R v Min Yok Cheaw

[2021] NSWDC 599

District Court

New South Wales

Medium Neutral Citation:	R v Min Yok CHEAW [2021] NSWDC 599
Hearing dates:	4 June 2021; 28 July 2021; 2 September 2021.
Decision date:	02 September 2021
Jurisdiction:	Criminal
Before:	NOMAN SC DCJ
Decision:	Sentenced to 8 ½ years imprisonment with a non-parole period of 4 ½ years. Eligibility for release to parole arises on 16 March 2024 and the term will expire on 16 March 2028.
Catchwords:	SENTENCING — attempting to import a commercial quantity of a border controlled precursor - Imprisonment
Legislation Cited:	Criminal Code Act 1995 (Cth)
Category:	Sentence
Parties:	Regina; Min Yok CHEAW
Representation:	Counsel: D New (Crown) S Schaudin (Defence) Solicitors: F Lay (ODPP) S Fung (Defence)
File Number(s):	2019/289621

Judgment

1. The offender, Min Yok Cheaw, appears for sentence after having been found guilty of an offence of attempting to import a commercial quantity of a border controlled precursor. This offence is contrary to section 307.11(1) and section 11.1(1) of the Criminal Code Act1995 (Cth). The offence nominates the period of involvement as on or about 16 September 2019. The quantity of pure ephedrine sought to be imported was 1025.46kg with an estimated value of $25,636,500 to $61,527,600. If manufactured the value increases. The offender was charged with attempt because the border-controlled precursor in the boxes had been substituted with an inert substance by the ABF prior to its controlled delivery.

2. The maximum penalty for the offence is 25 years imprisonment.

3. The offender gave evidence during the trial denying any knowledge of the offence. He said he was recruited to unpack furniture from a shipping container. He accepted his airfare and accommodation were paid for and that he was provided with a phone. Despite denying his involvement, the offender signed agreed facts, tendered as Exhibit 1 in the trial. The content of these facts assisted both the offender and the Crown. The matters listed were readily supported by evidence if necessary. However, this agreement meant that some matters did not require further evidence to be led and thus reduced the possible length of the trial. This course, whilst not reflecting an acceptance of guilt or an expression of remorse, did result in a reduction of court time which facilitated the course of justice. This will be reflected in some moderation to sentence.

4. The Crown tendered a bundle containing the proposed facts for sentence, photographs and the Remarks on sentence for the co-offender Weng Kah Chong, which was marked as part of Exhibit A.

5. The offender responded to the proposed facts identifying ten segments that are not agreed.

6. Submissions and comparable cases were adduced by both parties.

7. I formally note that if I am to determine a matter adverse to the offender it must be proven beyond reasonable doubt. There is a lesser onus on matters raised in mitigation. Any determination cannot be inconsistent with the verdict of the jury.

8. The nature and circumstances of the offence are set out in the Facts contained in Exhibit A. I have had regard to the full facts, and the relevant disputed portions. I recite only parts. Where there was an objection, and it is not referred to, it should be accepted I did not rely on that portion.

9. The Crown case was that the offender engaged in steps that were more than merely preparatory and attempted to “import” the ephedrine in that:

1. he was flown over from Malaysia;

2. he met with the co-offender on 3 September 2019 at a hostel ‘Maze Backpackers’ at 417 Pitt Street, Sydney, New South Wales where the offender was staying;

3. he met with the co-offender on 16 September 2019 at the warehouse;

4. he was present at the warehouse when a shipping container was delivered and dealt with the boxes which contained the inert substance by unloading the boxes and taking them from the container in which they arrived to the warehouse;

5. he was either involved or present when two of the boxes were opened inside the warehouse and samples of the substituted substance were extracted. I acknowledge the defence objection to this statement. I proceed on the basis I accept beyond reasonable doubt he was ‘involved’; and

6. after samples were extracted, he returned the boxes from the warehouse in the direction of the shipping container. I note the defence objection. I find that he was involved in pushing the trolley with boxes in the company of the co-offender;

10. The shipping vessel departed China on 19 August 2019 and arrived in Sydney on 31 August 2019. The purported consignee was a legitimate company that was not aware, did not authorise, and had no responsibility for the importation of any items in the shipping container.

11. On 26 August 2019, the offender’s flight from Kuala Lumpur to Sydney and Australian visitor or temporary entrant visa were paid for in cash by someone else on his behalf. The offender’s accommodation at Maze Backpackers was also paid for in cash. His flight was originally booked to arrive in Australia on 2 September 2019 and to depart on 9 September 2019^.

12. On 2 September 2019, the offender arrived in Sydney. The offender’s incoming passenger card (IPC) stated that the offender’s reason for travel was “holiday”. The IPC also read that the offender was staying at 417 Pitt Street Sydney, being the address for Maze Backpackers. These details mirror those used by the co-offender in March 2019.

