R v Wee Quay Tan
[2006] VSC 177
•8 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| THE QUEEN |
| v |
| WEE QUAY TAN (also known as CHIN KWANG LEE) |
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 May 2005, 8 May 2006 | |
DATE OF SENTENCE: | 8 May 2006 | |
CASE MAY BE CITED AS: | R v Wee Quay Tan | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 177 | |
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CRIMINAL LAW – Sentence – Plea of guilty to aiding and abetting the importation of a commercial quantity of heroin into Australia – Role of accused in criminal authority – Large quantity of heroin imported by sophisticated and extensive criminal undertaking.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Champion SC with Mr M.P. Cahill | The Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Prisoner | Mr A Shwartz | Robert Stary and Associates |
HIS HONOUR:
You, Wee Quay Tan, have pleaded guilty before me to aiding and abetting the importation of a commercial quantity of heroin into Australia. Pursuant to s.235 of the Customs Act 1901 Commonwealth, this offence carries a maximum penalty of life imprisonment.
Background
The background to the offence such as it is known, is as follows. It would appear to be that you are aged 35 years. You have lived in Thailand in recent years, although what nationality you hold is not clearly established before me. You entered Australia from Bangkok on 9 April 2003. You did so under the name of Chin Kwang Lee. However, it is clear that that name was a false name. The passport which you held had indeed been issued to a person of that name but had been stolen from him in Singapore in October 2000. By the time you came to produce the passport to Australian authorities it had been altered to bear your photograph. How you came into possession of the passport is not established by the evidence before me.
At the time of your arrival in Australia both of your co-accused Teng and Lam were already here, having come from Beijing some time earlier. They were making preparations for the receipt of an importation by sea of a substantial quantity of heroin.
When you arrived in Australia you brought with you a falsified United Nations driving licence in the name of Chin Kwang Lee. In addition, you brought a falsified United Nations driving licence in the name of Lam.
Almost immediately upon arrival in Australia you arranged for an Optus pre-paid telephone service to be connected in the name of Andy Tan. That telephone service was thereafter used by you in connection with telephone services associated with Teng and Lam.
You met up with Teng on 13 April 2003 at Crown Casino. On the morning of the next day, 14 April 2003, you and Teng were observed leaving the Crown Hotel in a Tarago van which had been rented earlier by Teng. Unbeknown to you, a listening device was situated in that van, pursuant to a warrant issued earlier to the Australian Federal Police.
It is clear from the conversations recorded between you and Teng that you were acutely aware of the sensitive nature of the conduct in which you were engaged. You spoke of your concern that something might be installed in the car to monitor your conversation. You spoke of your understanding that it was unsafe to speak over the telephone. You spoke of how it was better to remove both the battery and SIM card from telephones when they were turned off. You spoke of the risk of using telephones in the context of staying in gaol for 20 years.
These passages of conversation demonstrate your understanding of the nature of the risks of the enterprise in which you were engaged and at the same time your understanding of the highly criminal nature of the enterprise.
In the course of that day you and Teng had some difficulty in communicating with Lam. You said that you understood that problems with Lam placed Teng in a difficult position. You said that your position was different from that of Teng. You said:
“So I know you are in a difficult situation, unlike me. We are brothers, blood relation. If I want to do it, I will go ahead doing it. If I don’t want to continue, I can simply get out. He will not blame me, because I decide whether I want to do it or not.”
You said further:
“People need to co-operate for such a big trade. People have to co‑operate. If people don’t co-operate, it is hard to do things together. I tell you I have been in this industry a long time, you can ask Peter. Our family has been doing this business, he knows our family has been in this business.”
It is apparent that the reference to Peter is a reference to Lam as the third person involved in the importation of the heroin on shore. In the course of the afternoon you said to Teng: "
“Once the stuff arrives it's none of his business any more, right? Then you have to pass it on to another person. You pick up goods from him, you're the middle men and we're the middle men, we get stuff from Peter and you pass it on to Charlie".
It is apparent that the reference to Charlie is to an unknown person who was to accept delivery of the shipment of heroin from Teng. Furthermore, he said to Teng:
"You go with Peter, pick up your girlfriend, and take it home and sleep with your girlfriend for one day, and then take the girlfriend to Charlie tomorrow. That is the end of your work".
That discussion concerned the arrangements for the delivery of the heroin and the roles to be played by Teng and Lam. The reference to the word "girlfriend" is clearly the code used by you to refer to the heroin shipment. That afternoon you and Teng left Port Melbourne and arrived at Corio soon after 4 p.m. The conversation referred to above was recorded between you and Teng in relation to the handing over of the heroin in Corio. Later in the evening, you and Teng were observed to commence a trip to Lorne. You were observed at the Grand Pacific Hotel in Lorne. You then returned to Geelong and spent the night at the Eastern Sands Motor Inn into which you had earlier booked in the afternoon under false names.
