Ong v The King
[2023] VSCA 116
•17 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0206 |
| YI SIANG ONG | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGE: | KYROU JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 May 2023 |
| DATE OF JUDGMENT: | 17 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 116 |
| JUDGMENT APPEALED FROM: | DPP v Ong (County Court, Judge Meredith, 7 December 2022) |
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CRIMINAL LAW – Appeal – Sentence – One charge of attempting to possess a commercial quantity of unlawfully imported border controlled drug – Whether judge erred concerning applicant’s prospects of deportation – Whether sentence manifestly excessive – Application for leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr DN McGlone | ||
| Respondent: | Ms K Breckweg with Mr P Botros | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Mr J Carter, Solicitor for Public Prosecutions (Cth) | ||
KYROU JA:
Introduction and summary
On 7 December 2022, the applicant pleaded guilty to the charge in the table below and on the same day, he was sentenced by a County Court judge as set out in that table.[1]
[1]DPP v Ong (County Court, Judge Meredith, 7 December 2022) (‘Sentencing remarks’).
Charge
Offence
Max Penalty
Sentence
1 Attempting to possess a commercial quantity of a border controlled drug [Criminal Code 1995 (Cth), ss 11.1(1), 307.5(1)] Life 7 years Non-Parole Period: 4 years Section 6AAA Statement: Total Effective Sentence 9 years
Non Parole-Period 6 years
He now seeks leave to appeal on the following grounds:[2]
1.The learned sentencing judge erred in imposing sentence in the way he treated the very considerable chance the applicant would be deported.
2.In all the circumstances the sentence imposed was manifestly excessive
Particulars
1.The learned sentencing judge erred in failing to give meaningful attribution to the benefit of a plea of guilty during the COVID-19 pandemic.
2.The learned sentencing judge erred in the way he treated the applicant’s role.
[2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending
On 6 September 2020, the applicant corresponded with Wei Khang Ong (‘Khang’) and an unknown person named ‘Kelvin’ via WeChat. The three of them discussed parcels that were to be received. The exchange included a message from Kelvin that ‘All 26kg are drug’. Later that day, Kelvin told the applicant to ‘go collect’ and provided him with an address.
On 15 September 2020, Khang contacted the applicant and asked him to source addresses to receive parcels. Khang said that people would be compensated if they received parcels. The applicant responded that he had asked around but that people were afraid and concerned about dangers. In response, Khang said that the recipients should only leave a surname, not their full name, so that they could plausibly deny that the parcels belonged to them. Khang said that it was important that the recipients did not open the parcels. The applicant then told Khang that he was happy for his name to be used and asked if Kelvin had used his address. Khang responded that Kelvin had used his home address, which was in Melbourne’s CBD.
Between 24 September 2020 and 22 October 2020, Khang sent the applicant details of parcels and asked him to assist in collecting them, either by accepting delivery or by arranging for someone else to accept delivery. Khang paid the applicant for this work. On 29 September 2020, Khang told the applicant that: ‘wage is calculated based on the amount of Litres. Depends on how much he/she sends, and then calculate. Probably hundreds of dollars.’
On 28 September 2020, a consignment arrived in Australia from Canada (‘Consignment’). It was addressed to ‘Ong Yi Siang’ at an address in Glen Huntly and its contents were described as ‘water filtration’. A contact phone number was included for the addressee, which was linked to a mobile phone registered in the false name of ‘Mary Teo’ (‘Consignment Phone’). Upon entry into Australia, the Consignment was examined by Australian Border Force (‘ABF’) officers who found 7.7 kilograms of methamphetamine crystals, of 80.1% purity, concealed within 12 water filters. In total, the Consignment contained 6.1679 kilograms of pure methamphetamine.
Methamphetamine is a border controlled drug. A commercial quantity is 750 grams.
The methamphetamine was removed from the Consignment and replaced with an inert substance for controlled delivery.
On 8 October 2020, the applicant called the courier company DHL from the Consignment Phone and identified himself as ‘Ong Yi Siang’. He enquired about the Consignment and provided the tracking number and details of the Consignment, including the delivery address.
On 22 October 2020, police officers sent a text message to the Consignment Phone purporting to be from DHL. The message stated that the Consignment would be delivered on 26 October 2020 and requested confirmation. The applicant responded ‘yes’ using the Consignment Phone.
