R v Lee
[2007] NSWCCA 234
•3 August 2007
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: R v LEE [2007] NSWCCA 234
FILE NUMBER(S):
2006/2904
HEARING DATE(S): 10 April 2007
JUDGMENT DATE: 3 August 2007
PARTIES:
The Crown Cth (Appl)
Kong Jimmy Lee (Resp)
JUDGMENT OF: McClellan CJ at CL Howie J Hall J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 06/11/0187
LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION: 24 November 2006
COUNSEL:
M King SC (Appl/Crown)
A Francis (Resp)
SOLICITORS:
Director of Public Prosecutions Cth (Appl)
Gregory J Goold (Resp)
CATCHWORDS:
CRIMINAL LAW – Crown appeal – conviction after trial – importation of 76.3kgs heroin concealed in containers – significant role played by respondent – lesser role played by co-offender – relevance of the weight of the drugs in sentencing – whether error in finding respondent had a middle level of responsibility
LEGISLATION CITED:
Customs Act 1901
Crimes Act 1900
CASES CITED:
Bick v R [2006] NSWCCA 408
Law v R [2006] NSWCCA 100
R v Kaldor 150 A Crim R 271
R v MacDonnell (2002) 128 A Crim R 44
R v Stanbouli (2003) 141 A Crim R 531
R v Sweet [2001] NSWCCA 445
R v To NSWCCA 362; 157 A Crim R 80
R v Wall [2002] NSWCCA 42
R v Wong & Leung (1999) 48 NSWLR 340
The Queen v Olbrich (1999) 199 CLR 270
Vinh Hai Truong (2006) NSWCCA 318
Wong v The Queen (2001) 207 CLR 584
DECISION:
1. Appeal upheld
2. Quash the sentence imposed and in lieu sentence the respondent to a non-parole period of 18 years and 11 months to commence on 2 December 2005 and expire on 1 November 2024 with an additional term of 8 years and 6 months to expire on 1 May 2033. The earliest the respondent would be eligible to be released on parole would be 1 November 2024.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2006/2904
McCLELLAN CJ at CL
HOWIE J
HALL JFRIDAY 3 AUGUST 2007
R v Kong Jimmy LEE
Judgment
McCLELLAN CJ at CL: The Crown has appealed the sentence imposed upon Kong Jimmy Lee, the respondent, following his conviction after trial in the District Court in Sydney. The respondent had been indicted on the charge that he:
“Between about 24 February 2005 and about 26 April 2005 at Melbourne, Victoria; Adelaide, South Australia and Sydney, New South Wales, imported goods into Australia, being prohibited imports to which s 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of heroin being not less than the commercial quantity applicable to heroin.”
Schedule 6 of the Customs Act 1901 provides that a commercial quantity of heroin is not less than 1.5 kilograms. The heroin, the subject of the respondent’s charge, weighed 76.3 kilograms with the gross weight of the compressed blocks of white powder being 105.7 kilograms. The wholesale value of the heroin was estimated to be $28,458,000 and the street value, after “cutting” $266 million. The maximum penalty provided by s 235(2)(c)(i) of the Customs Act 1901 is a fine not exceeding $825,000 or imprisonment for life or both.
When sentencing the respondent the trial judge said:
“The sentence will be expressed to commence on 2 December 2005, which is the date on which the offender was taken into custody in Australia and the non-parole period will be reduced by seven months to take into account the time spent in prison in Hong Kong awaiting extradition to Australia.
…
I sentence you to a non-parole period of ten years and five months to commence on 2 December 2005 and which will expire on 1 May 2016. I fix an additional term of seven years which will expire on 1 May 2023. Mr Lee 2016 is the earliest date at which you will be eligible to be released from prison.”
Accordingly, the sentence, excluding the period of 7 months which the respondent spent in custody in Hong Kong, was a total term of imprisonment of 17 years and 5 months with a non-parole period of 10 years and 5 months. The effective non-parole period is 11 years with a total term of imprisonment of 18 years.
The facts
The drugs were imported into Australia concealed in the structural framework of two containers. The respondent came to Australia from Hong Kong for the purpose of effecting the importation. He remained here for approximately 22 months, by which time the containers had been brought into the country and transported to warehouse premises which he had rented. A number of other people were involved in the operation and much of the evidence at the trial consisted of telephone intercepts.
The respondent arrived in Australia with Wai and Ng on 5 July 2003. A company called JWJ Pty Limited was incorporated on 25 July 2003. The respondent became the sole officer of the company on 18 May 2004 and the sole shareholder on 22 February 2005.
The respondent arranged for the leasing of the necessary warehouse premises by JWJ Pty Limited. These included premises in New South Wales and South Australia.
The operation included a test run when a container containing rolls of carpet was imported from Belgium in June 2004. The imported drugs came in two containers imported from China. Each container contained 244 plastic sun lounges with the heroin hidden in the frame of the container.
The sentencing judge made various findings in relation to the respondent’s role in the offence. The findings are contained in the following extract from her Honour’s remarks on sentence:
“In the name of the company the offender undertook all of the steps necessary for landing the two containers, arranging for them to be cleared through customs, renting the warehouse in Adelaide and arranging for the delivery of the containers to the warehouse and for them to be unloaded there. Later he arranged for them to be collected from the Adelaide warehouse, moved to Sydney to another warehouse rented by him in the name of the company and unloaded here.
While the containers were in the warehouse in Adelaide, police opened them and found heroin contained within plastic blocks hidden in the supporting beams of the two containers. The heroin was removed and the containers restored. A total of 105.7 kilograms of heroin amounting to 76.3 kilograms of pure heroin was removed from the containers.
After the containers were delivered to Sydney, another offender Tang was seen by police outside the warehouse and eventually he and two others opened the containers and started opening the beam of the container where the heroin had been hidden. They were arrested and charged.
The offender left Australia for Hong Kong on 25 April 2005 and remained there until his arrest and extradition to Australia to stand trial. He was arrested in Hong Kong on 12 May 2005 and has been in custody continuously in relation to this matter since then.
After receiving the papers which contained a brief of evidence on which the extradition was based, the offender raised no objection to the extradition process. The time between his arrest and return to Australia was occasioned by administrative delays.
Although there was no dispute that the whole of the time he has spent in custody should be taken into account, it was agreed that the sentence to be imposed on him can only be backdated to the date on which he was imprisoned in Australia, 2 December 2005. The balance of the time spent in custody in Hong Kong will be taken into account by a reduction in the non-parole period.
In a criminal enterprise which involves a number of people, it is helpful to attempt to assign a role in the hierarchy of offenders to the person being sentenced as a guide to the measure of the criminality of the particular offender. In determining role and the sentence which reflects the objective criminality of the offence, I bear in mind what was said by the High Court in R v Olbric:
‘… that whatever others stood to gain from the respondent’s conduct does not affect what sentence should be have been passed on him. That depended on what he had done and who he was not on what others may have hoped to gain from his activity.’
