The Queen v Tian Chew Quah
[2016] VCC 1753
•2 November 2016
hew
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Revised
(Not) Restricted
Suitable for PublicationCase No. CR-15-01467
THE QUEEN v TIAN CHEW QUAH ---
JUDGE:
Morrish
WHERE HELD:
Melbourne
DATE OF HEARING:
(Trial) 18, 19, 20, 25 and 29 January, and 1, February 2016. Re-arraigned and entered guilty plea on 2 February 2016. Further plea listings on 22 February and 12 August. Plea in mitigation 17 October 2016
DATE OF SENTENCE:
2 November 2016
CASE MAY BE CITED AS:
The Queen v Tian Chew Quah
MEDIUM NEUTRAL CITATION:
[2016] VCC 1753
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES:
Counsel Solicitors For the DPP Ms A Ellis Director of Public Prosecutions
(Commonwealth)For the Accused Ms G Morgan Stary Halphen Lawyers HER HONOUR:
1 TIAN CHEW QUAH, you are to be sentenced in respect of one charge of importing a marketable quantity of a border controlled drug (methamphetamine) contrary to subsection 307.2(1) of the Criminal Code Act 1995 (Cth) (“the Code”). The offence occurred on 7 January 2015. The quantity of pure methamphetamine you imported was 0.2334 kg.
2 The maximum applicable penalty is imprisonment for 25 years or 5,000 penalty units, or both.[1]
[1]s307.2(1)
3 You pleaded guilty in the circumstances I shall later describe.
Circumstances of offending
4 The circumstances of your offending are well set out in the Prosecution Opening On Plea dated 15 February 2016, exhibit AQ. The prosecutor, Ms Ellis read that document in open court at the plea hearing on 17 October 2016. Rather than read that document aloud again in full now, I shall attach a copy of it as “Annexure A” to these reasons for sentence. You admit that the Prosecution Opening is accurate.[2]
[2]Paragraph 2, Defence submissions on plea, exhibit TQ1.
5 In summary, on 28 November 2014 you arrived in Australia having travelled here from your home country, Malaysia. On 16 January 2015 at 7 Tarmac Drive, Tullamarine, you were arrested in the company of KENG HONG HEW (Hew) who was attempting to take possession of a consignment of goods in which a border controlled drug was secreted within cans of bamboo shoots. As a consequence of your arrest, members of the Australian Federal Police uncovered evidence of your involvement in a separate importation, the one the subject of the charge before me.
6 On 7 January 2015 a consignment sent from Hong Kong addressed to Wai Leong Chin of 63 Courtney Street, North Melbourne arrived in Australia. It was forwarded to the North Melbourne post office for delivery to the consignee’s address. The consignment contained a number of boxed toilet brush holders. The bases of two of these toilet brush holders contained liquid methamphetamine, some of which had leaked and soiled the packaging. At least three unsuccessful attempts were made to deliver the consignment to the consignee at the consignee’s address, 63 Courtney Street, North Melbourne or notify the consignee that a package was awaiting collection. On 13 February 2015 three cards were found by police at that address notifying of the attempted delivery. These cards were dated 27 January 2015, 2 February [2015] and 12 February 2015 respectively.
7 You were not staying at the address. In fact the property was vacant, and was undergoing renovation. Your role was to pose as the consignee, Wai Leong Chin and take delivery of the consignment. False identification in that name using your photograph had been created for that purpose. There is no suggestion that you were actually aware of the missed delivery/parcel for collection cards that were found by police at Courtney Street on 13 February 2015. You had been arrested well before the first of these cards had been left at Courtney Street, frustrating your ability to collect the consignment.
8 The missed delivery cards led police to discover the consignment addressed to you in your false name and false address. Police seized the consignment of toilet brush holders at the post office. Initial presumptive testing of the liquid secreted in the bases of the brush holders indicated the presence of methamphetamine. Further analysis of the liquid remaining within the toilet brush holder bases was done. The result was that the liquid contained methamphetamine with a purity of 39.7 per cent. The total net weight of pure methamphetamine in the liquid was, as I have mentioned, 0.2334 kg. It had a wholesale value estimated to be between $78,880.00 and $127,600.00 and a street value estimated at around $326,700.00.
9 You were not the mastermind behind the importation, and there is no suggestion that your role was anything other than to act as a conduit between the person or persons who sent the consignment from its port of origin and a person or persons here in Australia. But yours was a critical role since you were the first and only person in Australia tasked with receiving the total consignment after it was landed and made available for delivery or collection.
