R v Looi
[2022] VCC 293
•18 March 2022
Ra
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-19-02559
| THE QUEEN |
| v |
| SU YI LOOI |
---
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 October, 18 November, 23 November, 1 December, | |
DATE OF SENTENCE: | 18 March 2022 | |
CASE MAY BE CITED AS: | R v Looi | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 293 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentence
Catchwords: Import marketable quantity of border controlled drug (two charges) – plea of guilty – methamphetamine – general deterrence – denunciation – condemnation – protection of the community – limited remorse – likelihood of deportation – COVID-19 delay
Legislation Cited: Criminal Code Act 1995 (Cth), s307.2(1); Crimes Act 1914 (Cth), s16A, s16F, s17A; s19AKA; Migration Act 1958 (Cth), s501(3A); COVID-19 Omnibus (Emergency Measures) Act 2020 (repealed); Commonwealth of Australia Constitution Act 1901, s80; Sentencing Act 1991 (Vic), s6AAA
Cases Cited:R v Moran and Byrnes (1987) 31 A Crim R 248; Markarian v The Queen (2005) 228 CLR 357; Markovic v The Queen (2010) 30 VR 589; Guden v The Queen (2010) 28 VR 288; R v Carroll [1991] 2 VR 509; R v Nguyen; R v Pham (2010) 205 A Crim R 106; Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673; Alavy v The Queen [2014] VSCA 25; R v Pham (2015) 256 CLR 550; Pham v The Queen [2014] 244 A Crim R 252; R v Leroy [1984] 2 NSWLR 441; R v Fraser [2004] VSCA 147; R v Ceissman (2001) 119 A Crim R 535; R v Barrientos [1999] NSWCCA 1; Sukkar v The Queen (No 2) (2008) 178 A Crim R 433; Worboyes v R [2021] VSCA 169; The Queen v Madex [2020] VSC 145; Brown v The Queen [2020] VSCA 60; Wyka and Gardiner v The Queen [2020] VSCA 104; Director of Public Prosecutions (Cth) v Besim (No 3); Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 3) (2017) 52 VR 303; R v Muanchukingkan (1990) 52 A Crim R 354; R v Laurentiu (1992) 63 A Crim R 402
Sentence: Convicted and sentenced to a total effective sentence of four years and six months’ imprisonment with a non-parole period of three years.
Section 6AAA Sentencing Act 1991 declaration: Conviction and sentence of eight years and six months’ imprisonment with a non-parole period of five years and eight months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms C Fitzgerald | The Commonwealth Director of Public Prosecutions |
| For the Accused | Mr C Hooper | Paul Vale Criminal Law |
Table of Contents
Circumstances of offending
Charge 1
Charge 2
Execution of a search warrant
Record of Interview
Gravity of offending
Applicable sentencing principles in drug importation cases
Plea in mitigation of penalty
Role played
Personal history
Prior good character
Guilty plea
Relevance of COVID-19 over and above social utility
Contrition
Time held on remand
Likelihood of deportation
Prospects of rehabilitation
Submissions as to penalty
Sentences to be imposed
Direction under Section 17A(2)(b) Crimes Act 1914 (Cth)
Declaration of pre-sentence detention under Section 16E Crimes Act 1914 (Cth)
Statement under s6AAA Sentencing Act 1991 (Vic)
HER HONOUR:
1
Su Yi Looi, you are before me to be sentenced in respect of two charges of importing a marketable quantity of a border controlled drug, contrary to
subsection 307.2(1) of the Criminal Code (Cth).
2You pleaded guilty when arraigned before me on 20 October 2021. As shall be explained, at your plea hearing a question arose as to whether you accepted all of the elements required to prove the charges. After giving you time to consider your position, you maintained your guilty plea. I am satisfied that there was a misunderstanding, that you have always intended to plead guilty to the charges, and that you accept you committed the acts necessary to commit the crimes while possessing the requisite intention.
3Charge 1 alleges that on 16 April 2019, you imported a marketable quantity of methamphetamine.
4Charge 2 alleges that on 4 June 2019, you imported a marketable quantity of methamphetamine.
5The maximum applicable penalty for each of the charges is 25 years’ imprisonment.