On 25 October 2020, the applicant contacted Kelvin and Khang regarding the Consignment. There was a discussion between the three of them as to whom the Consignment belonged. The applicant stated that he thought the Consignment probably contained cigarettes and it belonged to ‘Len’.
On the morning of 26 October 2020, the applicant borrowed a car and drove to the Glen Huntly address. After he had arrived, police sent a further text to the Consignment Phone requesting confirmation that nobody at the address had COVID-like symptoms. The applicant responded ‘yes clear’.
A federal agent, JC, posing as a delivery driver for DHL called the Consignment Phone and stated that he would be arriving at the Glen Huntly address in 10 to 15 minutes and asked if somebody would be at home. The applicant responded that he was at home.
JC later arrived at the Glen Huntly address. The applicant was standing on the footpath. JC approached him and said ‘This is for Ong Yi Siang, sorry if I’ve pronounced that wrong, that’s you?’ to which the applicant responded that that was him, and confirmed that he was from the delivery address. The applicant signed for the substituted Consignment, which JC placed on the ground. The applicant picked up the substituted Consignment. He was then arrested.
At the time of his arrest, the applicant had the Consignment Phone in his bag. While in transit with police, and after he had been cautioned, the applicant said that he had answered a WeChat post to pick up parcels, was told to contact DHL and did not know what was in the parcel.
The applicant took part in a record of interview on 24 November 2020. Relevantly, he said the following:
(a)he was contacted on WeChat and told that he would be paid for receiving parcels;
(b)he did not know who had sent the parcel or what was in it, but had asked and was told that it was not unlawful;
(c)he went to the address because ‘they’ gave him the number and ‘they’ always called him when a parcel is arriving.
(d)he had received parcels at his own address for people;
(e)he was going to be paid for picking up the Consignment but he did not know how much he would be paid, as he had never been paid by ‘them’ before; and
(f)he collected the Consignment because he owes money to his friend and owes over $1,000 to his landlord.
The applicant later described becoming involved in the offending as a way to make money when he was struggling to pay rent. He said that he knew that it was against the law, but believed that the parcels contained illicit cigarettes.
Applicant’s personal circumstances
The applicant was 27 years old at the time of the offending and 29 at the time of sentence. He was born in Malaysia and is a Malaysian citizen.
The applicant reported having a generally positive relationship with his parents, which was ‘very good’ at the time of the plea. He said that whilst occasionally there were verbal arguments between his parents, they never became physical and that his childhood was ‘pretty good’ and stable. He had no experience of childhood abuse or trauma.
The applicant completed primary school in Malaysia. He reported regularly receiving corporal punishment during primary school, which prevented him from developing an interest in academic achievement. He was regularly absent from secondary school until he was expelled for non-attendance when he was 15 or 16. He then worked in various unskilled roles, before coming to Australia in 2016 on a tourist visa at the age of 22. His parents and brother remain in Malaysia. His visa had expired by the time of the offending and he was living in Australia illegally.
In Australia, the applicant worked in New South Wales in construction and fruit picking before relocating to Melbourne and working as a food delivery driver.
The applicant suspected that he had experienced depression previously and described having suicidal thoughts on one occasion. However, he had never considered seeking assistance from a mental health professional and had never been diagnosed with a mental illness. The applicant has used cannabis, tobacco and alcohol but did not consider his use of any of those drugs problematic.
The applicant has no prior criminal history either in Australia or Malaysia.
Plea hearing
At the plea hearing, defence counsel tendered a report dated 13 August 2022 prepared by a forensic psychologist, Dr Alana Harridge. Dr Harridge did not assess the applicant as suffering from any mental condition. She opined that the following factors likely contributed to the offending: low mood in the context of psychosocial stressors such as under-employment and financial difficulty; a lack of prosocial supports and exposure to antisocial peers; and impaired decision making associated with limited educational engagement. She considered that the applicant’s risk of reoffending was low to moderate.
Also tendered were letters from the applicant’s brother and a pastor from the applicant’s church, as well as a bundle of certificates from the applicant’s time in custody. The applicant’s brother stated that the family is hopeful that the applicant will be freed and be able to return to Malaysia so that they can be reunited as soon as possible.
Sentencing remarks
The judge observed that the quantity of the drug that the applicant attempted to possess was over eight multiples of a commercial quantity. In making this observation, the judge obviously had regard to the principle that quantity is a relevant sentencing consideration for drug offences.