The next day, 15 April 2003, you and Teng proceeded in the Tarago van to Lorne. In the course of the morning you and Teng attended upon a real estate agent seeking accommodation in the Lorne area. In the course of the day a conversation was recorded between you and Teng whereby you said "The stuff they can get to Australia in my opinion will be guaranteed. The stuff's coming from all over the world. I tell you they can come to Australia. I can assure there will be nothing wrong inside." It should be observed that when the heroin, which was subsequently imported into Australia, was inspected by police it bore branding which would appear to have come from the Golden Triangle in the Burma area. However, chemical analysis of the heroin did not match the heroin which is generally known to come from that region. The other countries presenting possible sources include South America, Mexico, Afghanistan and Pakistan. Soon before 1 p.m. on 15 April 2003 you and Teng were observed to be in the Tarago in a car park south of the Great Ocean Road at Anglesea. At about the same time local residents living in the Wye River area observed the Pong Su travelling close to the shoreline.
In the course of that afternoon a telephone conversation was recorded between you and a third person, who was almost certainly Lam. You said "If your girlfriend's late for three hours, don't go to get it. It's just my suggestion. It's up to you whether you listen to me or not. If it's late for two or three hours you're better not to get it. That is an indication that something goes wrong. This is my advice, however, you can't tell anyone that I've given you this advice. Just an advice to you, it's none of my business. If it's late for two or three hours, do please not to go to get it. Yes, they know it. If the appointment is for 6 o'clock and then it arrives at nine, then you'd better not go. You won't get anything, they won't care about you. As your friend I'm advising you this: if it's late for two or three hours that means they're in trouble. Being in business like ours is very sensitive. Please bear this in mind, it won't hurt you."
After this conversation concluded you said to Teng "They should stop along the shore and get the speed boat to carry it on shore. Once they get there from where they are, the speed boat will fly over to your girlfriend's house. That should be the way they do things". Subsequently, you and Teng returned to Melbourne in the late afternoon during which period of time there was a marked increase in the number of telephone calls between telephones associated with the three of you. At 6 p.m. that day you telephoned a real estate agent whom you had seen in Geelong earlier in the day, saying you wished to move into a rental property that night. The agent informed you that it was not possible. Soon after 6.30 p.m. you and Teng entered the Tarago van, left the Crown Casino and commenced the trip to Boggaley Creek. The conversation recorded between you and Teng in the Tarago van confirmed your knowledge of the nature of the consignment of heroin. Teng asked you whether it could be loaded in this type of car. You said:
"Yes, it can be carried in this type of car. What type of car did you rent for him? Isn't his car to be used to carry the stuff. So his car's not to be used to carry the stuff and so only your car is to carry the stuff".
Clearly this is a reference to Teng having assisted Lam to hire a Ford Focus motor car. In the course of telephone conversations recorded that evening you refer to 150 kilograms. At 8.55 p.m. that evening a Tarago arrived at the Great Ocean Road at Boggaley Creek. The Pong Su at that time was anchored close to the shoreline at Boggaley Creek. It was at that time also illuminated with lights and was clearly visible to you and Teng. You and Teng then returned to Lorne where you entered the Grand Pacific Hotel carrying two suitcases. The Tarago was then observed travelling along the Great Ocean Road towards Apollo Bay with Teng as the sole occupant.
Shortly before your return to the hotel you said to Teng: "There are two people up there, OK, don't worry about it. I told you 150. I know even what I don't want to know". Soon after 10 p.m. police observed a blue coloured Ford Focus driven by Lam travelling along the Great Ocean Road in the vicinity of Boggaley Creek. At 10.15 p.m. the Tarago driven by Teng and the blue Ford Focus were parked together in the roadside car park at Boggaley Creek. The Pong Su at that time was just offshore and clearly visible. Soon thereafter Teng departed and returned to the Grand Pacific Hotel where he met up with you. At 2.25 a.m. you and Teng left the Grand Pacific Hotel, got into the Tarago van and drove to a point near Boggaley Creek.
At 1.02 a.m. the following conversation was recorded by the listening device in the Tarago van.
“You: "The boat's down there. Police car. Can't see it clearly. No, I've not seen it. How can I tell?"
Lam: "What is the situation? He dare not carry the stuff. I'm exhausted. Fuck. They won't carry them together. One is dead you know. Hello. One is dead you know. OK, OK, speak slowly. The stuffs are heavy. No one dares to take them. Too heavy to pull up the hill, you know. Up the road. Dare not carry them now. We can carry as much as we can. One is dead on the beach, one is dead, one is dead, and the other party. Yes, one of the two people from the other party is dead. I'm not swinging. I'm holding the phone stable and speaking to you, OK. I tell you I'll tell the people who come down to get as much as we can. You know what I mean. OK. One is dead. OK. Not enough people to carry the stuff. It is impossible up the hill. Altogether two people from the other party, two people here and me, five people altogether".
