R v Yang

[2016] WASC 410

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   R -v- YANG [2016] WASC 410

CORAM:   FIANNACA J

HEARD:   12 SEPTEMBER, 11-12 OCTOBER & 17 NOVEMBER 2016

DELIVERED          :   19 DECEMBER 2016

FILE NO/S:   INS 147 of 2015

BETWEEN:   THE QUEEN

Prosecution

AND

DONGGIL YANG
Accused

Catchwords:

Trial of the issues - Criminal Code (Cth) s 307.1(1) - Whether offender intended to import border controlled drug when he travelled to Australia - Whether offender was reckless as to the imported substance being a border controlled drug when he travelled to Australia

Legislation:

Criminal Code (Cth), s 4.1, s 5.4, s 5.6, s 6.2, s 307.1(1), s 307.1(2), s 307.1(3)
Criminal Code Regulations 2002 (Cth)

Result:

Findings of fact made
The offender intended to import a substance and was reckless as to whether the substance was a border controlled drug when he travelled to and entered Australia

Category:    B

Representation:

Counsel:

Prosecution                   :     Ms K A Gregory

Accused:     Mr S Lee

Solicitors:

Prosecution                   :     Director of Public Prosecutions (Cth)

Accused:     Spencer Reyner Law Office Pty Ltd

Cases referred to in judgment:

Afford v The Queen [2016] VSCA 56; (2016) 308 FLR 1

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Hann v Commonwealth Director of Public Prosecutions [2004] SASC 86; (2004) 88 SASR 99

Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

Smith v The Queen [2016] NSWCCA 93; (2016) 309 FLR 258

Table of Contents

Background and identification of the issues
Procedural history
Statutory framework
Legal principles concerning the trial of the issues
The facts stated by the prosecutor
Messages between the offender and others
Translations of the Korean messages
Structure of the balance of these reasons
The offender's background
The offender's credibility - a general observation
How the offender became involved in the enterprise

(i)       Introduction to Bello's enterprise by Jeong
(ii)      Contact from Bello
(iii)     Messages between offender and Jeong expressing concerns about the enterprise

The use of laughing symbols
Messages on 23 July 2014
The offender's motive for becoming involved in the enterprise
Messages on 11 September 2014
Conclusion as to offender's state of mind from the messages prior to the first trip
The offender's first trip for Bello

(i)       Communications with Bello and the arrangements to travel to Brazil
(ii)      The trip to Brazil
(iii)     The exchange with Meng on 12 October 2014
(iv)     Instructions from Bello concerning delivery of the luggage and departure
(v)      Receiving the luggage in Brazil
(vi)     Whether the offender made admissions to Ms Martin that he was worried he was carrying something dangerous
(v)      The offender's discovery of wrapped items in the luggage in Brazil
(vi)     Communication with Bello at the airport in Brazil
(vii)    The delivery of the luggage in Thailand
(viii)      Communication with Jeong while the offender was in Thailand
(ix)     Conclusions in respect of the offender's state of mind on his trip to Brazil and Thailand

The offender's second trip for Bello

(i)       Events before the trip to China and Australia
(ii)      Events in China
(iii)     Why the offender checked the contents of the bag in China
(iv)     Whether the offender told Ms Lovelock he was suspicious it may be something illegal
(v)      Whether the offender remained aware of the substantial risk of the bag containing drugs after checking the bag
(vi)     The offender travels to Australia

Consideration of other matters relevant to whether the offender was aware of the substantial risk that he was importing border controlled drugs

(i)       The nature of the business
(ii)      Consciousness of guilt
(iii)     Preparedness to travel to China
(iv)     Preparedness to import the drugs after he was interviewed by Customs

Conclusion
Annexure 1 - The Queen v Donggil YANG – Schedule of Relevant Chats

FIANNACA J: 

Background and identification of the issues

1. On 11 February 2016, Donggil Yang (the offender) pleaded guilty to an offence under s 307.1(1) of the Criminal Code (Cth) (Code), namely that between 2 December 2014 and 3 December 2014 at Perth in the State of Western Australia, he imported a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity. An issue has arisen as to the facts on which the offender is to be sentenced. In essence, the question is:

   (a)did he intend to import a border controlled drug into Australia or, at least, did he intend to import a substance and was he reckless as to whether the substance was a border controlled drug, when he embarked on his travel to Australia and checked in a piece of luggage that was to travel with him to Australia, as the Crown contends, or

   (b)was it only after he arrived in Australia that he formed an intention to import a substance in circumstances in which he was reckless as to whether he was importing a border controlled drug, as the offender contends?

2. The offender is a South Korean[1] national.  He was engaged by someone who purported to be in Russia, and with whom he was only ever in communication by text messages, to bring a piece of luggage into Australia.  The methamphetamine was contained in that luggage.  He says he did not intend to bring a border controlled drug into Australia, as he did not know there was such a drug in the luggage.  Further he says that when he travelled to Australia he was not reckless as to whether he was importing a border controlled drug, as he was not aware at that stage that there was a substantial risk he was importing such a drug.  He says that his plea of guilty has been entered on the basis that the circumstances in which an intention to import a substance[2] can be inferred arose only when he was interviewed by Customs officers at the airport after arriving in Perth and was told that swabs taken from the bag he was then carrying (not the bag containing the drugs) and from his spectacles returned a presumptive positive result for Cocaine (which is also a border controlled drug).  He says that it was at that time also that he became aware of a substantial risk that the substance was a border controlled drug.  The piece of luggage that he was engaged to bring into Australia had been delayed in Singapore and was still in transit.  The offender subsequently took steps to ensure the luggage continued to Perth and to recover the luggage.  He says it was then that it can be inferred he intended to import a substance and that he was reckless as to whether he was importing a border controlled drug, and consequently was criminally responsible for the importation of the drug.

   [1] I will refer to the Republic of Korea as South Korea, the name by which it is commonly known.

   [2] I have framed the submission in this way to reflect the manner in which I have understood the offender's position to conform with the first element of the offence, although the submission focused on the offender's recklessness in respect of the second element.  I will return to this issue later, when dealing with the elements of the offence.

3. The Crown, on the other hand, submits that the circumstantial evidence and things the offender said to the authors of the pre-sentence report and the psychological report establish that the offender knew he was carrying a border controlled drug in the luggage from the time he embarked on his travel to Australia, and it was his intention to import the drug.  Alternatively, the Crown submits, the same evidence establishes that the offender intended to import a substance and was at least reckless as to whether he was importing a border controlled drug when he embarked on his travel to Australia.  The Crown submits that I should reject the offender's claim that he became aware of the substantial risk that what he was importing in the luggage was an illicit drug only after he was interviewed by Customs officers at Perth International Airport and was informed of the presumptive positive result for Cocaine.

4. The Crown bears the onus of satisfying me beyond reasonable doubt of the facts for which it contends before I could find those facts proved and sentence the offender on that basis.  If I am not satisfied of those facts beyond reasonable doubt, I must sentence the offender on the version of events consistent with his plea of guilty that is most favourable to him.

5. The Crown's submission depends in large part upon text communications between the offender and his friend, Mr Jeong (Jeong), who got him involved in the luggage carrying enterprise, and between the offender and a person going by the name of Angelica Bello (Bello) who purported to be involved in an apparel business and was the person who engaged the offender in the enterprise, arranged for him to be paid and gave him instructions about what he needed to do. 

6. The messages exchanged with Bello were in English.  The issue in respect of those is what inferences can be drawn about the offender's knowledge and his state of mind more generally about the enterprise he was involved in.

7. The messages exchanged with Jeong (and with another Korean friend) were in Korean.  An issue has arisen about the translation of those messages provided by an accredited translator and interpreter in the Korean language engaged by the Crown to translate the messages.  Apart from some issues of accuracy raised on behalf of the offender, issues have been raised about the tone of some of the messages and the inferences to be drawn from them. 

8. Issues were also raised about the accuracy of evidence given by the authors of the presentence report and the psychological report concerning statements made by the offender suggesting he was suspicious of the contents of the luggage before coming to Australia.

Procedural history

1. The offender entered his plea of guilty at a Status Conference in this court on 11 February 2016.  A judgment of conviction was entered and sentencing was adjourned in order that a pre-sentence report and a psychological report could be obtained.

2. The offender appeared before me on 17 June 2016.  He had obtained an expert report on matters that potentially were relevant to the inferences that could be drawn from the text messages that were in Korean.  The offender sought an adjournment to obtain a further report from that expert on the basis of translations of the Korean text messages that had been received a relatively short time before the hearing.  It is not necessary for the purposes of these reasons to consider whether the opinion could and should have been sought earlier.  In the event, the matter was again adjourned.

3. The sentencing hearing resumed on 31 August 2016, at which time the facts were read by the prosecutor.  It was at that hearing that the factual dispute I have outlined above crystallised in the course of submissions.  The Crown maintained its position and I decided that a trial of the issues would be necessary, because the factual difference between the parties was significant in determining the offender's culpability for the purposes of sentencing.  His culpability would be significantly less on his version (becoming aware of the substantial risk he was importing illicit drugs after he arrived in Australia) than it would be if he intended to import the drugs or was aware of the substantial risk he was importing such drugs before he came to Australia.

4. A trial of the issues was subsequently held on 12 September 2016, 11 and 12 October 2016 and 17 November 2016.  As the Crown relied substantially on inferences to be drawn from the materials in the prosecution brief, most of which were not in dispute, and on the contents of the pre-sentence and psychological reports that had been obtained by the court, it decided that the only oral evidence it needed to call was from the translator of the text messages that were in Korean, Mr Y Lee.  He gave evidence by video‑link from Canberra and was cross‑examined on 12 September 2016.  The offender elected to give evidence and did so on 11 and 12 October 2016.  His evidence gave rise to an issue about the accuracy of the contents of the pre-sentence and psychological reports concerning statements he allegedly made indicating he had been suspicious that the luggage he was being asked to carry contained illegal or dangerous goods.

5. The Crown was given leave to call in rebuttal the authors of those reports, Ms Lovelock, who is a Senior Community Corrections Officer, and Ms Martin, a forensic psychologist contracted to the Department of Corrective Services, both of whom gave evidence on 17 November 2016.  The Crown also called on that day the interpreter who interpreted by telephone conference during the interviews conducted by Ms Lovelock and Ms Martin with the offender.  The interpreter was Ms S H Lee, who gave her evidence by video‑link.

Statutory framework

1. The offence under s 307.1(1) of the Code is made up of physical elements and fault elements. Physical elements can be conduct, the result of conduct or a circumstance in which conduct or a result of conduct occurs.[3]  Fault elements are either specified by the section creating the offence or implied, if not specified, unless the section provides that absolute liability applies to a physical element.[4]

   [3] Criminal Code (Cth) s 4.1.

   [4] Criminal Code (Cth) s 6.2(2).

2. Relevantly for this matter, the physical elements for the offence under s 307.1(1) were that:

   (a)the offender imported a substance (conduct);

   (b)the substance was a border controlled drug (a circumstance); and

   (c)the quantity of the drug imported was a commercial quantity (a circumstance).