The Crown argued that the offender was a central figure in the importation. He set up the framework for the physical importation of the containers through the company JWJ. Much of the Crown case consisted of telephone calls between the offender and others making arrangements to lease the warehouses et cetera, to receive them.
The offender spoke frequently to a person in Hong Kong known as Ah Keung to whom the offender reported and who sent funds to the offender to cover the costs incurred in landing and accommodating the containers. From time to time the offender asked Ah Keung for money in the calls and Ah Keung indicated that he needed to ask others before he agreed to send the money.
There were certain matters on which the offender had obviously been briefed by Ah Keung. For example, when the offender was speaking about the warehouses he had rented, Ah Keung asked about noise from the warehouse and whether it would be a problem. The offender replied that one warehouse was near a railway line where there was noise being made.
The Crown’s submission acknowledged that the offender was not the person at the top of this importation but argued that he was obviously trusted by those higher than him. He was left to make the arrangements for the importation of the containers and to arrange to enclose them in a warehouse. He was given money to make various payments from time to time.
The defence submitted that whatever role the offender played in Australia has to be measured against him being sent to New Zealand by Ah Keung.
Towards the end of the offender’s time in Australia, and after the containers had been delivered to Sydney, the offender went to New Zealand. In the conversation between the offender and Ah Keung about that trip, it is clear that they are discussing whether or not the offender was being watched. Ah Keung tells him, in effect, that he has to go away but only for a few days and said words to the effect that if there is any trouble he will able to get lawyers and whatever the offender need to him in a short space of time.
This direction to the offender by Ah Keung was said to amount to the offender being used as ‘bait’ to see whether the police were interested in him, because if they were they would arrest him before he left Australia, and it was argued this shows that the offender was someone who is dispensable in the hierarchy of the importation.
The Crown argued that it was not because, at this time, the offender presumably did not know that the containers had been breached and the drugs removed and so would, on his state of knowledge, think there was little risk to run of being arrested.
I accept that whatever the offender and Ah Keung might have thought they had to lose, the trip to New Zealand was to test the waters and it was contemplated that the offender would be arrested.
I accept that this reflects on the offender’s role and places him at the middle level of this importation below that of Ah Keung.
However the offender left Australia after the containers were delivered to Sydney and before any attempt was made by the importers to open them and release the drugs. This fortifies the finding that he was operating at a middle level of importance in the scheme of this importation.”
The remarks of the sentencing judge
Apart from the matters contained in the extract from her Honour’s remarks on sentence which I have included her Honour found that the offence was “very serious.” Her Honour made this finding having regard to the fact that the offence involved a large quantity of heroin which when ultimately sold on the streets was valued at an enormous amount of money. The importation was carefully planned. Before these two containers were sent to Sydney, the offender acting through JWJ Pty Limited assisted in importing a container load of carpets. There were no drugs in that container and it was the Crown case, which her Honour accepted, that this was a trial run by the syndicate to see what the procedures were for importing containers before the attempted importation of the heroin in the two containers from China.
Her Honour found that there was no evidence that the respondent was to receive any particular payment for his work in Australia, although his living expenses were paid.
Subjective matters
The respondent was aged 31 at the time of sentence, having been born in China on 14 June 1975. In 1987 he and his family moved to Hong Kong and later moved to Spain in anticipation of the hand over of the Protectorate to the Government of the People’s Republic of China. The respondent returned with his mother to live in Hong Kong in 1997. He was educated to Year 9 in Hong Kong, but, has received no further education.
The respondent gave evidence during the trial. He indicated that his mother and family have commercial interests in Hong Kong and he has worked in those businesses from time to time. He has sold compact discs and worked in various trading companies. The respondent married in March 2003 and there is a child from the relationship. The respondent’s wife and child live in Hong Kong.
The respondent had a previous conviction for a breach of copyright in Hong Kong which related to his business in selling compact discs. The Crown accepted that when sentenced the respondent should be viewed as a person of good character. However, the sentencing judge recognised that, because the offence for which he was being sentenced involved a significant importation of drugs, the fact that he was of prior good character was less significant than it may have been in other cases.
The sentencing judge also noted that the respondent would be serving a prison sentence in a country which was not his own and far from his family and friends. He would be affected by the fact that he had only a rudimentary grasp of the English language. This would make his time in prison more difficult.
The appeal
The Crown submitted that the sentencing judge was in error in categorising the respondent’s role in the offence as being in the “middle level.” It is further submitted that when the respondent’s role is properly classified, the sentence which her Honour imposed was so inadequate that the sentencing discretion has miscarried.
The Crown submitted that the evidence disclosed that the criminal enterprise was well funded and highly organised. The heroin was concealed in the structural beams of the two containers in a manner which was so sophisticated that, although the Australian Federal Police had alerted Customs to the possibility of the containers containing narcotics, they could not be identified by inspection or x-ray. They were only identified when the containers were dismantled. The Crown submitted that the respondent was in charge of the organisation of the importation in Australia and played a pivotal role in the enterprise. He came to Australia for the purpose of arranging the importation and remained here for approximately 22 months. He organised a bogus company, put in place a process to test the Australian customs system and created the necessary infrastructure. He engaged customs brokers and made arrangements for the payment of customs duty, transportation of the drugs and leasing of various warehouse premises.
Notwithstanding the significance of the respondent’s role in the enterprise the Crown accepted that the telephone intercept material disclosed that the respondent was not at the pinnacle of the organisation. The telephone intercept material disclosed that Ah Kiang who apparently resided in Hong Kong was more senior. The nature and extent of the overseas enterprise could not be discerned from the evidence.
Sentence imposed on co-offender Mo
Two other persons, Wai Hong Mo and Kien Phat Tang, were involved in the criminal enterprise in Australia. They were charged with attempting to have in their possession goods imported into Australia in contravention of the Customs Act 1901. The offence, which was a breach of s 233B1 of the Act carries the same maximum penalty as the offence with which the respondent was charged. However, their role in the enterprise was confined to cutting the steel container in order to allow the removal of the concealed drugs.
Mo was also a resident of Hong Kong who had spent some time in Australia as a student. He became involved in the enterprise through his friend Ly, and for a payment of $50,000, returned from Hong Kong to Australia to undertake the task of cutting the containers. Although Mo accepted that he knew he was being asked to do something illegal he claimed he did not understand that drugs were involved.
Mo was originally sentenced to imprisonment for 9 years with a non-parole period of 6 years. On appeal to this Court his sentence was increased and a non-parole period of 8 years and 8 months and a head sentence of 13 years and 2 months was imposed.
It is apparent that the role of Mo in the enterprise was significantly less than the respondent’s. All of Mo’s activities were the subject of direction by others. His participation in the enterprise was to be confined to his use of cutting equipment to release the drugs. Although he was to be paid a considerable fee, it was a one off payment. He played no part in the planning or management of the enterprise. The appropriate sentence for the respondent must reflect his far more significant role in the enterprise than that of Mo.