You: "How much is left?"
Lam: "Put it in that car in front. Put it here right in the front".
You: "Has all the goods been loaded?"
Lam: "Not just yet".
You: "Three. How many have been loaded?"
Lam: "Two".
You: "Your car drives first, quick, quick, your car".
Lam: "This car goes OK".
You: "Wait for me there, wait for me at the hotel. Well, so much stuff".
The Tarago van was then observed to arrive back at the Grand Pacific Hotel in Lorne at 1.22 a.m. The Ford Focus was observed at 1.53 a.m. travelling on Skenes Creek road heading towards Colac. Lam was driving that vehicle.
It is apparent that five packages of heroin reached the shore on the Victorian coastline as a result of the carrying out of the importation venture. One of the two people involved in the delivery from the ship was dead. Two of the packages containing heroin were taken by you and Teng. Lam took three further packages of heroin away from the shore in the Ford Focus motor van. Wong, who was one of the two people involved in the delivery from the ship, hid himself in the bush in the area around Boggaley Creek. At 6.55 a.m. you were observed by police to enter the Tarago and drive out towards Lorne. Soon thereafter the Tarago van with Teng driving and you as a passenger was intercepted on the road into Lorne and two packages with a total weight of approximately 25 kilograms of heroin each were found in the van. Upon being interviewed by police you denied any knowledge of the Pong Su or of heroin trafficking. You asserted that you had come to Australia for a holiday and that you had been gambling at the Crown Casino. You denied any knowledge of Lam and said that you did not know how drugs got into the vehicle, that is the Tarago.
The prosecution submits that you should be sentenced in this matter on the basis that you aided and abetted the importation of approximately 125 kilograms of heroin into Australia. The heroin that was seized from the Tarago and the heroin found subsequently at Boggaley Creek was subjected to analysis by way of random sampling. The total bulk weight of the contents of the packages found to contain heroin amounted to 123.32 kilograms. Within that bulk heroin there was on average a purity that amounted to 82.29 kilograms of pure heroin.
As is apparent from the decided authorities, the issue of the value of such heroin is not a matter which should weigh heavily in my considerations. There is evidence before me from a statement provided by Federal Agent Buxton that the value of such an amount of bulk heroin, broken down to street deals of approximately ten per cent purity, would be in the region of $160 million. On the other hand, however, the value of the heroin in question might well be considerably less than that. In Salakis v R, Winneke P said in relation to the Drugs, Poisons and Controlled Substances Act, p.436:
"For the purposes of identifying the gravity of the offence, and thus ascertain the appropriate sentence, the legislation places emphasis on quantities of drugs trafficked, and not on values. Which, as this case itself shows, can vary according to the circumstances in which the drug is trafficked. I do not believe that the learned judge was deflected from this issue by assumptions as to value made by a police officer, and which were contained in a written document that had been put before him. In my view, the critical issue with which His Honour was concerned was the fact that the trafficking was an amount of 900 grams, a fact which was considered by the applicant. In my view, His Honour was concerned to impose a sentence based on the size of the operation, which in turn reflected the amount of drugs trafficked.
Accordingly, the estimates of the value of the heroin concerned are of no great weight. It is quite apparent that the final street value of an importation of heroin can vary greatly according to a number of factors, including the availability of the drug at the time, and the manner in which it is cut down, as well as a number of other circumstances. The legislation in question sets out the way in which the matter subject to the Customs Act 1901 ought to proceed by way of sentencing principles. In the case before me the real matter of substance is that the quantity of pure heroin of which you aided and abetted the importation was far in excess of the amount of 1.5 kilograms defined by the Act as a commercial quantity.
The prosecution submits that the amount of heroin imported, the nature of the operation associated with that importation, and the surrounding circumstances are such that the importation of heroin in question is a most serious example of this type of crime. Indeed, it is the most serious example of this type of crime known to have occurred in Victoria. It is submitted that the nature and extent of the operation is such that it can be concluded that the operation was complex and well-planned, and that you comprised an important part of the operation, and were important to the success of the importation. That is clearly so. In particular, it is clear that your part in the planning of and the attending at the place of delivery of the heroin from the ship to the shore was significant. That planning involved an arrangement to rendezvous with a large ship at a predetermined location in circumstances of a high level of secrecy. The prosecution submits that you entered Australia for the sole purpose of assisting with the importation of the heroin. You did so by use of false documents. Your activity from the time of your arrival to the time of your arrest was focused on assisting the commission of the offence of importing heroin into Australia.
