 4,000 times the large commercial quantity.
The Applicant was sentenced to imprisonment comprising a non-parole period of 11 years and 10 months commencing on 18 December 2008 and expiring on 17 October 2020, with a balance of term of four years and eight months commencing on 18 October 2020 and expiring on 17 June 2025.
The Present Application
The Applicant did not file a Notice of Application for Extension of Time to Seek Leave to Appeal against sentence until 10 July 2013, some two years and one month after sentence had been passed.
The evidence adduced for the Applicant before this Court indicates that he had not sought previously to appeal against sentence, and that (according to the Applicant's affidavit sworn 21 September 2013) he "was expecting a non-parole period of 15 years as that was the standard non-parole period".
As part of a review process undertaken within Legal Aid NSW in light of the decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 ("Muldrock"), the Applicant received advice in May 2013 that he had reasonable prospects on an appeal, leading to the filing of the present application on 10 July 2013.
The Applicant seeks to rely upon the following grounds of appeal:
(a) Ground 1 - her Honour erred in the way the applicable standard non-parole period was taken into account;
(b) Ground 2 - it was not open to her Honour to assess the offence as "slightly above the mid range of objective seriousness";
(c) Ground 3 - the sentence is manifestly excessive.
It is clear from the evidence that the trigger for this application is the decision of the High Court in Muldrock. Ground 1 asserts Muldrock error. The concept of Muldrock error was considered in Abdul v R [2013] NSWCCA 247 at [19]-[28].
The only available explanation for an application long out of time, based upon Grounds 2 and 3, is that these grounds are themselves related in some way to the ground asserting Muldrock error.
In Abdul v R at [42]-[53], the Court considered the principles to be applied where an extension of time is sought to appeal in a case such as this. This approach will be followed in determining the present application.
Sentence Imposed in Victoria for a Related Offence and Return to New South Wales
The Applicant's offence in New South Wales was committed in December 2006.
The Applicant was arrested in Victoria on 18 December 2006, in circumstances to be described shortly in this judgment.
The Applicant pleaded guilty under Victorian law to a charge of trafficking a commercial quantity of a drug of dependence (385 kilograms of a precursor to producing MDMA). On 12 November 2007, he was sentenced in the Victorian County Court to imprisonment for a term of six years, with a non-parole period of four years commencing on 18 December 2006: R v Koh [2007] VCC 1484.
A co-offender, Patrick Li ("Li") was also sentenced to a term of imprisonment in Victoria, involving a term of six years and six months' imprisonment, with a non-parole period of four years and six months commencing on 18 December 2006: R v Li [2008] VCC 901.
On 12 November 2009, the Applicant and Li were transferred into the custody of the NSW Department of Corrective Services pursuant to s.15 Prisoners (Interstate Transfer) Act 1983 (Vic).
On 27 January 2010, the Applicant and Li were charged with offences in New South Wales.
The Applicant was sentenced by her Honour Judge Woodburne SC on 10 June 2011.
On 10 August 2012, Li was sentenced by the same Judge for a similar offence to the Applicant. Li was sentenced to imprisonment comprising a non-parole period of 12 years and three months commencing on 18 March 2009 and expiring on 17 June 2021, with a balance of term of seven years and three months commencing on 18 June 2021 and expiring on 17 September 2028.
The Court was informed that Li has applied to this Court for leave to appeal against his sentence.
Facts of the Offence
An Agreed Statement of Facts was tendered at the sentencing hearing. The Applicant did not give evidence at that hearing.
The Applicant (then aged 27 years) departed Malaysia by air on 10 December 2006 and arrived in Australia on 11 December 2006. He was a Singaporean national who had been residing in Malaysia. The Applicant came to Australia for the purpose of performing functions which gave rise to his liability for very serious crimes in New South Wales and Victoria.
Li (who was aged 50 years in 2006) was born in the Peoples Republic of China and migrated to Australia with his family in 1989.
Arrest of the Applicant and Li in Victoria
Although events in Victoria occurred after the Applicant's arrival in Sydney and the commission of the New South Wales offence, it is appropriate to start with the arrest in Victoria. This event led the authorities to investigate the Applicant's movements and actions in New South Wales, which constituted the offence now before this Court.
At around 5.10 pm on Monday, 18 December 2006, police observed Li and the Applicant near a white Toyota Hi Ace van bearing New South Wales registration plates, that was stopped near the intersection of Melbourne Road and Victoria Street, North Geelong.
A white Toyota Camry sedan, also with New South Wales registration plates, was parked a short distance away. As police approached, Li looked in their direction before walking away from the van back towards the Toyota Camry. Police approached the Applicant and had a brief conversation with him. During this time, Li was looking back towards the Applicant through his rear-vision mirror. Police then approached Li and he tried to drive away. Police asked him to stop the vehicle, which he did.
Police then spoke to the Applicant and Li. Li told police that he had never seen the Applicant before and denied that he had been speaking with him moments earlier. Li told police that he had helped the Applicant push the van off the road as it had broken down.
A search of the van by police located 12 cardboard boxes in the rear. The boxes had Chinese symbols on their sides. When the van was opened, police could smell a strong chemical odour. Inside these boxes were 68 plastic containers, each of which contained about five litres of liquid. In response to an enquiry from police, the Applicant stated that the substance was "massage oil".