Consideration of relevant principles
The High Court has given guidance on the sentencing of drug offenders: see Wong v The Queen (2001) 207 CLR 584; The Queen v Olbrich (1999) 199 CLR 270. Wong was an appeal in which a guideline provided by this Court was set aside. (see R v Wong & Leung (1999) 48 NSWLR 340). The High Court was concerned to emphasise that the weight of the narcotic imported was not the most important factor to be considered when fixing a sentence. The Court was apparently influenced by the consideration that an offender who is caught up in the illegal activity may not, in many cases, be aware of the amount of drug proposed to be imported. However, the size of the importation is a relevant factor to which the sentencing court must have regard. It will have increased significance when the offender is aware of the amount of drugs to be imported. The majority said in Wong at 607-608:
“In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation R v Olbrich (1999) 199 CLR 270, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles. What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act, which should be taken into account in formulating applicable principles.”
See also R v MacDonnell (2002) 128 A Crim R 44 at [33] discussed in Vinh Hai Truong (2006) NSWCCA 318; R v Nguyen; R v Pham; R v Vu. In R v To NSWCCA 362; 157 A Crim R 80 where Howie J said at [110]:
“There is nothing in the passage from Wong v The Queen (2001) 207 CLR 584 quoted by Grove J at [45] that suggests that in an appropriate case the amount of the drug involved in the 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.”
Just as inappropriate emphasis on the amount of the drug imported may lead a sentencing court into error so may problems emerge when a sentencing court attempts to categorise the role of the offender in the criminal enterprise. The problem is that in most cases the full nature and extent of the enterprise is unlikely to be known to the sentencing court. This difficulty is apparent in the present case where the nature of the enterprise in Hong Kong and the respondent’s role in that enterprise is little understood. The application of labels or classification of offenders eg “courier” or “principal” may obscure the assessment of what the offender did leading to an erroneous sentencing process: see Olbrich [19].
It seems to me important to bear in mind that the offence for which an offender is being sentenced is a breach of Australian law by the importation into Australia of the relevant drugs. Whatever be the international arrangements and the complexities of the chain which makes the drugs available for importation it is the criminality involved in that importation which must be identified. There may be a “Mr Big” who is the mastermind of the complete enterprise. But this may not mean that the role of another who is subordinate to “Mr Big”, but who has the primary responsibility for effecting the importation, is reduced to that of a “middleman” who must be sentenced at a middle level of responsibility for the offence. The nature and extent of the criminal networks which exist and are capable of accumulating tens of kilograms of drugs for importation may be known or, at least, partially understood by those involved in the criminal investigation process. However, for want of admissible evidence they are unlikely to be known to a sentencing judge in a particular case. But in my view it is not against this hypothesised mastermind – which the criminality of the person who effects the importation into Australia must be measured. The fact that another may be the mastermind does not mean that the person responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
It must be remembered that the offence is “importing” and the criminality of the offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. The fact that an enterprise, even a large scale enterprise, must be created overseas before the drugs are available for importation is of marginal relevance to an understanding of the criminality of those who actually effect the importation.
In the present case the amount of drug imported was of a high order, 76.3 kilograms of pure heroin. Although the respondent reported to Ah Keung and was apparently subject to his direction he was responsible for making the administrative arrangements to allow the importation. The respondent made all the physical arrangements, including the formation of the importing company, leasing of warehouses, effected a trial run and made arrangements for the movement and storage of the drugs in Australia.
The central finding by her Honour which is attacked by the Crown is the identification of the respondent as being at the “middle level of importance.” This finding was apparently based on two matters. Firstly, that after the containers had been brought to Sydney, but before any attempt to release the drugs had been made, the respondent went to New Zealand “to test the waters.” As I understand the position the sentencing judge accepted that the trip to New Zealand was made to see if the respondent was a person of interest to the authorities and in the contemplation that if he was, he may be arrested. No doubt this step was considered to be prudent before attempting to retrieve the drugs which, if the authorities had been alerted, might be lost. The second reason which influenced the trial judge’s decision was the fact that the respondent returned to Hong Kong before any attempt had been made to release the drugs from the containers.
Although I accept that the respondent was not the exclusive mind or even a controlling mind of the entire criminal enterprise I am satisfied that he played a critical role in the importation. I have previously described his role. In so doing he accepted a risk of discovery by the authorities which, it may be assumed, a person in ultimate control of the enterprise may not have willingly accepted. However, this does not to my mind diminish the significance of his role in the commission of the importation offence.
Furthermore, I do not believe that the fact that he left Australia before the drugs were retrieved from the container diminishes his role in the enterprise. No doubt a decision was made that the respondent should not be further exposed to the risk of detection. To my mind this fact is consistent with him having a more significant role in the enterprise than middle management. It indicates that, although it was necessary to expose him to some of the risks, once arrangements for the retrieval and, presumably, the distribution of the drugs had been made, he left Australia, rather than be further exposed to the risk of detection.
It is true, as the respondent emphasised, that there is no evidence of the remuneration which the respondent was to receive for his part in the enterprise. However, it is inconceivable that he was not to receive a substantial reward, even if not a share of the “profit” (see R v Kaldor 150 A Crim R 271 [103]).
In these circumstances I am satisfied that it was not open to her Honour to describe the respondent as having a “middle level” of responsibility for the importation. Although I accept that others were responsible for masterminding the operation his own role was essential, extended over a significant period of time and involved the management of complex transactions culminating in the deposition of the containers with the drugs in a warehouse in Sydney. On any view of the matter he carried out a senior management role of critical significance to the success of the enterprise.
Resentencing
In these circumstances it is necessary to reconsider the sentence which her Honour imposed. This task must be approached mindful of the fact that this is a Crown appeal. Those principles are well known and were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70].
I have recently reviewed sentencing decisions in relation to drug importation offences where sentences of life imprisonment were imposed: see Law v R [2006] NSWCCA 100. The analysis in that case is of present relevance.