The prosecution relies upon evidence which demonstrates that you, together with Teng and Lee, used a multiplicity of mobile phones connected in false names in the period leading up to and at the time of the importation offence occurring at Boggaley Creek. It is submitted, and I accept, that the evidence of the use of various telephones which were opened in false names and with SIM cards being transferred between them, was designed to ensure that conversations were carried out in a way to preserve secrecy and reduce the possibility of disclosure. It is submitted, and to my mind, correctly so, that the operation was thus a sophisticated and well-planned one.
In relation to your part in the hierarchy of people involved in the commission of this offence, it is submitted by the prosecution that you are neither at the lowest end of the hierarchy nor were you involved as a principal or financier of the operation. In particular, the prosecution concedes that there is no evidence that you played a more significant role than did Teng or Lam. Your role was similarly important to that of Teng and Lam. Lam's role was to effect delivery of the heroin from Wong to you and Teng. Teng's role was the risky transfer to the Australian connection.
Nevertheless, the prosecution contends that the evidence is that you acted with a high degree of authority and responsibility. You were present at the beach to receive the heroin and your recorded conversations revealed detailed knowledge of what was about to take place.
I accept that the evidence does not permit a conclusion that you were a principal in the drug-importing operation. Your role, nevertheless, was one that was important to the success of the operation. You arrived into Australia later than Teng and Lam, but brought with you a false driver's licence in the name of Lam thus enabling him to participate in the commission of the offence by hiring and driving the Ford Focus motor vehicle.
Clearly, you had a good knowledge of the manner in which the importation was to take place. Your role spanned various parts of the importing process. You spent time in Geelong with Teng. You gave advice to Teng that Geelong was better than Melbourne for transferring “stuff”. It is apparent that Lam had the responsibility to meet Wong and the deceased, but you and Teng were to be involved in the transportation of the heroin and its delivery into the hands of Charlie and whoever else was the Australian connection. You were aware of the arrival of the heroin by ship and of the quantity to be imported. Clearly you had means of communication with overseas organisers of the importation. As is argued by the prosecution, you were trusted to receive and be in possession of and then to deliver an immensely valuable consignment of narcotics. A consideration of the whole of the listening device material makes it apparent that your task was that of ensuring that the delivery operation was successful. Indeed, Mr Shwartz of counsel who appears for you, concedes that your role was to ensure that what was delivered to Australia was delivered to the right person. However, that said and as the prosecution concedes, the evidence does not permit a conclusion beyond reasonable doubt that your level in the hierarchy was more significant than that of either Teng or Lam.
However, on any view, your contribution to the importation of the heroin into Australia was, like that of Lam and Teng, vital to the success of the operation. Your part in the commission of a very serious offence was a significant one and warrants severe punishment.
There are, however, a number of mitigating factors which I must take into account. The first of those is that you have pleaded guilty.
I am required to take your plea of guilty into account in your favour by s.16A(2)(g) of the Crimes Act and I do so. That said, however, it cannot be said that you entered your plea at an early time. You pleaded not guilty at both the committal and upon your arraignment before me. It was not until the handing down of a number of pre-trial rulings which affected your defence that you elected to plead guilty. In addition, it is not without significance that you did not plead guilty until after I had handed down sentence upon Teng.
Nevertheless, I accept that by your plea a considerable amount of time and inconvenience has been saved. In addition to the utilitarian value of your plea and such contrition as it demonstrates there is a further aspect of public policy that your plea should be seen generally as encouragement to guilty persons to plead to their crimes. Taking into account the seriousness of the case against you this matter should not be underestimated. For those reasons you are entitled to a substantial and transparent discount on the sentence which I would otherwise have imposed upon you had you been found guilty at the end of what, on any view, would have been a long and complex trial had the issues relevant to you also been part of the trial.
Notwithstanding your late plea I also take into account in your favour the fact that there has been a delay since the time that you chose to make your plea and the time of handing down your sentence. Your plea was made shortly before the intended starting date of the trial of others who had pleaded not guilty. In all of the circumstances, it appeared to me to be appropriate to not deliver sentence until after the trial of those others was completed. I recognise that that has left you in a period of uncertainty for longer than I regard as appropriate or desirable.
I turn now to what I am informed by your counsel to be your personal circumstances and background. There is little independent evidence before me to say whether or not the instructions given by you to your counsel are true. You did not give evidence before me. There is no documentary evidence before me to corroborate any matter of great significance in your history. Indeed, it was only after you pleaded guilty on 9 March 2005 that an application was made to amend your name on the indictment from the patently false name of Chin Kwang Lee to the name of Wee Quay Tan. Whether that name is your real name is not established before me although I am satisfied it is a name you have used in the past. Your counsel informs me that your instructions to him about your background history are as follows.