Circumstances of offending
6The circumstances of offending are well set out in the Prosecution Opening for Plea dated 7 December 2020, tendered as exhibit A. You accept the facts asserted in that document are true. You will be sentenced on the basis of those agreed facts.
7You are a Malaysian national who arrived in Australia on 3 March 2019 on a Tourist Visa. You were then aged 33 years. A little over a month after your arrival in Australia, you were working as a kitchenhand and committed the first charge on the Indictment, importing a marketable quantity of methamphetamine. The second charge on the Indictment was committed approximately two months later. At the time, you were living in a boarding house in Ashwood, Victoria.
Charge 1
8
On 16 April 2019, a consignment was selected for examination by an
Australian Border Force (“ABF”) officer at the Melbourne Gateway Facility. It was declared as containing one sweater, six books and a personal gift.
9The consignment had an EMS tracking number EE044409289MY. It was addressed to you at your home address in Ashwood, Victoria. Your mobile phone number was listed.
10The consignor was declared as Joey Looi of 114B, Jln Serampang, Taman Pelangi [Malaysia] 80400 Phone: 01129777677. The consignment had an additional label marking the package for the attention of Joey Looi, at your address, also noting your mobile phone number.
11When the consignment was examined, it was found to contain magazines, dried foods, a blue jacket and four tin cans. Two of the tin cans were labelled “SW Cream Style Corn” and two were labelled “Baxters Mushroom Veloute”. The consignment was x-rayed, showing anomalies in the tin cans.
12Each of the tin cans was opened. Secreted within the tin cans were plastic bags containing a crystal substance. In two of the cans a brown crystal substance was found. The other two cans contained a white crystal substance.
13ABF spot testing of the crystal substance from one of the tin cans labelled “Baxters Mushroom Veloute” confirmed the substance as d,1-methamphetamine hydrochloride.
14The crystal substances were subsequently analysed forensically by an analyst at the Victoria Police Forensic Services Centre. The brown crystal substance (VPFSC Item Number 4) had a combined total weight of 482.4 grams. The drug detected was methamphetamine, with a purity range detected of between 74 and 93 per cent. The quantity of detected drug was 357 to 449 grams. The white crystal substance (VPFSC Item 5) had a combined total weight of 499.3 grams. The drug detected was methamphetamine, with a purity range detected of between 75 and 94 per cent. The quantity of detected drug was 374 to 469 grams. The total quantity of detected drug contained in the four tin cans was 731 to 918 grams.
15Between 15 and 22 April 2019, you tracked the consignment’s location with Australia Post, using the internet service at your residence.
16On 3 and 9 May 2019, an unknown woman called Australia Post and made enquiries about the location of the consignment. These calls were recorded by Australia Post. On both occasions, the woman made the calls from a private number, identified herself as “Joey” and provided the correct tracking number for the consignment. During the call made on 3 May 2019, the woman provided your address as the delivery address. During the call made on 9 May 2019, the woman said that the contents included personal gifts, snacks and clothing. She stated that she was the sender of the parcel.
Charge 2
17As a result of a Victoria Police mail stopper request, on 4 June 2019, a consignment was identified by an Australia Post parcel coordinator at the Australia Post Oakleigh South Delivery Centre. The consignment was declared as containing two pieces of clothing and two books.
18The consignment had an EMS tracking number EE044454946MY. It was addressed to your home address in Ashwood, Victoria and listed your mobile phone number. The consignee was named as David Looi of your residential address in Ashwood, Victoria. Your mobile phone number was included.
19The consignor was declared as Tan Zhi Ming of 27 Jalan Biru Muda, Taman Pelangi [Malaysia] 80400, Phone: 01129777677
20The package contained an additional consignee label marked Attn: David Looi and listed your Ashwood address and your mobile phone number.
21
Australia Post notified Victoria Police, who collected the consignment on
6 June 2019. The consignment was examined by Victoria Police officers who suspected it contained a prohibited substance, given the similarities with the previous seized consignment. The consignment was then taken by Victoria Police to the ABF container examination facility where it was examined.
22Located inside the consignment was dried food, two blue jumpers, cookbooks, and three tin cans labelled “SW Creamed Style Corn”. Upon x-ray, anomalies were shown in the three tin cans.
23Within each of the three cans a plastic bag was found containing a white crystal substance.