Also located in the rear of the van was a blue suitcase containing $2,700.00 in cash. In the glove box section of the van, police located an Avis rental agreement for the vehicle in the name of the Applicant. The van had been hired in Sydney on 16 December 2006 and was due to be returned on 21 December 2006. The Toyota Camry had been hired in Li's name on 17 December 2006 and was due to be returned on 20 December 2006.
The liquid found in the containers in the van was later analysed and found to be 385 kilograms of MDP2P, the principal precursor to the manufacture of MDMA. There is no legitimate household or industrial use for MDP2P.
The Applicant and Li were arrested and taken into custody by Victorian police.
The Applicant and Li participated in recorded interviews with police. The Applicant stated (in a clearly false account), amongst other things, that he had come to Australia for a holiday, that he did not know Li (who helped him as the vehicle had broken down), that he had met a person called "Assan" at Ashfield who asked whether he was interested in delivering something to Geelong and that the $2,700.00 cash found in the suitcase belonged to him.
The facts set out above constitute the offence for which the Applicant was sentenced in the Victorian County Court on 12 November 2007. The circumstances of that offence are related to the New South Wales offence now before this Court.
Police Search Li's Residence At Padstow
Following the arrest in Victoria of the Applicant and Li, New South Wales Police searched (under warrant) Li's residential premises at Padstow, on 19 December 2006. Li's wife and children were present at the time of the search.
The address was part of a townhouse complex with an attached garage. The garage was divided into two separate sections by a false plasterboard wall. As the garage door was opening, police noticed a strong chemical smell. The smell was consistent with Safrole, or an analogous chemical. Safrole and its analogous chemical derivatives are precursors used in the manufacture of amphetamine-type substances, including 3, 4-Methylenedioxymethylamphetamine (MDMA or Ecstasy).
Police Locate Drugs at Castle Hill
Police received information about a factory unit (Unit E15) at a complex at 2A Victoria Avenue, Castle Hill. On the evening of Wednesday, 3 January 2007, police searched (under warrant) Unit E15. That unit was 9.1 metres wide and 12 metres deep.
Once inside the unit (after opening various locks), police immediately detected a strong pungent odour. Inside the premises were 35 large cardboard boxes and 35 plastic tubs. The boxes each contained six plastic containers, with around five litres of liquid inside each container. In total, there were 175 containers in the boxes. A total of 386 plastic containers, of five-litre capacity containing liquid, were located in Unit E15.
The liquid from the containers was analysed and found to contain 2,272.612 kilograms of 100% pure MDP2P. A forensic chemist estimated that the total amount of MDMA that could have been made, from this amount of MDP2P, was about 2,454 kilograms of pure MDMA powder. The total street value of that amount of MDMA was estimated, conservatively, at approximately $500 million.
The cardboard boxes found within Unit E15 had the same Chinese character markings on their exterior as the cardboard boxes that were found in the rear of the van driven by the Applicant in Victoria. The plastic five-litre containers were also the same, with identical exterior markings and characters.
Some Actions of the Applicant in New South Wales
The Agreed Statement of Facts revealed that the Applicant took a number of steps following his arrival in Australia on 11 December 2006.
The Applicant met Li soon after his arrival in Australia.
At around 2.26 pm on 11 December 2006, the Applicant and Li went to the office of the Department of Fair Trading at Hurstville. Their movements were captured on CCTV between 2.26 pm and 2.55 pm. The Applicant and Li jointly entered certain details on a business registration form and registered the business name "Glory Trading Company". Li obtained the registration form and both men sat together. The Applicant completed the details on the form, with Li watching closely and apparently assisting him.
At about 2.53 pm, both men went to the service counter, where they were served by a staff member and registration of the business name was effected on computer. Li paid the sum of $137.00 for the registration.
The business name "Glory Trading Company" was registered in the name of the Applicant. The address given as the business address, 233 Canterbury Road, Canterbury, had no connection to the Applicant or Li.
The Applicant provided a personal address of 68 Liverpool Road, Ashfield. This address had no connection with the Applicant or Li, although it was a short distance from the Ashfield Motor Inn at 63 Liverpool Road Ashfield, where the Applicant was staying.
The business name registration form was signed by the Applicant, with his position being described as "Director".
The Applicant checked into the Ashfield Motor Inn on 11 December 2006. He gave the name "Alvin Koh Keng Chuan" and provided a Singapore address. The Applicant paid $595.00 cash. He stayed at the Ashfield Motor Inn up to and including the night of 17 December 2006, checking out on 18 December 2006, before the commencement of the journey to Victoria.
On 12 December 2006, the Applicant and Li attended the factory unit complex at 2A Victoria Avenue, Castle Hill. Those premises comprised 85 units, which were rented from month to month with no bond. The complex was advertised at the time in local newspapers and in the "Trading Post" as being "small factory units for rent, short or long term, monthly tenancy agreements, no bond and no lease".
Upon arrival at the Castle Hill premises, the Applicant and Li met a Mr Hoyle, the property manager for the complex. The three men walked into Unit E15. According to Mr Hoyle, Li did all the talking and asked about the cost, before agreeing to lease the unit. Li paid Mr Hoyle $2,100.00 in cash, and said that he wanted the key to Unit E15 on 15 December 2006.