At the court’s request the Crown has provided, in table form, an updated summary of sentences imposed for drug importation matters by courts in New South Wales and the other States. It includes matters which I considered in Law. That schedule is as follows:
Schedule of National Comparative Cases **
| Name | Date | Offence | Drug | Amount Kg - pure | Plea | Sentence [years & months] |
| Head[<b> </b>] NPP | ||||||
| New South Wales | ||||||
| Keyes, R [1996] NSW CCA | 27.09.96 | Conspiracy to Import x 3 | Heroin | 8.9 | G | 15 [<b> </b>] 9 ½ |
| Facts/Aggravating factors: D purchased can sealing machine, arranged with others for importation from Thailand of 2.4 kg if heroin in About December 1989. In about April 1990 D again conspired to import a further 5kg of heroin however drugs did not arrive. In about May 1990 D conspired with B to import a further 1.499 kgs of heroin. This venture did not succeed either. D arrested in Spain in February 1993 for offences involving forged travellers’ cheques, remanded in custody until his surrender to Australia in December 1995. Sentencing judge found D was principal organiser in each conspiracy, sophisticated and well planned. Mitigating factors: Plea of guilty. Made admissions when questioned by police, provided police with a statement in relation to B. In respect of count 3, pleaded guilty on basis of maximum trafficable quantity, sentenced accordingly. |
| Jack Chick Chen * [2003] NSWCCA 326 | 07.11.03 | Conspiracy to Import | Heroin | 12.6 | G | 31 | 23 |
| Facts/Aggravating factors: Between January and April 2000 D involved in at least two successful air shipments of heroin from China Mitigating factors: Plea of guilty but only at the end of the Crown case. |
| Mazzitelli, M [2002] NSWCCA 436 | 31.10.02 | Knowingly concerned in importation | Cocaine | 17.492 | NG | 19 + 8m | 12 +4m |
| Facts/Aggravating factors: May 2000, an autoclave machine was imported from Panama and delivered to the business premises of A then transferred to the premises of C, narcotics concealed within. D was a party to arranging the importation, provided money and documents necessary to obtain clearance and delivery of the shipment and gave directions to A concerning the handling of the machine was delivered. Described by the sentencing judge as having performed an “executive function”, albeit he was not responsible for the planning of the venture, role did not equate to that of a courier or lowly paid functionary. Mitigating factors: Prior good character, no criminal history, unlikely to re-offend. |
| Chai, J (1991) 60 A Crim R 305 | 6.04.92 | Conspiracy to import | Heroin | Approx 20 | NG | 24 | 16 |
Facts/Aggravating factors: D conspired with numerous others in Hong Kong and elsewhere to import approximately 27 kg (bulk) of heroin into Australia. Heroin was imported in June 1987, none recovered. Conspirators enlisted Nicaraguan diplomat to carry the drugs. D’s role described as high level principal, having joined the conspiracy as buyer and intended importer. Mitigating factors: No significant criminal history. |
| Cheung Ying-Lun [1999] NSWCCA 421 | 17.12.99 | Import prohibited import | Heroin | 38 | NG | Life | 21 +11m |
| Facts/Aggravating factors: D, a Hong Kong customs officer, instigated, planned, coordinated, financed and supervised the importation of the narcotics from Hong Kong via Vanuatu to Sydney. Heroin arrived by container ship in May 1989, concealed in a freezer and water heater. Mitigating factors: No prior convictions. |
| Law Yat Kai [1995] NSW CCA] | 13.04.95 | Conspiracy to import | Heroin | 38 | NG | 24 | 18 |
| Facts/Aggravating factors: D conspired with others to import into Australia, via Vanuatu, 50kg of heroin (bulk). Sentencing judge described D as having played significant part in Hong Kong and Sydney. D assisted in loading heroin and actively collaborated in delivery in Sydney. Previous conviction for heroin use in 1982. Mitigating factors: None. Concurrent sentences |
| Law Chun Hing * [2006] NSWCCA 100 | 04.04.06 | Conspiracy to Import | Heroin | 40.1 | NG | Life | 30 |
| Facts/Aggravating factors: Between July 1994 and January 1995 D conspired with others to import 4 air freight consignments from Bangkok. Narcotics concealed in contents of wooden crates said to contain glass sculptures. Sentencing judge found D was not a principal but at the apex , fulfilling a critical and central role. D flew into Sydney, rented premises, received delivery, made payments overseas and organised another consignee when unable to obtain visa for Australia for the last importation. While not at the pinnacle of the organisation, D was a key organiser of the ongoing success of the operation both here and overseas. D’s role was found to be greater than the provision of important assistance, being in the ‘worst case category’. Conspirators had benefit of pre s 16G repeal, but this did not mean D had a ‘justifiable; grievance’. Mitigating factors: None |
| Yook, B (1995) 84 A Crim R 432 | 24.11.95 | Import prohibited import | Heroin | 51.4 | G | 24 | 18 |
| Facts/Aggravating factors: D was a director of Malaysian and Australian companies, used businesses and premises to import Mitigating factors: early plea of guilty. |
| Neale * (2004) 148 A Crim R 493 | 10.9.04 | Knowingly concerned in importation | MDMA | 52 | NG | Life | 15 |
| Facts/Aggravating factors: August 2000, D travelled to France, personally concealed 271,000 MDMA tablets in shipment of wine which he consigned to himself in Sydney, wholesale value $2.7-$5.4 million. D arranged for clearance and delivery of consignment to self storage facility. Sentencing judge found D to be principal in the importation, responsible for detailed planning and execution of offence. Prior convictions for dishonesty. Convicted after trial and sentenced to life imprisonment with a non-parole period of 21 years. Mitigating factors: Non parole period reduced by CCA on account of D’s age from 22 years to 15 years. |
| Pham * [2005] NSWCCA 362 | 16.11.05 | 1.Knowingly concerned in importation (heroin) 2 . Import prohibited import (MDMA) | Heroin MDMA | 0.477 52 | G G | 10 27 | 18 |
| Facts/Aggravating factors: Involved in two offences related to illicit narcotic drugs imported into Australia: the importation within a shipping container of MDMA tablets in hollowed out tiles and an importation of heroin in a bottle of Baileys Irish Cream. D and another travelled to Hong Kong to meet with L. D instructed freight forwarders and oversaw delivery; maintained counter surveillance to ensure no authorities interested in shipment. Regular telephone contact with L. Was to be paid $500,000 for his role. Mitigating factors: Plea of guilty and assistance. Original sentences on charge 1 - 15 years imprisonment and on charge 2 - life imprisonment with a non-parole period of 23 years. |
| To * [2005] NSWCCA 362 | 16.11.05 | Possess prohibited import | MDMA | 52 | G | 22 | 16 ½ |
| Facts/Aggravating factors: Arrived in Australia after importation of heroin had occurred and “was L’s eyes and ears at the Sydney end of the operation” - “supervisor and monitor of L’s interests”, physically involved in removal of inert substance from the reconstructed tiles. Participant at the highest level after that of a participant who had a direct entrepreneurial stake in the importation. Prior conviction for serious drug related matter in Hong Kong. Mitigating factors: Plea of guilty; not worst case. Sentenced of life imprisonment with a non-parole period of 20 years reduced to 22 years with non parole period of 16 ½ years. |