24ABF spot testing of the white crystal substance in each of the cans confirmed the substance as d,1-methamphetamine hydrochloride.
25
The white crystal substances were subsequently analysed forensically by an analyst at the Victoria Police Forensic Services Centre. The white crystal substance (VPFSC Item Number 1) had a combined total weight of 990.1 grams. The drug detected was methamphetamine, with a purity range detected of between 71 and 90 per cent. The quantity of detected drug was between 703 to
891 grams.
26On 7 and 11 June 2019, you asked Lai, a resident at the boarding house where you were living, to call the Australia Post Customer Service Call Centre to make enquiries on your behalf about the location of the consignment. These phone calls were recorded by Australia Post.
27
Lai agreed to help you because of your difficulty in communicating in English. In accordance with your instructions, during the calls, Lai identified himself as
“David Looi”. You told Lai that the parcel contained clothes and books.
28On 7 June 2019, you gave Lai your mobile phone to call Australia Post on your behalf. You gave Lai the consignment tracking number. Lai wrote the consignment details in a blue notebook. When Lai called Australia Post, he asked why the parcel had not arrived. He was given a case number for his enquiry. You can be heard on the recording of that phone call providing Lai with details of the consignment.
29On 11 June 2019, you again requested Lai to call Australia Post. This time Lai used his own mobile phone. He quoted the consignment tracking number and again enquired about the consignment.
Execution of a search warrant
30On 13 June 2019, members from Joint Task Force Icarus, including Victoria Police and ABF, attended at your address in the boarding house, where they executed a search warrant.
31You were found in room 7 of the boarding house. Lai, who lived in room 5, was also present at the address and was spoken to by police.
32When police searched your room they found your registration form for the boarding house, which contained details of your email address and mobile phone number. They also found a mail consignment containing a tracking number not apparently associated with either of the two consignments the subject of the charges before me but addressed to you at the boarding house. Police also located your mobile phone.
33When Lai’s room was searched, police found the blue notebook containing the details you gave to him for the purposes of making the phone call to Australia Post to which I have earlier referred.
34You were arrested and taken to the Melbourne West Police Station where you were interviewed on 13 June 2019 with the assistance of a Cantonese interpreter.
Record of Interview
35During the recorded interview you denied any criminal involvement with the importations. In effect, you claimed to have been duped by unknown persons. You explained that you had been working in a kitchen and as a waiter. You said that you asked someone in Malaysia who worked for you to send you some books, clothing and snacks. On another occasion, you asked them to send you a jumper, books and snacks. You said you did not have the details of that person. You agreed that you had already received one parcel, and said the second one was blocked. When the parcels were sent to you, you were given a code to check their progress. A photograph of the code was given to you. You admitted that you checked the website for “Post Malaysia” and then “Post Australia”.
36You told police that the parcel that arrived on 16 April 2019 with the tin cans was yours, adding that all you wanted was the snacks, clothing and books. You denied that the cans were yours. You said that apart from the cans, everything else in the parcel was yours. You agreed that the parcel was addressed to you.
37You told police that the first time a parcel arrived it also contained some cans. You claimed not to know what they were and threw them away as they did not belong to you.
38With regard to the second parcel, you told police that all you wanted was the snacks, some clothing, magazines, books and instant noodles. You denied knowing there were cans of corn in the consignment. You claimed to have called someone to enquire about why there were cans in your parcel. You said that you did not know the name of the person because he always changed his name.
39You explained to police that your company in Malaysia got into financial difficulty, so you came to Australia to study and also to earn money to help with the financial problems back in Malaysia.
40You denied asking a woman to call Australia Post on your behalf to enquire about the first consignment.
41You said that when the second parcel had not arrived, you called the worker back in Malaysia to find out what happened and where the parcel was. You agreed that you asked a resident at the boarding house to call Australia Post on your behalf to make enquiries about the consignment.
42You denied packing the parcels and claimed to have no idea how the cans got into them. You denied ordering the methamphetamine. You said, however, about eight months or a year beforehand, some people in Malaysia asked you to import drugs into Australia but that you had never done it. You told police that you may have been framed.