3. As s 307.1 does not specify the fault element for the physical element of importation, the fault element is intention, as it consists of conduct.[5]  The fault element for the circumstance of the substance being a border controlled drug is recklessness.[6]  If intention is proved in respect of a circumstance for which the fault element is recklessness, the fault element is proved.[7]  There is no fault element for the circumstance of the quantity of the drug imported, as s 307.1 provides that there is absolute liability in respect of that element.[8]  Therefore, in respect of that element, it is sufficient for the Crown to prove that the amount of the drug was a commercial quantity. 

   [5] Criminal Code (Cth) s 5.6(1).

   [6] Criminal Code (Cth) s 307.1(2) and s 5.4

   [7] Criminal Code (Cth) s 5.4(4).

   [8] Criminal Code (Cth) s 307.1(3) and s 6.2.

4. The concepts of 'intention' and 'recklessness' are dealt with in ch 2 of the Code, which sets out the principles of criminal responsibility applicable to Commonwealth criminal offences.

5. Section 5.2 provides relevantly ‑

   (1)A person has intention with respect to conduct if he or she means to engage in that conduct.

   (2)A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

   (3)A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

6. There is authority for the proposition that intention to import a substance that is a border controlled drug can be inferred from circumstances in which the offender was aware of the likelihood, in the sense that there was a real chance, that his conduct involved the importation of such a substance and he nevertheless persisted in that conduct.[9] 

   [9] Smith v The Queen [2016] NSWCCA 93; (2016) 309 FLR 258; Afford v The Queen [2016] VSCA 56; (2016) 308 FLR 1. Although there is a divergence between the decision of the Court in Smith v The Queen and the majority in Afford v The Queen as to the application to the provisions of the Code of the comments in Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502 from which the proposition I have outlined has been adopted, the weight of authority is in favour of the proposition, and the majority in Afford v The Queen accepted that, as a direction on inferential reasoning, as opposed to a matter of law, in cases of border controlled drugs, the proposition is acceptable.

7. Section 5.4 of the Code provides relevantly ‑

   (1)A person is reckless with respect to a circumstance if:

   (a)he or she is aware of a substantial risk that the circumstance exists or will exist; and

   (b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

   ...

   (3)The question whether taking a risk is unjustifiable is one of fact.

8. Recklessness requires conscious awareness of risk; it is not enough to show that the risk was obvious or well‑known.[10]

   [10] Hann v Commonwealth Director of Public Prosecutions [2004] SASC 86; (2004) 88 SASR 99 [26] (Gray J).

9. There is no dispute that the offender intended to bring into Australia the contents of the luggage that he had checked in to be transported to Australia.  The offender's case is that he did not know the substance (which turned out to be methamphetamine) was among those contents.  Further, as I have understood his case, the inference is not open beyond reasonable doubt that he was aware of the likelihood, in the sense that there was a real chance, that his conduct involved the importation of a substance other than clothing or fashion accessories, so that he did not intend to bring that substance into Australia.  Therefore, I have understood the basis of his guilty plea to be that the conduct that makes him criminally responsible is his conduct in pursuing the importation of the luggage after his encounter with the Customs officers at Perth International airport, at which time he had become aware of the likelihood of the luggage containing an illicit substance, and he was reckless as to whether the substance was a border controlled drug.

10. The Crown's case is that the offender either:

    (1)knew the substance was in the luggage and he engaged in conduct amounting to importation of the substance into Australia, intending to do so, and he was consciously aware there was a substantial risk that the substance was a border controlled drug; or

    (2)he was aware of the likelihood, in the sense that there was a real chance, that his conduct involved the importation of a substance other than clothing or fashion accessories into Australia, and his intention to import the substance before he arrived in Australia can be inferred from that awareness and his persisting with consigning the luggage to be transported to Australia, and that he was consciously aware of a substantial risk that the substance was a border controlled drug.

11. The first of the Crown's propositions requires the Crown to prove that the offender was aware the substance was in the luggage and he meant for it to be imported into Australia, and he believed the substance was a border controlled drug.  The Crown does not need to prove that the offender was aware that the substance was methamphetamine.  It is sufficient for the Crown to prove that the he was aware that he was importing any of the border controlled drugs specified in the Criminal Code Regulations 2002 (Cth). One would expect that most visitors to Australia, or indeed Australian citizens, would be unlikely to be aware of the contents of the regulations, but would in general terms be aware of drugs that are 'illegal'. In the context of this case, it would be sufficient if the offender believed the substance was a drug that it was illegal to bring into Australia.

12. The alternative proposition for which the Crown contends requires the Crown to establish that the offender was aware there was a real chance that the luggage contained a substance other than clothing and fashion accessories, and that the only reasonable inference from all the circumstances is that he intended to import that substance into Australia, aware of a substantial risk that the contents of the luggage he was importing into Australia included a substance that was a border controlled drug, and that it was unjustifiable for him to take the risk of importing that substance.  The Crown does not need to prove that the offender was aware of a substantial risk that he was importing methamphetamine.  It is sufficient for the Crown to prove that the offender was aware of a substantial risk that he was importing any of the border controlled drugs specified in the Criminal Code Regulations 2002.

Legal principles concerning the trial of the issues

1. Either of the alternative versions of the facts for which the Crown contends would aggravate the offending.  Therefore, as I noted earlier, I cannot sentence on those facts, in either case, unless I am satisfied of the facts beyond reasonable doubt.  The Crown bears the onus of establishing those facts.

2. The offender has given evidence.  I am required to make an assessment of his credibility.  However, even if I do not positively accept his evidence, I cannot find facts contended for by the Crown, inconsistent with his account, unless I am satisfied of those facts beyond reasonable doubt on the basis of other evidence.  That other evidence consists of circumstantial evidence, including communications between the offender and others, and statements made by the offender that are alleged to amount to admissions.  In deciding what inferences I can draw from the circumstantial evidence, I must consider the evidence as a whole and not in a piecemeal manner.[11]  It is the cumulative effect of the evidence that will determine the facts I should find.

   [11] R v Hillier [2007] HCA 13; (2007) 228 CLR 618.

3. My assessment of the offender's credibility has been complicated by the fact that the evidence has been given through an interpreter.  Apart from the fact that spontaneity of a witness's response is lost when questions and answers have to be interpreted, I am mindful also that any assumptions about the significance of particular demeanour may not apply when a witness is speaking in a different language.  An issue was also raised on a few occasions by the offender's counsel, Mr S Lee, who speaks the Korean language, about the accuracy of the interpretation.  As I pointed out to counsel, I could not act on assertions made by him about the accuracy of the interpretation as that would be relying on evidence from the bar table.  I noted that if he had concerns about the interpretation, the proper course would be for the defence to engage another interpreter who could raise any concerns.  However, the issue in each instance was dealt with by my asking the interpreter whether she agreed or disagreed with the point raised by counsel.  I was satisfied the issues were resolved in that manner.  As an example, on a small number of occasions, the interpreter agreed that her interpretation had missed some information.

4. I note that there may also be cultural factors that make assumptions about the significance of demeanour to credibility inappropriate.  I take into account also that demeanour may not always be a reliable guide to credibility or reliability in any event.  For instance, to the extent that on occasions the offender may have appeared nervous in his evidence, that is not surprising, given his circumstances and the fact that giving evidence can be a stressful experience for any witness.

5. In assessing the credibility and reliability of the offender's evidence I have had regard mainly to the coherency of his evidence, its consistency internally and with other evidence, and its plausibility.

6. I have been required to make an assessment also of the evidence of the witnesses called by the prosecution.  In those cases, the issue that has been raised on behalf of the offender is not as to the witnesses' honesty, but their reliability on particular matters.

The facts stated by the prosecutor

1. The trial of the issues was conducted against the background of material facts stated by the prosecutor, which to a large extent were not disputed.  That is so in respect of the objective facts, which were as follows.

2. On Tuesday, 2 December 2014 the offender travelled to Perth, Western Australia on a Singapore Airlines flight from Singapore, having earlier departed from Shanghai in China.  His ticket had been purchased one day prior to his travel and was paid for in cash.  He arrived at the Perth International Airport around 12.50 pm.  One of his items of luggage was mishandled in Singapore and failed to make his flight to Perth.

3. The offender went to the International terminal barrier where he went through processing by officers from the Australian Customs and Border Protection Service.  He presented an incoming passenger card which he had completed and signed.  He had marked the answer 'no' next to the question which asked whether he was bringing into Australia goods that may be prohibited or subject to restrictions, such as illicit drugs.

4. The offender then went to the baggage claim area to retrieve the items he had previously checked in.  He collected one item of luggage, but then remained at the baggage carousel for some time.  He then went to the relevant luggage desk to report that he was missing an item of luggage.  He had a conversation with an employee there and completed a report.  He was told that his luggage would arrive on the next flight from Singapore and it would be delivered to his nominated address.  He nominated the Ibis Hotel on Great Eastern Highway, Perth Airport as his address.

5. The offender then approached the Customs line, and was selected by a Customs officer for a baggage examination.  The examination included a presumptive test for traces of drugs.  Officers swabbed the offender's personal items and the sample returned a positive result for cocaine.  They then took a second swab sample from the offender's prescription glasses.  That also returned a positive presumptive result for cocaine.

6. When questioned by Customs officers at the search bench, the offender said he had packed all of his bags himself, including the missing bag, and he was aware of all of the contents of both bags.

7. Customs Officers conducted a record of interview with the offender.  At that stage he was cleared by Customs officers and he left the Customs Controlled Area of the airport, as his second item of luggage had not yet arrived.

8. The offender then approached a Tourist Information agent and requested details for a backpackers' hostel.  He was referred to a particular hostel in East Perth.  He tried to check into that hostel that day, but they had no vacancies.  He was referred to another backpackers' hostel in east Perth.

9. When the offender's missing luggage arrived on another flight from Singapore around 1.00 am on 3 December 2014, it was wrapped in plastic.  Customs officers x-rayed the bag and, as a result of a search, identified abnormalities inside two pairs of shoes contained in the bag.  When the contents of the bag were inspected further, the officers found four packages concealed inside the shoes, one in each of the four shoes.  Photographs showing the removal of the packages from inside the shoes show that there was a package concealed under the insole of each shoe.[12]  Australian Federal Police (AFP) officers attended and seized the bag.

   [12]  Although these photographs were not tendered as part of exhibit 8, being a bundle of photographs showing the bag and its contents taken by the police after it was seized, the photographs were part of the materials in the prosecution brief.

10. On Wednesday, 3 December 2014, AFP Officers went to the first backpackers' hostel to which the offender had been referred in East Perth, to look for the offender, and were redirected to the second hostel, where they located him around 10.25 am.  The offender voluntarily accompanied the officers to the AFP office in Perth, where he was offered the opportunity to participate in a digital record of interview, but the offender elected not to answer any questions.  He was then arrested and charged.

11. The four packages that were found in the shoes removed from the luggage that had been delayed in Singapore were examined forensically on 16 December 2014.  The contents of all of the packages tested positive for methamphetamine.  The gross weight of the contents was 986.7 grams.  Analysis by the National Measurement Institute confirmed that the substance in the packages was methamphetamine, and showed that it had a purity of 79.5%.  The pure weight of the methamphetamine concealed within the luggage was 784.4 grams.