On 15 December 2006, Mr Hoyle received a telephone call from Li and the two men met at Unit E15. The Applicant was not present on this occasion. Mr Hoyle explained to Li the process for locking and unlocking Unit E15 and he provided Li with a key for the slide-bolt lock. Mr Hoyle asked Li for a name and number and Li handed him a piece of paper that said "James KOH, Glory Trading", which contained a mobile phone number. The phone number was the same as that inserted in the business name registration application lodged on 11 December 2006 for "Glory Trading Company".
The key to Unit E15 handed to Li on 15 December 2006, was the only key to that unit.
At around 9.00 am on 16 December 2006, the Toyota Hi Ace van (used for the Victorian run) was rented from the Ashfield office of Avis car rentals. This location was a short distance from the Ashfield Motor Inn, where the Applicant had been residing. The vehicle was rented in the Applicant's name. The van was due to be returned to the same office on 21 December 2006.
At about 6.15 pm on 17 December 2006, the Toyota Camry (also used for the Victorian run) was rented from the Sydney Airport office of Avis car rentals. The vehicle was rented in Li's name. The vehicle was due to be returned to the same office on 20 December 2006.
A Container Arrives at Unit E15
Police canvassed persons in the area surrounding the Castle Hill factory unit complex, with a view to obtaining evidence concerning the movement of material in and out of Unit E15. Information received from a number of persons did not permit precise times to be identified for a number of observed movements.
However, it seems clear that what was observed by these persons occurred in the days after the key to Unit E15 was provided to Li on 15 December 2006.
A Mr Matchett worked at a factory unit opposite Unit E15. He saw a red shipping container arrive "around the second last week that we finished up for the Christmas break" (a date around 18 December 2006). Mr Matchett observed some tape or rope around poles outside Unit E15 and, at a later time, a red shipping container with three Asian males unloading cardboard boxes from it. Mr Matchett could not identify from photographs either the Applicant or Li as being any of these three men.
A Mr Davies was the manager of a business in the Castle Hill complex. He observed a shipping container and two Asian males (and possibly three others) unloading the container. He did not pay much attention to these males and could not say how old they were.
A Mr Hanley attended the Castle Hill complex at different times in December 2006. He recalled at one point seeing an area marked out with a sign "No Parking Shipping Container Due Soon", with a shipping container thereafter appearing at the location.
A Mr Vergara attended the Castle Hill complex in December 2006. During one of those visits, he noticed a sign requesting no parking as a shipping container was to arrive. On another occasion, he saw a large red shipping container arrive and he watched it being unloaded. He saw an Asian male talking on a mobile telephone. The boxes were being taken from the container into Unit E15. Later, Mr Vergara saw two Asian males arrive and they started to empty the container using a trolley. They were stacking the boxes in Unit E15. Later the same day, he noticed that Unit E15 was closed and, a few days later, he noticed that the container was no longer there.
Police conducted identification procedures with all witnesses who made observations at the Castle Hill complex, but none were able to identify the Applicant or Li as being persons observed at the premises.
Investigations of Telephone Usage
Investigations were undertaken with respect to the mobile telephone located on the Applicant upon his arrest in Victoria on 18 December 2006. Call charge records revealed:
(a) the service was active in the early afternoon of 17 December 2006, and could be tracked intermittently running through various locations close to the Castle Hill factory unit complex;
(b) at about 9.11 pm on 17 December 2006, the service was at Picnic Point (a short distance from Li's home at Padstow);
(c) between 5.48 am and 5.19 pm on Monday, 18 December 2006, the service was active and was moving south from Sydney to Geelong in Victoria.
Further Investigations After Arrest of Applicant and Li on 18 December 2006
On 18 December 2006, the Applicant and Li drove from Sydney to Geelong, Victoria in the Avis rented Toyota Hi Ace van and Toyota Camry. The two men were captured together on CCTV at service stations in Albury and Euroa in the course of this journey.
Upon the arrest of the Applicant and Li in Victoria on 18 December 2006, a key was located in the Toyota Camry, with that key being the key to the padlock that secured the roller door of Unit E15.
The quantity of 385 kilograms of MDP2P located in the Toyota Hi Ace van was a sample taken from the larger quantity of prohibited drug stored in Unit E15.
Interviews were sought to be conducted with the Applicant and Li in October 2007 concerning the New South Wales offences. During his interview, the Applicant refused to comment in relation to his connection with Li and in relation to the MDP2P. Li listened to the allegations, but refused to comment.
Following the transfer of both the Applicant and Li from Victoria to New South Wales in November 2009, both men were charged with the New South Wales matters.
Applicant's Interview with Police on 27 January 2010
On 27 January 2010, the Applicant participated in a recorded interview with police. In the course of this interview, the Applicant said, amongst other things:
(a) he registered a business, hired a van and drove to Victoria;
(b) he did all of this on the instructions of a male in Malaysia and Li;
(c) one phone was given to him in Malaysia and another by Li;
(d) he went to Unit E15 once only;
(e) he was asked to come to Australia by a man in Malaysia to be a driver, and he did not know the details of what this would involve;
(f) he came with $3,000.00-$4,000.00 that he was given by his mother-in-law;
(g) Li asked him to register the business name, and gave him a piece of paper with the details on it that he transferred on to the form;
(h) if he knew his role was to drive drugs, he still would have agreed, but he did not know this;
(i) he needed money for his wife, who was sick with ovarian cancer;
(j) Unit E15 was rented in his name and was empty on 12 December 2006;
(k) he said he was "only a worker" who was "only taking instructions from someone"';
(l) before he and Li left for Victoria, the drugs were already in the rear of the van;
(m) he never knew what the drugs in the back of the van looked like, but he smelt it and "knew something was wrong, and a really serious matter";
(n) he "knew it wasn't massage oil";
(o) the smell was a "chemical smell";
(p) Li gave him SIM cards which he used;
(q) he followed instructions from Li as he was driving.