| Heeng Ung [2000] NSWCCA 195 | 6.15.00 | Knowingly concerned in importation | Heroin | 54.5 | NG | 16 ½ | 11 |
| Facts/Aggravating factors: Consignment of tinned pineapple shipped to Sydney in 1997, heroin concealed in 7 cartons. D’s role to facilitate transfer of heroin from wharves at Port Botany to V’s shop. D assisted in stacking boxes upon delivery to shop. D played significant role in the overall operation. Previous convictions for dishonesty, but not drug related. No contrition. Mitigating factors: Nothing notable. |
| Thi Do Vo ** (2000) 118 A Crim R 320 | 6.15.00 | Knowingly concerned in importation | Heroin | 54.5 | NG | 22 | 14 |
| Facts/Aggravating factors: Consignment of tinned pineapple shipped to Sydney in 1997, heroin concealed in 7 cartons. D arranged for customs clearance, storage, delivery and unloading of shipment. Not principal in the cartel responsible for the importation, nevertheless as “key” participant, both before and after the container arrived in Australia. False evidence given in witness box until convicted then confessed – claimed that coerced into offence- D’s role more crucial to success of operation that other offenders. A commercial venture designed to produce financial return. Large quantity of narcotic involved. Age not a mitigating factor. Mitigating factors: None |
| Leung, Yui Man* [2003] NSW CCA | 1.05.03 | Attempt to possess prohibited import | Heroin | 54.5 | NG | 20 | 12 |
| Facts/Aggravating factors: Consignment of pineapple times shipped from Hong Kong to Sydney, heroin concealed in 7 cartons. Entry to Australia using false name and documents - false banking and other documentation. D’s role organisational one (based on evidence of telephone communications and meetings with other participants in the enterprise) being above that of mere driver or courier, though not mastermind. Evidence D connected with a Triad group in Hong Kong, also previous conviction and prison sentence for possession of firearms and ammunition. Mitigating factors: Foreign national |
| Lara-Gomez, L ** [1996] NSW CCA | 24.04.96 | Possess prohibited import x2 | Cocaine | 59 + 18 = 77 | G | 18 | 13 ½ |
| Facts/Aggravating factors: D travelled to Australia to set up facilities to store and receive cocaine. Specifically D’s role was to warehouse cocaine and make supplies as directed. In August 1992 D had in storage in rented apartment 75kg of cocaine (bulk) plus further 23 kg (bulk) in garage owned by associate. Sentencing judge said he was not persuaded D was a principal, but nevertheless his role was an “important” one. Mitigating factors: No previous convictions, early plea of guilty. |
| Denis Hong Wong * ** [2003] NSW CCA 261 | 03.09.03 | Knowingly concerned in importation | Heroin | 61.824 | NG | 20 | 13 |
| Facts/Aggravating factors: March 2000, furniture consigned in China delivered to warehouse in Sydney, container unloaded by labourers hired by D. D set up bogus furniture company to receive importation of furniture. Narcotics concealed in panels. D’s role descried by sentencing judge as middle management, important member of well organised smuggling ring. Mitigating factors: D in protective custody for reasons of his own choosing, but likely duration unknown. Ultimate sentence not altered. |
| Stanbouli, S * [2003] NSWCCA 355 | 04.12.03 | Conspiracy to Import | Heroin | 63.5 | G | 19 | 12 |
| Facts/Aggravating factors: Between July 1998 and April 2000, D a licensed customs broker, conspired with A and others to import 23 shipments of heroin containing in total at least 63.5 kg pure heroin as found by the CCA. D’s function was to oversee the receipt and clearance of each shipment, to warn co-conspirators of any customs interest, and to advise as to how detection could be avoided. CCA characterised D as a willing, useful and important assistant in each of the importations and someone who brought to the conspiracy knowledge and skill that no other member of the conspiracy could provide. Sentence increased from 13 ½ years with 10 yr npp. Mitigating factors: Plea of guilty, but 5 months after arrest. Some assistance provided in respect of co-conspirators, but value diminished because information not frank and entirely truthful. Sentence to be served in protective custody. Combined 30% discount on head sentence allowed for plea of guilty and assistance. |
| “W” (2002) 129 A Crim R 400 | 24.05.02 | Import prohibited import | MA | 66.332 | G | 7 | 4+7m |
| Facts/Aggravating factors: November 2000, 2 shipping containers from Singapore delivered to a warehouse in Sydney, narcotics concealed within metal struts, street value $24 million. D travelled from Hong Kong, cut open containers, re-packaged the narcotics and commenced delivery to others prior to his arrest. Sentencing judge found D was “intimately” involved in the criminal undertaking Mitigating factors: No previous convictions. Early plea of guilty. Sentence reduced by 50% on account of past and future assistance. |
| Kwok Hung Ng ** [2001] NSWCCA 305 | 12.07.01 | Knowingly concerned in importation | Heroin | 69.052 | G | Life | 18 ½ |
| Facts/Aggravating factors: D arrived in Australia in November 1997. In July 1998, shipment of commercial ovens consigned to Sydney, 93 kg of heroin (bulk) concealed within. Shipment delivered to Sydney premises at direction of D. D attempted to flee when police surveillance detected. Described by sentencing judge as “high level operative who played a central role in the importation”, part of a well-organised and sophisticated importation syndicate. Prior convictions, including one in Holland for importation of heroin for which sentenced to 18 months imprisonment. Mitigating factors: Plea of guilty. Foreign national, separation from family taken into account. |
| Kong Goi Chan * [2003] NSW CCA | 11.11.03 | Knowingly concerned in importation | Heroin | 146.991 | NG | Life | 20 |
| Facts/Aggravating factors: D made trips to Sydney from Singapore, to set up business and bank accounts, leased factory premises and arranged delivery of shipping container comprising pallets of timber with false bottom containing 622 block of heroin (219.169 kg bulk). Arranged removal of drugs from container in warehouse, reporting findings by telephone to a Mitigating factors: No contrition, no prior convictions but sentencing judge found no mitigating factors |
| Flavel, RS [2001] NSWCCA 227 | 08.06.01 | Importation of prohibited import | Cocaine | 172.2 | NG | Life | 25 |
| Facts/Aggravating Factors: In December 1997, D assisted M and others to sail a yacht from Cuba to Coffs Harbour, narcotics (bulk 244 kg) concealed within on-board dinghy. D supervised the importation and reported to the principal, role described as “mid level executive” at Mitigating factors: No relevant previous convictions |
| Gonzalez-Betes [2001] NSWCCA 226 | 8.6.01 | Knowingly concerned in the importation | Cocaine | 172.2 | NG | Life | 22 |
| Facts/Aggravating factors: December 1997 M and others sailed a yacht from Cuba to Coffs Harbour, narcotics (bulk 244kg) concealed within on-board dinghy. D and her husband were former owners of yacht but left vessel prior to its departure for Australia. D and others present at Coffs harbour upon arrival of yacht, assisted in unloading dinghy onto trailer at boat ramp, then departed in vehicle with trailer attached. Described as “mid-level executive” involved in importation at an early stage. Mitigating factors: Nothing notable |
| Campillo Vaquere * [2004] NSWCCA 271 | 13.8.04 | Knowingly concerned in importation | Cocaine | 171.2 | NG | Life | 24 |