You believe you were born on 13 October 1970 and that you are now aged 35. You do not know and have never seen your parents. You were born in the area of the Golden Triangle around the north west Burmese Thai border. You do not know whether you are Burmese, Thai or otherwise, but you believe you are of Burmese/Chinese origin. You believe and have been informed that your parents died of tuberculosis. You have never known either the real date of your birth or your real birth name. As a child of about three or four years of age you commenced to live with a group of four men in Singapore. There was no other child in the house and the four men would come and go. You say you do not know their names and they were called by you Uncles 1 to 4. You have never known a mother. You lived and grew up in what you describe as a large house in Singapore. You were the only child in that house with a number of men who lived with you there. You were sent to a government school in Singapore for your primary education for a period of six years. Your so-called uncles paid fees for that school.
Subsequently, at the age of 12 or 13, you were sent to St Joseph's Institution which is said to be one of the two top schools in Singapore, your fees being paid by your so-called uncles. The fact that you have a significant knowledge of languages demonstrates that you have had a good education. I am instructed that at no time as a child did your uncles ever describe to you or identify to you what they did for a living. You were provided with food, shelter, education and facilities to learn. It is said that you have had little or no interaction with school friends and that in your own mind you grew up in a situation of comfortable isolation in that you had the necessary material means, a roof over your head, food and schooling. You were encouraged to attend school and you were given every opportunity to learn. You had no social life as a teenager. There were no females whatsoever involved in your life. There was no use of drugs. There was no alcohol. You had no sporting interests, but you were encouraged to read, watch television and study. You completed your secondary schooling at the age of 17 and were then sent to a two year pre-university course at a Catholic college in Singapore.
Your schooling however was interrupted by the requirement for you to undertake National Service with the Singaporean Army for a period of two years. I assume from this that you held Singaporean citizenship at that time. Soon after basic training you were seconded by a major who had befriended you and who seconded you to be his assistant. That major later became a colonel and you served with him in Brunei, Thailand and Taiwan for periods of time. Your instructions to your counsel are that during this period of time you never used drugs, drank alcohol, or became in any way involved in the drug business.
It is said that at the age of approximately 20 you were released from the army and that you had nowhere to go but back home to live with the “uncles”. You were unable to find work and so you lived at home watching television, reading and engaging in discussion with your uncles. It is said that at about that time your uncles commenced to inform you of their real activities and suggested implicitly that you owed them a debt for your schooling and life maintenance. It became apparent to you that the business conducted by your uncles was that of international drug running. Out of your loyalty to your uncles, your feeling of commitment and your implied debt to them, you joined in with their business. You had no trade, nor had you been introduced to any form of earning activity. You had never used your hands to earn a living, nor did you understand what it amounted to to be a person in gainful employment.
You were then introduced to a society of persons who were customers of your uncles. You were introduced to embassy contacts who could help or assist. You were introduced to the study of airline flight tickets and schedules and airline contacts. You were acquainted with trading techniques involving dealings with drugs and you studied codes which were given to you and phone numbers and contacts. I am informed by your counsel that you instruct him that for a period of ten years you engaged in various activities at the behest of your so-called benefactors. You had no private life, and no independent friends, and your sense or morality was not that of the general community but that which was tutored and taught to you. I am told that during that ten year period you never had a bank account, nor did you have any assets. Your lifestyle was funded. You lived through the largesse of others who conducted criminal enterprises. You were given money to perform the functions that you did for the whole time that you worked for your uncles until the time of your arrest. You were provided with sufficient funds to maintain and live in a degree of luxury but you have never owned or built up any assets. You have no children, nor have you a wife, although it would appear that you have a girlfriend who at some stage lived with you in Bangkok.
On 4 November 2000 you were arrested in Copenhagen. You were sent to Denmark to collect drugs from customers once they had entered the country but something went wrong and you were arrested. It should be observed that the prosecution concedes that enquiries reveal that you, under the name of Wee Quay Tan, were a prisoner in Denmark having been apprehended and remanded in relation to the smuggling of heroin under the Danish criminal code. The amount of heroin alleged to have been so smuggled was 5.5 kilograms and it is asserted that it was transported between Thailand and Denmark.
I am informed by your counsel that those who were responsible for your journey to Denmark engineered your escape from prison in that country in February 2001 by exploding the wall of the prison. You were escorted out of the prison, made your way to Germany and subsequently returned to Bangkok. You were paid for, supervised and escorted by those who had taken you in as a child and you were paid and kept in Bangkok where you remained. I am informed by the prosecution that it is in possession of information provided by the Copenhagen police that you did escape from prison, although it is unclear as to whether the Copenhagen police confirmed that you escaped in the dramatic fashion described in your instructions to Mr Shwartz. Nevertheless, the fact that you did so escape does appear to confirm your association with a sophisticated criminal organisation.