Some General Admissions by the Applicant
The Agreed Statement of Facts, which was signed by the Applicant, concluded in the following way (AB57-58):
"It is agreed that LI and KOH knowingly took part in the supply of a large commercial quantity of MDP2P by organising and providing the factory unit E15 knowing that those premises would be used to store MDP2P and in contemplation that the MDP2P would be supplied by someone in the syndicate.
The Crown concedes that it can not prove beyond reasonable doubt that LI or KOH knew the precise quantity of MDP2P that would be stored at E15, however it is agreed that they both knew that it was to be a substantial and significant quantity, well in excess of the large commercial quantity prescribed for that drug. It is agreed that they both knew the size of E15 and that it would only be used by the syndicate to store the MDP2P. They both knew that large premises were required because the quantity of drug to be stored there was substantial and bulky. LI and KOH have both entered pleas and been convicted in relation to trafficking 385kg of MDP2P in Victoria. It is agreed that the drug in Victoria was a sample taken from the larger quantity at E15.
The Crown concedes that it can not prove beyond reasonable doubt that LI and KOH were the only participants to this criminal enterprise and that the drug in E15 could have been accessible to others".
The Applicant's Subjective Circumstances
The Applicant's subjective case on sentence was to be found in an affidavit of the Applicant sworn 21 April 2011 (which addressed his custodial experiences and their consequences only), a letter dated 16 April 2011 from the Applicant's younger brother and a report of Mr Mark Howard, psychologist, dated 11 March 2011.
The Applicant did not give oral evidence at the sentencing hearing. Accordingly, the Applicant gave no sworn account of his role in the enterprise at both the Malaysian and Australian ends of the operation.
The sentencing Judge noted that the Applicant was 27 years of age at the time of the offence and 31 years of age at the time of sentence. He is now 33 years of age.
Based on the material tendered on sentence, her Honour accepted the personal history contained in the psychological report. The Applicant had worked as a car salesman and debt collector. He has a record of previous convictions in Singapore as a child and young man, with these offences said to be attributable to early association with local gang members engaged in conflict with opposing groups.
The Applicant had discontinued his education at the age of 12 and he then worked in a coffee shop run by his grandparents.
The Applicant had married in 2005. The Applicant and his wife moved from Singapore to Malaysia in late 2005 after (according to the Applicant), a warrant had issued for his arrest in Singapore after he assaulted a man who had allegedly sexually assaulted or harassed his wife.
The Applicant had no history of drug or alcohol abuse and, whilst he did gamble on occasions in Singapore, he denied any history of compulsive gambling.
The Applicant's wife was said to have filed for divorce in 2009 following his imprisonment in Australia, and he had no further contact with her. The Applicant's remaining family (his father and two brothers) live in Singapore and he had not seen them since his arrest in December 2006. The Applicant has telephone contact, from time to time, with his family.
The evidence before the sentencing Judge indicated that the Applicant had held a number of jobs in custody in Victoria and New South Wales, in which he demonstrated a good work ethic. The Applicant had participated in courses and obtained TAFE certificates in asset maintenance, cleaning operations and in hospitality.
The sentencing Judge accepted the Applicant's expression of remorse.
Her Honour observed that the Applicant's prospects of rehabilitation must be guarded, with those prospects being linked to opportunities to obtain employment upon release.
A discount "in the order of 25%" was allowed for the Applicant's plea of guilty. Apart from the utilitarian value of the early plea, the sentencing Judge accepted that it constituted evidence of contrition (ROS37).
Findings of the Sentencing Judge Concerning the Objective Seriousness of the Offence and the Relevance of the Standard Non-Parole Period
Each of the grounds of appeal raise, in one way or another, findings made by the sentencing Judge concerning the objective seriousness of the offence. It is appropriate to set out a number of these findings, before moving to consider the challenges made to the sentence.
Her Honour observed that, in assessing the objective seriousness of the offence, "one material factor but by no means the determinative factor" was the quantity of drug involved (ROS25). Located inside Unit E15 was 2,272.612 kilograms of 100% pure MDP2P, a quantity which her Honour observed "can only be described as staggering" (ROS25). The amount involved was more than 4,000 times the large commercial quantity of 500 grams.
The sentencing Judge noted with respect to the quantity, potential profit and likely harm involved (ROS26):
"A forensic chemist has estimated that the total amount of MDMA that could be made from this amount of MDP2P is about 2454 kilograms of pure MDMA powder. The total street value of that amount of MDMA is conservatively estimated at approximately $500 million. The extent of the legal profit potentially involved was enormous. The potential harm to the community by the distribution of MDMA had it been manufactured would have been correspondingly significant. It is fortunate that police recovered the drug before that could happen.
A matter to be taken into account is the fact that the Crown has conceded that it cannot prove beyond reasonable doubt that the offender knew the precise quantity of MDP2P that would be stored in E15. However it has to be recognised that the purpose of renting the premises of the size of E15 was to accommodate a substantial and bulky quantity of drugs."