| Facts/Aggravating factors: The yacht Maeva sailed from Central America to Coffs Harbour carrying on board a Boston Whaler dinghy which had concealed in its hull 224.8 kg (bulk) cocaine- estimated value $40-50 million. D was mid level executive or organiser within the international organisation, at a level of culpability equivalent to that of Gonzales-Betes although their roles were clearly different. D however had prior drug conviction which was also committed, as was present offence, for the purposes of sale and involved sophisticated equipment and careful planning. Mitigating factors: Nothing significant |
| Chen (2002) 130 A Crim R 300 | 11.6.02 | Knowingly concerned in the importation | Heroin | 252.3 | NG | Life | - |
| Facts/Aggravating factors: MV Uniana, sailed from Hong Kong to Andaman Sea, heroin cargo (399kg bulk) where D and heroin picked up. D unpacked heroin and repackaged it in sports bags. The vessel then sailed to Port Macquarie coastal area. Heroin transferred to speedboat and carried to shore by D who was armed and others. Chen described as one of the principals in the enterprise. Mitigating factors: Foreign national, additional hardship due to separation from family and friends. Prior good character. |
| Khong Hoi Lau (2002) 130 A Crim R 300 | 11.6.02 | Knowingly concerned in the importation | Heroin | 252.3 | NG | Life |
| Facts/Aggravating factors: MV Uniana, sailed from Hong Kong to Andaman Sea, heroin cargo (399kg bulk) where co-accused Chen and heroin picked up. D accompanied speedboat to effect the pick up. The vessel then sailed to Port Macquarie coastal area where heroin transferred to speedboat and carried to shore by Chen and others. D remained on MV Uniana. D described as “paymaster” and “principal” in the enterprise. Mitigating factors: Foreign national, additional hardship due to separation from family and friends. Prior good character. |
| Mandagi [2002] NSWCCA 57 | 11.3.02 | Knowingly concerned in the importation | Heroin | 252.3 | NG | 27 | 19 |
| Facts/Aggravating factors: Captain of MV Uniana, sailed from Hong Kong to Andaman Sea, heroin cargo (399kg bulk) there transferred aboard then vessel sailed to Port Macquarie coastal area. Heroin transferred to speedboat and carried to shore. Though directed by others as to what to do, D played pivotal role, venture depended on his skill and seamanship – high criminality but not the worst case – sentence starting point set at 40 years to achieve parity with co-offender and take into account high objective gravity. Non- parole period outside usual range to reflect criminality. Mitigating factors: Indonesian national and sole breadwinner, motivated by desire to provide for family. Sentenced to reduced from life imprisonment with non-parole period of 25 years to 27 years with a non-parole period of 19 years. |
| Siregar, S (2002) 136 A Crim R 206 | 5.12.02 | Knowingly concerned in the importation of 252kg heroin | Heroin | 252.3 | NG | Life | 20 |
| Facts/Aggravating factors: MV Uniana, sailed from Hong Kong to Andaman Sea, heroin cargo (399kg bulk) where heroin picked up. The vessel then sailed to Port Macquarie coastal area and heroin transferred to speedboat and carried to shore by others. D was the chief engineer and member of the vessel’s crew. D described as having participated at a “very senior level”. Mitigating factors: Foreign national, additional hardship due to separation from family and friends. Prior good character. |
| Chan * Fan * Chung * Li * [2005] NSWCCA 154 | 25.5.05 | Knowingly concerned in importation | Heroin | 252.3 | G G NG G | Life Life Life 24 | 28 28 28 18 |
| Facts/Aggravating factors: MV Uniana, sailed from Hong Kong to Andaman Sea, heroin cargo (399kg bulk) where heroin picked up. The vessel then sailed to Port Macquarie coastal area and heroin transferred to speedboat and carried to shore. All significant participants. Chan came to Australia to oversee delivery and was in close contact with colleagues overseas as he monitored the progress of the carriage of the heroin – he supervised others, facilitated the provision of money and made strategic decisions. Chan was senior to Fan & Chung. Fan took instructions from Chan and looked to Li and Chung to perform them – integral to the importation and warehousing of the drugs; operated with a degree of independence – in daily contact with those overseas and a trusted subordinate. Chung was involved in the preparation and was to play role in the landing, the transport, the storage and the distribution of the heroin following its arrival; he was a trusted member of the shore party; he understood the codes to be used to distribute the heroin and in contact with persons overseas. Li was the driver and general hand acting under instruction. Mitigating factors: Chan: Non-parole period reduced to 28 years – no criminal history, pleaded guilty at early stage, co-operated by not contesting facts asserted against him and showed remorse. |
| Ismunandar (2002) 136 A Crim R 206 | 5.12.02 | Knowingly concerned in the importation of 252kg heroin | Heroin | 252.3 | NG | Life | 20 |
| Facts/Aggravating factors: MV Uniana, sailed from Hong Kong to Andaman Sea, heroin cargo (399kg bulk) where heroin picked up. The vessel then sailed to Port Macquarie coastal area and heroin transferred to speedboat and carried to shore by others. D was the chief officer or mate, ranking second in command after the captain of the vessel. D described as having participated at a “very senior level”. Mitigating factors: Foreign national, additional hardship due to separation from family and friends. Prior good character. |
| Diez * R v Bartle and Ors (2003) 181 FLR 1 | 3.12.03 | Knowingly concerned in importation | Cocaine | 383.43 | NG | Life | 25 |
| Facts/Aggravating factors: In January 2000 approximately 500kg (bulk) cocaine was transhipped mid-Pacific from the Bora Bora to a NZ vessel Ngaire Wa which sailed on to Broken Bay. D met with and communicated with members of the group concerning fro the rendezvous, transferred funds to crew of the Bora Bora, acted as representative of the South American cocaine interests, and generally paid one of the leading organisational roles. Previously convicted in 1994 of conspiracy to import cocaine – sentenced to 2 ¾ years. Mitigating factors: Nothing significant |
| Bartle, GW * R v Bartle and Ors (2003) 181 FLR 1 | 3.12.03 | Knowingly concerned in importation | Cocaine | 383.43 | NG | 24 | 16 |
| Facts/Aggravating factors: In January 2000 approximately 500kg (bulk) cocaine was transhipped mid-Pacific from the Bora Bora to a NZ vessel Ngaire Wa which sailed on to Broken Bay. D involved with others in acquiring and making ready the Ngaire Wa in NZ, in particular receiving funds and acting as treasurer, and making arrangements to meet and unload the vessel at Broken Bay. D’s role substantial, although he did not exercise any real authority and always worked under directions. Mitigating factors: No prior convictions |
| Fry, STG * R v Bartle and Ors (2003) 181 FLR 1 | 3.12.03 | Knowingly concerned in importation | Cocaine | 383.43 | NG | Life | 25 |
| Facts/Aggravating factors: In January 2000 approximately 500kg (bulk) cocaine was transhipped mid-Pacific from the Bora Bora to a NZ vessel Ngaire Wa which sailed on to Broken Bay. D involved with others in acquiring and making ready the Ngaire Wa in NZ, travelled to Panama to receive instructions concerning rendezvous, captained vessel to the transhipment point, then on to Broken Bay. Although not in charge of the Australian and NZ phase, nevertheless played a significant role in organising the importation. Previously convicted of supply and manufacture prohibited drug , sentenced to several periods of imprisonment , totalling approx 9 years. Mitigating factors: Nothing significant |