The judge also observed that the prosecution had conceded that the evidence did not show that the applicant had an awareness that the quantity involved was above a commercial quantity. However, the judge noted the following: the applicant had an opportunity to view the parcel upon collection; he had arranged to use a car rather than his own motor cycle to collect the parcel; in prior conversations with Kelvin, Kelvin had referenced 26 kilograms in regard to an earlier parcel; and, in prior conversations with Khang, reference was made to litres.
The judge found that, whilst the applicant was not the mastermind and did not have a direct financial interest in the success of the importation, he was a trusted member of a larger importation scheme, and had acted in the expectation of a financial reward commensurate with the risks he was taking. On the basis of the intercepted communications between the applicant, Kelvin and Khang, the judge was satisfied that the applicant’s conduct exhibited a high degree of recklessness regarding the Consignment containing a border controlled drug. The judge also found that the motivation for the applicant’s offending was his parlous financial situation.
The judge determined that the applicant was entitled to a reduction in sentence as a result of his guilty plea. The judge said that the guilty plea had ‘facilitated the course of justice by saving the community the cost and time of a trial … particularly … in light of the COVID pandemic which meant that the listing of matters before [the County Court] became uncertain and delayed.’[3] The judge also said that the guilty plea evidenced some remorse, although he added that the plea had a ‘transactional character’ to it.[4] It is not clear why the judge used this description. Prior to using the description, the judge referred to the fact that the applicant had told Dr Harridge that he believed that the parcels contained illicit cigarettes.
[3]Sentencing remarks [25].
[4]Sentencing remarks [26].
The judge took into account that it was likely that the applicant would be deported to Malaysia at the conclusion of his sentence, in the following terms:
I sentence you on the basis that you will likely be deported to Malaysia. You were unlawfully in this country at the time of your offending and you could not reasonably have had any legitimate expectation that you could lawfully remain here. Your likely deportation is of little mitigatory value. Your family are awaiting your return in Malaysia.[5]
[5]Sentencing remarks, [24].
The judge found that prison would be made more burdensome for the applicant because he had some limitations with respect to the English language, was isolated from friends and family, and had endured a more difficult time in custody due to the COVID-19 pandemic.
The judge assessed the applicant’s prospects of rehabilitation as reasonable due to his lack of prior criminal history and participation in a number of courses while he was on remand.
The judge noted that, in sentencing for drug related matters, the authorities emphasise the principles of general deterrence as well as denunciation.
Ground 1
In support of ground 1, the applicant relied upon the observations of this Court in Guden v The Queen[6] concerning the two ways in which the prospect of an offender’s deportation can be taken into account in mitigation of sentence. In Guden, the Court stated:
[T]he fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, … in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. … [T]his may well be viewed as a serious ‘punishing consequence’ of the offending.[7]
[6](2010) 28 VR 288 (‘Guden’).
[7](2010) 28 VR 288, 295 [27].
The applicant also relied upon this Court’s decision in Hague v The Queen.[8] In that case, the offender arrived in Australia from New Zealand aged 12. Although he resided here, partnered and had two young children, he never became an Australian citizen. The Minister cancelled his visa, and he requested the Minister to revoke the cancellation. This Court was informed that prisoner non-citizens subject to a deportation order will ordinarily not be paroled until they had exhausted all available avenues to challenge the order. Evidence was also adduced that consideration of the offender’s request to the Minister was likely to be delayed until immediately prior to his release from custody. The offender submitted to the Court that, in these circumstances, he faced the prospect of being imprisoned and separated from his family for a period well in excess of his non-parole period and that this would cause him great stress and anxiety. This submission was supported by a report of a forensic psychologist.
[8](2022) 98 MVR 503; [2022] VSCA 17 (‘Hague’).
This Court said the following in relation to this submission:
In our view the permissible ways that the Court can consider the very considerable chance that the applicant will be deported are as follows:
(a)The prospect or real chance of the applicant’s future deportation can be considered an extra-curial form of punishment. This is particularly so in the applicant’s case, where he has been resident in Australia since childhood and has all of his roots firmly in this country.
(b)His time in prison will, we find, undoubtedly be more burdensome than it is for others, or indeed than it otherwise would be for himself, due to anxiety about the prospect of future deportation. Given the undisputed evidence of the applicant’s tendency to anxiety and depression and his inwardly focused devotion to his family, both this factor and factor (a) are of some importance.