13. On 3 September 2019, the ABF intercepted the shipping container and upon x-ray detected anomalies inside the boxes at the rear of the shipping container which were unmarked and had green strapping on the outside.

14. Subsequently ABF located 127 green strapped boxes each containing 5 smaller boxes all at the rear of the container. Inside all but 2 of the smaller boxes (that is, 633 boxes) was a vacuum sealed package containing around 2 kilograms of impure ephedrine. The average purity of the ephedrine was calculated to be 80.8%. Using that average there was 1.62 kgs of pure ephedrine in each vacuum sealed pack with total weight of pure ephedrine of 1,025.46 kgs.

15. The theoretical yield from 1.62 kgs of pure ephedrine is 1.46 kgs of methylamphetamine base or 1.82 kgs of methylamphetamine hydrochloride. 1,025.46 kgs could produce approximately 924.18 kgs of methylamphetamine base or 1,152.06 kilograms of methylamphetamine hydrochloride.

16. On arrest on 16 September 2019, the offender had a Samsung smartphone on his person. The Samsung contained two SIM cards, one of which had subscriber details not in the offender’s name, and the other which was subscribed overseas and could not have its details obtained. 

17. Between 26 August 2019 and 16 September 2019, the offender used the Samsung to communicate:

1. with the co-offender, on an encrypted messaging serviced called “Signal”;

2. with a “Sam”, on Signal and on the Samsung’s standard SMS messaging service (there was also one audio message from “Sam” on the WhatsApp messaging application); and

3. with his wife and daughter, through audio messaging on the WhatsApp application.

18. The messages (as seen on the Samsung) showed that:

1. The co-offender’s name on the WhatsApp service was “Bbb”;

2. The co-offender and the offender connected on Signal on 3 September 2019. After that first connection, the co-offender enabled the Signal messaging application feature to delete messages within 12 hours. This feature was turned off on 15 September 2019 (the day before the offender and the co-offender were to meet to unpack the Shipping container). No text messages were seen between the co-offender and the offender between 3 and 15 September 2019. The inference I accept is that this absence was because of the delete timer feature being enabled between these dates. Calls between the co-offender and offender via Signal were seen;

3. Sam was calling the offender via Signal when he arrived in Australia on 2 September 2019 and asked the offender to call him back via a WhatsApp audio message that same day. Sam also called the offender via Signal and phone call several times between 28 August 2019 and 16 September 2019;

4. Sam telephoned the offender many times on the day of the unpack of the Shipping container on 16 September 2019;

5. The offender’s family expressed concern for his safety and told him to watch his words when communicating with them. The offender’s wife spoke in Hakka language on two occasions when she told him to ‘be mindful’ and ‘careful’ with what he said to her;

6. The offender never said Sam's name or the co-offender’s names to his family (not in 474 WhatsApp audio files). The offender used the words "the company", the "boss" and "young guy";

7. The offender, when communicating with his family, referred to the “company” paying him an allowance while in Sydney, and paying for his “shampoo” or “razor”;

8. The offender’s family asked the offender about when they would see money from the company; and

9. On 9 September 2019, the offender’s wife spoke of her being nervous and the offender told his wife that his boss told him to relax. Earlier that same day the offender spoke to “Sam”. 9 September 2019 was when the offender was meant to have departed Sydney.

19. The Samsung had four saved contacts. There was no evidence of any data on the Samsung prior to 26 August 2019.

20. On 16 September 2019, at 12:53 pm, a truck dropped off the Shipping container at the warehouse. The offender and the co-offender were present.

21. In a controlled delivery, the truck dropped the Shipping container in a place where there it could be seen from the street and by surveillance officers.

22. After the Shipping container was delivered, the co-offender was seen using two mobile phones whilst the offender was nearby. At around 3pm, another truck arrived at the warehouse, picked up the Shipping container and moved it further back into the property. The Shipping container was dropped at the rear of the property, and away from street view. The second truck left the property at around 4:14pm.

23. The offender and the co-offender commenced unloading the Shipping container around 6pm, when it was getting dark. The offender was seen to put gardening style fabric gloves on and was carrying bolt cutters from the warehouse.

24. The offender and the co-offender used a trolley to take several loads of boxes other than the green strapped boxes to the warehouse.

25. Around 9:11 pm an ABF surveillance officer saw the offender and the co-offender take some of the green strapped boxes on the trolley to the warehouse and at 10:40 pm the green strapped boxes were taken from the warehouse back to the Shipping container. Two of the boxes had been opened. Between 9:11pm and 10:40 pm no other boxes were moved. Only the green strapped boxes were taken from the warehouse back to the Shipping container.