| Roberti, RA * R v Bartle and Ors (2003) 181 FLR 1 | 3.12.03 | Knowingly concerned in importation | Cocaine | 383.43 | NG | 24 | 16 |
| Facts/Aggravating factors: In January 2000 approximately 500kg (bulk) cocaine was transhipped mid-Pacific from the Bora Bora to a NZ vessel Ngaire Wa which sailed on to Broken Bay. D involved with others in acquiring and making ready the Ngaire Wa in NZ then crewing the vessel to its rendezvous point and on to Broken Bay. Although not an organisor, D’s role nevertheless held to be significant in getting vessel ready and crewing her as well as looking after the interests of other members of the group. Mitigating factors: No prior convictions |
| Name | Date | Offence | Drug | Amount Kg - pure | Plea | Sentence [years & months] |
| Head [<b> </b>] NPP | ||||||
| Queensland | ||||||
| Jackson, Peter Fancher QLD CCA | 14.02.03 | Import prohibited import | Cocaine | 65 | G | 25 [<b> </b>] 13 |
| Facts/Aggravating factors: D skippered the boat carrying the narcotics (89 kg bulk) from Mexico. D provided the vessel and financed the journey. D Liaised with other organisers when obstacles encountered. Mitigating factors: No prior convictions, guilty plea. |
| Aracati De Oliviera Salles QLD CCA | 20.05.97 | Import prohibited import | Cocaine | 14.872 | G | 20 | - |
| Facts/Aggravating factors: June 1996 D was a crewman with 2 others on a vessel from Brazil travelling via Taiwan to Mackay. Customs tipped off when wharf watchman saw D and others come ashore with large bags (concealing 20 bags of Cocaine 20kg bulk). Found to be actively involved in arranging importation. Mitigating factors: 2. No priors, pleaded guilty, assistance |
| NUDD, Kevin Phillip QLD CCA | 14.05.04 | Knowingly concerned in importation | Cocaine | 65 | NG | 22 | 11 |
| Facts/Aggravating factors: Co-accused: Jackson. Part of organising committee to import 89kg (gross) cocaine. Important role in the planning of the importation and level of seniority. Mitigating factors: 510 days pre-sentence custody deemed served, no prior convictions, guilty plea. |
| Name | Date | Offence | Drug | Amount Kg - pure | Plea | Sentence [years & months] |
| Head [<b> </b>] NPP | ||||||
| Western Australia | ||||||
| Ba Thi Nguyen WA CCA | 05.04.05 | Import prohibited import | Cocaine | 0.455 | NG | 16 [<b> </b>] 7 ½ |
| Facts/Aggravating factors: D provided heroin to co-accused internal courier, organised and supervised its passage into Australia, and made arrangements for it to be secure once it had landed. The sentencing Judge stated that comparable Queensland cases suggest a range of about 14 to 17 years as an appropriate head sentence; and Her Honour emphasised that while rehabilitation is important, deterrent is also an important factor when there is a calculated plan to import a large quantity of heroin, and as she pointed out the applicant was closely involved in the importation and the method of importation. No remorse Mitigating factors: 7 children under 19, no priors |
| Wan Ho Kwong WA SC (Malcolm J) | 07.05.96 | Knowingly concerned in importation | Heroin | 32.41 | G | 24 + 6m | 16 |
| Facts/Aggravating factors: Between April and September 1994 D travelled between China and Australia in “elaborately clandestine operation” importing narcotics from China. D was in direct contact with principal and was found third in the hierarchy. Mitigating factors: 2. paid $20,000 for his role, participated out of desperation to fund operation to his spine, late plea of guilty |
| Melgar-Sevilla, Jose WA SC | 21.10.05 | Aiding commission of importation Possess prohibited import | Cocaine | 78.319 | G | Life | 21 |
| Facts/Aggravating factors: Importation on vessel to Albany – D arrived in Australia to supervise the delivery. Had a managerial role over the importation, arranged assistance and took possession of 100 packages of concealed narcotics - Sophisticated and well-organised importation. Sentencing judge found D was crucial to success of operation. D made all communication and arrangements. D asserted duress but did not give evidence. Sentencing judge rejected duress faced with surveillance evidence. Mitigating factors: plea of guilty, age, poor health, long term relationship and two children, prospects for rehabilitation |
| Suarez-Mejia (2002) 131 A Crim R 564 | 17.7.02 | Import prohibited import | Cocaine | 707 | G | Life | 20 |
| Facts/Aggravating factors: The vessel “White Dove” sailed from the US to Praia, Cape Verde, off the west Coast of Africa. It met with another vessel and 38 bags of cocaine (937 kg bulk) was transferred onto the White Dove and then travelled to Dulverton Bay, north of Geraldton. The cocaine was loaded onto inflatable dinghies and D and another transported it ashore and concealed in beneath rocks on the beach. D was the financier’s representative. Prior drug conviction. Mitigating factors: early plea of guilty; co-operation with authorities |
| Reaves WA CCA (2004) 147 A Crim R 26 | 24.5.04 | Import prohibited import | Cocaine | 707 | G | Life | 18 |
| Facts/Aggravating factors: D organised and piloted a vessel “White Dove” which from the US to Praia, Cape Verde, off the west Coast of Africa. The White Dove met with another vessel and 38 bags of cocaine (937 kg bulk) was transferred onto the White Dove and then travelled to Dulverton Bay, north of Geraldton. The cocaine was loaded onto inflatable dinghies and D and another transported it ashore and concealed in beneath rocks on the beach. D then scuttled the White Dove. D was critical to the success of the operation in terms of his knowledge and skill in relation to the purchase, fitting out and navigation of the boat he also recruited another crewman, P. Prior drug conviction and currently on parole. Sentence of 25 years imprisonment with a non-parole period of 14 years increased to life imprisonment with non parole period of 18 years. Mitigating factors: early plea of guilty |
| Espriella-Velasco [2006] WA CCA 31 | 10.3.06 | Knowingly concerned in importation | Cocaine | 707 | NG | Life | 26 |
| Facts/Aggravating factors: The vessel “White Dove” sailed from the US to Praia, Cape Verde, off the west Coast of Africa. It met with another vessel and 38 bags of cocaine (937 kg bulk) was transferred onto the White Dove and then travelled to Dulverton Bay, north of Geraldton. The cocaine was loaded onto inflatable dinghies and D and another transported it ashore and concealed in beneath rocks on the beach. D travelled to Australia, recruited L, located a suitable spot for the off-loading of the cocaine and made arrangements to assist with the transportation of the cocaine when it arrived. In regular telephone contact with persons overseas as well as the White Dove. D controlled and ran the shore-based element of the process of importation. Convicted at trial and sentenced to life imprisonment with a non-parole period of 26 years. Prior conviction for importing cocaine to Curacao. Mitigating factors: Foreign national |
| Name | Date | Offence | Drug | Amount Kg - pure | Plea | Sentence |
| Head [<b> </b>] NPP | ||||||
| Victoria | ||||||
| Yau Kim Lam [2005] VSC 98 (Kellam J) | 15.06.05 | Aid and abet importation. | Heroin | 82.29 | G | 23 [<b> </b>] 16 |