Given the view we have taken as to the significance of both factors (a) and (b), it is unnecessary to consider the ‘vexed question[s]’ of whether an allowance ought be made for any reduced prospects of being granted parole (which was not directly advanced by the applicant), or whether the applicant’s perception of these reduced prospects ought merit some allowance as adding to the burden of his incarceration (which was directly advanced). Without deciding this, the former question at least would seem to confront the obstacle of s 5(2AA)(a) of the Sentencing Act, and the latter question is subsumed by the other more prominent factors that add to the applicant’s custodial burden.[9]
[9]Hague (2022) 98 MVR 503, 514 [31]–[32]; [2022] VSCA 17 (citations omitted).
Section 5(2AA)(a) of the Sentencing Act, to which this Court referred in Hague, provides as follows:
Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to —
(a)any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind …
In the present case, the applicant accepted that he wished to return to Malaysia and therefore the loss of the opportunity of settling permanently in Australia was not a mitigatory factor upon which he could rely. However, he submitted that the principles in Guden applied to him because the prospect of being imprisoned and separated from his family for a period well in excess of his non-parole period will add to his burden of custody. He acknowledged that s 5(2AA)(a) of the Sentencing Act precluded the judge from having regard to any possibility or likelihood of the length of time in custody being affected by any action by the Executive. However, he contended that his concerns about the timing of parole and the impact of those concerns on the custodial burden were legitimate matters to be considered in the exercise of the sentencing discretion.
Relying upon Hague, the applicant argued that his perception of his reduced prospects of being granted parole engages the mitigatory principles in Guden on the following two bases:
(a)the prospect of his deportation can be considered an extra curial form of punishment; and
(b)his time in prison will be more burdensome than for others – or indeed than it would otherwise have been for himself – due to the anxiety about the prospect of his deportation.
At the hearing of the application for leave to appeal, I observed that the applicant had not adduced any evidence that:
(a)the prospect of deportation caused him anxiety;
(b)he had a perception that the prospect of deportation would deprive him of parole or delay the granting of parole; or
(c)the prospect of deportation depriving him of parole or resulting in delay in the granting of parole caused him anxiety.
In response to these observations, counsel for the applicant submitted that any prisoner in the position of the applicant would suffer anxiety arising from the prospect of deportation adversely affecting parole, and that this was sufficient, in the absence of any evidence specifically relating to the applicant, to warrant it being given material weight as a mitigatory factor. Counsel also submitted that, for a person in the applicant’s position, the non-parole period is a ‘fiction’ because the prospect of deportation undermines the factors supporting rehabilitation – such as the engagement in prison courses – that would ordinarily enhance the opportunity for timely parole. Counsel contended that, in circumstances where the prospect of deportation adversely affected the opportunity for timely parole, the head sentence should be moderated to ensure that the sentence was just in all the circumstances.
According to the applicant, the judge erred in not properly taking into account the above considerations in imposing sentence.
The Crown submitted that it was open to the judge to conclude that the prospect of the applicant being deported was of ‘little mitigatory value’. The Crown contended that, as the applicant was in Australia unlawfully at the time of his offending, he could have had no reasonable expectation of being able to settle permanently in Australia. It was thus said that deportation would not operate as a form of out of court punishment.
The Crown argued that there was nothing to suggest that the prospect of deportation would weigh heavily upon the applicant, given that he would be happy to go home, and his family in Malaysia were awaiting his return.
In oral submissions, the Crown relied upon the following three ‘hurdles’ that the applicant was said to face in relation to ground 1:
(a)Section 5(2AA)(a) of the Sentencing Act prevented the judge from taking into account any possible or likely changes to the actual time the applicant would spend in custody due to any action of the Executive. The applicant’s submissions were incompatible with that section.
(b)Even if s 5(2AA)(a) did impose an obstacle, unlike the offender in Hague, the applicant did not adduce any evidence in support of any contention that the risk of deportation reduced his prospects of timely parole or that concern about any reduced prospects caused him anxiety. The evidence in the present case suggested that the applicant is unlikely to challenge any deportation order that is made against him.
(c)Even if it is assumed that the prospect of the applicant’s deportation reduced his opportunity for timely parole, there was no evidence that this caused him any anxiety. Furthermore, in order for any anxiety to be considered as a mitigatory factor, it would need to be greater than the anxiety that prisoners commonly felt about the prospects of parole.