Gravity of offending
43The unlawful importation of border controlled drugs is a most serious crime, the inherent gravity of which is reflected in the maximum applicable penalty, in your case, 25 years’ imprisonment. It is well understood that these substances have the potential to wreck the lives of those who use them, and beyond, they “continue to present to a modern civilised society an increasing burden both monstrous and intolerable”.[1]
[1] R v Moran and Byrnes (1987) 31 A Crim R 248 at 254, per Tadgell J
44Although it is not suggested by the Prosecution that you were the mastermind of this importation, you nevertheless played a vital role in the success of the operation. You were the one who facilitated the importation. The first consignment arrived within weeks of your arrival in Australia. You were the consignee, you were to receive the consignments, presumably to pass them on to a third party, and you tracked the parcels. You have never explained what you were to do with the tin cans containing the drugs, who had sent them to you, and to whom they were to be delivered. It is inconceivable that you did not know that the tin cans would have to be passed on to another person, even if you did not know the name or true identity of that person.
45In cases such as these, principles of general deterrence, denunciation and condemnation and protection of the community are dominant sentencing factors.
Applicable sentencing principles in drug importation cases
46In determining the sentence to be passed or the order to be made, I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.[2]
[2] Section 16A(1) Crimes Act 1914 (Cth)
47There are many factors that I must take into account when sentencing you, including:
(i) Principles of general deterrence;[3]
[3]See Crimes Act 1914 (Cth), s16A(2)(ja) – general deterrence is now specifically included as a matter to be considered
(ii) The nature and circumstances of the offence,[4] including your moral culpability;
[4] Section 16A(2)(a) Crimes Act 1914 (Cth)
(iii) The maximum applicable penalty;[5]
[5]See Markarian v The Queen (2005) 228 CLR 357: The maximum penalty serves as a yardstick to enable a comparison between the case before the Court and the worst case scenario
(iv) Any injury, loss or damage resulting from the offence;[6]
[6] Section 16A(2)(e) Crimes Act 1914 (Cth)
(v) The degree to which you have shown contrition for the offence;[7]
[7] Section 16A(2)(f)(ii) Crimes Act 1914 (Cth)
(vi) The fact that you have pleaded guilty to the charges and the timing of your plea;[8]
(vii) The deterrent effect that any sentence or order under consideration may have on you;[9]
(viii) The need to ensure that you are adequately punished for the offence;[10]
(ix) Your character, antecedents, age, means, and physical or mental condition;[11]
(x) Your prospects of rehabilitation;[12]
(xi) The probable effect that any sentence or order under consideration would have on any of your family or dependants;[13]
(xii) The probability of your deportation;[14]
(xiii) Delay;
(xiv) Principles of parsimony;[15] and
(xv) Principles of totality.
[8]Section 16A(2)(g) Crimes Act 1914 (Cth)
[9] Section 16A(2)(j) Crimes Act 1914 (Cth)
[10] Section 16A(2)(k) Crimes Act 1914 (Cth)
[11] Section 16A(2)(m) Crimes Act 1914 (Cth)
[12] Section 16A(2)(n) Crimes Act 1914 (Cth)
[13]Section 16A(2)(p) Crimes Act 1914 (Cth) – also note family and family members include – de facto partner, child as defined in section 3, and anyone else who would be a member of the offender’s family as defined: see s16A(4). Also note that there must be exceptional circumstances before this factor can be taken into account – Markovic v The Queen (2010) 30 VR 589
[14]Must be more than a possibility, and must be based on evidence – Guden v The Queen (2010) 28 VR 288, but see the presumption of deportation created by s501(3A) of the Migration Act 1958 (Cth)
[15]Section 17A(1) Crimes Act 1914 (Cth) and see R v Carroll [1991] 2 VR 509
48The general principles applicable to sentencing drug offenders who breach Federal law were summarised in R v Nguyen; R v Pham:[16]
[16] (2010) 205 A Crim R 106 at 126-128
“Some General Sentencing Principles Concerning Serious Federal Drug Offences
70The importation and possession offences now contained in the Criminal Code Act 1995 (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts ‘a quantity-based penalty regime’ by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties:
Adams v The Queen [2008] HCA 15; 234 CLR 143 at 146 [2].
…
72 The following general propositions emerge from the authorities:
(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee[[17]] at [27];
[17] [2007] NSWCCA 234
(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];
(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];
(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen[[18]] at 607-608 [64]; R v Lee at [23]-[24];
(e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];
(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];
(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at 607-608 [64];
(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at
552-553 [114];(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];
(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];
(k) where offenders are not young …. the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];
… .”