Messages between the offender and others

1. When AFP officers examined the offender's mobile telephone, they found a number of messages exchanged by way of internet relay (Facebook Messenger) chat between Bello and the offender.  Those texts are in English.  The police also found messages exchanged between the offender and three other people - his friend Jeong, another friend named Meng and the offender's sister - in Korean using a similar messaging chat system known as Kakao Talk.  The Korean text was translated by a translator, Mr Y Lee, who is accredited to translate from Korean to English and from English to Korean by the National Accreditation Authority for Translators and Interpreters (NAATI).  The accuracy of some of his translations was challenged.  I will come back to that shortly.

2. The messages provide an overview of the manner in which the offender came to be involved in transporting a piece of luggage that was not his into Australia.  They show that he was enticed into the enterprise by his friend Jeong, who told him he (Jeong) had been engaged to do the same previously for payment.  They show that the person for whom the offender transported the luggage was Bello (who I will assume from the first name, Angelica, was female, although that is not known because it appears neither the offender nor Jeong had either met or spoken with Bello).  The messages also show that, before doing the job of transporting the luggage to Australia, the offender had collected a piece of luggage for Bello from Brazil and delivered it to Thailand.

3. Apart from showing the offender's course of conduct, the messages also contain particular moments in which the offender's state of mind is revealed in respect of the enterprise.  In some instances, that is evident from the text alone.  In other instances, the tone of the message, where it can be inferred, has a bearing on the conclusion that can be drawn as to his state of mind.  Many of the messages contain characters that have been translated as laughter.  The Crown submitted that when those characters occur in the context of discussion about the nature of the enterprise in which the offender was involved, or where the question was raised directly whether he was carrying drugs, I should infer that it was either nervous or sarcastic laughter.  The offender disputes that to be the case.  The significance of the relevant characters, and the translator's approach to them, occupied a substantial part of the hearing, as will appear below.

4. Printouts of the messages were tendered in evidence on the trial of the issues.  There were 147 Kakao Talk messages (Exhibit 3), with a handwritten translation by Mr Y Lee on the printout of each message.  Often a number of messages would be part of a single conversation.  The printouts of the chat messages between the offender and Bello (Exhibit 6) spanned 69 pages.  Of course, although the two sets of chats were tendered separately, they were interspersed in terms of timing.  The Crown produced a schedule of relevant chats in chronological order interspersing some of the messages and conversations between the offender and Bello with relevant Kakao Talk messages so as to provide a picture of the offender's communications with persons relevant to the enterprise or his discussion about it in the order in which they occurred.  Because of the importance of the overall picture painted by those communications, the schedule (although it does not list all of the messages in the exhibits), with a number of amendments, additions and annotations, is Annexure 1 to these reasons.

5. The amendments that have been made in Annexure 1 are to the name of the person with whom the offender was exchanging messages on 12 October 2014 from 4.48.17 pm UTC[13] to 4.48.36 pm UTC, and from 4.48.52 pm UTC to 4.49.09 pm UTC.  The original schedule prepared by the Crown showed that person to be Jeong.  However, in light of the evidence of the offender, it appears that the person was the offender's friend, Meng.  The 'Kakao Talk ID' number is different to the number that appears for Jeong in the messages to which he was a party. 

   [13] Universal Coordinated Time. The standard is the same as GMT.  No significance was placed on the times in the Kakao Chat messages.  References in the balance of these reasons to the time of day at which messages were sent are not intended to reflect the time in the place either where the offender was or where the other correspondent was.

6. The additions to the schedule that are included in Annexure 1 are:

   (a)a number of messages between Jeong and the offender from 1.51.01 am to 1.55.14 am UTC on 23 July 2014, which were not included in the Crown's schedule, but which provide further context for other messages during that period and immediately after, which were included in the schedule;

   (b)four messages from Jeong to the offender that immediately preceded a message sent by the offender to Jeong at 3.16.18 pm UTC on 9 September 2014.  That message has some significance to the issue of whether the offender was aware of the likelihood that he was being involved in the transporting of illicit drugs; and

   (c)two messages from Meng to the offender at 4.48.54 pm and 4.49.04 pm UTC on 12 October 2014 that were part of a sequence that commences at 4.48.20 pm UTC, but which were omitted from the Crown's schedule.  Although their significance is obscure, as I will discuss below, one of them was the subject of cross‑examination of the translator, and I consider they should be included for completeness.

7. The annotations in Annexure 1 are in respect of matters concerning the translations, which will be discussed in the next section of these reasons.

8. It is important to note that the messages between Bello and the offender reproduced in Annexure 1 are only part of what was a continuous dialogue between them during the time that the offender was travelling for Bello.  While the messages that have been reproduced are a sufficient sample of the communications between them that are relevant to my determination of the issues, they do not portray the whole picture in which it is apparent that Bello groomed the offender for his task, cultivating a rapport with him.  I will return to that point in context later.

Translations of the Korean messages

1. During his plea in mitigation on 31 August 2016, the offender's counsel indicated that he took issue with some of the translations of the Kakao Talk messages.  Consequently, Mr Y Lee was called on 12 September 2016 to give evidence about the translations.  He was cross‑examined at length by the offender's counsel.

2. I am satisfied that Mr Y Lee was qualified to make the translations and that generally the translations are an impartial and accurate translation of the text in the messages.  Korean is Mr Y Lee's native language, and he learnt English commencing in middle school in Korea.[14]  He has achieved the professional level of accreditation.[15]  He appeared to be familiar with the Australian Institute of Interpreters and Translators Code of Ethics and Code of Conduct (AUSIT Code).[16]

   [14] ts 155.

   [15] ts 155.

   [16] I note that the Supreme Court of Western Australia 'Protocol for the Use of Interpreters', item 9.13.1 of the Consolidated Practice Directions, draws largely upon the AUSIT Code.

3. The AUSIT Code[17] requires interpreters and translators to be impartial and accurate in their interpretation or translation of material.  Paragraph 5 of the Code of Ethics deals with accuracy and requires interpreters and translators to 'use their best professional judgment in remaining faithful at all times to the meaning of texts and messages'.  'Accuracy' is defined to mean 'optimal and complete message transfer into the target language preserving the content and intent of the source message or text without omission or distortion'.  Paragraph 5 of the Code of Conduct provides further that interpreters and translators are not to alter, add to, or omit anything from the content and intent of the source message, and are to acknowledge and promptly rectify any interpreting or translation mistakes.

   [17] The AUSIT Code is divided into two sections, the Code of Ethics and the Code of Conduct, although the latter incorporates the ethical principles in the Code of Ethics and repeats some of the material from the latter.

4. It will be apparent that a function of a translator is to convey the intent of a message.  It is well‑known that literal interpretation or translation into English from another language will not necessarily convey the intent or real meaning of what has been said or written in that language.  The AUSIT Code requires an interpreter or translator to use his or her best professional judgment based on his or her skills and understanding acquired through training and education[18] (and, one might add, experience), to convey the intent of the source material.  However, it is the meaning of the words in context that must be conveyed.  It is not the role of the interpreter or translator to express an opinion about the speaker's or author's state of mind or what it was they were trying to convey (as opposed to what the words actually convey).  It is not their role to draw conclusions, let alone speculate, about such matters.

   [18] AUSIT Code, Code of Conduct [5.1].

5. Mr Y Lee's translations of the Kakao Talk messages were challenged in a number of respects.  As I perceived the challenge, it was not to the witness's impartiality, but to the accuracy of some of the translations and his methodology.  More generally, it could be said that the challenge was to Mr Y Lee's reliability as an expert. 

6. In any event, I am satisfied that Mr Y Lee approached his task impartially.  In cross-examination he was prepared to acknowledge that alternative translations were open when they were put to him and, upon reflection, he considered them to be reasonable.  I am also satisfied that generally his translations were accurate, and where there was ambiguity he indicated that in a translator's note.  However, I accept the submission made by the offender's counsel that there were a number of deficiencies in the translations and in Mr Y Lee's approach.  Some of them were conceded by Mr Y Lee.

7. The following deficiencies were identified:[19]

   [19] Messages will be identified by reference to the page of the prosecution trial brief (TB) on which they appear, which can be cross-referenced to Annexure 1, although not all of the messages about which Mr Y Lee was cross‑examined are contained in Annexure 1.  Where necessary, the date and time will also be particularised.

   (1)The message at TB 246 (11 September 2014) from Jeong to the offender refers to the sum of money Jeong is to receive.  It was incorrectly translated as '6,000 dollars'.  The correct figure is 6,500.[20]  Although, Mr Y Lee had noticed the error, he had not rectified it promptly.

   (2)Mr Y Lee translated a character that is used as a laughing symbol in a number of messages as 'ha', without a translator's note to indicate it is in fact a laughing symbol without a phonetic sound.  I will consider this in more detail below.

   (3)Mr Y Lee did not translate all of the laughing symbols where they appeared.  In two messages where laughing symbols appeared he did not provide a translation of them at all.  He used his discretion to determine whether it was necessary to translate the laughing symbols with the numerical equivalent of 'ha's or at all.[21]  Again, I will consider this further below.

   (4)There were two messages (at TB 234 and 342) in which a Korean character (different in each message) was repeated to achieve a long 'oh' or 'ah' sound.  The messages are not significant in the determination of the issues in this matter.  However, reliance was placed on the translations of these messages to emphasise the potential impact on meaning of the approach adopted by Mr Y Lee.  He translated the characters as 'Oh' and 'Ah' respectively, without a translator's note that the sound in the Korean language was repeated in each case, so that it should be understood as an extended sound.  His explanation was that, while in the Korean language the repeated use of the character meant that the sound was elongated, there was no equivalent way of writing the sound in English.  That is debatable, but in any event, this is an example of where a translator's note should have been used to indicate the intent of the original text.  In English usage, a drawn out 'oh' or 'ah' is capable of conveying a different meaning from a short 'oh' or 'ah'.  The offender gave evidence that the 'oh' in the message at TB 234 was exaggerated to emphasise the joking nature of his response to Jeong, who had said in the preceding message that he didn't know why 'they' gave him money, and that he had received '500 dollars again'.[22]

   (5)Mr Y Lee did not translate or make a translator's note in respect of the last character in the message at TB 257.  Jeong appears to be expressing concern that the offender's sister[23] might guess that he, Jeong, was the person who involved the offender in the enterprise.  Mr Y Lee agreed in cross-examination that the character at the end of the message, which is a vowel, not a complete word, can signify crying.[24]  He said he did not regard it as a main part of the text, and he did not think it added to the meaning of the sentence, so he disregarded it.[25] The problem with that approach is that, upon analysis of all the messages, the use of symbols, whether to signify laughter, crying or any other emotion, may be significant.  They may inform the tone of a message, which in turn may reveal a state of mind which is relevant to the issues under consideration.  The use of a crying symbol in contrast to a more regular use of laughing symbols may show a change of tone, although I am mindful that emoticons signifying sadness in English text messages can be used ironically.  In any event, this was an instance in which the translator should have included an explanatory note about the presence and non-translation of the character.

   (6)Mr Y Lee did not make a translator's note to indicate that there were typographical errors or words missing in messages at TB 244, 346 and 374 which gave rise to potential ambiguity in the meaning of those messages.[26]  However, I do not consider that the potential ambiguities that were identified in cross-examination of Mr Y Lee were of any particular significance in the context of the issues I am considering.

