R v Kok Loong Wong
[2012] NSWDC 182
•18 May 2012
District Court
New South Wales
Medium Neutral Citation: R v Kok Loong WONG [2012] NSWDC 182 Decision date: 18 May 2012 Before: Cogswell SC DCJ Decision: For offence of possessing commercial quantity of border controlled drug reasonably suspected of having been unlawfully imported - 18 years imprisonment. Fix non-parole period of 12 years. Form in accordance with s 16BA Crimes Act 1914 taken into account.
Catchwords: CRIMINAL LAW - Particular offence - drug offence - possessing commercial quantity of border controlled drug reasonably suspected of having been unlawfully imported - penalty: imprisonment for life - objectively serious offence - over 60 kilograms pure methamphetamine found - street value of over $38 million. Sentence - relevant factors - significance of the weight/amount of drugs a factor - premeditation - sophisticated organisation - offender integral member of enterprise - sole occupier of drug warehouse, responsible for communication and for large amounts of cash - personal deterrence - no criminal record in Australia but imprisonment only appropriate sentence - low/moderate risk of re-offending - general deterrence important - assistance to authorities - directed police to warehouse - of low value - 5 per cent discount - early plea of guilty - 20 per cent discount - non-parole period - foreign national serving time in Australian gaol taken into account. Legislation Cited: Criminal Code Act 1995 (Cth) s 307.8(1)
Crimes Act 1914, s 16BACases Cited: Wong v R [2001] HCA 64; (2001) 207 CLR 584
R v Nguyen and R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106Category: Sentence Parties: Regina (Crown)
Kok Loong WONG (Offender)Representation: Counsel:
J Paingakulam (Crown)
P R Boulten SC (Offender)
Solicitor:
Director of Public Prosecutions (Cth) (Crown)
Ms Shwan (Offender)
File Number(s): DC 2010/422622
SENTENCE
When Kok Loong Wong was arrested by the Federal Police on 21 December 2010 he directed them to his home. When the police searched his home they found a huge amount of methamphetamine. The amount was over 75 kilograms, containing over 60 kilograms of pure methamphetamine. On the street it is estimated that the value of those drugs is over $38 million.
Mr Wong was charged with an offence under Federal legislation. The charge was possessing a commercial quantity of a border controlled drug which was reasonably suspected of being imported. That is made into an offence by s 307.8(1) of the Criminal Code Act 1995 (Cth). The Parliament of Australia regards the crime as so serious that it has attached to it a maximum penalty of life imprisonment.
When I am sentencing Mr Wong he has asked me to take into account another crime, namely dealing with money over $100,000 being reckless as to whether the money was proceeds of crime. Mr Wong and the representative of the prosecutor have signed a form in accordance with s 16BA of the Crimes Act 1914. I will in sentencing Mr Wong take that other offence into account and I sign the form accordingly.
I formally convict Mr Wong of the crime of possessing a commercial quantity of a border controlled drug reasonably suspected of being imported unlawfully.
It is important for me in sentencing a person to say something about the crime which they committed and something about their own personal circumstances. In addition I will review the arguments for the prosecutor and for Mr Wong and then I will sentence him.
As I said Mr Wong was arrested on 21 December 2010. He was carrying a bag and the police found six mobile phone boxes which did not contain mobile phones but contained almost $100,000 in cash. He had a small amount of methamphetamine in a matchbox. He was carrying four mobile phones, only one of which was subscribed in his name and the others in false names. He was carrying a laptop computer. Police later found shipping and freight forwarding electronic documents. There was a spreadsheet containing daily expenses between 19 August 2010 and 19 December 2010. We know that Mr Wong arrived in Australia on 19 August 2010. The expenses on the spreadsheet included disposable latex gloves, matches, clip seal bags, travel bags, cabin bags, cable ties, garbage bags and backpacks and packing tape.
When he was arrested and taken to the AFP headquarters he told the police that he lived at an address in Blairmount. He also told the police - according to the agreed facts contained in exhibit A - that "there was approximately 90 kilograms of drugs within those premises". He consented to his house being searched and that is when the police found the amount of methamphetamine which I have referred to. Specifically they found 76.8 kilograms of substance which contained 61.68 kilograms of pure weight methamphetamine. The estimated wholesale value was over $19,000,000 and, as I have said, the estimated street value was $38,430,600. Not only did the police find that amount of illicit drugs, they found several bundles of cash at his house amounting to $110,050. Therefore the total amount of cash either on Mr Wong's person or at his house was over $200,000.