[18] (2001) 207 CLR 584
49These principles have been cited with approval in Victoria.[19]
[19] See for example Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673
50In Nguyen v R; Phommalysack v R,[20] the President of the Court of Appeal, Maxwell P, observed:
“35.In De La Rosa,[21] McClellan CJ at CL identified the following as key reference points for sentencing (and for comparing sentences) in cases such as these:
· quantity;
· role;
· reward;
· assistance to authorities;
· criminal history; and
· prospects of rehabilitation.”
[20] Ibid
[21] Director of Public Prosecutions (Cth) v De La Rosa (2010) NSWLR 1, paragraph [267]
51His Honour went on to acknowledge the level of detail in a table that was prepared from a comprehensive study of some 80 cases. He noted that although the table provided a helpful reference point for sentencing, it must not be regarded as setting the sentencing parameters for the arbitrary quantities into which the groups analysed were divided.
52It should be noted that current sentencing practice is to be interpreted from sentencing practice Australia-wide, and not just from Victoria,[22] where, as it has been observed, sentencing practice has been lower than in other States.[23] Caution must be exercised when statistical information is relied upon, because no two cases are likely to be identical.[24]
[22] R v Pham (2015) 256 CLR 550 at paragraphs [18]-[19]
[23] Pham v The Queen [2014] 244 A Crim R 252 at paragraph [44] and Attachment B to those reasons
[24] Alavy v The Queen [2014] VSCA 25
53In Pham v The Queen,[25] the Court of Appeal again emphasised that while sentencing statistics offer guidance and promote consistent sentencing practice throughout Australia, they are not determinative of the sentence to be imposed in any particular case. .
[25] [2016] VSCA 259
Plea in mitigation of penalty
54
You first indicated your intention to plead guilty to the charges in this Court following a contested committal hearing held in the Magistrates’ Court at Melbourne. You pleaded guilty in “short form” when arraigned before
Judicial Registrar Phillips on 15 December 2020.[26]
[26]See Order made by Judicial Registrar Phillip dated 15 December 2020. Note: there was email correspondence sent to the Court prior to this date indicating a guilty plea would be entered.
55As mentioned earlier, when first arraigned before me on 20 October 2021, you pleaded guilty to the charges. Your counsel at the time commenced making a plea in mitigation on your behalf. During the course of plea a question arose as to whether you possessed the requisite state of mind to substantiate the charges. The matter was adjourned on a number of occasions to clarify your position. Eventually, you retained new counsel, Mr C Hooper, who, on 15 February 2022, confirmed that you admit all of the elements necessary to establish your guilt of the charges. As mentioned earlier, I accept that there was a genuine misunderstanding about your position, and that I should regard you as having pleaded guilty when you first indicated your intention to do so in this Court.
56I now turn to the matters advanced on your behalf.
Role played
57Little was said on your behalf as to how you became involved in the importations, what you stood to gain from your role, or who else was complicit in your offending. As mentioned, you played a vital role in the importations. The quantities involved were at the upper end of the range for the category defined as a “marketable quantity”.
58As your counsel conceded, the offending involved a level of planning and sophistication, much of which occurred overseas. Although you gave little by way of explanation, as your counsel conceded,[27] and as the law permits the Court to presume, I am satisfied that you were motivated by financial reward. So much is clear from your record of interview when you explained to police that you had financial difficulties back in Malaysia and that is what prompted you to travel to Australia.
[27]Exhibit 1, Submissions on behalf of the accused, paragraph 3.d
Personal history
59You were born in Malaysia and are currently aged 36 years. You are a Malaysian citizen. You are married and have a five-year-old son. Your wife is a Vietnamese national who lives in Malaysia on a visa. She has a child from a previous relationship whom you consider as your stepchild. Naturally, you are concerned about their welfare, not only because of your isolation from them, but also because of the pandemic.
60You grew up in a good family with two older brothers and a sister. Your childhood was relatively normal, although your father was a strict disciplinarian.
61You attended a mainstream school in Malaysia and experienced some bullying there. You finished your education at a relatively early age and did not proceed to tertiary education. You can read and write in Cantonese. Your English is limited.