   (7)Mr Y Lee used his discretion to translate a segment in the message at TB 301, in which the Korean character for 'yes' was repeated three times, as a single 'yes'.[27]  This is another example where it should have been made clear that the character was repeated three times in the Korean language.  If such repetition does not have significance in Korean, there should have been a translator's note to that effect.  Otherwise, it is not a complete translation, as in English the repetition can carry meaning by way of emphasis.  It potentially affects the tone of a message.  As the tone of certain messages is significant to my determination of the issues, it was appropriate for the defence to make the point generally.  However, the particular message at TB 301 is not significant to that determination.

   (8)The message at TB 352 (from Jeong to the offender) was translated as, 'What do you think Bell is? Ha ha'.  It is clear, in context, that 'Bell' was a reference to Bello.  Mr Y Lee agreed in cross-examination that a more accurate translation was 'What do you think Bell's work is?'

   (9)In respect of the message at TB 357 (in which the offender was indicating to Jeong his impression of whether Bello was really in the apparel business), Mr Y Lee, in a translator's note, expressed his opinion of the intent of the message.  While the fact that it was identified as a translator's note made it clear that this was not strictly part of the translation, but a possible meaning to be attributed to the message (in light of the preceding messages, which provided context), it was nevertheless the expression of an opinion about a conclusion to be drawn from the text, which in my view was not a matter upon which Mr Y Lee could provide an opinion as an expert translator.

   [20] ts 183.

   [21] ts 165 - 172.

   [22] ts 242.

   [23] Although the translation included 'my' in brackets before 'sister', suggesting Jeong was referring to his sister, this appears to have been an assumption made for clarification, not a translation of a word in the text.  When regard is had to the context of preceding and following messages, the compelling inference is that Jeong was referring to the offender's sister, as the offender mentions her in those other messages.

   [24] ts 170.

   [25] ts 171.

   [26] ts 194 - 197.

   [27] ts 201.

1. There were other aspects of the translations on which Mr Y Lee was challenged by the defence, but I am not satisfied that the translations were deficient in those respects or that any discrepancy was of any significance.

2. For instance, in the message at TB 241, on 23 July 2014, when Jeong appears to be saying to the offender that he is not willing to recommend the job he is doing (transporting items for Bello), the last part of the message was translated as: 'If anything goes wrong I will be blamed ha ha'.  In cross-examination, Mr Y Lee agreed that the literal translation of the last few words is 'it's my fault' or 'it will be my fault'.  He said he had given what he considered to be the implied meaning, because the writer was referring to something that may happen in the future, and the sentence was concerned with attributing fault.  As I noted earlier, a literal translation will not always convey the real meaning of text in a foreign language, and it is necessary for the translator to have regard to context.  However, it is not apparent to me why the literal translation would not be appropriate in this instance.  That said, I do not consider the difference between the two translations to be of any significance.  Whether Jeong was concerned about others blaming him if something went wrong (for someone else he had involved in the enterprise), or whether he was simply stating it would be his responsibility, the sentiment being conveyed was that there was a potential for something to go wrong, and that either he would be held responsible or he would feel responsible, or both. 

3. In another example, Mr Y Lee did not translate a character that appears at the end of the message at TB 329.  The message is from the offender's friend Meng to the offender, and appears to be part of a sequence of messages in which the offender says to Meng, 'Not drugs ha ha' and Meng responds with, 'Jackpot ha ha what a casual job!' The next message is from Meng, saying, 'What should be handed over?'  It is not clear what was meant by that question.  Then follows the message at TB 329, again from Meng, which was translated as: 'For drugs, no way.' The message does not appear to cohere with the previous messages, and it seems to me there may be a message missing from the offender to Meng.  The point made on behalf of the offender, however, is that the character at the end of the message was not translated.  Mr Y Lee said in cross‑examination that he had not seen the character before.  He said it looked like a crying symbol, but it was not exactly the same as a crying symbol, so he thought it was not significant in the translation.  While a translator's note to that effect would have been desirable, I am not satisfied that his approach on that occasion was defective.  In any event, it was a message from Meng.  Whatever the character represented, it could only shed light on his state of mind, not the offender's.

4. In a final example, Mr Y Lee did not accept the proposition put to him in cross-examination, and I have no basis for doubting his opinion.  It was put to him that he failed to translate three characters in the message at TB 247, which was the offender's response to the message at TB 246.  He was responding to Jeong's indication that he had told his mother he was receiving only $3,000, because she might be worried if she knew it was $6,000.  The response was translated as, 'Ha ha ha, unnecessary worry, ha ha.'  There were three characters after the initial 'Ha ha ha' which the offender's counsel suggested could be translated as 'What?' or 'No way.'  Mr Y Lee agreed that the characters could be interpreted in that way, but the characters had different meanings depending on context and he regarded them in context to be another 'laughing sound', the equivalent of 'ho ho ho'.[28]  It must be noted, however, that the translation did not include the additional laughing sounds, so that this appears to be another example of Mr Y Lee using discretion in deciding to omit some of the content of the message and not to explain in a translator's note why some characters were not translated directly.  While that was a shortcoming in his approach, I do not consider that it affects the conclusion to be drawn from the messages at TB 246 and 247.

   [28] ts 185.

5. The question, then, is whether (and, if so, how) the deficiencies that I accept have been properly identified affect the determination of the issues the subject of this hearing.  The essence of the offender's argument was that the inaccuracies or deficiencies in the translations had the potential to mislead the reader as to the intent of the messages, and that it would be unsafe to infer from the translations of the messages that (a) the offender was doubting the legitimacy of the business conducted by Bello, and (b) it was apparent to him that there was a substantial risk he was being involved in drug transportation. 

6. It may be accepted that some of the inaccuracies and deficiencies had the potential to mislead as to the intent of some of the messages.  That means that caution must be exercised in drawing inferences from messages affected by the inaccuracies or deficiencies, particularly where Mr Y Lee conceded that the meaning may be ambiguous.  However, the identification by the offender's counsel of inaccuracies and errors of approach was thorough.  He did not submit that there might be further deficiencies in the translation of any of the significant messages.  For the reasons that follow, it remains possible, in my opinion, to draw inferences safely about the offender's state of mind from a number of messages that I will outline in the next section.

7. It is convenient to deal with the deficiencies listed in [57] above, by reference to the numbering used in that paragraph.

8. Item (1) was conceded by the offender's counsel to be trivial.  It does not affect the issues.  I have already indicated that the messages referred to in item (4) are not significant to the determination of the issues, and the potential ambiguities referred to in item (6) have not been shown to have any such significance.  The message referred to in item (7) appears to have been an exclamatory acknowledgment by the offender that he was in Brazil at the time of his first trip.  It has no relevance to the issue of whether he believed he was carrying illicit drugs or was aware of the substantial risk he was carrying such drugs.  So, while items (4), (6) and (7) illustrate that deficiencies in translations can affect the tone, and therefore the meaning, that one might attribute to the text of a message, I do not consider that they affect the inferences to be drawn from other messages that are relevant to the issues I must decide. 

9. The deficiencies identified in items (2) and (3), concerning the laughing symbols, require closer consideration.

10. Mr Y Lee did not include a translator's note in respect of the laughing symbol to explain that it is a character that is used as a laughing symbol in internet conversations, but is not used in formal language and does not have a phonetic sound equating to 'ha'.[29]  Such a note should have been included on the first occasion the character appeared in the messages.  To translate the characters into 'ha ha' has the potential to suggest that such a phonetic sound is made.  That is not to say that the translation is inaccurate for the purposes of these proceedings, but the submission is well‑made by the appellant's counsel that the full picture, and in particular the potential for ambiguity, was not adequately conveyed by the translation.

    [29] Mr Y Lee agreed that the sound for the character is the equivalent of 'k'.

11. A substantial amount of time was spent in the cross-examination of Mr Y Lee challenging him on the number of 'ha's he used in translating the laughing symbols when they appeared in messages.  He admitted that he had used discretion when the character was repeated several times in the one sequence.  For instance, where four laughing symbols appeared together, he may have translated the sequence as 'ha ha'.  He had also omitted any reference to the laughing symbols in two messages, on 11 September 2014[30] and 9 November 2014.[31]  The omission in the latter had the potential to affect the tone of an important message in the context of determining the offender's belief about the nature of the business in which he was involved for Bello. 

    [30] TB 265, ts 172.

    [31] TB 357, ts 171.

12. I agree with defence counsel's submission that the approach taken by the translator, both as to the number of 'ha's used in the translation and the omission of any indication of laughter in two messages, is inconsistent with the AUSIT Code requirement that the translation must preserve 'the content and intent of the source message or text without omission or distortion'.  While a translator is entitled (indeed, required) to use judgment as to the manner in which to best convey the content and intent of a message, he is not entitled to use discretion as to whether something like a laughing symbol or character has significance or importance in the context of a particular message, nor whether the number of laughing symbols may have significance in assessing the tone of a message.  Those are matters for the tribunal of fact to determine having regard to all the circumstances, including any explanation that may be given by the author of the message. 

13. However, any risk of disadvantage to the offender resulting from the translator's approach to the laughing symbol has been overcome by the fact that the issue was identified by his counsel and I have been mindful, therefore, of the need to consider the significance of its use wherever it appears.  Once the character has been pointed out, it is a character that can be easily recognised by a non-Korean speaking reader.  Therefore, the fact that not all of the laughing symbols were translated has not affected my ability to consider the number of them used in any message and the significance that may have in assessing the tone or intent of the message.  I have noted in bold and square brackets in Annexure 1 where laughing symbols were omitted in the translation of relevant messages.  

14. It was submitted on behalf of the offender that, because of the deficiencies in the translation of the laughing symbols, 'any inference drawn from the translation could prejudice [the offender] as the tone and/or intent of the original Korean message may, in fact, be very different to the translation.'[32]  The potential for any of the messages to have a different meaning from that conveyed by Mr Y Lee's translation was something that the offender's counsel had ample opportunity to explore and address.  Further, the offender gave evidence about what he meant in the messages about which there was some controversy, and I have had the opportunity to assess that evidence.  Any inference about the tone of a particular message, in particular having regard to the use of laughing symbols, must depend on a consideration of that message in the context of other messages, especially when it is part of a sequence of messages, and other evidence, including the offender's dealings with Bello and what he has said about his suspicions.  I do not accept the defence submission that deficiencies in some of the translations mean, in effect, that it would be unsafe to draw any adverse inference against the offender from the messages.

    [32] Defence submissions on the trial of the issues [30].

15. That applies to the deficiency identified in item (5) at [57] above concerning the translation of the message at TB 257, in which Mr Y Lee failed to include the crying symbol or a translator's note about the omission. Furthermore, in my view the omission did not prejudice the offender. Even without the crying symbol, the absence of any laughing symbols (in contrast to many of the other messages) would have suggested that Jeong was adopting a serious tone in this message. The crying symbol would prima facie strengthen that conclusion, although, as I indicated earlier, I am mindful that emoticons can be used ironically or sarcastically. There is no reason to doubt that Jeong was concerned that he would be held responsible for involving the offender in the enterprise. The message was in response to the offender's message asking, 'Isn't it drug transportation, ha ha?' I will return later to the inferences that are to be drawn from these messages.