Her Honour noted the competing submissions concerning the role of the Applicant (ROS26-27):
"A significant factor in the determination of the objective seriousness of the matter is the role of the offender and his level of participation in the offence. On behalf of the Crown it has been contended that the offender could not be described as a mere 'warehouser' of the drugs and that although he was by no means on the available evidence to be regarded as at or near the top of the hierarchy in this syndicate run organisation he was further up than a mere warehouser. On behalf of the offender it is submitted that the offender was at the lowest level of the drug hierarchy, indeed the offender was not even a warehouser of drugs because it was Li and not the offender who retained the key, and there is no proof that Koh went back to the premises after they were rented from Mr Hoyle."
Submissions were made by the Crown and the Applicant in the District Court concerning the relevance and use of the Victorian sentence imposed on 12 November 2007. It was common ground that the Victorian and New South Wales offences were overlapping, so that a degree of concurrency was appropriate with regard to be had, as well, to totality.
The sentencing Judge assessed the role and participation of the Applicant in the offence in the following way (ROS28-30):
"It seems to me that in assessing the role of the offender and his level of participation in the offence it is necessary to pay close attention as to what it can be proved the offender actually did. In that regard the evidence establishes the following:
· The offender arrived in Australia on 11 December 2006. That afternoon he and Li went to the Department of Fair Trading at Hurstville where Koh, with Li assisting, filled out a business registration form in the name of Glory Trading Company. The application was made in Koh's name and signed by him as Director of the Glory Trading Company. Incorrect addresses were supplied. A mobile number was supplied. A phone utilising that number was located in the Camry in which Li had driven to Victoria. It was Li and not Koh who paid the $137.00 registration fee. It can be inferred that the purpose of the registration of the business name was to feign legitimacy to the lessor of the factory premises which were intended to be used to store the prohibited drugs.
· On 12 December 2006 the offender Koh, together with Li, organised and provided the factory unit in which the drugs were subsequently stored. In that regard it was Li who rang Mr Hoyle and inquired about the size and costs of the factory units. Shortly after the offender and Li attended the factory unit of E15 where Li spoke with Mr Hoyle about rental of the 9.1 metre wide and 12 metre deep factory unit. It was Mr Li who paid Mr Hoyle $2100 in cash for the rental. The key for the unit was collected by Li on 15 December 2006 when Li handed over to Mr Hoyle a piece of paper containing the business name Glory Trading Company, the name James Koh and the mobile number which was the same number that had been placed on the business registration form and which was used by a phone found in the Camry in which Li was driving on 18 December 2006. There is no evidence that Koh was present on the occasion of the 15th.
· It appears that the red shipping container containing the drugs was delivered after the 15 December with one witness placing the delivery on or about the 18 December 2006, that is the day that Koh and Li travelled to Victoria. Although a number of Asian males were seen unloading the boxes from the container and standing near a van there is no evidence identifying Koh as one of those men. There is no evidence then that Koh attended the factory unit after he participated in organising the rental of it on 12 December 2006.
It is apparent from that statement of what the offender did that his was an integral part in the registration of the business name and the organising and providing of the premises. As the agreed facts state he participated knowing that those premises would be used to store MDP2P and in contemplation that the MDP2P would be supplied by someone in the syndicate. The participation in the subject offence was limited to a period extending over a matter of days. It is apparent from the description of the events that Li played a superior role to that of Koh for it appears to have been with his assistance and at his direction that the business registration form was filled out. It was Li who paid for that registration, it was Li who spoke to Mr Hoyle and it was Li who went back to the storage premises to obtain the key for the unit. It was Li who provided Mr Koh's name to Mr Hoyle."
The sentencing Judge recorded the Applicant's account concerning his participation in the offence, including the statement that there was a need to finance the treatment of his wife's progressive ovarian cancer.
Her Honour referred to an aspect of Mr Howard's report, and then continued with respect to the Applicant's account (ROS31-32):
"Accepting Mr Howard's assessment as to Mr Koh's deficits in abstract problem solving and reasoning that are often associated with below average intelligence, there are some difficulties in assessing the veracity of the account given by the offender concerning his involvement in the offence.
The offender did not provide sworn evidence about his participation. He was not, however, required for cross-examination on his affidavit, although that affidavit did not address those matters which are contained in the record of Mr Howard, which were said to have led to his involvement in the offence. No concrete details of the circumstances leading to the offender's involvement have been placed before me. The offender's brother provided a general reference, again not addressing any particular matter said to relate to the offender's involvement such as to the offender's wife's ovarian cancer."
The sentencing Judge referred to differing accounts provided, at different times, by the Applicant with respect to the amount of money he was to make from the enterprise. The figure given by the Applicant varied from $2,000.00 to $5,000.00, as well as various sums in between those two figures. Having noted the unsatisfactory nature of this aspect, her Honour proceeded to find that the Applicant's motive was clearly a financial one (ROS32-33):
"It is clear however that the offender's motive was a financial one. He was not himself a drug user. It is apparent from the whole of the circumstances that this was a large commercial enterprise involving an enormous amount of drugs, and enormous potential profit. That said, the objectively established facts are silent about the offender's participation above and beyond that of his role set out above. There is no evidence, for example, that he was an entrepreneur who conceived of the enterprise, or that he was to share in the profits of the sale of the precursor, or the sale of any drugs that may have been produced from that precursor."