62Your employment history includes working as a driver in Malaysia. More recently, you owned a mobile phone shop. You were studying at a culinary school in Australia and intended to enrol in a business and English course while here.
63You have no mental health issues.[28]
[28]Exhibit 1, paragraph 11
Prior good character
64You have no prior convictions, however, as your counsel noted, you have previously been involved in organised crime as a driver for a criminal syndicate. As your counsel admitted on your behalf:
“…. it cannot be said [you are] positively someone of ‘good character’. [Your] involvement in this was limited and of short duration.”[29]
[29]Exhibit 1, paragraph 27
65The fact that you have no prior convictions is, in any event, of limited weight, as persons of apparently good character are often used in drug importations as they are considered less likely to attract the attention of authorities.[30]
[30]R v Leroy [1984] 2 NSWLR 441 at 446; R v Fraser [2004] VSCA 147; R v Ceissman (2001) 119 A Crim R 535; R v Barrientos [1999] NSWCCA 1; and Sukkar v The Queen (No 2) (2008) 178 A Crim R 433
Guilty plea
66In determining the weight to be given to your plea of guilty, I take into account the following factors:
(a) the timing of your plea, which your counsel conceded “is not the earliest available plea but still arrives before trial”;[31]
(b) you are entitled to a statutory discount because of your plea;
(c) As shall be discussed later, I do not accept that your plea is indicative of remorse;
(d) the strength of the case against you, which I assess as strong;
(e) you have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience of giving evidence upon your trial; and
(f) there is enormous social utility involved in your guilty plea, and by taking this course, I accept that you have facilitated the course of justice.
[31]Exhibit 1, paragraph 21
67Dealing with the question of the social utility inherent in your guilty plea, I note that there was an element of delay in the matter proceeding, largely attributable to the world-wide pandemic of COVID-19. Had you maintained your plea of not guilty as indicated at the conclusion of the committal hearing, your trial would most likely not have been heard until 2022. Even though some criminal trials were able to be conducted by judge alone pursuant to emergency legislation introduced in response to COVID-19[32] up until 26 April 2021, that course was not open to you, as you faced trial on Commonwealth charges.[33]
[32] COVID-19 Omnibus (Emergency Measures) Act 2020, Part 9.2, now repealed
[33]The Commonwealth of Australia Constitution Act 1901, s80
68Dealing with the question of the social utility inherent in your guilty plea, I note that additional weight must be given to this factor because of the impact that the
world-wide pandemic of COVID-19 has had on the criminal justice system.[34][34]Worboyes v R [2021] VSCA 169, particularly at paragraphs [34]-[39]
Relevance of COVID-19 over and above social utility
69
In addition to the extra weight that your guilty plea must attract because of
COVID-19, I also take account of the potential impact that COVID-19 might have upon the service of a sentence of imprisonment, including:
(i)You may face a higher risk of contracting the disease whilst in custody;[35]
(ii)There is an increased likelihood of periods of quarantine or isolation; and
(iii)The pandemic may cause additional stress and concern for prisoners and their families, as it is for every member of the community.[36]
[35]The Queen v Madex [2020] VSC 145 at paragraphs [51]-[52]
[36]Brown v The Queen [2020] VSCA 60 at paragraph [40]
70Although there is no direct evidence before me as to the effect of any of these factors upon you, I am prepared to assume that in the current climate they are matters to be taken into account as real possibilities in your case.[37]
[37]Wyka and Gardiner v The Queen [2020] VSCA 104
Contrition
71It was submitted by your counsel that you have shown a degree of contrition for the offence by accepting responsibility for your conduct and by acknowledging your wrongdoing. He also contended that your plea of guilty evidences your remorse.
72Your counsel further submitted that you indicated a willingness to assist the authorities, although nothing came of this, and that this also evidences your remorse.
73On the other hand, it must be noted that from the outset, when interviewed by police you maintained your innocence, a position you maintained until the matter first came to this Court following the contested committal hearing. You have given very little by way of explanation of the offences, how you came to be involved, and who else was complicit.
74You have not apologised for your conduct, and no evidence has been called or tendered to show that you have expressed regret for your actions and the potential harm they might have caused.
75Your counsel conceded that in these circumstances, it is open to find that you are not remorseful and that there was no true cooperation with authorities.