16. In relation to the message at TB 352, the subject of item (7) in [57] above, the offender's counsel submitted that Jeong's question of the offender, 'What do you think Bell is?' had a completely different meaning to 'What do you think Bell's work is?'  In the context in which the question was asked, I disagree.  In my opinion, the difference is not significant.  It is clear that the discussion was about whether Bello was in fact who she was saying she was, namely someone who was running an apparel business.  The offender's response at TB 356 (which continues at TB 357) was to the effect that he did not know, because sometimes it seemed that she[33] was running an apparel business, but the clothing and the bag suggested otherwise.  In my opinion, the discrepancy in the translation of TB 352 does not affect the inference that can be drawn from the offender's response at TB 356 and 357.    

    [33] The translator included the word 'he' in brackets.  I explain in the next paragraph why it should be 'she'.

17. The messages at TB 356 and 357 were translated as follows:

    TB 356 - To speak frankly, I don't know. Sometimes it seemed that (he) ran an apparel business …

    TB 357 - But (his) clothing and bag tell different thing. (Translator's note: His or her appearance shows that their business is not related to apparel one at all.)

18. The translator included the words 'he' and 'his' in brackets because they did not actually appear in the Korean text, but he wanted to indicate the subject of the sentence.  Given that the offender appears to have been responding to the question at TB 352 (which, in my opinion, is the only reasonable inference from the timing of the response), it is tolerably clear that he was referring to Bello.  Consequently, I consider that the 'he' and 'his' that appear in brackets at TB 356 and 357 should be 'she' and 'her' (as the offender believed Bello was a woman).  Further, I consider that it is open to construe the translated text in the manner for which the offender contends, that is, that the clothing he was carrying in the luggage and the luggage itself were not consistent with Bello running an apparel business, rather than the message being about the appearance of the person or persons who had delivered the luggage (which is the implication from the translator's note).  In context, the first meaning makes more sense.

19. While the interpolation of 'he' and 'his' in the translations at TB 356 and 357, and the expression of the opinion in the translator's note at TB 357, were shortcomings in the approach taken by Mr Y Lee, it was made clear by him that they were interpolations and, in any event, they have not prejudiced the offender, as I have drawn conclusions about the meaning by having regard to the context and the offender's evidence.  In my opinion, the same inference would be open on either version, in any event.  The offender was expressing doubt about the nature of the business in which he had become involved. 

Structure of the balance of these reasons

1. The determination of whether the offender intended to import a border controlled drug when he travelled to Australia, or at least intended to import a substance and was reckless as to whether it was a border controlled drug at that time, requires a consideration of:

   (1)the offender's personal circumstances;

   (2)the circumstances in which he became involved in the enterprise;

   (3)the circumstances that unfolded as he was involved in the enterprise, including communications the offender had with Bello, Jeong and Meng; and

   (4)the events that occurred after the offender arrived in Australia.

2. I will deal first with the offender's personal circumstances.  They inform the conclusions that can be drawn about his awareness of the enterprise he was involved in, particularly in light of the nature of the tasks he was asked to undertake and the instructions he received from Bello.  It was submitted on behalf of the offender that he was drawn into the enterprise and lacked awareness of the substantial risk that he was involved in drug importation because he was not a worldly individual and he was naïve about illicit drugs.  The Crown, on the other hand, submitted that the offender was an intelligent and worldly individual who was well‑travelled and had a 'solid command of English', and that the communications he had with Jeong and Meng demonstrate he was well‑aware of the risk that enterprises of the kind he was involved in could involve drug importation.

3. After dealing with the offender's personal circumstances, I will deal with each of the other considerations, outlining the evidence on which the Crown relies, in particular the chat messages and other evidence found on the offender's mobile telephone, and the offender's responses to that evidence, including the inferences which he submits should be drawn from the communications. It will also be necessary to consider what conclusions can be drawn from the offender's conduct in checking the contents of the luggage he was required to transport, both to Brazil and to Australia. In that context I will outline the evidence that was given,[34] and my findings, concerning alleged admissions made by the offender, when interviewed for the pre-sentence and psychological reports, about his suspicions or concerns as to the contents of the luggage.

   [34] By the offender, the Senior Community Corrections Officer, Ms Lovelock, the forensic psychologist, Ms Martin, and the interpreter, Ms S H Lee.

The offender's background

1. The facts concerning the offender's background emerge from his evidence, the pre-sentence report and the psychological report.

2. The offender was born in South Korea.  He was 25 years old at the time of the offence and was living in South Korea.  He has an older sister.  He had been studying electronic engineering at a university in South Korea, and had completed three years of a four year course.  His studies had been interrupted by two years of compulsory military service, from October 2010 to August 2012.  Between high school and the time of the offence, he had also had two 'gap' years.  The first of those was in order to do further study and resit his university entrance exam (as he had not done as well as he would have liked) and to travel to the United Kingdom to visit a friend.[35]  Another gap year, after he started university, was to work and travel.[36]  During that time he had done some tutoring, on and off.[37]  Before September 2014, he was employed as a tutor at an educational institute, for which he was paid the equivalent of US$18 per hour.[38]

   [35] Psychological report [2].

   [36] Psychological report [2].

   [37] ts 323.

   [38] ts 246, 350.

3. The offender considered himself to be academically focused in secondary school, but an average or ordinary university student, who spent time with friends.[39]  Nevertheless, as I have already noted, he had completed three years of the university course.

   [39] ts 224.

4. The offender had studied the English language over a period of seven years from middle school until his first year at university.[40]  He said he understood English to a certain level.  In my opinion, it is evident from his communications with Bello that he could read and write English well, at least at the level of conversation disclosed by the messages.  I also note that during his evidence, when asked if he agreed with the translation of the message at TB 253 (which reads, 'Isn't it drug transportation ha ha'), the offender read the translation, without assistance from the interpreter, and answered, 'Yes, roughly' (through the interpreter).[41]  He then confirmed (through the interpreter), in answer to questions from me, that he read and understood the English words on the page and was able to relate them to the Korean words in the message, and was thereby able to say that the translation was roughly correct.[42]

   [40] ts 223, 321 - 322.

   [41] ts 252.

   [42] ts 252 - 253.

1. The offender had travelled overseas on three occasions prior to making the trips for Bello. He had travelled with his mother to China and on his own to the United Kingdom when he was 20,[43] and he had travelled to Thailand with his sister for a holiday in September 2014, leaving South Korea on 22 September 2014 and returning on 1 October 2014.[44]  His first trip for Bello, to Brazil and then on to Thailand, occurred from 10 October 2014.

   [43] ts 269, 310.  I note that he told Ms Martin he travelled to the United Kingdom during his gap year after completing high school.  The discrepancy is of no significance in my consideration of the issues.

   [44] ts 312 - 313.

2. On each occasion the offender had travelled overseas, he had been through customs (i.e. the relevant border control systems) in the countries he visited, both on arrival and departure.[45]  He had experience, therefore, of the processes he would undergo as a traveller upon entering and leaving a country.

   [45] ts 313.

3. Ms Lovelock, who prepared the pre-sentence report, said that the offender did not appear to have a lot of knowledge of the drug culture and he denied ever using any illicit drugs.[46]  Ms Martin, the psychologist, said that the offender '[r]eported no exposure to drugs at all, and had a very limited knowledge of the drugs he was carrying, or the effects on the community of their use.'[47]  Her report goes on:[48]

   When asked what would happen to someone in his country if they did what he had been convicted of, he did not really know but thought a person might go to prison for it. He had not known, prior to his current charge, what happens to drug couriers in some of the countries he had travelled through (Singapore, Thailand) and he had been shocked to learn he could be executed for this offence.

   [46] Pre-sentence report,  2.

   [47] Psychological report [5].

   [48] Psychological report [5].

4. In her analysis of the offending, Ms Martin said:[49]

   He appears to be somewhat naïve and to have little knowledge or understanding of the drug trade and effects on the community. It is likely that drug traffickers deliberately target people such as Mr Yang because of his unworldliness, and eagerness to travel, without knowing the risks and consequences.

   [49] Psychological report [12].

5. I note that Ms Martin identified her sources of information as the offender (in an interview conducted through an interpreter) and the statement of material facts.  It is a limitation of reports of the kind prepared by Ms Martin that they will often have to rely on information provided by the offender, which may be self-serving.  The statement of material facts would not have provided Ms Martin with any basis for testing the offender's assertions.  However, those assertions can be tested against the information contained in the communications the offender had with his friends and with Bello. 

6. In my view, the evidence establishes that the offender is not as naïve as he may have portrayed himself to Ms Martin.

7. From the very early messages in which Jeong was discussing the enterprise with the offender, the possibility that it involved 'drug transportation' was being considered.[50]  It was a topic to which they returned on more than one occasion, and which the offender also discussed with Meng.  Further, the offender's reaction of shock and panic when he was informed of the presumptive result for cocaine at Perth Airport[51] was consistent with someone who appreciated the seriousness of importing drugs; it was inconsistent with someone who was naïve about such matters.  Most significantly, the message from Meng to the offender on 12 October 2014, when the offender was in Brazil, in which Meng said, 'In China, capital punishment', squarely raised the issue of the death penalty.  The offender accepted in his evidence that he had received the message, although he claimed he did not think about it seriously, because it had nothing to do with him.[52]  I found that assertion to be unconvincing, and it is contradicted by the previous discussions in messages about the possibility of 'drug transportation', even if the offender and Jeong adopted a position of denial in those messages. 

   [50] TB 231, 23 July 2014.

   [51] ts 285 - 286 (The offender's own evidence).

   [52] ts 258.

8. I find that the offender lied to Ms Martin when he said he had not known prior to being charged that in some countries he had travelled through he could be executed for the offence, and that he was shocked to find that out.  It is not necessary for me to make any finding about the offender's professed ignorance of the effects of drugs, but I do find that, to the extent that he suggested he had little understanding of the drug trade (with the implication that he was ignorant that drugs might be imported into countries in the kind of enterprise he was involved in), he was dishonest.

9. Having regard to his background, as I have outlined it above, I reject the defence submission that the offender was not a worldly individual and was naïve about illicit drugs.  I am satisfied that, at the time of the offence, the offender was an intelligent, well-travelled individual who had had sufficient exposure to the ways of the world to be aware of the international nature of the illicit drug trade, the means by which drugs might be transported, and the potential consequences for drug importers if caught.  The communications he had with Jeong, Meng and Bello support that conclusion, as will be further elaborated below.  The fact that he had not used drugs and did not have friends who had used drugs, which I am prepared to accept, does not detract from that conclusion.

10. The circumstances in which the offender came to be involved in the enterprise for Bello, the communications he had before and during the enterprise and his conduct during the trips are to be considered against that background.

The offender's credibility - a general observation

1. I have already made findings that the offender's evidence was unconvincing when he asserted he did not take seriously Meng's message about capital punishment in China, and that he lied to Ms Martin when he denied knowing that in some places the death penalty applied to drug offences.  As will appear in the further analysis of evidence below, there are a number of matters where the offender's evidence is contradicted by circumstantial evidence, such as the data of messages he exchanged with Bello and Jeong, and by statements he made to Ms Martin and Ms Lovelock.  Subject to what I have said at [27] to [30] above, while it is necessary to assess the credibility of the offender's evidence in respect of specific disputed issues in context, the adverse findings I have made about his credibility mean that I do not regard him as a reliable witness, and I do not consider that I can rely on his evidence in respect of such issues unless I find that on a particular issue it is inherently convincing or, more generally, that it is supported by other evidence. 