Whilst you lived in Bangkok you moved from place to place, living quietly. Mr Shwartz informs me that you instruct him that the apprehension in Denmark had such a profound effect upon you that you told your benefactors, or your so-called benefactors, that you did not want anything more to do with the international drug running business conducted by them. They regarded this as a very serious breach of faith on your part and you were shot through the leg. You were told that the next time you contemplated withdrawing from the business the shot would be through your head. The prosecution concedes that your right leg has the entry and exit wounds of a bullet and to that extent what you say is corroborated, although of course the circumstances under which that wound occurred cannot be so corroborated.
In consequence of this injury you went to hospital in Bangkok. The Bangkok police were told that you had been robbed and that in the process of the robbery you had been shot. You were threatened with death by your uncles if you made any identification of who was responsible for your injury.
By this time you had exceeded your Visa limitation to stay in Thailand and you were fined 3000 baht. However, you were not deported to Singapore. It is said that your uncles paid for you to remain in Bangkok. You were left in a situation where there was no-one on whom you could rely. Ultimately, you were contacted and told that you were to travel to Australia and to ensure that 150 kilograms of heroin, which would arrive by ship, were to be transferred to the ultimate recipient. You were not authorised to take control of or to give instructions as to what would happen to the drug whilst it was on board the ship but only after you came into possession of the product for the purposes of delivery. You were told that the money paid for the drug had been paid and it was overseas and that you were to ensure that the right person in fact received the drug. It is said that you were visited by uncle No. 4 in Bangkok and given sufficient funds to come to Australia. It is said that you were given sufficient information to ensure that the delivery of the heroin to the ultimate recipient took place. It is submitted by your counsel, Mr Shwartz, that you are a person in a unique category of moral culpability. It may be that you were, as you say, under pressure to come to Australia but it must be said that even allowing for a degree of bravado on your part that the conversations secretly recorded by police, parts of which are referred to by me above, reveal no reluctance on your part for the activities in hand. Rather, they reveal an independence of mind about the activities in which you engaged. You stated specifically that you could withdraw and you said: "If I want to do it I'll go ahead doing it, if I don't want to continue, I can simply get out. He will not blame me because I decide whether I want to do it or not".
Nevertheless, it is contended by your counsel that for the first time in your life you have now achieved real independence, albeit in prison. You speak English well and apparently speak up to eight languages. Your counsel submits that your arrest and imprisonment in Australia have had the effect of cutting the Gaudion knot. He argues that paradoxically it is only now that you are in an Australian prison that you are free of the long tentacles of your past. He argues that any sentence imposed by me should not be crushing and should give you some genuine hope of a future. Mr Shwartz pointed out that there is the possibility that Danish authorities will seek to extradite you at the completion of your sentence, although Mr Champion of Senior Counsel stated that he understood Danish authorities have not expressed any interest in this course of action. Mr Shwartz pointed out that the possibility that you may be extradited by Singaporean authorities in due course cannot be excluded. Whether or not that is so, it is highly likely that Australian authorities will seek to deport you at the end of your sentence if they can establish that you belong to a State to which you could be deported. Certainly, if the history of the background which has been put before me is true or indeed only partially true, I accept the possibility that you will be at serious risk upon such deportation particularly if you are deported to Singapore. That risk may be at the hands of authorities, or indeed of others. I accept as a mitigatory matter of some weight that throughout your sentence you may well suffer great uncertainty as to your eventual fate.
I accept, as is submitted by your counsel, that imprisonment for you will be somewhat more difficult and isolating than for other prisoners. You are from a foreign country. You speak a foreign language and whilst apparently you speak English well you will, no doubt, continue to be isolated. You do not have family or friends to visit you. The friends that you have are those with whom you share your imprisonment being in particular, at the moment, your co-offenders. Nevertheless, the fact of your isolation in prison must be of limited weight. You came here to assist in the commission of an extremely serious crime. You took the risk of apprehension. The inevitable consequence is that you, as you must have anticipated in particular by reason of your Copenhagen experience, if for no other reason, would be incarceration in circumstances which would cause you some isolation.
Prison records were tendered before me. Those records establish that you have found real personal worth by working in the clothing section of the prison as a cutter. The records make it clear that you are a person who is devoted to your job and you have gained satisfaction with your job. I accept that you are regarded by the prison authorities as a model prisoner and that you have become what is known as a peer listener. The records demonstrate that prison authorities have been much assisted by your language skills. Paradoxically and as much as I have had concern about the delay between your plea and sentence, that very delay has served to inform me as to your progress in prison over the last year. Last month Mr Shwartz arranged for the current prison files to be subpoenaed and produced before me.