76Your late acceptance of responsibility does not mean that you are not now remorseful for your conduct; however, quite frankly, there is no satisfactory evidence to indicate your remorse. I hasten to add that the absence of remorse and your or lack of assistance in identifying your co-offenders does not count as an aggravating factor. Rather, they are matters that I cannot count in mitigation of penalty.
Time held on remand
77You were arrested on 13 June 2019 and have been held in remand since that date.
78Whilst on remand, you have worked in the kitchen. With the money you have earned from your work, you call your family every second day. Despite this, because of the language barrier and the issues arising from the pandemic, you are somewhat isolated in prison.
79You have made the best you can of your time on remand, not only working in the kitchen, but also undertaking study whilst in your cell.
Likelihood of deportation
80You arrived in Australia on a tourist visa. As I understand it, you either now have been, or soon will be classified as an “unlawful non-citizen”. It is not in controversy that there is no lawful basis for you to remain in Australia upon your release. In all likelihood, you will be deported to Malaysia after serving your sentence. That fact, however, does not prohibit the Court from fixing an appropriate period of parole, as it is not open to the Court to speculate about how the executive function might be performed in the future.[38]
[38]DPP (Cth) v Besim (No 3); Director of Public Prosecutions (Cth) v MHK (A Pseudonym) (No 3) (2017) 52 VR 303 at paragraphs [48]-[58]
81I accept that it is likely stressful for you not knowing whether you will, in fact, be granted parole.
Prospects of rehabilitation
82Your counsel conceded that you have previously had involvement with a criminal syndicate, acting as a driver for a limited period. He also conceded that specific deterrence is an element to be addressed in sentencing you.
83Your counsel submitted, however, that because you do not suffer from any physical or mental health problems, do not suffer from any addictions, and because you have the support of your wife and young family in Malaysia, your prospects for rehabilitation are good.
84On the other hand, the learned prosecutor, Ms Fitzgerald, submitted:[39]
“In the absence of evidence to the contrary, it is conceded that the offender has good prospects of rehabilitation. However it should be noted that persons who commit these offences commonly have good prospects of rehabilitation and are unlikely to reoffend. These factors should not be permitted to outweigh the need for general deterrence and denunciation.”[40]
[39]Prosecution Submissions on Sentence dated 19 October 2021, paragraph 42
[40]R v Muanchukingkan (1990) 52 A Crim R 354 at 356; R v Laurentiu (1992) 63 A Crim R 402
Submissions as to penalty
85Your counsel conceded the gravity of your offending and that the only appropriate response to it is the imposition of a term of imprisonment of such duration that both a head sentence and non-parole period must be fixed.
86
Ms Fitzgerald also submitted that a term of imprisonment and the fixing of a
non-parole period is required. She tendered a table of comparative sentences, noting that they were for guidance only and that the sentences referred to were not imposed during the current COVID-19 pandemic.
Sentences to be imposed
87I can only pass a sentence of imprisonment if, having considered all other available sentences. I am satisfied that no other sentence is appropriate in all the circumstances of the case.[41] In all the circumstances, I have no alternative but to impose a term of imprisonment.
[41] Section 17A(1) Crimes Act 1914 (Cth)
88Although you were not at the top of the hierarchy of those complicit in your crimes, the objective gravity of your offending is nevertheless high. Although significant weight must be given to your plea, there are very few other mitigating factors to be counted in your favour.
89On Charge 1, the charge of importing a marketable quantity of a border controlled drug (methamphetamine) contrary to subsection 307.2 of the Criminal Code, you are convicted and sentenced to three (3) years’ imprisonment.
90On Charge 2, the charge of importing a border controlled drug, also methamphetamine, contrary to subsection 307.2 of the Criminal Code, you are convicted and sentenced to three (3) years’ imprisonment.
91In determining whether there should be any period of cumulation between the charges, I note that the charges are discrete, without any significant area of overlap. In my judgment, and paying heed to principles of totality and proportionality, a period of cumulation is warranted so as not to undermine the overall gravity of your conduct.
92
Accordingly, I propose to make orders that will have the effect of making
eighteen (18) months of the sentence imposed on Charge 2 cumulative upon the sentence imposed on Charge 1.