How the offender became involved in the enterprise

1. Introduction to Bello's enterprise by Jeong

1. The offender gave evidence that he was introduced to Bello's enterprise by his friend, Jeong, with whom he was quite close, having known him for some 15 years, since second grade of middle school.[53]  Save for periods when they were doing exams or when Mr Jeong was in military service, they had remained in regular contact by text message.[54]  He regarded Mr Jeong as one of his best friends.  They saw 'eye to eye' and they had 'almost the same interest'.[55] He trusted Jeong fully, because Jeong had never cheated him and he wasn't involved in any criminal activity or fraud.[56]

   [53] ts 224, 226.

   [54] ts 226.

   [55] ts 232.

   [56] ts 236, 305.

2. The offender testified that Jeong told him in mid-July 2013 that he had met a friend, Angelica Bello, through a foreign pen pal website, that the person was 'doing apparel' and Jeong was asked to do 'some delivery job'.[57]  He understood that it came about when Jeong asked the person what sort of work they did and whether they needed a Korean employee.[58]  Jeong told him, when he did the job the first time, that it was delivering apparel overseas and that 'the job wasn't busy or difficult' and you could go to different countries overseas and spend time in cities there.[59]  He was not told specifically what kind of apparel business it was, but he thought it was about 'clothing, shoes, watches, bags and accessories'.  The offender testified that they did not discuss the delivery job seriously, but Jeong told him 'it had to be done', that the apparel was needed in different places, that it might be important clothing and 'sometimes it was to be delivered at the right time.'[60]  The implication from the offender's evidence was that he was given the impression that this particular method of delivery (involving foreign nationals to carry luggage) was adopted because at times the items needed to be delivered by a certain time.  It seems it did not occur to the offender to enquire why these deliveries could not be made by individuals from the countries where the deliveries were originating, such as Brazil or China.

   [57] ts 237.

   [58] ts 238.

   [59] ts 237.

   [60] ts 238.

3. In any event, the offender said he did not discuss it seriously because he did not have much interest and he just thought it was a new part-time job.[61]   However, it appears he had sufficient interest in the job to ask Jeong to give his details to Bello.[62]

1. Contact from Bello

   [61] ts 239.

   [62] ts 267.

1. Bello contacted the offender by Facebook messenger on 18 September 2014, with the simple message, 'I am Angelica from Russia.'  The offender responded, 'Hello!' That was followed by a message from Bello attaching a captioned photograph from the offender's passport, and the question, 'Right?'  The offender confirmed, in a reply, that it was him.  Bello then said they would talk soon and enquired when he would fly and how many months he had to spend.  The offender informed Bello that 5 October or later would be fine.  That appears to have allowed for his return from the planned trip to Thailand with his sister.  He also said, 'I heard that you offered 35 ‑ 40 days trip.'

2. The exchange confirms that discussions had occurred between the offender and Jeong about what might be on offer, and the offender had given Jeong a photograph of his passport to forward to Bello.  Whether or not he had discussed the enterprise seriously with Jeong when he was first told about it, he certainly had had such serious discussions by the middle of July 2014, as will emerge below.

3. After the first exchange with Bello, the offender sent a message to Jeong querying whether the person's name was Angelica, and Jeong responded with 'Angelica Bello'.  This tends to suggest Jeong may not have provided the offender with Bello's name before then.  However, the contact in September could not have been unexpected by the offender, because Jeong had asked him on 23 July 2014, 'Can you do in September? Ha ha.  That will be around the time when I come back, survived.'

1. Messages between offender and Jeong expressing concerns about the enterprise

1. That message came at the end of a chain of messages in the early hours of the morning that day.[63] In the course of that conversation, Jeong told the offender, 'It doesn't seem that this is drug transportation ha ha … fortunately', but that he did not know what kind of job he was doing, or why he was being given $500 again.  The only reasonable inference, in my view, is that there had already been discussion between Jeong and the offender about whether the job involved 'drug transportation'.  Contrary to the offender's denial of the fact in his evidence, I am satisfied that the possibility that the work may involve carrying drugs was a concern to both him and Jeong from an early stage.  While they did not speak in terms of 'border controlled drugs', either at that stage or in ensuing conversations, it is obvious they were speaking about drugs that it would be illegal to bring into another country.

   [63] TB 229 - 243 (see Annexure 1).

The use of laughing symbols

1. The offender gave evidence that the use of the laughing symbols in these messages signifies that it was light conversation, not to be taken seriously.[64]  He said it was common for young people in Korea to use the symbols in informal messages as a matter of habit, and they were the equivalent of a smiley emoticon.[65] He said they did not have any significant meaning.[66]  It seemed to me, during the course of evidence given by the offender about specific messages, that what was a generalisation about the use of the laughing symbol became a stock explanation for almost every message.  I do not consider that his explanation for individual messages in that way was of any assistance to understanding his state of mind, or what he might have understood to be Jeong's state of mind.  In my assessment, his evidence was not reliable.

   [64] ts 239 - 241.

   [65] ts 239 - 241.

   [66] ts 240.

2. In a sense there is a contradiction between the offender's claim on the one hand that the use of the symbol means that the content is not to be taken seriously and his claim on the other hand that the symbols do not really have any significance.  In my opinion, the significance, if any, to be given to the use of the laughing symbols is to be assessed by having regard to the context of any particular message.  I accept that on occasions they appear to be used in the same way as a smiley emoticon, or simply habitually.  For instance, the message at TB 242 on 23 July 2014 when Jeong asked the offender if he could 'do in September' is followed by two laughing symbols when laughter would appear to be incongruous, but a smile might signify a friendly invitation.  Similarly, a habitual use will be apparent when neither laughter, nor a smile would seem to have had any significance. 

3. I will consider below the significance of the laughing symbol in certain important messages.

Messages on 23 July 2014

1. The offender testified that when Jeong said, in the third and fourth messages on 23 July 2014, 'It doesn't seem that this is drug transportation ha ha … fortunately', he (the offender) regarded it as light conversation.  I find that to be implausible.  The context in which the laughing symbols were used by Jeong would suggest either a smile of relief or nervous laughter.  The latter would appear to be more likely, in my view, because of what followed a few messages later, when he again told the offender that he did not know what he was doing (followed by laughing symbols) and that he had worried a lot and so was 'not willing to recommend this'.[67]  There is nothing light-hearted about those comments.  Jeong went on to say, 'If anything goes wrong, I will be blamed ha ha' (alternative translation, 'it's my fault ha ha').[68]  Again, in context the laughing symbols suggest nervous laughter.  The whole tenor of what Jeong was saying was that he did not know what he was doing or why he had received extra money, and that, although it did not seem that it was drug transportation, he worried a lot and he was not prepared to recommend the work to someone else because something might go wrong and it would be his fault for involving the other person.  In context, the only thing that could go wrong, and for which he would be responsible, would be for the person who had been recruited to be caught with drugs in his or her possession.  Nowhere in text conversations between Jeong and the offender does it appear that Jeong thought there would be any danger if the authorities discovered the luggage contained clothing samples.

   [67] TB 239, 240.

   [68] TB 241.

2. The offender testified that he did not take the messages at TB 240 and 241 seriously, as he was thinking about doing the job himself.[69] In my view, that would be precisely the reason one would take the messages seriously, and it was obvious Jeong was providing a warning that the job may involve a significant degree of worry, although he did almost immediately after those messages enquire whether the offender would be able to do the job in September.[70]  Jeong concluded the conversation by saying, 'That will be around the time when I come back, survived'.[71] The reference to surviving, in context, could only be understood as relating to the worry he had expressed arising out of the possibility that things could go wrong.  Notably, there were no laughing symbols associated with that last message. 

   [69] ts 245.

   [70] TB 242.

   [71] TB 243.

3. The message the offender sent in response to Jeong's message that he did not know why he was given $500 was a long 'oh' followed by laughing symbols and 'What is that?'[72]  I accept the offender's evidence that the tone was intended to be humorous, but it is obvious, in my view, that the tenor is also of disbelief.  When Jeong then told him that he had been in Australia for nearly two weeks, the offender's response again used laughing symbols in a context that I accept was intended to be humorous, the text suggesting that Jeong should consider himself lucky, as he was being paid for sightseeing.[73]  That was immediately before the messages from Jeong at TB 239 ‑ 241.  While imbued with humour, the offender's messages in effect express disbelief that Jeong would be paid for sightseeing.  The laughter may well be regarded as cynical laughter.  In other words, this job was too good to be true.

   [72] TB 234.

   [73] TB 237, 238.

4. In any event, I am satisfied that the offender was made aware some two months before he was approached by Bello that there was a risk the work involved transporting drugs from one country to another.  At best, Jeong had indicated an impression he had formed that it was not drug transportation, but he remained concerned that something could go wrong, and if he involved someone else, it would be his fault.  Despite those indications, the offender wished to be considered for the work.

The offender's motive for becoming involved in the enterprise

1. The offender's motive for becoming involved in the enterprise was that it provided him with an opportunity to travel to other countries and do some sightseeing while being paid a large sum of money for doing very little.[74]  He was paid $2,500 for each trip,[75]which was a relative fortune compared to what he was being paid for tutoring.  He quit his tutoring job to be able to do the trips.[76] Financial gain clearly was a motive.

   [74] ts 268.

   [75] ts 316 - 319.

   [76] ts 268.

2. The offender claimed, in effect, that he believed the job was to do with transporting apparel, because that was what Jeong had told him and he trusted him.  He claimed that he did not think it would be dangerous because nothing had happened to Jeong during his trips.[77]  The explanation lacks credibility.  Jeong had referred to 'surviving'.  All that Jeong's history would have told the offender was that he had averted danger, but the messages were indicating that, while the business was ostensibly to do with apparel, the risk that it was something dangerous remained.  The only dangerous thing that had been discussed was 'drug transportation'.  The theme continued in messages exchanged on 11 September 2014.

   [77] ts 268.

Messages on 11 September 2014

1. The essence of the messages on 11 September 2014 is that Jeong had told his mother that he was receiving a sum that was less than half what he was to be paid, because if she knew how much he was actually to be paid ($6,500) she would worry that it was drug transportation.[78]  The offender responded to the first message by saying, in an exclamatory manner and with several laughing symbols, that it was unnecessary worry.[79]  I accept his evidence[80] that he was telling Jeong that he was worrying unnecessarily.  However, to the extent that it might suggest he was not concerned that such an enterprise might be thought to involve drugs, the suggestion is not borne out by further messages.  He said to Jeong that he had told his sister one thing about what he was doing, and had told his mother something different, namely that he was travelling for fun.[81]  In evidence, he agreed that he told his sister about the job, but told his mother that he was going overseas for a holiday.[82]

   [78] TB 245, 246, 248.

   [79] TB 247.

   [80] ts 246.

   [81] TB 249.

   [82] ts 250.

1. Although I accept that it was not the offender's intention to be a drug courier, I am satisfied that he was consciously aware there was a substantial risk that the work he was performing for Bello involved drug transportation, yet the lure of free travel and the financial reward was sufficient to tempt him to become involved in the scheme and ignore the risk.