The sentencing Judge was prepared to accept, as his Honour Judge Kelly had in the Victorian County Court, that the Applicant "was a person who by reason of events in his life, and by reason of his lack of education and intelligence, was vulnerable to being used in the criminal undertaking of others" (ROS33).
Her Honour found that the Applicant "was a subordinate of Li" and that the Applicant "acted at the direction of Li" (ROS34). Her Honour accepted that the Victorian offence confirmed that the Applicant's "participation and role was that of a person at the lower end of the hierarchy of this major criminal enterprise, even though little is known of the structure of that enterprise, and of its participants, including as to the man in Malaysia" (ROS34).
Her Honour then stated, in a paragraph which the Applicant emphasised before this Court (ROS34):
"Taking into account the matters I have set out, particularly the material matter of the enormous quantity of drugs involved, the role and participation of the offender in what was clearly a large commercial enterprise, and those circumstances directly relating to the commission of the offence, I have determined that the offence committed by the offender Koh is one which falls slightly above the mid range of objective seriousness for an offence of knowingly take part in the supply of a large commercial quantity of prohibited drugs."
The sentencing Judge observed that, in the determination of an appropriate sentence, it was necessary to have regard not just to the objective facts surrounding the commission of the offence, but also the personal circumstances of the Applicant, to which her Honour then turned (ROS34-38). Her Honour found special circumstances in the need for an adjustment of the non-parole period in order to accommodate the partial accumulation of the sentence upon that imposed in Victoria, and hardship arising from the Applicant's imprisonment in Australia (ROS38).
Immediately before announcing and imposing the sentence, her Honour said (in paragraphs relied upon by the Applicant in this Court) (ROS39):
"The non parole period which I intend to impose is, I consider, the minimum period of imprisonment that justice requires the offender to serve having regard to all of the circumstances. The effective overall ratio is that which is specifically intended by me. I intend to backdate the commencement of the sentence to allow for that partial accumulation.
As mentioned previously, the standard non parole period in the present circumstances takes its place as a guidepost or reference point, along with other matters such as the maximum penalty. The non parole period which I intend to impose is less than the standard non parole period for a s 25(2) DMTA offence by reason of: the circumstance that the offence is, having regard to those matters I mentioned above, one which is slightly above the mid range of objective seriousness; there was a plea of guilty at the earliest available opportunity; there is contrition, and there is remorse; there is accumulation of sentence."
Should an Extension of Time be Granted in this Case?
Extensive reference has been made to the facts of the offence, the Applicant's subjective circumstances and the remarks on sentence.
Given the nature of the application to extend time, it is appropriate to move to the grounds of appeal in a summary fashion: Abdul v R at [53]. Substantial written submissions were placed before the Court, supplemented by oral submissions at the hearing of the application. It is not necessary to recite the submissions in any detail in this judgment.
Submissions of the Parties
Ms Rigg, counsel for the Applicant, submitted that Muldrock error had occurred in this case. It was not submitted that express error had occurred in the formula of words used by the sentencing Judge. Rather, it was submitted that an examination of the sentence imposed, in the circumstances of the case, ought lead to a conclusion that the standard non-parole period had played a prescriptive or determinative role on sentence. It was submitted that the Court should conclude that it was highly likely that her Honour had utilised the standard non-parole period as a "springboard" from which she delved into the task of balancing the other factors identified: Bolt v R [2012] NSWCCA 50 at [35].
In support of Ground 2, it was submitted for the Applicant that, by reference to what the Applicant actually did, a finding of objective seriousness slightly above the mid-range was unsustainable. It was submitted that, despite the enormity of the quantity involved, the Applicant's involvement did not warrant that finding.
In support of Ground 3, it was submitted that a correct assessment of relevant objective and subjective factors, paying appropriate regard to the maximum penalty and the standard non-parole period as guideposts, would lead the Court to conclude that the sentence imposed upon the Applicant was plainly unjust.
The Crown submitted that Muldrock error had not been demonstrated in this case, and that there was no merit in any of the proposed grounds of appeal so that the application for an extension of time should be refused. The Crown pointed to the massive quantity of prohibited drug involved in the offence and such evidence identifying the actions taken by the Applicant, leading to the imposition of a sentence which was clearly open to the sentencing Judge.
Determination
I am not persuaded that Muldrock error has been demonstrated in this case. The Applicant does not contend that there is patent Muldrock error by reference to the words used by the sentencing Judge in her remarks on sentence. The approach of the sentencing Judge to the standard non-parole period involved permissible use of it as a guidepost on sentence, in a manner consistent with the decision in Muldrock.
The Applicant's submission, in effect, is that latent Muldrock error has occurred. I do not accept this submission. As will be explained further in considering Grounds 2 and 3, the explanation for the substantial sentence imposed upon the Applicant may be found in the enormous quantity of prohibited drug involved, and the Applicant's significant role as a person imported from Malaysia to carry out what were clearly seen to be important tasks.
In George v R [2013] NSWCCA 263, Latham J observed at [50] (with my agreement at [49]) that the detection of Muldrock error is not assisted by calling in aid metaphors such as "springboard". What is necessary is an examination of the substance of what occurred. In this case, an assessment of the magnitude of the Applicant's offence is such that the Court should reject the submission that the standard non-parole period had a prescriptive or determinative role in this case, so as to give rise to Muldrock error.
Grounds 2 and 3 may be considered together.