93I therefore direct that the sentence imposed in respect of Charge 1 shall commence today. The sentence imposed in respect of Charge 2 will commence eighteen months before the expiration of the sentence imposed in respect of Charge 1. The total effective head sentence is therefore four-and-one-half (4½) years’ imprisonment.
94In fixing the non-parole period, I must pay regard to s19AKA of the
Crimes Act 1914 (Cth) which sets out the purposes of parole. Those purposes are:(a) the protection of the community;
(b) the rehabilitation of the offender; and
(c) the reintegration of the offender into the community.
95
Taking these matters into account, I direct that you serve a minimum term of
three (3) years’ imprisonment before becoming eligible for parole.
96I am required to explain the impact of my Order.[42] The total effective sentence is four-and-one-half years’ imprisonment. I have directed that you serve a minimum period of three years before becoming eligible for parole. Accordingly, you will be required to serve a minimum period of not less than three years, and thereafter, if you are released on parole, the balance of your sentence will be served in the community, subject to the conditions of your parole and subject to any order for your deportation. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
[42] Section 16F(1) Crimes Act 1914 (Cth)
Direction under Section 17A(2)(b) Crimes Act 1914 (Cth)
97Having come to the conclusion that I have no alternative but to impose a term of imprisonment, under s17A(2)(b) of the Crimes Act 1914 (Cth), I direct that my reasons for so finding be entered in the records of the Court.
Declaration of pre-sentence detention under Section 16E Crimes Act 1914 (Cth)
98Under s16E of the Crimes Act, I declare that the period of 1,009 days be reckoned as time already served under this sentence and I direct that the details of this declaration be entered in the Court’s records.
Statement under s6AAA Sentencing Act 1991 (Vic)
99It is desirable to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences but for your plea of guilty. Therefore, pursuant to s6AAA, and taking into account the matters to which I have previously referred as relevant to the weight to be given to your guilty plea, including the extra discount because of the pandemic, I state that but for your guilty plea, I would have imposed a head sentence of eight-and-one-half years’ imprisonment. I would have directed that you serve a minimum of five years and eight months before becoming eligible for parole.
100I direct, pursuant to s6AAA, that the sentence that would have been imposed but for the plea of guilty be noted in the Court’s records.
101Leaving aside what I would have done had he pleaded not guilty, the actual sentences are: Charge 1, three years’ imprisonment. Charge 2, three years’ imprisonment. Cumulation between charges of 18 months, making a total head sentence of four-and-a-half years’ imprisonment with a minimum period to serve of three years before becoming eligible for parole. From the sentence, a period will be counted as already served and so the time you have already served comes off the sentence I have imposed. The time you have already served will be deducted by the authorities. If there are any other periods such as additional days because of lockdowns, that will also be counted in your sentence.
102INTERPRETER: Your Honour, he said “I am not very good in mathematics so rather than deducting something, something, I just want to know what is the actual serving time.”
103MR HOOPER: Your Honour, if it assists, I’m happy to speak with Mr Looi after the matter’s concluded if I can utilise the Interpreter’s assistance and I will take him through that.
104HER HONOUR: Thank you. Of course, we cannot give an exact figure. All I can say is the 1,009 days will be counted. But as I understand it, there will be many other days that will be counted because of the pandemic and lockdowns and the authorities will have those figures. So it is not less than 1,009 days that will be counted as time already served and whatever additional days the authorities count will come off the sentence as well. They will be counted as time already served.
105INTERPRETER: Mr Looi nodded. He said that means that he agrees. Thank you, Your Honour.
106HER HONOUR: Thank you.
107INTERPRETER: Your Honour, Mr Looi requests that at the time when he was arrested, he had a lot of personal belongings left at the room, money, documents, clothing. He doesn’t know their whereabouts.
108HER HONOUR: I will ask the Prosecution to make enquiries and to ensure that all personal property is returned to him if it is not subject to a confiscation or disposal order. But I have no authority to do anything other than make that request on your behalf.
109ACCUSED: Okay. Thank you.
110INTERPRETER: “Thank you, Your Honour,” he said.
111HER HONOUR: Are there any other orders or directions that are required?
112MS FITZGERALD: No, Your Honour.
113HER HONOUR: Thank you. Close the court. Adjourn until Monday. Thank you.
- - -
0
33
0