The Queen v Chuah
[2021] VCC 282
•18 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02147
| THE QUEEN |
| v |
| BOON PING CHUAH |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2021 | |
DATE OF SENTENCE: | 18 March 2021 | |
CASE MAY BE CITED AS: | The Queen v Chuah | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 282 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – Attempt to possess a marketable quantity of an unlawfully imported border controlled drug – Improper possession of a foreign travel document – Offender admitted three other occasions of attempt to possess marketable quantity of an unlawfully imported border controlled drug – Parcel containing 401 grams of pure methamphetamine addressed to the offender – 200 times the marketable quantity – Offender entered Australia on a false passport whilst banned from entering – Very serious drug offending – No prior criminal history – Time in custody more onerous – Very good prospects of rehabilitation.
Legislation Cited: Criminal Code (Cth) ss 11.1(1), 307.6(1); Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) s 21(4); Crimes Act 1914 (Cth) ss 16A, 16BA, 17A; Sentencing Act 1991 s 6AAA.
Cases Cited:Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
Sentence: Imprisonment for a period of 8 years with a non-parole period of 4 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr A Sim (plea) Ms A Carlander (sentence) | Commonwealth Office of Public Prosecutions |
| For the Accused | Ms S Wendlandt | Victoria Legal Aid |
HIS HONOUR:
Introduction
Boon Ping Chuah, you have pleaded guilty to one charge of attempt to possess a marketable quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to sub-s 11.1(1) and 307.6(1) of the Criminal Code (Cth), which carries a maximum penalty of 25 years imprisonment (Charge 1), and one charge of improper possession of a foreign travel document, contrary to sub-s 21(4) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), which carries a maximum penalty of 10 years imprisonment (Charge 2).
You have also admitted three further offences of attempt to possess a marketable quantity of an unlawfully imported border controlled drug, namely methamphetamine, on 8 and 9 June 2018, which I will take into account in passing sentence on you in accordance with s 16BA of the Crimes Act 1914 (Cth).
You have no prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
At the time of the offending you were between 31 and 32 years of age and residing at Unit 1102/181 Exhibition Street, Melbourne. During the period of offending, you were in Australia on a Malaysian passport in the name of Ben Bing Chuah.
Charge 1 – Attempt to possess a border controlled drug
On 8 June 2018, Australian Border Force (ABF) Officers, Sean Taylor and Hayley Naden, attended the UPS parcel delivery centre at 93-99 Lambeck Drive, Tullamarine, and examined an individual parcel addressed to your apartment in Exhibition Street, Melbourne. The parcel had been declared as 'lady wallet' and sender details were from an address in Malaysia.
An X-ray of the parcel revealed some anomalies. ABF Officer Taylor physically examined the parcel and found a package containing a clear crystal-like substance. A preliminary test and two further chemical analysis tests of the substance returned a positive result for methamphetamine.
The crystal-like substance weighed 499.5 grams with a purity of 80.3 per cent, making a total pure weight of 401 grams methamphetamine. The estimated street value of 499.5 grams of methamphetamine as at 28 January 2021 is between $89,910 and $174,825. A marketable quantity of methamphetamine is not less than 2 grams. It is these facts that relate to Charge 1, attempt to possess a marketable quantity of an unlawfully imported border controlled drug.
s 16BA offences
The first offence pursuant to s 16BA relates to another parcel addressed to you which was examined by ABF officers at the UPS parcel delivery centre on 8 June 2018. The parcel contained a clear crystal-like substance which returned a presumptive positive result for methamphetamine and weighed approximately 521.5 grams.
The other two offences pursuant to s 16BA relate to two consignments located at the UPS facility which were addressed to you and selected for examination on 9 June 2018. The substances weighed 516 grams and 516.5 grams respectively, and both presumptive tests provided a positive result for methamphetamine.
All three consignments were labelled with the same sender details as the package subject to Charge 1, and were subsequently destroyed before being further examined or formally tested by the National Measurement Institute.
Charge 2 – Passport offence
Malaysian citizens and permanent residents are eligible for a National Registration Identity Card (NRIC) which is a formal identification document referred to on all Malaysian passports. A NRIC is assigned a unique 12 digit number.