The maximum penalty and standard non-parole period for an offence are not mere formalities, but represent important yardsticks or guideposts created by the legislature for sentencing courts: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 [30]-[31]; Muldrock at 132 [27], 133 [31]; Magaming v The Queen [2013] HCA 40; 87 ALJR 1060 at 1070 [48].
The DMT Act involves a quantity-based regime, with maximum penalties and standard non-parole periods escalating as the amount of the relevant drug crosses from one quantity-based category into another: Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 at 122 [132].
There is no upper limit beyond the large commercial quantity. That category may be engaged where the quantity just exceeds the limit, or where the offence escalates to involve quantities confined only by the limits upon the capacity of a criminal syndicate to organise drugs for supply for potentially massive profits. The extent to which the quantity exceeds the threshold for the large commercial quantity is a very material consideration in assessing the objective seriousness of an offence: Paxton v R at 122 [131]-[132]; R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505 at 507 [6], 522-523 [69].
With respect to Commonwealth drug importation offences, it has been said that the statements by the High Court of Australia in Wong v The Queen [2001] HCA 64; 207 CLR 584 do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved, where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2010] NSWCCA 238; 205 A Crim R 106 at 127 [72](d) and (e); Nguyen v R; Phommalysack v R [2011] VSCA 32; 31 VR 673 at 676 [2], 681-683 [33]-[34]. The enormous quantity of prohibited drug involved in this case attracts a similar approach.
In the present case, the undisputed fact was that the quantity of the relevant prohibited drug was more than 4,000 times the threshold for the large commercial quantity, rightly described by the sentencing Judge as "staggering". Further, the undisputed fact was that that quantity of MDP2P could have been used to produce 2,454 kilograms of pure MDMA powder, with a conservative street value of $500 million.
These undisputed facts provide a necessary context for an assessment of the gravity of the crime committed by the Applicant, and an assessment of the role which he performed in that respect.
Although the Agreed Statement of Facts pointed to an imprecise knowledge on the part of the Applicant of the actual quantity involved, he was aware that a large factory unit was required to store the prohibited drug. He knew that a very large quantity was involved. The Applicant also knew that the truckload of drugs which he drove to Victoria on 18 December 2006 was a sample taken from Unit E15. The Applicant was also aware that those involved in this criminal enterprise had gone to the trouble of bringing him from Malaysia to Australia, to carry out certain functions associated with the enterprise. Accordingly, the Applicant had a significant appreciation of the scale of the enterprise.
The sentencing Judge was entitled to be very cautious in approaching the Applicant's account as to how he became involved in the enterprise. The Applicant did not give evidence concerning his role in the offence. As the sentencing Judge noted, there were fluctuations in the Applicant's account, in particular with respect to the amount of money which he was to receive for services rendered.
Further, there was no corroboration at all for the Applicant's claim that he was motivated because of a financial need to assist his wife, who suffered from ovarian cancer. The letter from the Applicant's brother tendered on sentence did not assert that this was the case.
The Applicant pleaded guilty to the offence, thereby admitting the elements of the crime. In addition, there was an Agreed Statement of Facts placed before the sentencing Judge. Beyond that, there was the account given by the Applicant to police on different occasions, or to the psychologist who prepared a report for the sentencing proceedings. This material was to be viewed with considerable caution, given the absence of sworn evidence from the Applicant concerning these matters: R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 377 [58]-[59], 380 [79]; R v Niketic [2002] NSWCCA 425 at [4].
The Applicant's first account to police in Victoria in December 2006 was false, including a claim that he was in Australia on holiday and did not know Li. When interviewed in October 2007, the Applicant refused to comment in relation to Li and the MDP2P. His interview in January 2010 occurred against this background of earlier deception and non-disclosure. This alone called for a most guarded approach to the Applicant's unsworn, untested and uncorroborated account.
The subject matter of the sentencing proceedings was such that the statements of the High Court of Australia in The Queen v Olbrich [1999] HCA 54; 199 CLR 270 and Weininger v The Queen [2003] HCA 14; 212 CLR 629 were highly pertinent.
The Applicant's involvement in the offence "had its genesis outside this country" so that it may not be possible to say, with any certainty, what exactly was done or intended by the Applicant as a person apprehended in Australia, having come to this country for the purpose of involvement in the crime: The Queen v Olbrich at 278 [16].
In the absence of a sworn and complete account by the Applicant concerning his actions, the persons involved overseas and in Australia associated with the relevant activities, and the nature and quantum of the reward to be obtained for his involvement in the crime, a sentencing court may not be in a position to make findings and, in particular, findings of some lesser involvement on his part, as to which he bears the onus of proof to the civil standard: The Queen v Olbrich at 279-281 [20]-[27].
An assessment of the Applicant's role was not to be determined by the selection of a label which might (or might not) properly attach to him (such as "warehouser" - see [85] above). The criminality involved is to be assessed by consideration of the involvement of the Applicant and the steps taken by him to commit the offence. The sentencing Judge in this case was entitled to approach the matter upon the basis that the full nature and extent of the criminal enterprise involving the Applicant was not known to the Court, so that a precise characterisation of the Applicant's role was made more difficult: Paxton v R at 122-123 [135].
Indeed, the concluding part of the Agreed Statement of Facts (at [69] above) bears this out. It is clear that the Applicant would be able to provide a detailed account of the enterprise if he saw fit to do so. Of course, there was no obligation to take this course. However, by not doing so, the Applicant confronted difficulties in discharging the civil onus of proof, in an effort to establish that he was a low-level functionary in the enterprise.