Those files reveal you to be a useful person indeed in the prison environment. You have organised unit support for The Salvation Army Red Shield Appeal. You have arranged for financial support for orphaned children in Africa and other places. You are involved in translating and assisting Indo-Chinese inmates with the Hepatitis C Campaign. You work in textiles in the morning and you engage in the Peer Listener Program as a listener in the afternoon. The file contains these recent notes.
"Prisoner Lee has organised yet another memorial service for a deceased Gorgon inmate. These memorial rights have been held in the chapel led by a Buddhist Lama and are well attended by inmates of various denominations.
Another note is:
"Prisoner Lee continues to keep himself busy in the unit textiles and the prison community. At Christmas, Prisoner Lee organised several Chinese inmates to perform Silent Night in Cantonese, performed for the Deputy Governor and visitors on Christmas morning."
The most recent note states as follows:
"Prisoner Lee has not been sentenced, although most of his co-offenders have been released or have long sentences. He is very concerned that when he is sentenced he will be re-located to another prison. Prisoner Lee is very useful across the prison as an interpreter and as a listener. He is held in the highest regard by textile staff and is extremely valuable to the therapeutic services staff. When he leaves Port Phillip Prison it will be a considerable loss to many. Presently he's proving himself an asset by translating in admissions, especially at night."
In addition, the file contains a supportive letter from Captain Mark Waghlan of the Salvation Army Prison Chaplaincy expressing high regard for you and to his belief that you are capable of making a “valuable contribution to society”.
Mr Shwartz submits that the last year in prison is demonstrative of positive practical remorse and of the commencement of your rehabilitation. I accept that your behaviour does demonstrate the commencement of your rehabilitation.
I have had tendered before me a report from Mr Ian Joblin in relation to his psychological examination of you in May 2005. You provided him with a life history similar to that set out by me above. As he said, the history you gave him was somewhat extraordinary. He said: “It is somewhat dramatic in terms of his involvement in what would seem to be a significant drug ring. The question I had was whether it was in fact correct, or the product of embellishment, either partially or totally. It is extremely difficult from a forensic psychological perspective to determine this precisely.” Mr Joblin could find no evidence of any psychological disturbance and in particular nothing suggesting grandiosity on your part. Unfortunately I am left in a similar position to that of Mr Joblin, and although I accept that you have had past involvement in international drug trafficking at a high level, and indeed, I suspect a considerable part of your story has a factual basis, the real detail of your background is not established satisfactorily before me. You have not provided any sufficient detail for your story to be verified in great detail. Obviously your lack of co-operation in this regard might be very well understood and cannot be used in any way against you. But at the same time, the mitigatory aspects of your story are thus somewhat limited. Nevertheless, it is true, as submitted by Mr Shwartz to me this morning that in the year since your plea, the prosecution has not produced any evidence to disprove any part of your story. I take that into account although, of course, much of your story would not be capable of being proved or disproved one way or the other at least by prosecutorial services.
As stated above, your counsel submits that your prospects of rehabilitation as demonstrated in particular by your good conduct in prison are realistic. I accept that taking into account the consequences which will flow from your conduct on this occasion and your good behaviour in prison, the prospects of your not re-offending may well be increased. Nevertheless, in all the circumstances of your background, the issue of specific deterrence and the issue of the protection of the public from you is not without importance in your case. Furthermore, as well as matters personal to you such as the possibility of rehabilitation, I must, amongst other things take into account the issue of general deterrence. It is a matter of paramount significance in this case.
This is a serious example of a grave crime. To have been involved at the level that you were, in the largest importation of heroin ever detected in this State, and one of the largest ever detected in Australia, calls for severe punishment. The issue of general deterrence is of great significance in the determination of the appropriate sentence to be imposed upon you. Those who see fit to take the risk of playing a part in the importation of heroin into this country must have no expectation other than that the consequences of engaging in such enterprises will be severe. As the Victorian Court of Appeal said in R v Su Su[1]:
“Again and again, the courts have said that importers and traffickers of heroin will receive heavy sentences.”
[1][1997] 1 VR 1 at 73.
I have no doubt that that comment applies to those who aid and abet the importation of substantial quantities of heroin.
The importation of a large quantity of heroin in which you played a substantial facilitative role, had the potential to cause grave harm to many members of our community. As Sully J said in Cheung Wai Man[2]:
"The importation or the attempted importation of and the trafficking or attempted trafficking in a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is not less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.