Mr Wong was the only resident of the house. There was no indication of anyone else living there. Police found matchboxes containing various amounts of methamphetamine. They found several empty boxes and unused packaging material. They found no fewer than 30 mobile phones. Twenty seven of those contained SIM cards. The subscriber details for all of the phones were false. Most of the phones were only used to contact one number exclusively.
When police later examined Mr Wong's bank accounts they show that $47,450 had been deposited as cash between 6 September and 13 December 2010. Mr Wong had no identified legitimate source of income. He was restricted by the visa by which he entered Australia to working no more than 20 hours a week.
Counsel who appeared in the sentence proceedings for the Commonwealth Director of Public Prosecutions, Ms J Paingakulam, called the officer in charge of the case, Federal Agent Grace Calma, to give evidence. She confirmed that Mr Wong did not give an interview when arrested but later indicated that he wished to give some information to the Federal Police. He attended the AFP headquarters on 8 June 2011 and gave them some information about his activities here and his associates. He gave them a list of phone numbers. Federal Agent Calma estimated the value of Mr Wong's assistance as low. She thought that he was partially truthful and not completely forthcoming. Part of what she thought was the truth was an account given by Mr Wong that he became entrapped by a loan agent in Malaysia because he had been a guarantor for a debt of an acquaintance. The acquaintance did not pay the debt and the loan shark required him to undertake a job in Australia which led to his coming to Australia and ultimately being arrested and charged with the crime that I have referred to.
Cross-examined by Mr P R Boulten SC, who appeared for Mr Wong, Ms Calma acknowledged that the police had no idea about the large quantity of drugs in Mr Wong's house before he told them. She acknowledged that there was no need for a search warrant, but that he could not identify some of the people that he had been dealing with. Most of the phone numbers that he told the police about were accurate regarding those particular phones but the information did not lead the police to any suspects and they could not identify anyone he dealt with. He referred to a person in Hong Kong but that person could not be identified either.
I accept Federal Agent Calma's estimate of Mr Wong's assistance being low. That will be important later on when I sentence him because I need to take into account in a pragmatic way the assistance which an offender gives to the police.
There is a limited amount of information about Mr Wong's personal life. As I said, we know that he flew from Malaysia on 19 August 2010. He got a bridging visa and was ultimately given a higher education visa for two years. He enrolled in Abbey College Australia in an Advanced Diploma of Hospitality. The college records show that his attendance record was some 55 per cent. For his first month in Australia he lived in a hotel paying just over $4000 in cash for his stay. He then leased the house at Blairmount for $305 a week and, as the agreed statement of facts records, he paid just over $5000 in cash up front to cover the bond and rent for several months.
There is a report from a forensic psychologist, Bradley Jones, about Mr Wong. It does not add much information. Mr Wong was understandably diagnosed with high levels of anxiety because of his predicament. Mr Jones acknowledged that Mr Wong's limited English put some restraint upon his assessment and his formal diagnoses of a major depressive disorder and generalised anxiety. He was concerned for the safety and welfare of his parents and his girlfriend back in Malaysia and was guarded in talking about them. He gave the account of the loan shark and a threat that he feared his parents or girlfriend would suffer harm. He said that on the day of his arrest he was contacted by an unknown man and asked to deliver the backpack to another man in Strathfield. He said that he arrived in Australia with $10,000 of his savings and that "whilst in Australia he was given varying amounts of money, transferred electronically" or handed to him by the man he could not identify. He was told the money was to be used for rent and car hire and other related expenses.
Mr Wong is 36 and comes from a stable family in Malaysia. He has been in a relationship for some 9 years with his girlfriend. He has been working in Malaysia for most of his adult life. Mr Jones thought that Mr Wong presented a "low/moderate risk for committing further offences" within 1 year. Unsurprisingly Mr Jones said that Mr Wong's "mood and anxiety disorders are generally related to his current situation".