The Crown also submitted that, where the offending is particularly serious, limited weight ought be given to the prospect of deportation as a factor in mitigation.
In my opinion, ground 1 is not reasonably arguable and, accordingly, leave to appeal will be refused in relation to it.
As is apparent from [31] above, the judge took into account the prospect of the applicant being deported to Malaysia in exercising the sentencing discretion. In circumstances where the applicant had resided in Australia for a short period, was in the country illegally at the time of the offending and desires to return to Malaysia once his sentence is completed, it is clear that neither limb of Guden applies to him. Accordingly, the judge correctly assessed the applicant’s likely deportation as having little mitigatory value.
In the present case, it is more logical to consider the second limb in Guden prior to the first limb. As the applicant did not wish to permanently settle in Australia, the loss of the opportunity to do so can be accorded little, if any, weight as a mitigatory factor. Further, it is difficult to see how the loss of an opportunity which is of little, if any, value to the applicant could be viewed as a ‘serious punishing consequence of the offending’.
In relation to the first limb of Guden, my conclusion that the applicant’s deportation will not deprive him of any opportunity which is of any real value to him, must logically mean that the prospect of deportation could not objectively add to the burden of his imprisonment in any meaningful way.
In reliance upon Hague, the applicant has, in effect, submitted that the scope of the first limb of Guden should have an extended application to offenders in his position on the basis that the anxiety arising from the perception that the prospect of deportation will adversely affect parole warrants mitigation in sentence.
As submitted by the Crown, s 5(2AA)(a) may be an obstacle to the applicant’s submission. However, even if one puts aside that section, the submission must be rejected for the following reasons.
First, I accept the Crown’s submission that, as the applicant is unlikely to challenge any deportation order that is made against him, there is no objective basis for a concern that the practice of deferring parole, that is referred to in Hague, will have any temporal effect on the applicant’s parole.
Secondly, there was no evidence on the plea that the applicant had ever stated that he had a perception that the timing of his parole might be affected by the prospect of his deportation, let alone that he felt anxiety due to such a perception. The applicant did not give evidence on the plea and Dr Harridge’s report did not record any statement by the applicant regarding any such perception or express any opinion about this issue. By contrast, in Hague, there was expert evidence on this issue.[10]
[10]See [36] above.
Thirdly, I am not aware of any authority that supports the applicant’s submission that anxiety about prospects of parole being reduced due to a risk of deportation may be taken into account as a mitigating factor in favour of an offender on the basis that offenders in his or her position would feel anxiety even though there is no evidence that he or she has personally experienced anxiety.
For completeness, I note that I am not aware of any binding authority for the proposition that an offender’s subjective perception of reduced prospects of parole merits some moderation in sentence on the basis that the perception adds to the burden of incarceration. This Court in Hague – which concerned an offender who, unlike the applicant in the present case, had established roots in Australia and intended to reside here permanently – expressly declined to form a view on this issue. For the reasons set out at [53] to [57] above, I also need not form a view on the issue. In any event, although defence counsel referred to Hague in the course of the plea, he did not submit that the applicant’s subjective perception of reduced prospects of parole warranted some moderation in his sentence.
I reject the applicant’s submission that, for a person in his position, a non-parole period is a ‘fiction’. A sentencing court is required to determine an appropriate sentence and, where relevant, an appropriate non-parole period after taking into account all sentencing considerations that are engaged in a particular case. Where an offender faces the prospect of deportation, that is a relevant consideration in the manner set out in Guden, but the weight, if any, to be given to it will depend on the circumstances of the case. The weight to be given to the prospect of deportation cannot be elevated beyond what is permitted by the authorities. And, self-evidently, it cannot be taken into account in a manner that results in a distortion of the intuitive synthesis in the sense that it results in a head sentence or non-parole period that is not the head sentence or non-parole period that is appropriate in all the circumstances.
Ground 2
In support of the first particular of ground 2 – namely, that the sentence was manifestly excessive because the judge failed to give meaningful attribution to the benefit of a guilty plea during the COVID-19 pandemic – the applicant relied upon this Court’s observations in Worboyes v The Queen.[11] In that case, this Court stated the following:
[T]he preponderance of authority contemplates that mitigation of punishment should flow from a plea of guilty based solely on the utilitarian benefits of the plea. Hence, appellate courts have recognised the public interest in facilitating pleas of guilty so as to conserve courts’ trial processes, and so as to alleviate the congestion in criminal courts that delay in the hearing of contested trials creates.