| Facts/Aggravating factors: D played a ‘significant’ role, above that of a mere courtier. D’s function was to arrange the delivery of heroin (125 kg bulk) contained in the ship ‘Pong Su’ to others on shore. Not the mastermind, as was operating under directions of others. High degree of responsibility and authority, D was present to receive the drugs and means to be in contact with the ship. Complex and well-planned organisation. Need for general deterrence, young, no family. Mitigating factors: “substantial and transparent” discount for plea of guilty, but indication of inevitability of conviction not remorse, no prior convictions, foreigner isolated from culture, prospects for rehabilitation. |
| Kiam Fah TENG [2005] VSC 33 (Kellam J) | 21.02.05 | Aid and abet importation | Heroin | 82.29 | G | 22 | 15 |
| Facts/Aggravating factors: D involved in direct contact by telephone with people at the head of the organisation that arranged for the ‘Pong Su’ importation to occur. Responsible for preparation, transportation and storage of narcotics. Acting under instructions from others. Mitigating factors: Plea of guilty, remorse, motivated to pay of debs and to receive $80,000, no prior convictions, good prospects for rehabilitation. |
| Perrier, Murray James (No 2) [1991] 1 VR 717 VIC CCA | 08.09.89 | Knowingly concerned in importation | Heroin | 1.636 | NG | Life | 22 |
| Facts/Aggravating factors: D was the Australian organiser of the international importation. D had close relationship with principal in Bangkok. Court found high moral culpability and strong need for deterrence. Sentencing judge found D articulate and well aware of risks. Prior convictions and terms of imprisonment in other countries for drug offences. Little weight attached to his motivation for committing the offences solely for profit. Mitigating factors: Nothing significant |
| Name | Date | Offence | Drug | Amount Kg - pure | Plea | Sentence [years & months] |
| Head[<b> </b>] NPP | ||||||
| Northern Territory | ||||||
| Wangsaimas, (and ors) (1996) 133 FLR 272 NT CCA | 31.07.96 | Import prohibited import | Heroin | 89 | G | Life [<b> </b>] 22 |
| Facts/Aggravating factors: July 1994 D was Captain of the vessel (concealing 120.81 kg bulk narcotics) with others on board. D adopted the importation plan and carried it out. He was in contact with the ‘senior operational people”. The vessel was detected off Bathurst Island in the Northern Territory. It was escorted into Darwin Harbour on the following day. There, some time after the vessel had been secured, a hessian bag was found floating in the water nearby. Subsequently, further bags were found on the seabed close to the vessel, containing 89 kg pure heroin in total. D played a “substantial” role. S 16G did not apply to life imprisonment sentences. Mitigating factors: co-operation with authorities |
| Lee Vanit (1996) 133 FLR 272 (1997) 190 CLR 378 NT CCA HCA | Import prohibited import | Heroin | 89 | G | Life | 25 |
| Facts/Aggravating factors: July 1994 D was an “executive” on board a vessel with others. The vessel was detected off Bathurst Island in the Northern Territory. It was escorted into Darwin Harbour on the following day. There, some time after the vessel had been secured, a hessian bag was found floating in the water nearby. Subsequently, further bags were found on the seabed close to the vessel, containing 89 kg pure heroin in total. D played a “substantial” role. S 16G did not apply to life imprisonment sentences. Mitigating factors: none |
| Name | Date | Offence | Drug | Amount Kg - pure | Plea | Sentence [years & months] |
| Head[<b> </b>] NPP | ||||||
| South Australia | ||||||
| Choon Sien Tee 71 A Crim R 181 SA CCA | 24.02.94 | Import prohibited import | Heroin | 2.003 | G | 12 [<b> </b>] 7 |
| Facts/Aggravating factors: D was resident of Singapore who acted as a courier. He was to receive $10,000 for importing heroin in his pockets, on his body and in his shoes. He co-operated with police. He told them what he knew, but it was not much and did not lead to any new lines of investigation. General deterrence important. Mitigating factors: Rehabilitation not material consideration. D was a foreign national and a foreign resident, will not remain, or indeed be allowed to remain, in this country during his parole. Plea of guilty and cooperation, but did not have effective information. |
NOTES:
NG = not guilty
G = guilty
S = sentence appeal
C&S = conviction and sentence appeal
Crown = Crown appeal
A = appeal allowed
D = appeal dismissed + in comments D also signifies convicted person
Commercial quantity of: Heroin = 1.5kg
Cocaine = 2.0kg
MDMA = 0.5kg
Section 16G of the Crimes Act 1914 (reduction of sentences where no remissions) was repealed on 16.1.03 and applies irrespective of when the offence was committed or proceedings commenced.
An asterisk after the name of the offender in the signifies that the person was sentenced after the repeal of s.16G and therefore the sentence was not reduced on account of the absence of remissions in New South Wales.
A double asterisk after the name of the offender signifies the comparative cases provided by Crown on sentence
Consideration of these decisions confirms that the penalty imposed on the respondent was quite inadequate for a person who played a senior role in a very large drug importation enterprise. If comparisons are confined to sentences imposed after the repeal of s 16G of the Crimes Act it can be seen that offenders who, although not at the pinnacle, were key organisers or critical to the success of the operation received head sentences in excess of 20 years and a number received life sentences. Non-parole periods are also significantly greater than the 11 yeas imposed on the respondent. In many of the cases in the table the offender obtained the benefit of a plea of guilty, sometimes an early plea, thereby significantly reducing the sentence. The present respondent was convicted following a trial.
To my mind the objective criminality of the respondent and the amount of the illegal drugs imported warrants a very severe penalty, toward the top of the available penalties, although not a term of life imprisonment (see the remarks of the Chief Justice in R v Stanbouli (2003) 141 A Crim R 531 at 533). There is little, apart from the fact that he has no prior criminal history, to ameliorate the sentence and that is of minimal significance. But for the fact that this is a Crown appeal a non-parole period significantly in excess of 20 years was appropriate. However, being a Crown appeal this Court should impose a sentence at the bottom of the available range. In my opinion that would require a non-parole period of 19 years and 6 months with an additional term of 8 years and 6 months making a total term of 28 years. Allowance must be made for the time he served in custody prior to his extradition to Australia. Although this provides a sentence where the non-parole period is greater than 66% of the total sentence the objective criminality of the offender more than justifies this term of full time custody (see Bick v R [2006] NSWCCA 408 at [21]-[23]; R v Sweet [2001] NSWCCA 445 at [18]-[20]).
I propose the following orders:
1. Appeal upheld.
2.Quash the sentence imposed and in lieu sentence the respondent to a non-parole period of 18 years and 11 months to commence on 2 December 2005 and expire on 1 November 2024 with an additional term of 8 years and 6 months to expire on 1 May 2033. The earliest the respondent would be eligible to be released on parole would be 1 November 2024.
HOWIE J: I agree with McClellan CJ at CL.
HALL J: I agree with McClellan CJ at CL.
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LAST UPDATED: 17 August 2007
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