Whilst he has been in custody Mr Wong has undertaken various courses and has had contact with psychology staff. That information is contained in exhibit 2.
Ms Paingakulam in her written submissions drew my attention to the importance of Part 1B of the Crimes Act and the factors which I need to take into account. One of the most important things of course is the maximum penalty for the offence which is, as I said, life imprisonment.
I need to take into account the nature and circumstances of the offence which I have set out and shortly I will make some findings about that. Ms Paingakulam argued that the offence in this case "constitutes a significant breach of s 304.8(1)". She argued that the amount of the drug involved - as I said over 60 kilograms of pure methamphetamine - "may be a highly relevant factor in determining the objective seriousness of the offence". She invited me to infer that Mr Wong was engaged in the exercise for financial gain.
General deterrence, Ms Paingakulam argued, is very important. She also pointed out that I may take into account Mr Wong's plea of guilty which is relevant as demonstrating a willingness to facilitate the course of justice. It is relevant however to take into account whether or not the plea also represented a recognition of the inevitable. I think there is some force in that submission because once Mr Wong directed the police to his home then the large amount of drugs was found. I may take into account the assistance but, as Ms Paingakulam pointed out, it is the practical value which is the important consideration. Ms Paingakulam acknowledged that Mr Wong had assisted by directing the police to his home and she conceded that some discount should be provided for his assistance, but she also argued that it was "likely that the offence would have been discovered by the AFP as a result of the AFP identifying the residence of the offender and obtaining a search warrant". I also accept that submission.
Personal deterrence is obviously important as well as the need for Mr Wong to be adequately punished. I need to take into account his background. There is no criminal record for him in Australia and I must be satisfied that imprisonment is the only appropriate sentence. It goes without saying that I am so satisfied and of course Mr Boulten SC did not suggest otherwise.
Both Mr Boulten SC and Ms Paingakulam referred me to various authorities, both State and Federal, which deal with sentencing for large amounts of illegal drugs. Mr Boulten SC indicated that it was a new offence in the sense that the legislation had relatively recently provided for it and there is little by way of precedent for sentencing for the specific offence.
Mr Boulten acknowledged that his client was effectively occupier of the warehouse for the drugs, but he also argued that his client was therefore the most exposed. The lease was in his name and Mr Boulten SC argued his client was the most expendable person in whatever organisation was behind the distribution of the drugs. He acknowledged realistically and correctly that the phones and cash would lead me inevitably to infer that his client was going to distribute drugs and had already done so. His client's role was as somebody who would distribute the drugs but his role cannot be more extensively described, so far as his part in the enterprise is concerned. He was not the owner of the drugs and in Mr Boulten's submission played a limited role. He urged me to allow a quantifiable discount for his client's plea, acknowledging Federal Agent Calma's assessment of the assistance as being low. Nevertheless Mr Boulten urged me to make a specific allowance of some sort for the assistance offered by his client because of the information which he had provided to the police on the day of his arrest identifying where the drugs were and because of his attending the Federal Police to provide them with more information. He will be in an Australian - and therefore for him foreign - prison - with limited support.
Most of the cases referred to by Mr Boulten were for State offences. With respect to those State offences and the cases which Mr Boulten referred me to I did not find them of significant assistance. In many cases the weight of the drug was less than the amount involved in this case. The nature of the crime and the involvement of the various offenders differed. Some of the cases were Crown appeals where the Court of Criminal Appeal had acknowledged that restraint should be exercised in sentencing offenders after a successful appeal.
I have however read those and other cases and it seems to me that the following principles are relevant for me to take into account in sentencing Mr Wong.
Despite what the Hight Court said in Wong v R [2001] HCA 64; (2001) 207 CLR 584, I accept Ms Paingakulam's submission that weight can still be a highly relevant factor. The proposition has been supported by the New South Wales Court of Criminal Appeal in R v Nguyen and R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106. See the judgment of Johnson J with whom Macfarlan JA and R A Hulme J agreed at [70 - 72].