On 28 February 2014, you travelled from Malaysia to Australia using Malaysia passport number A30847130, referencing Malaysia NRIC 860908025399, in your name. You travelled on a Student visa permitting you to enter and remain in Australia, subject to visa conditions.
On 19 July 2016, you were removed from Australia for failing to comply with the student visa conditions, as you were enrolled in study but not actually attending classes. Your fingerprints were taken by ABF officers before being removed from Australia and you were then subject to a three year ban on re-entering Australia.
On 3 November 2016 you travelled from Malaysia to Australia using Malaysia passport number A38985299 in the name of Ben Bing Chuah, born
8 December 1986, referencing Malaysian NRIC 861208025399.
You had successfully applied for a student visa in that name permitting you to enter and remain in Australia, answering 'no' to the question of whether you had ever been removed, deported or excluded from any country. It is these facts that relate to Charge 2, improper possession of a foreign travel document.
On or about 16 October 2018, Malaysian immigration authorities provided information to the Australia Federal Police (AFP) that both passport numbers in your name and the name of Ben Bing Chuah referred to the same person. They further advised the AFP that the Malaysian NRIC number on the latter passport did not exist and that the passport had been obtained fraudulently.
Arrest and interview
On 19 March 2019, AFP officers executed a search warrant in your presence at your address, locating and seizing the following items:
· Malaysian passport number A38985299 in the name of Ben Bing Chuah (born 8 December 1986);
·Malaysian driver licence in the name of Boon Ping Chuah;
·
A True Education Development Institute identity card in the name of Ben Bing Chuah, together with a pink post-it note with
'12 December 1986' written on it; and
·Three Apple iPhones.
You were arrested and conveyed to the AFP Melbourne offices and participated in a record of interview, during which you stated that:
· You entered Australia in 2014 with a Malaysian passport in your name which you obtained from an official immigration office;
· You left Australia voluntarily, but then that you were removed from Australia in late 2016 for not abiding by the conditions of your Student visa;
· When you were removed from Australia, you were advised that you could not return to Australia for a period of three years and that ABF officers had taken your fingerprints;
· You used an 'agent' to obtain a new passport in the name of Ben Bing Chuah, born 8 December 1986, which you did not think was the official way of obtaining a passport;
· You returned to Australia on a Malaysian passport in the name of Ben Ping Chuah and knew it was illegal to enter Australia on the second passport;
· You thought it was okay to return to Australia about six months after you had been removed;
· Your friend Bao Keap asked you to receive parcels addressed to you in the post and in exchange, you were occasionally treated to dinner;
· You received about 10 parcels between March and June 2018, and would give them to Bao Keap without opening them;
· Later you told your friend not to use your name and not to have parcels sent to you;
· You did not know what was in the parcels and denied knowing they contained methamphetamine or any border controlled drug;
· You felt strange about what the parcels might contain but did not think much about it;
· If you had known the parcels contained drugs, you would ask that they not be sent to your home; and
· Bao Keap returned to Malaysia in December 2018.
You were remanded on 19 March 2019 and have been in custody ever since.
Examination of your fingerprints taken by the AFP after the interview, and your fingerprints taken by the ABF upon your removal from Australia in 2016 confirm that Boon Ping Chuah and Ben Bing Chuah are the same person.
The Malaysian passport in the name of Ben Bing Chuah was examined by an AFP forensic document examiner and assessed as genuine.
An Apple iPhone seized by police and containing a SIM card subscribed to you was examined, revealing the following:
· 'WeChat' conversations where you have demonstrated knowledge of drugs of dependence and were a participant in conversations that describe drugs in code and discussed consignment and deliveries from Malaysia;
· That you paid a third party $3200 to complete your homework;
· That you had enquired about renewing your student visa by changing your name, and that you had heard people who did so were detained on arrival in Malaysia for a few days and fined; and
· Images of packages of white substance in snap-seal bags, lists of names, addresses and phone numbers and screenshots of online consignment tracking details.
The Technical Education Development Institute where you were enrolled to study advised that you had previously completed English courses with the Institute from February 2017 to March 2018, but that you had not attended any classes for another course in 2019 and that your progress was unsatisfactory.