2. I am not satisfied beyond reasonable doubt that the offender actually knew there was a border controlled drug in the luggage he imported from China to Australia.

3. However, I reject the offender's evidence to the effect that he became aware of the substantial risk that a substance in the luggage was a border controlled drug only after Customs officers swabbed his personal items and obtained a presumptive positive result for cocaine.

4. I am satisfied beyond reasonable doubt that, when the offender embarked on his trip to Australia from Shanghai, he was aware, from all the circumstances, of the likelihood (that is, that there was a real chance) that his conduct in bringing the luggage into Australia involved the importation of an illicit substance.  From those circumstances I consider that the only reasonable inference is that the offender intended to import such a substance and that he was reckless as to whether the substance was a border controlled drug.  That is, he was aware there was a substantial risk that the substance was a border controlled drug and nevertheless took the risk of importing such a drug in circumstances in which taking the risk was not justifiable.

Annexure 1 - The Queen v Donggil YANG – Schedule of Relevant Chats

(TB = Trial Brief)

Date/Time (UTC)	Msg From	Msg To	Details	Page Ref
23/07/14 1:51:01 to 23/07/14 1:52:15	Jeong	Offender	I recommend … (I still don't know) what kind of job I am doing ha ha It doesn't seem that this is drug transportation ha ha Fortunately By the way, I don't know why they give money ha ha  I got 500 dollars again.	TB 229 TB 230 TB 231 TB 232 TB 233
23/07/14 1:52:38 to 23/07/14 1:52:50	Offender	Jeong	Oh ha ha ha What is that? [The 'oh' is a long sound.] Isn't it over a week since you went there?	TB 234 TB 235
23/07/14 1:54:24	Jeong	Offender	It's nearly two weeks in Australia.	TB 236
23/07/14 1:54:41 to 23/07/14 1:55:14	Offender	Jeong	Well, ha ha what are you doing there, sightseeing? ha ha ha ha ha  lucky you!  You are paid for sightseeing!	TB 237 TB 238
23/07/14 2:13:20 to 23/07/14 2:14:01	Jeong	Offender	By the way, I don't know what I am doing ha ha I also worried a lot. So I am not willing to recommend this If anything goes wrong I will be blamed ha ha ['I will be blamed' could be 'it's my fault'.][181]	TB 239 TB 240 TB 241
23/07/14 2:15:25 to 23/07/14 2:15:46	Jeong	Offender	Can you do in September? Ha ha That will be around the time when I come back, survived	TB 242 TB 243
11/09/14 7:11:01 to 11/09/14 7:11:12	Jeong	Offender	Oh by the way, I told my mom that I will receive 3,000 dollars and come back If 6,000 [should be 6,500] dollars are given, she might be worried	TB 245 TB 246
11/09/14 7:14:20	Offender	Jeong	Ha ha ha unnecessary worry ha ha [There are more laughing symbols than translated.] [There are 3 characters after the first 3 laughing symbols which could be translated as 'What?' or 'No way.']	TB 247
11/09/14 7:14:59	Jeong	Offender	No she might be worried. She might say that it could be drug transportation	TB 248
11/09/14 7:15:01 to 11/09/14 7:15:30	Offender	Jeong	I told my sister that I would go, and I told my mom that I would go out just for fun Then just say that you just received 3,000 dollars My sister talked about it as well	TB 249 TB 250 TB 251
11/09/14 7:15:36 to 11/09/14 7:16:02	Offender	Jeong	Isn't it drug transportation ha ha Well… Then…	TB 253 TB 255 TB 256
11/09/14 7:16:06	Jeong	Offender	Well… (my)[182] sister might guess that I am the bastard who sold you [The message includes a symbol/character signifying crying.][183]	TB 257
18/09/14	Bello	Offender	I am Angelica from Russia	1
18/09/14	Offender	Bello	Hello!	1
18/09/14	Bello	Offender	[Photo of passport page of Yang captioned] Right?	1
18/09/14	Offender	Bello	Yes its me	1
18/09/14	Bello	Offender	Ok. We will talk soon. I will like to know when you will fly and how many months you have to spend	1
18/09/14	Offender	Bello	I will c. 10/5 of later will be fine. And I heard that you offered 35-40 days trip	1
18/09/14	Bello	Offender	Yes. I am driving back to my home now. I will write you later dear	1
18/09/14 11:05:58	Offender	Jeong	Hey is the person's name Angelica?	TB 292
18/09/14 11:06:34	Jeong	Offender	Angelica Bello	TB 293
18/09/14 11:06:43	Offender	Jeong	Oh, I got a message just now	TB 294
21/09/14	Offender	Bello	Hello Angelica. I prepared visas to China and Australia, so what do I need to prepare more?? And when can I get the ticket to China??	1
21/09/14	Bello	Offender	When are you ready? You need to take a back pack And also don't take anything like food Because police disturb so much in the airport	1 - 2
10/10/14	Bello	Offender	You ready to fly tomorrow?	9
10/10/14	Offender	Bello	Yes im ready!	9
10/10/14	Bello	Offender	You can book hotel for yourself for now Later I give you a hotel that my staff will meet you when time come … But If any question…about your trip to brazil…the only answer is holiday. You don't have a working permit or business visa in brazil Your on tour So many police and immigration Your friend will explain more to you You let me know your movement and program for all day incase of any message or anything	9-10
11/10/14	Bello	Offender	Where are you? Hey Always send message Or else you sleep on the street…nobody will know about your problems and what you need Didn't your friend tell you about message that is important Even when you send number of western union…you must write when you get it Always contact George in Bangkok [phone] George is his name He will tell you all you need	10
11/10/14 7:59:39	Jeong	Offender	This is George's number	TB 321
11/10/14 8:00:05	Jeong	Offender	Whenever you arrive, tell the guy where you are immediately	TB 322
12/10/14 16:48:17	Offender	Meng	Yep	TB 323
12/10/14 16:48:23	Offender	Meng	Not drugs ha ha	TB 324
12/10/14 16:48:36	Meng	Offender	Jackpot ha ha what a casual job!	TB 325
12/10/14 16:48:52	Meng	Offender	What should be handed over?	TB 328
12/10/14 16:49:02	Meng	Offender	For drugs, no way. [There is a character at the end of the message that could be a crying symbol.]	TB 329
12/10/14 16:49:04	Offender	Meng	Ha ha. The original plan was to go to China. But due to the national holiday, the plan seems to have changed ha ha	TB 330
12/10/14 16:49:09	Meng	Offender	In China, capital punishment	TB 331
22/10/14	Bello	Offender	You will fly back on Thursday night	18
22/10/14	Offender	Bello	Ok! I'm ready for it … Is there something to do tomorrow?? Meet your employee??	18-19
22/10/14	Bello	Offender	They will meet you in the room And they will contact you before coming And I will let you know when there going there	19
24/10/14	Offender	Bello	Oh can I meet your staff as soon as possible?? It will very relieved to get your stuff before flight day. Because I don't have to do two things in one day	20
25/10/14	Bello	Offender	Your flight will be on next week You don't fly this week My people are not ready But next week	20
30/10/14	Bello	Offender	I want to inform you about your ticket You will have a very long transit in Abu Dhabi as time changes, we try to wait till is short transit but it didn't work yet, but I will give you money to pay for airport lounge to sleep till the next day You will fly tomorrow by 11pm …	22
30/10/14	Offender	Bello	Ok I got it How about your luggage?? Do I meet them tomorrow??	22
30/10/14	Bello	Offender	Yes You will checking in this hotel and they will meet you there  … CALANDRE Hotel…address RUA JOSE DA OLIVEIRA…	22
31/10/14	Bello	Offender	Do you know what is bag wrapping	25
31/10/14	Offender	Bello	Yes I heard from my friend	25
31/10/14	Bello	Offender	Baggages wrapping in the airport	25
31/10/14	Offender	Bello	I saw it at the airport Ok I'll do it!
31/10/14	Bello	Offender	And the airline will scared you when checking you by many questions But don't be scared They will ask you why do you fly to Dhaka And many things … You should tell them this Your going to few days holiday and visit temples to pray Before going back to your country for goodluck … Never allow them to miss your flight and you should always smile and don't look serious or scared because you cant understand or speak much English but follow them with smile	25
31/10/14	Bello	Offender	Stay in your room by 5pm They are coming by 5pm to meet you and you can move to airport by 7pm	27
01/11/14	Offender	Bello	Hello I got your stuff! [Photo of bag – see SB[184]  Photographs – Yang – Downloaded… at 1] I'm going to airport now I'll send a message to you when I get the air port and check in!	27
01/11/14	Offender	Bello	Im in the air port Im waiting to check in [Photo of bag wrapped in plastic – see SB Photographs – Yang – Downloaded… at 7] I do the wrapping	27
01/11/14	Offender	Bello	What is this?? [Photo of concealments in bag – see SB Photographs – Yang – Downloaded… at 2-6]	28
01/11/14	Bello	Offender	Um Where are you?? Hello This is jeweries Why did you bring it out Your pictures are confusing Why you send picture when you wrap your bag and send when you open sples Why Where are you now No time	28
01/11/14	Offender	Bello	I'm in the airport and ready to on board It's the picture when I got the bag at the hotel Before the airport	28
02/11/14	Offender	Bello	Ok im just arrived abi dhabi airport!	29
02/11/14	Bello	Offender	You wanna continue to Australia after Thailand?	30
02/11/14	Offender	Bello	Oh! And Australia to china?	30
02/11/14	Bello	Offender	China to Australia	30
02/11/14	Offender	Bello	Ok ok	30
02/11/14	Bello	Offender	Soon they start checking in	31
02/11/14	Bello	Offender	If they ask you why you come there	31
02/11/14	Offender	Bello	I should be careful!!	31
02/11/14	Bello	Offender	Tell them that you want to go temple	31
02/11/14	Offender	Bello	Im taking on the flight maybe it's the last message in Abu Dhabi airport – I'll send a message again in Dhaka	32
02/11/14	Offender	Bello	Im in the hotel now … Sorry the room is great and staff is kind	32
02/11/14	Bello	Offender	Keep my bag safe	33
02/11/14	Offender	Bello	Sure its safe!	33
02/11/14	Bello	Offender	I say before Dhaka man stole my staff in hotel … I ask you to keep everything very good	33
02/11/14	Offender	Bello	Ok I'll keep it very good!	33
04/11/14	Offender	Bello	[Photo of wrapped bag at Dhaka airport] I wrap the bag J Don't worry please	36
04/11/14	Bello	Offender	You have short transit in Singapore … Relax somewhere In Singapore … And also write a message if anything happen	37
05/11/14	Offender	Bello	Im ready to on board. Im on the line Im in Singapore!! I'm about to be on board. I'll send a message when I arrive in Phuket	38
05/11/14	Offender	Bello	Im in Phuket!!	38
05/11/14	Bello	Offender	Is your sim card working You can send message to George I think he wait you in the airport there He write me going to airport	38-39
05/11/14	Bello	Offender	Where are you?	39
05/11/14	Offender	Bello	I pass the immigration Im finding my bags	39
05/11/14	Bello	Offender	Ok You see it already	39