In the result, her Honour made a number of generous findings concerning the Applicant (see [91]-[92] above).
It is necessary to keep in mind a number of features of the case, which gave rise to inferences that operated adversely to the Applicant on sentence.
Firstly, the Applicant was imported specially from Malaysia to Australia to perform a number of tasks in a period from 11 December 2006. This was a critical period when the container was to be unloaded and the process of distribution commenced, starting with the Victorian run. This is not a case of a person selected to convey a prohibited drug into Australia, as a so-called courier or "mule". The appropriate inference was that the Applicant was selected by another person or others involved in the criminal syndicate at the Malaysian end to perform important functions in Australia, and then return to Malaysia. Such a role would usually be fulfilled by a trusted individual, able to carry out these functions in a reliable way.
It would be, to say the least, unusual for a person to be selected to travel to Australia to carry out basic functional tasks only inside Australia.
It may be observed, as well, that the Applicant apparently did not take part in the functional role of unloading the contents of the container into Unit E15. Further, there seemed to be several persons involved in that process whom, it might be thought, could have driven the van from Sydney to Victoria. It was not necessary to import the Applicant from Malaysia to perform this basic transport role. These matters point to the Applicant's role as being more substantial than that contended for by his counsel at first instance, and in this Court.
Secondly, immediately upon arrival in Australia, the Applicant worked with Li, in a number of ways, to register a business name, play a part in the retention of Unit E15 to hold the very large quantity of drugs and then, once again in conjunction with Li, to physically convey a shipment of the prohibited drug into Victoria.
The Applicant may be characterised as a vital participant, fulfilling multifaceted functions, in the seven-day period before he and Li were arrested on 18 December 2006.
Thirdly, it is true that the Applicant's name was used for certain purposes in connection with these activities. However, it was expected that the Applicant would be in Australia for a limited time only, before returning overseas. It was not intended (and the Applicant did not expect) that he would remain in Australia for any length of time.
Fourthly, the Avis rental vehicles, rented by the Applicant and Li, were to be returned to Sydney on 20 or 21 December 2006. The appropriate inference was that, after delivering the substantial quantity of the prohibited drug to its destination in Victoria, the two men would return to Sydney where the contents of Unit E15 remained for distribution.
The New South Wales offence involved a massive quantity of prohibited drug, with the potential to cause a very great deal of harm both individually and socially: R v Calcutt at 524 [73]. This quantity would have entered the drug market, with corresponding massive profits for the syndicate involved, were it not for the good fortune (for the community) that the Applicant and Li were detected and the contents of Unit E15 seized by police.
The Applicant was motivated by financial gain. The Applicant was not a drug user. His different accounts concerning the alleged quantum of his profit did not assist him in demonstrating a small expected gain only. The Applicant's account concerning the need for funds for his wife was entirely uncorroborated. A strong inference was available, which the Applicant did not rebut, that substantial financial reward would flow to a person specially imported from overseas to assist in this enterprise, although no precise finding could be made as to the size of the profit he expected to make.
Her Honour's acceptance of some parts of the Applicant's account does not greatly assist him on this application. Indeed, her Honour's willingness to take those matters into account in the Applicant's favour serves to explain why an even more substantial sentence was not imposed in this case.
Consideration of the quantity of drug involved, taken with the Applicant's activities in Australia as an imported member of the syndicate, clearly warranted the finding of objective seriousness made by the sentencing Judge.
There is no merit in Ground 2.
The sentencing Judge had regard to all relevant circumstances, including totality and the sentence imposed in Victoria in 2007.
General deterrence and specific deterrence were significant factors on sentence. In the context of drug importation offences, courts have said that the difficulty of detecting such offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence, and that stern punishment will be warranted in almost every case: Wong v The Queen at 607-608 [64]; R v Nguyen at 127[72](g). These principles have similar application to this case.
The sentence to be imposed in a case such as this must also signal to would-be drug suppliers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment (R v Nguyen at 127[72](h)), with involvement at any level to attract a significant sentence, otherwise the need for general deterrence will not be served (R v Nguyen at 127[72](i)).
Her Honour's approach to sentence was thorough, measured and restrained. In the circumstances of the case, the sentence imposed was both open and appropriate.
There is no merit in the claim of manifest excess advanced in Ground 3.
Conclusion
The application for extension of time in this case does not involve a delay of the order seen by this Court in other applications based upon alleged Muldrock error. Further, as counsel for the Applicant observed, at least one aspect of the matter has occurred relatively recently, with Li being sentenced by her Honour on 10 August 2012, and with that sentence itself being the subject of an application for leave to appeal to this Court.
The explanation for the delay on the part of the Applicant may be found in his desire to take advantage of the decision in Muldrock. On his own account, the sentence imposed appears to have been less than he expected (see [7] above). No satisfactory explanation has been advanced for the delay in appellate proceedings based upon Grounds 2 and 3.
The grounds of appeal lack merit. No error has been demonstrated. Even if it had been, and taking into account the further evidence adduced in this Court concerning the Applicant's custodial progress, no lesser sentence is warranted under s.6(3) Criminal Appeal Act 1912. In these circumstances, an extension of time should not be granted.
The application for extension of time to seek leave to appeal against sentence should be refused.
LATHAM J: I agree with Johnson J.
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Decision last updated: 22 November 2013
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