26. At 10:46pm ABF executed a search warrant at the warehouse. They found the trolley containing the green strapped boxes being returned from the warehouse just outside the Shipping container. Two boxes had been opened. Further examination showed that the green strapping had been removed from those two boxes and that the vacuum sealed packs that originally contained the ephedrine which was substituted for the inert substance had been opened. There had been a targeted unpack.

27. In the warehouse, ABF found:

1. a Woolworths shopping bag which had two sealed sandwich bags each containing 150 grams of the inert substance;

2. scales on the mezzanine level;

3. a Stanley knife; and

4. green strapping near that Stanley knife.

28. The offender told the ABF he was in Australia for the first time, for work purposes, and his work colleague, “Ken”, had the keys that let the offender into the warehouse.

29. The offender was arrested and he exercised his right to silence.

30. On 17 September 2019, ABF executed a search warrant at the offender’s room at Maze Backpackers and at the co-offender’s home. At the co-offender’s home the ABF found an invoice for Maze Backpackers showing that the offender’s accommodation had been paid for in cash. The offender gave evidence he knew that the co-offender paid for his accommodation to be extended beyond 9 September 2019 and WhatsApp audio messages to his family confirmed that the offender knew his accommodation had been paid for by someone else beyond 9 September 2019. In the offender’s room at Maze backpackers the ABF found his itinerary, the invoice from the travel agent showing that the offender’s accommodation and flight were paid for in cash on 26 August 2019 and a notebook containing phrases in English related to sightseeing.

31. The jury’s guilty verdict must be that they found the offender deliberately attempted to import the substance, knowing or being reckless that the boxes contained a border-controlled precursor. I am unable to be satisfied that he actually knew. I proceed on an acceptance that his state of mind was that he was reckless. That is, he was aware of a substantial risk that the importation contained a border-controlled precursor. There is no evidence that the offender had knowledge of the specific weight, value or type of the border controlled precursor secreted in the packages. Given that he was sent from overseas he must have appreciated it was a significant amount.

32. The offender’s role is to be determined based upon a scrutiny of what he did and when he did it. There is evidence of his involvement with at least one person overseas and his involvement with the co-offender locally. There is no evidence he had direct contact with the sender of the consignment. His involvement is beyond the date on the indictment and I determine beyond reasonable doubt that he had his reckless state of mind prior to departure. I am mindful of the type of precursor, the quantity and the purity.

33. His involvement is for a period aligned with but slightly longer than that of Chong. He had to be recruited by the time bookings were made on 26 August 2019. He was sent from overseas to assist in unpacking 127 boxes. He was certainly trusted to travel overseas and assist with the unpacking. He, however, made no plans and did not organise any activity. He arrived and waited for instruction. Chong performed a role in meeting with the offender and organising the transport and delivery and for the offender to be present. Their roles or involvement are different.

34. The range for commercial quantity of ephedrine is above 1.2 kg. The amount is well above the lower end of the commercial quantity.

35. There is no evidence of the reason the offender became involved. There is no evidence he was a user of illicit drugs or owed money. The content of his communication with his family supports he became involved for financial gain. I proceed on the basis he was involved for financial gain. The quantum is not disclosed.

36. Having regard to the offender’s role and his recklessness, the duration of his involvement, the type, quantity and purity of the border controlled precursor, I assess this offence as one of below mid-level seriousness for an offence within the offence provision.

37. The offender is now aged 65.

38. He had the support of his family at the time of offending and there is nothing to suggest this would not continue, albeit remotely and now more limited. His wife died on 7 April 2021. His 33 year old daughter remains in weekly phone contact with the offender. She clearly evidences her continued support. She also outlines her financial difficulties accessing only her income and the difficult COVID conditions in Malaysia. I accept the loss of her mother and the absence of her father make her life more difficult. It is not exceptional hardship and the type of difficulty often encountered. I accept the separation from his family and homeland causes the offender distress. However, it must be recognised he came to Australia with the relevant state of mind to commit this offence and he therefore assumed the risk of detection and penalty.

39. The offender relies on a report of Andrew Wong, Psychologist. There is no admission to the offending. I do not accept the account at [12] that he came to Australia to work for a delivery service. There is no diagnosed mental health issue that informs the offending. Although there were periods of poverty or financial stress there is no adverse background of any significance. Despite his highly limited formal education he has always been employed or self-employed as an entrepreneur. I accept his incarceration causes him shame and that he has genuine concern for originally his wife and daughter and now only his daughter.

40. He had had medical issues in custody some of which have been addressed and others not finalised. He remains housed in the prison hospital. There is evidence tendered addressing the offender’s medical needs for glasses, dental issues and prostate cancer. A colour coded schedule provides a chronology. It is evident that not all matters were attended to immediately. However, they were addressed apparently on a triage basis. Defence submissions addressed the recent report published by the Inspector of Custodial Services documenting the quality and timeliness of the provision of health services in custody.