Nature and gravity of the offending
The offence of attempting to possess a marketable quantity of a border controlled drug is an inherently serious offence which is reflected in the maximum penalty of 25 years imprisonment. In this instance, looking only at Charge 1, the amount imported in its pure form, being 401 grams, equates to 200 times the marketable quantity, which is 2 grams.
Mr Sim, who appeared on behalf of the Commonwealth Director of Public Prosecutions submitted that in the absence of specific evidence to the contrary, the common sense inference should be drawn that you committed the offence for profit. I accept that submission.
Mr Sim also submitted that given your admissions in the record of interview in combination with the text messages, in relation to Charge 1, an inference can be drawn that you had a firm understanding of the quantity of the substance that was being imported. I accept that submission and I am also satisfied that you had knowledge of, as opposed to being reckless to, the fact that the substance being imported was in fact a border controlled drug.
The s 16BA offences represent similar attempts to possess in almost identical amounts, and while I must only sentence you on Charge 1 in relation to the attempted possession, pursuant to s 16BA, I am to have regard to the criminality disclosed by the further attempted possession represented in those three instances. In the guideline judgment of Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999[1], the New South Wales Court of Criminal Appeal determined the correct approach when taking into account other uncharged offending that is admitted by the defendant. In the principle judgment of Spigelman CJ, His Honour emphasised that such statutory schemes concern the court only with imposing a sentence for the principle offence to which he or she has pleaded guilty[2]. His Honour went on to say as follows:
Although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be give greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.[3]
[1] (2002) 56 NSWLR 146; See also Commonwealth Director of Public Prosecutions v KMD [2015] VSCA 255, [82]-[85].
[2] Ibid at [35]
[3] Ibid at [42].
The considerations therefore that apply in relation to the s 16BA offences require the court to consider your offending on Charge 1 not in isolation, but as part of a course of conduct which takes into account the other three occasions of attempted possession as outlined in the prosecution opening.
As to the offending itself, it is beyond dispute that the use of methamphetamine in our society causes untold grief, in many cases destroying the lives of the individuals who become addicted. Your importation of an amount some 200 times the marketable quantity had the potential to be spread within the community, furthering the destruction that methamphetamine causes. Thus, in all the circumstances, in my view, your offending can only be assessed as very serious.
As to Charge 2, in my view it is also serious example of that offence. You admitted that you knew and understood that you were unable to apply to re-enter Australia for a period of not less than three years when you were deported on 19 July 2016. Nonetheless, some three and a half months later, you entered Australia on a new passport under a false name, blatantly and dishonestly disregarding the prohibition. I acknowledge, however, that it is not contended by the prosecution that you entered with the sole purpose of committing the drug offences.
Personal circumstances
You are 34 years of age and were 32 years of age at the time of the offending. You were born in Malaysia and grew up in Penang. Your mother worked as a sewing machinist and your father ran a small shop selling shoes. You have an older sister who is 35 years of age. You finished high school and then studied English in Penang whilst working in a restaurant. You were an average student.
In 2014 you arrived in Australia on a student visa with a view to study a Diploma of English and Business at the Technical Education Development Institute in Melbourne. You struggled financially with debt arising from course fees at an international student rate, together with your obligations to send money to your parents, ultimately failing to attend the required classes. You were living in a rental apartment with other students of a similar age and working at a restaurant in the Melbourne CBD.
As discussed, in July 2016 you were deported and banned from entering Australia for three years as a result of failing to comply with the Student visa conditions. In November 2016 you returned to Australia on the improper passport the subject of Charge 2. You were in a relationship with another student in Melbourne and this relationship ended prior to you being remanded. You currently have no children or partner.
You are in good health. In terms of substance use, you used methamphetamine socially and experimented with ecstasy prior to being remanded and have not participated in any drug treatment or rehabilitation.
You enjoy support from your family in Malaysia, with whom you regularly speak by phone, and they are aware of your offending. Your parents no longer work and are currently in their 70s, in average health, relying on financial assistance from you. I note that your family members attended the plea hearing from Malaysia via Webex.
You have been productive in custody, completing English classes and working as a billet, cooking and baking cakes. You also enrolled in a barista course which ultimately ceased due to the COVID-19 pandemic.