05/11/14	Offender	Bello	No the airport staff is finding That staff said that Singapore airline doesn't sent the bags They think that	39
05/11/14	Bello	Offender	Go and report to the Singapore airline … Don't tell them your coming from brazil … Just from Dhaka	39-40
05/11/14	Bello	Offender	Tell them that they should bring it [the bag] to you in the hotel Give them your hotel address	40
05/11/14	Offender	Bello	I get the bag And money too [Photo of bag]	45
05/11/14	Bello	Offender	Just keep the bag safe	45
07/11/14	Offender	Bello	I bought a bus ticket to Bangkok. The bus departs at 17:30	47
08/11/14	Offender	Bello	Hello good morning im in Bangkok now. Mochit bus terminal	47
09/11/14 15:15:08	Jeong	Offender	What do you think Bell is?  ha ha [Translator agreed that 'What do you think Bell's work is? ha ha' is more accurate.]	TB 352
09/11/14 15:15:18	Jeong	Offender	The guy Jihun …	TB 353
09/11/14 15:15:21	Jeong	Offender	has been in Australia one time	TB 354
09/11/14 15:15:25	Jeong	Offender	and in Japan several times, I heard.	TB 355
09/11/14 15:15:18	Offender	Jeong	To speak frankly, I don't know. Sometimes it seemed that (he)[185] ran an apparel business…	TB 356
09/11/14 15:16:28	Offender	Jeong	But (his)[186] clothing and bag tell different thing  [Laughing symbols not translated.] (Translator's note: His appearance shows that their business is not related to apparel)	TB 357
09/11/14	Jeong	Offender	Drugs?	TB 358
10/11/14 12:25:11	Offender	Jeong	Ha ha it doesn't look like that	TB 359
10/11/14 12:50:00	Jeong	Offender	Then what? Ha ha	TB 360
10/11/14 12:50:38	Offender	Jeong	No idea… they just look like sloppy businessmen ha ha. They are just running business in Russia. Isn't it that their levels of eyes are too low? Ha ha	TB 361
10/11/14	Bello	Offender	You need to fly back to korea And move to china To Australia Ok Weekend You move to korea	48
10/11/14	Offender	Bello	Oh…do I have to go korea??	48
10/11/14	Bello	Offender	Yes For 2 weeks	48
10/11/14	Offender	Bello	Ok and back to china right?? Ok ok	48
10/11/14	Bello	Offender	Yes See you family first And then continue	48
10/11/14	Offender	Bello	Ok thanks. Its nice	48
10/11/14	Bello	Offender	George will give you 2500$ first And when you comes back from Australia you get 2500$ …	48
10/11/14	Offender	Bello	And can I get the money when I get back to korea? Or here??	49
10/11/14	Bello	Offender	Where do you want Thailand or korea	49
10/11/14	Offender	Bello	I wanna take it here	49
10/11/14	Bello	Offender	Ok He will give it to you tomorrow evening with your ticket	49
12/11/14 6:17:33	Offender	Jeong	When I got money from George, I found a western woman and a black man in the car as well	TB 370
13/11/14	Offender	Bello	Im flying back to seoul. Thank you for everything	50
16/11/14	Bello	Offender	George is in brazil now	50
16/11/14	Offender	Bello	Yes I heard when I left from Bangkok	50
16/11/14	Bello	Offender	And he need someone to fly to meet him there Do you have a friend who want to fly Boy or a girl … I pay 2500$ and give you 500$ as my agent	50
16/11/14	Offender	Bello	Oh… does he or she stay brazil go another country?? Like Dhaka or Bangkok?? Ok I'll find someone…	50
16/11/14	Bello	Offender	Yes As same as you fly sir	50
16/11/14	Offender	Bello	Ok… Can I ask how long will it be the trip	50
16/11/14	Bello	Offender	Not over 15/20 days	50
16/11/14	Offender	Bello	Um… Can I do the trip? I wanna go again!	50
16/11/14	Bello	Offender	Hahaha The immigration will deport you You just exit Don't worry … I want to send you to Australia Wait	50-51
16/11/14	Offender	Bello	Ok Ok I'll find someone	51
21/11/14	Bello	Offender	Let me know when your free to move to Australia Hope your ok	51
21/11/14	Offender	Bello	Oh! Thanks!! I wanna go to Australia next Thursday! I'll be great	51
21/11/14	Bello	Offender	Ok	51
24/11/14	Bello	Offender	Hello Are you ready to fly this week Is your visa still valid? China visa Australia visa	51
24/11/14	Offender	Bello	Yes still valid	51
24/11/14	Bello	Offender	Ok You fly on Thursday	51
29/11/14	Offender	Bello	So do I fly to china on Monday??	52
29/11/14	Bello	Offender	Tomorrow Do you have some money with you Because my client is there already	52
29/11/14	Offender	Bello	Yes I have some money	52
29/11/14	Bello	Offender	You get the samples and wait me Do you have friends in australia? …	52-53
29/11/14	Bello	Offender	You go with some cloths You fly more	53
29/11/14	Offender	Bello	You mean that I can fly not only china to australia but other countries??	53
29/11/14	Bello	Offender	Yes	53
29/11/14	Offender	Bello	Oh! Can I ask the countries??	53
29/11/14	Bello	Offender	Japan and indonasie Thailand	53
29/11/14	Offender	Bello	Ok…so I go to china australia japan indonasia and Thailand! It'll take over a month! J	53
30/11/14	Offender	Bello	I arrived at shanghai	53
30/11/14	Offender	Bello	I cheched in the hotel … How long should I stay in here?? Do I have to meet you staff in here?? I wanna change the hotel to the city. It's too far from the city so I cant buy food or find restaurant near here	54
30/11/14	Bello	Offender	Ok You will meet my staff now In 1 hours time	54
30/11/14	Bello	Offender	Where is your friend in australia?	54
30/11/14	Offender	Bello	He is in the Melbourne. He is studying finance. At university I called to George. He said that he will send my phone number to your staff	54
30/11/14	Bello	Offender	Ok Can you contact your and tell him that your coming to see him That you have holiday Because immigration will ask you if you have friend in australia and they will call him Just to be sure	55
30/11/14	Offender	Bello	Sure I already told him to come to australia. Do I have to get his phone number??	55
30/11/14	Bello	Offender	Immigration will call him to make sure you have a friend And also … Don't put food in your bag They ask you if you have food and is your bag yours	55
30/11/14	Offender	Bello	No problem … So… when do I go to australia? Do I have to stay in a week in china??	55
30/11/14	Bello	Offender	No no I will buy ticket tomorrow are give you money And another person will bring sample for you after today Someone will call you now Ok He give you some samples and keep it safe	55
30/11/14	Bello	Offender	Can I see your baggage	55
30/11/14	Offender	Bello	[Photo of offender's duffle bag] This is almost same size before Can I get a big carrier?? Last time it was too hard to carrier little carrier	55
30/11/14	Bello	Offender	Ok You buy new carry Let me know when you meet my staff	56
30/11/14	Offender	Bello	I meet your staff And get the carrier Do you wanna see the picture?	56
01/12/14	Bello	Offender	Can you send the picture of the bag that my staff give you I want to see the size	57
01/12/14	Offender	Bello	[Photo of brown checked suitcase]	57
01/12/14	Bello	Offender	Your things can enter inside? You can put your cloths inside too right?	57
01/12/14	Offender	Bello	No its full…	57
01/12/14	Bello	Offender	Its full with samples?	57
01/12/14	Offender	Bello	Yes its full with samples	57
01/12/14	Bello	Offender	You fly tomorrow at 4pm and I will ask George to send you ticket and hotel address	58
01/12/14	Offender	Bello	Ok… im checking the ticket… I have to go tonight!! He gave me tonight ticket!! Im going to airport	58
01/12/14	Bello	Offender	WOW I don't know too	58
01/12/14	Bello	Offender	Is wrong to carry many bag I want you to put your cloths in that bag Force it … Carry less cloth in small bag … And wrapped it in the airport Wrapped the bag Is very important	59
01/12/14	Offender	Bello	Ok ok I'll do	59
01/12/14	Bello	Offender	Don't put food in your bag Ok	59
01/12/14	Offender	Bello	I don't have any food	59
01/12/14	Offender	Bello	Im in front of the immigration I posted baggages with wrapped	60
02/12/14	Offender	Bello	Im now in Singapore	60
02/12/14	Bello	Offender	Ok see you in perth	60
02/12/14	Offender	Bello	I arrive to perth now in airplane	60
02/12/14	Bello	Offender	So where are you now?	60
02/12/14	Offender	Bello	In the airport Im getting my baggages	60
02/12/14	Bello	Offender	Focus…	60
02/12/14	Offender	Bello	Immigration is too slow Ok	60
02/12/14	Bello	Offender	Customs are watching you If you pass all write back	60
02/12/14	Offender	Bello	Ok Oh god… your bag is not coming again… They said it will come tonight and they will send me tomorrow…	61
02/12/14	Offender	Bello	Im in the perth The baggage has a problem	61
02/12/14	Bello	Offender	What problem? Why it is very difficult to talk with me	61
02/12/14	Offender	Bello	Staff in airport checked all my baggages And took my cell phone	61
02/12/14	Bello	Offender	Before you said that your baggage is not coming today That is tomorrow They took your baggage and said what? Where is your baggage now?	61-62
02/12/14	Offender	Bello	My bag is with me and your bag is not coming	62
02/12/14	Bello	Offender	Why my bag is not coming? What happen to you and the bags?	62
02/12/14	Offender	Bello	They think im carrying drug	62
02/12/14	Bello	Offender	I never understand your problem	62
02/12/14	Offender	Bello	So they check my all belongings	62
02/12/14	Bello	Offender	You see your bags and you don't see my bag	62
02/12/14	Offender	Bello	They said that they found some drug in my bag You bag is not coming from Singapore Only my bag my clothes You gave me a drug??	62
02/12/14	Bello	Offender	Why give you drugs Why should you ask such a bad question	62
02/12/14	Offender	Bello	They think that im carrying a drug for you Im shocked at the airport They asked that kind of question What should I do I talked about you and my friend but they didn't believe me	62
02/12/14	Bello	Offender	Are you carrying drugs?	62
02/12/14	Offender	Bello	No!	62
02/12/14	Bello	Offender	If they didn't give you the bag… and anything happens to it I lost anything or they put anything in the bag They should bear the response This Australian police are vey bad … The airline also is stupid Never accept something you don't do … If they call you tomorrow Go and get your bag … If they tell you that you have something wrong … is not you … is them that put it Because they make a very bad move to you as my staff And I am ready to get my lawyer to you If they accused you of anything … Stand strong and tell them is not you … And you don't know anything about it	65-66

[181] ts 198 - 199

[182] The translator included the word in brackets for clarification, drawing an inference as to whose sister Jeong was referring to, although the word does not appear in the Korean text. When one has regard to the context of preceding and following messages, it would appear Jeong was referring to the offender's sister.

[183] ts 170 - 171

[184] Sentencing brief. A selection of materials from the trial brief (TB) were compiled separately into a brief for the sentencing proceedings, including prints of photographs that were downloaded by the police from the offender's mobile telephone.

[185] See [74] of the Reasons as to why 'he' should be 'she'.

[186] See [74] of the Reasons as to why 'his' should be 'her'.