41. There is a documented delay in responding to optometry and dental issues. The documented response addressing the offender does not differ greatly to what may be expected in the general community other than for those who are prepared and able to pay a premium.

42. The medical issue of greatest concern is the prostate cancer, referred to as a curable cancer, and the medical recommendation for a radical prostatectomy. The offender has consented to the surgery and is waitlisted. The stated 10 year disease specific survival rate is 75%. The evidence supports that the offender’s prostate health is being well managed. However, I accept contemplating surgery in a foreign country whilst deprived of local family support must be more challenging. I shall allow for this additional distress in determining sentence.

43. The offender has no prior convictions that are before the court. The offender’s submissions refer to historical gambling offending with an unknown outcome. Reliant on the limited information I approach him as a person of otherwise good character. His good character would have assisted in having a visa obtained for his arrival and to avoid detection or suspicion at the point of entry. This good character nonetheless serves to entitle him to some leniency.

44. It is difficult to reconcile the offender committing such a serious offence as his first offence and when aged in his 60's. The reason he succumbed is not disclosed. I accept based on the long term good character, that the offender has reasonable prospects of rehabilitation, he is unlikely to re-offend and personal deterrence is of limited significance. I determine this offence to present as an aberration.

45. I particularly note the importance of general deterrence and denunciation and the importance of reducing the level of access to illicit drugs due to the enormous damage inflicted by them upon society. I observe this substance was not disseminated into the community.

46. I am required to impose a sentence that reflects the seriousness of the offending measured against the guidance provided by the maximum penalty and allowing for the amelioration as appropriate for relevant subjective factors. I am guided also by sentencing authority on the application of principle and comparative cases. I note that I am required to have regard to current sentencing practices throughout the Commonwealth. Both counsel provided a schedule of cases, one case being common. Each provides some guidance, but each involves offences of differing seriousness and differing subjective cases.

47. Statistics were provided reflecting two sentences and therefore of limited guidance.

48. In determining an appropriate sentence, I have reviewed the cases and the submissions advanced by both parties. I am appropriately mindful of the sentence imposed on the co-offender.

28. I am also mindful of not creating disparity with the co-offender. This is a concern about the application of principle and not mere numerical equivalence. His Honour Judge Blackmore SC, the sentencing judge, indicated a starting point of 9 years. The sentence imposed was one of 7 years with a NPP of 4 years. I have considered the facts for sentence, the subjective material and the findings on sentence for the co-offender. He entered a plea of guilty and had a positive finding of remorse. There was a finding of good prospects of rehabilitation. He was in Australia studying. He has language difficulties rendering custody more onerous. He had continued family support in Malaysia.

29. He was sentenced on being involved from the date of the vessel’s arrival on 31 August 2019 until arrest. This is a period of over 2 weeks. The facts for sentence reflect the co-offender’s involvement from at least 3 September 2019 with the offender, his organisation of the delivery and the arrangements for this offender to attend to warehouse. He was sentenced for having a reckless state of mind. He was in possession of three mobile phones and he used encrypted apps and had an app that allowed for remote deletion.

30. He was not found to be a principal. He was sentenced for the role performed. There was no evidence as to the anticipated financial benefit Chong was to receive. He said he was involved to obtain money to support his studies and living expenses.

31. The position concerning the roles is not dissimilar in seriousness. This offender lacks a finding of remorse. I acknowledge my finding on the benefit from the agreed facts. He does however have a more beneficial finding addressing long term good character and the need to recognise the health issue. The ratio between the term and non-parole period for the co-offender equated to 57%. I shall allow a greater variation to the ratio.

32. I determine it appropriate that they share a similar but not the same starting point.

33. It was accepted that only a sentence of full-time imprisonment is appropriate. I have considered the objective seriousness and the subjective features. I have considered the possible options for resolution of this matter. Only a sentence of full-time imprisonment is appropriate.

34. The offender is a Malaysian National of Chinese background with limited English. He is likely to be alienated from many prisoners based on his language constraints. However, his first language is not uncommon within the gaol system and it is contemplated he will be housed with some prisoners with whom he may readily communicate. He is also distanced from family and friends and is unlikely to receive any visitors.

35. I anticipate the offender will be deported upon release. This likely outcome is not relevant to the sentencing exercise.

36. The offender is convicted.

37. I shall backdate the sentence to reflect the period on remand. Sentence will commence on 17 September 2019.

38. I impose a term of 8 ½ years with a non-parole period of 4 ½ years. Eligibility for release to parole arises on 16 March 2024 and the term will expire on 16 March 2028. This is a ratio of 52%.

**********

Decision last updated: 04 November 2021