Whilst your current visa status is unclear, you will inevitably be deported from Australia in light of this sentence. You intend to return to living and working in Malaysia upon your ultimate release from custody and hope to financially support your family and rebuild relationships with them.
Relevant sentencing considerations
As the charges to which you fall to be sentenced are Commonwealth charges, I am required to take into account a number of matters pursuant to s 16A of the Crimes Act1914 (Cth).
This matter resolved to a plea of guilty to Charge 1 in December 2020 following Emergency Case Management in this court before me. I also acknowledge that your admission of the offences pursuant to s 16BA formed part of that resolution in circumstances where a question remained in relation to the purity of the drugs found in the three other packages. Further, whilst your plea was not made at the earliest opportunity, it has spared court time and expense by avoiding a jury trial. I take into account the fact that your plea still has utilitarian benefit and represents a willingness to facilitate the course of justice.
Ms Wendlandt, who appeared on your behalf, submitted that your time in custody has been particularly difficult and isolating. Firstly, as you have received no visits from family and friends and secondly as a result of your limited English skills and lack of other Cantonese speakers in prison. As noted, you have however been able to speak regularly to your family in Malaysia. I also take into account that a significant portion of your remand time has been served during the COVID-19 restrictions, creating a further burden on you in addition to the isolation you have experienced being away from your family and friends.
You come before the court with no prior convictions and have served your time on remand as a compliant and cooperative prisoner without incident. You have a supportive family in Malaysia, and it is inevitable that you will return to Malaysia upon your release. As such, in all the circumstances, I accept that your prospects of rehabilitation are very good.
General deterrence is of course a primary sentencing consideration. A message must be conveyed that people who choose to be involved in the importation of illicit drugs to Australia will face significant penalties. Further, in relation to Charge 2, the use of false travel documents in order to avoid a prohibition from entering into Australia must also be shown to result in significant consequences for those contemplating such conduct.
As to specific deterrence, as noted you come before the court with no prior criminal history. However, as was pointed out in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999[4], the fact that you have admitted the three other occasions of offending pursuant to s 16BA, greater weight must be given to specific deterrence in this instance than would otherwise be the case if you were simply pleading guilty to Charge 1.
[4] Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
Finally, in relation to each charge on the indictment, having weighed the applicable sentencing considerations, pursuant to s 17A(1) of the Crimes Act 1914 (Cth), I am satisfied that no other sentence is appropriate other than a term of imprisonment.
Sentence
Mr Chuah, could you please stand.
Boon Ping Chuah, on Charge 1, attempt to possess a marketable quantity of an unlawfully imported border controlled drug, you are convicted and sentenced to 7 years imprisonment. On Charge 2, improper possession of a foreign travel document, you are convicted and sentenced to 2 years imprisonment.
I direct that the sentence on Charge 2 will commence today. The sentence on Charge 1 will commence 12 months after the commencement of the sentence on Charge 2. That makes for a total effective sentence of 8 years imprisonment. I direct that you serve 4 years and 6 months before becoming eligible for parole.
I declare that 730 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 10 years imprisonment with a non-parole period of 6 years and 6 months.
Mr Chuah, on the charges that you pleaded guilty to, I have sentenced you to a period of 8 years imprisonment and I made a direction that you serve a period of 4 years and 6 months imprisonment before becoming eligible for parole. What that means is that once you have served 4 years and 6 months, you will be eligible to be assessed by the Parole Board in order to grant your parole if that is appropriate at the time. But that is a matter not for the Court to decide but for the Parole Board, and if you are granted parole you will have to abide by any conditions imposed by the Parole Board. Any breach of those conditions might mean you have to go back to prison and serve the remainder of the 9 year sentence. Do you understand?
INTERPRETER: Boon asked you, 'So, can you tell me again what is the actual sentencing in total? Can you repeat that again?’
HIS HONOUR: Yes, the actual sentence in total is 8 years imprisonment, with a - - -
INTERPRETER: Yeah, I already told him, but - - -
HIS HONOUR: But he must serve 4 years and 6 months before becoming eligible for parole.
INTERPRETER: I told him before. He said, 'yes'.
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