…
[A]ll other things being equal … a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.[12]
[11](2021) 96 MVR 344; [2021] VSCA 169 (‘Worboyes’).
[12]Worboyes (2021) 96 MVR 344, 356–7 [34], [39]; [2021] VSCA 169.
The applicant submitted that the judge erred by failing to perceptively ameliorate his sentence due to his plea of guilty during the COVID-19 pandemic, as required by Worboyes.
In support of the second particular of ground 2 – namely, that the judge erred in the way he treated the applicant’s role – the applicant submitted that the judge had overstated his role in the offending. He contended that he did not play a crucial role in the importation, but merely played a role in the chain of custody of a parcel once it arrived in Australia and was delivered to him as the fake consignee. It was said that there was no evidence that he was involved in anything beyond the mere transportation of the drugs for others. According to the applicant, his limited involvement was a relevant factor in the assessment of his level of culpability and that, by overstating his role in the offending, the judge erred in his assessment of his level of culpability.
In oral submissions, counsel for the applicant contended that the judge erred in describing the applicant as a ‘trusted member of a larger importation scheme’. Counsel submitted that the phrase used by the judge could be construed as suggesting that the applicant was a member of a gang, in circumstances where there was no evidence that this was the case. Counsel argued that the applicant’s role was very low level and that he was an expendable participant. Counsel relied upon the fact that the applicant was not paid in advance for his role and, as events transpired, did not receive any payment for receiving the Consignment.
The Crown submitted that the judge had made express reference to the increased utilitarian value of the applicant’s guilty plea during the COVID-19 pandemic.
The Crown contended that the judge’s finding regarding the applicant’s role was open on the evidence. In oral submissions, in response to the applicant’s submissions regarding the trust reposed upon the applicant, counsel for the Crown relied upon the fact that the applicant’s superiors entrusted him to pick up a parcel containing a large quantity of valuable methamphetamine on his own.
In my opinion, ground 2 is not reasonably arguable and, accordingly, leave to appeal will be refused in relation it.
Having regard to the gravity of the offending, the applicant’s role and moral culpability, and the mitigating factors upon which he relied – including, in particular, his plea of guilty during the COVID-19 pandemic – the sentence is well within range.
In relation to the gravity of the offending, the fact that the quantity of the drug involved was over eight multiples of a commercial quantity indicates that the offending could only be regarded as serious.
In relation to the applicant’s role and moral culpability, I reject the applicant’s submission that he acted merely as a passive recipient of a parcel. The evidence showed that the applicant:
(a)had multiple discussions with Kelvin and Khang, including on ways to make detection more difficult;
(b)had multiple communications with individuals who worked for DHL or whom he believed worked for DHL; and
(c)took precautions such as nominating an address other than his own for delivery of the Consignment, borrowing a car rather than using his own motorcycle to pick up the Consignment, and using a phone that was registered in a false name.
Although the applicant was not a principal or ‘mastermind’ in the criminal enterprise, the judge was more than justified in concluding that the applicant was a trusted member of a large importation scheme. That is so because of:
(a)the matters referred to at [68] above;
(b)the requests that were made to the applicant to recruit other recipients; and
(c)the fact that the applicant’s superiors entrusted him to pick up a parcel containing a large quantity of valuable methamphetamine on his own.
The matters referred to at [68] above also inform an assessment of the applicant’s moral culpability. Also relevant to such an assessment were the judge’s findings that the applicant’s conduct exhibited a high degree of recklessness regarding the Consignment containing a border controlled drug, and that the applicant had acted in the expectation of financial reward commensurate with the risk that he was taking.
The most significant mitigating factor was the applicant’s plea of guilty during the COVID-19 pandemic. Although the judge did not expressly refer to Worboyes, he did apply the principles set out in that case. That clearly appears from the judge’s statement that the applicant’s plea had ‘facilitated the course of justice by saving the community the cost and time of a trial … particularly … in light of the COVID pandemic which meant that the listing of matters before [the County Court] became uncertain and delayed’.[13]
[13]See [30] above.
Having regard to the gravity of the offending and the applicant’s moral culpability, the fact that the judge imposed a sentence of 7 years’ imprisonment for an offence with a maximum penalty of life imprisonment can only be explicable on the basis that the judge gave significant weight to the principles in Worboyes and to the other mitigating factors upon which the applicant relied.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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