I take into account that Mr Wong was aware of the amount of drugs. In fact he gave the police an overestimate of the amount in his home. That I accept increases the significance of the weight or amount as a factor. I accept that good character has less weight in these kinds of cases. I accept that essentially Mr Wong was the occupier of a warehouse of a huge amount of drugs which were there for the purpose of distribution. However I also accept that he had an integral role in the enterprise of dealing with this vast amount of illegal drugs. Not only was he the warehouseman he was also responsible for maintaining the means of communication by having the mobile phones. He was entrusted with large amounts of cash.
There was, I accept, a significant level of sophistication in the organisation, although - as is typical in these cases - I know little, if anything, about the enterprise beyond Mr Wong. I do determine that he was an important and integral member of the enterprise. His actual job - as the High Court requires me to take into account - was important.
On the other hand I take into account his plea of guilty which Ms Paingakulam agreed was early and his assistance given to the police both on the day he was arrested and in his conversation with the police. I conclude that he was not the owner of the drugs and I take into account his personal background and the fact that he is a foreign national who will be serving his time in an Australian gaol.
Mr Wong's sentence will date from the day he was arrested on 21 December 2010. Taking into account the factors which I have referred to, I would regard for an overall sentence a starting point of 25 years as being appropriate. I would allow a discount for Mr Wong's plea of guilty of some 20 per cent. In addition I would allow a discount of some 5 per cent for the assistance which he has provided to the authorities. Accordingly propose to discount Mr Wong's sentence for those reasons by 25 per cent. I will round that sentence off to 18 years imprisonment. I would regard an appropriate non-parole period, taking into account the principles which the High Court says that I should take into account, as being 12 years imprisonment.
HIS HONOUR: Now I'm going to sentence Mr Wong. Ms Van Der Veen. I think I should specify a non-parole period rather than the alternative, is that right?
VAN DER VEEN: Yes your Honour anything in excess of 3 years, your Honour has the discretion to order a non-parole period over a recognisance release order.
HIS HONOUR: And a non-parole period I think is appropriate. Ms Shwan you don't have anything to say about that do you?
SHWAN: No your Honour.
HIS HONOUR: I think it's appropriate. I'm going to announce the sentence in a moment and I want both you Ms Shwan and Ms Van Der Veen to listen to what I say and make sure that mathematics are correct.
For the crime that I have convicted you of and taking into account the other crime which you have asked me to take into account, I sentence you to imprisonment for 18 years. That will commence when you were arrested on 21 December 2010 and will expire on 20 December 2028. I fix a non-parole period of 12 years commencing on 21 December 2010 and expiring on 20 December 2022. The first date upon which you will be eligible for release is 20 December 2022.
HIS HONOUR: Now Ms Van Der Veen and Ms Shwan, first are the mathematics correct?
VAN DER VEEN: Yes your Honour.
HIS HONOUR: Ms Shwan?
SHWAN: Yes your Honour.
HIS HONOUR: Now are there any other orders that I need to make? I don't think so.
VAN DER VEEN: No there aren't your Honour, not from the Crown perspective.
HIS HONOUR: Ms Shwan?
SHWAN: No your Honour there isn't.
HIS HONOUR: Now Ms Shwan I'm going to ask you to get some instructions. The Corrective Services authorities say they are assisted by the psychological or psychiatric material about an offender. There is a report from Bradley Jones and I can arrange to have that sent to the prison authorities who will classify your client. It's significant. Some clients want that to happen, some offenders want that to happen, some don't. I don't know what sending this document into the Corrective Services what impact it will have. Obviously beneficial so far as the Corrective Services are concerned, they say they are assisted in their classification, but some offenders have strong views about whether they want a document containing personal history and information in the system at all. So I won't do it now nor will I ask you to get instructions right now because you probably want to have a conference with your client about that or arrange to have a conference, am I right or do you want to get instructions now? Do you want to.
SHWAN: Can I just have moment with the client to see--
HIS HONOUR: You can have a word with him and it might be that I can stand the matter down in the list till later on today and you can come back to me if you like. So have a word to him now.
SHWAN: Your Honour he actually consents to that being done.
HIS HONOUR: He agrees?
SHWAN: Yes your Honour.
HIS HONOUR: All right thank you. I'll return the exhibits to my associate which were exhibits A, 1 and 2 and my associate will later on today send by fax or email which she knows a copy of exhibit 1 which is the psychological report.
**********
Decision last updated: 09 October 2012
0
3
2