In the face of such challenges each of the institutional supports of our society has a part to play, that of the courts is to punish and deter according to law. Obviously the courts alone cannot meet adequately let alone defeat the challenge of which I have been speaking. What the courts can do is to punish drug related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the courts are both able and willing to calibrate their sentences until a point is reached at which to a significant extent, even if never perfectly, fear of punishment risk will neutralise the greed which is the only possible motive of those who … engage in drug related crime …".
[2]Unreported, Court of Criminal Appeal, NSW 22 March 1991.
In my view the words of Sully J are applicable to the circumstances of this case. As I have said, the circumstances of your case are such that the issue of general deterrence is most important. This country has a vast and unprotected coastline which some foreign drug traffickers and dealers, see as providing an opportunity for undetected crime as is exemplified by this case. Those persons and those who assist them must know that when detected they will suffer a heavy penalty for their greed.
Furthermore, I am required by s.16A, sub-s.1 of the Crimes Act to impose a sentence that is of a severity appropriate in all the circumstances. This, together with s.16A(2)k of the Act requires me to ensure that you are adequately punished for the offence.
Clearly, and for the reasons set out above, there is no alternative other than to impose a substantial sentence of imprisonment upon you.
The prosecution submits that you should be sentenced to a term of life imprisonment, but that I should fix a non parole period. On the other hand, whilst your counsel concedes that a lengthy prison sentence is inevitable in all the circumstances, a head sentence of life imprisonment is submitted by Mr Shwartz to be an inappropriate sentence.
Whilst I accept the thrust of the submission advanced on behalf of the prosecution that this case is without doubt a serious example of a grave offence and that persons who are proven to have played a major part in the commission of an offence of the type before me can expect to receive condign sentences which may well require the imposition of the maximum sentence, I do not conclude in your particular circumstances that a head sentence of life imprisonment is inappropriate.
In fixing the head sentence, I am bound to approach the task on the basis that you might be required to serve every day of the sentence. As seriously as I regard the offence, and as significant as your part in assisting the importation of heroin to Australia was, such a head sentence would not be appropriate taking into account the part played by you in the importation in combination with matters of mitigation, including in particular your plea of guilty by which a substantial and transparent discount of your sentence is required. I have given careful consideration to this matter in particular.
I must also take into account matters of parity with others who have pleaded guilty. I have already sentenced Teng and Lam as well as Wong, who pleaded guilty to importation. First, I accept that there are no significant differences between you and Teng and Lam in relation to the part played by each of you in the commission of the offence. In my view in terms of culpability your conduct is comparable with and equal to theirs. That is a factor in support of general parity with their sentences. Secondly, however, in other regards there are some distinctions. The first is the fact of the plea of guilty and the degree of remorse which was associated with the plea of Teng. As stated above, you pleaded guilty well after Teng and well after his sentence was handed down. He pleaded guilty on 27 January 2005; he was sentenced on 21 February 2005. You pleaded guilty on 9 March 2005, the same day as Lam. Furthermore, unlike Teng, you waited until a number of rulings relevant to your defence were handed down. Your plea of guilty, deserving as it is of transparent discount, did not come about by reason of remorse or contrition; it came about by reason of the clear recognition on your part of the inevitability of your conviction and the likely sentence which would follow such conviction after trial. Unlike Teng there is little evidence of remorse before me, save for what might be called statutory remorse and of course the matters raised this morning by Mr Shwartz and the demonstration of good behaviour in the period you have been in prison. Furthermore, whereas I was positively satisfied of the background of Teng and thus able to form some views about the possibility of reformation, I am unable to be so positively satisfied in your case. Finally, there is the fact of age. Teng will not have a significant period of useful life available to him upon release, even at the minimum term of his sentence. He will suffer additional hardship by reason of his age and absence from his family. You are, of course, considerably younger and, it would appear that you have no family.
Thus, in terms of parity, there are a number of good reasons why your sentence should not be identical with that of Teng. Your circumstances are much more like those of Lam, although in his case there were different factors of mitigatory relevance. In particular, it is apparent that in your circumstances the issue of specific deterrence and the protection for the public from you are of heightened significance. These matters need to be weighed in the balance with the mitigating factors referred to above.
In the end result, and in particular taking into account your conduct in prison, and the grave uncertainty which will hang over your head about your future throughout the whole of your sentence, and notwithstanding the different factors which apply to you, Teng and Lam, and doing the best I can to weigh up all the relevant matters in terms of parity and endeavouring to hand down a just and fair sentence, I conclude that I should sentence you to 24 years' imprisonment, to commence this day. I set a non parole period of 16 years. Pursuant to s.16E of the Crimes Act I declare that you have served 1,118 days by way of pre-sentence detention.
Mr Shwartz, I ask you to explain to your client the purpose and the consequences for fixing the non parole period as required by s.16F(1) of the Act.