Gravity of offending
10 The unlawful importation of border controlled drugs is a most serious crime, the inherent gravity of which is reflected in the maximum applicable penalty. It is well understood that these substances have the potential to wreck the lives of those who use them, and beyond, they “continue to present to a modern civilised society an increasing burden both monstrous and intolerable.”[3]
[3]Moran & Byrnes (1987) 31 A Crim R 248 at 254 per Tadgell, J.
11 Ordinarily, in cases such as these, principles of general deterrence, condemnation and denunciation, protection of the community and just punishment are predominant sentencing considerations. Put simply, those who engage or attempt to engage, at any level, in the importation and/or dissemination of border controlled drugs must expect condign punishment.
Plea in mitigation
12 Your counsel, Ms Morgan, conceded the gravity of your offending and that the only appropriate response to it in all the circumstances is the imposition of a term of imprisonment. However, she submitted that there are a number of mitigating factors:
Your personal history
13 You were born in Kuala Lumpur, Malaysia in March 1982. You are the eldest of six children all of whom are of good character.
14 You were educated to year nine but found academic life difficult. You decided to leave school at age 16 and commenced working in your father’s business. It is a family business based in Kuala Lumpur involving the sale and supply of wholesale vegetables. Your father and at least one of your siblings still work in this business.
15 You are married and have two children, a son born in 2003 and a daughter born in 2004. Your wife and children remain in Kuala Lumpur. Your wife works in the family business and it is your intention to work there too upon your eventual release from custody. You have considerable experience in that business.
Your reason for offending
16 You were successful in the family business, earning good money. You had purchased a home. You were not a user of illicit drugs. Unfortunately, you developed a significant gambling problem in 2011 which you funded with accommodations made by loan sharks. Eventually, your gambling losses and associated debts were of such a magnitude that you were forced to sell your family home in part satisfaction of the debts. As I understand it, you owed in the order of $300,000.00 in gambling debts to the loan sharks, $80,000.00 of which was paid from the proceeds of the sale of the house.
17 In these circumstances you were prevailed upon to participate in this importation to reduce the balance outstanding to the loan sharks. It was a loose arrangement, but you understood it involved illegal activity. You did not know by how much your debt would be reduced if you participated as directed. There is no suggestion that you acted under duress, but you did feel under enormous financial and emotional pressure to pay off part of your debt in the manner requested of you. Ultimately you suspected that in all likelihood the consignment involved the importation of border controlled drugs.
18 Because your gambling debts were amassed in Malaysia and you were recruited to participate as a direct consequence of your indebtedness there, I conclude that your involvement in the importation was secured before you travelled to Australia, making the reason for your travel here to fulfil the obligation you had undertaken.
Your prior good character
19 I accept that you come from a good family, and it is not suggested that you have any prior convictions. However an absence of prior convictions is of less weight in cases such as these as often persons of good character are used to facilitate the importation of border controlled drugs. This is because persons of good character are less likely to attract the attention of authorities, thereby making it less likely that the unlawful enterprise will be detected. It is not known whether you would have been granted entry into Australia had you been a person with prior convictions.
Guilty plea
20 It is necessary to trace the history of proceedings, because, as will soon become apparent, that history is relevant to the weight to be given to your guilty plea. You were initially charged with a number of offences, all of which you denied. Following a one day committal hearing on 24 August 2015, at which you were committed to stand trial, negotiations commenced between your legal advisors and the prosecution regarding your offer to plead guilty to an appropriately framed indictment.
21 The matter was listed for trial before me on 18 January 2016. At that time you faced an indictment containing two charges – one of importing a marketable quantity of a border controlled drug (charge 1) and one charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug (charge 2). That indictment is dated 10 December 2015, and was filed over an indictment dated 15 October 2015. The indictment dated 15 October 2015 alleged (amongst other charges) that you and Hew imported a marketable quantity of a border controlled drug (charge 2) and that you and Hew attempted to possess a commercial quantity of an unlawfully imported border controlled drug (charge 5). Hew also faced three further charges alleged in that indictment, namely one charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug (charge 1), one charge of importing a commercial quantity of a border controlled drug (charge 3) and one charge of importing a marketable quantity of a border controlled drug (charge 4).
22 On 18 January 2016 you were arraigned on the two charge indictment dated 10 December 2015 which had been filed over the October joint indictment because Hew pleaded guilty to a new single charge indictment alleging that he imported a commercial quantity of a border controlled drug (comprised of three importations).
23 When arraigned before me on the two charge indictment dated 10 December 2015, you pleaded not guilty to the charges. These charges were based on assertions that both you and Hew imported a consignment of toilet brush holders containing a marketable quantity of methamphetamine. This charge was dropped as against Hew, but is the sole remaining charge against you. The second charge preferred against you in the two charge indictment was based on the assertion that both you and Hew attempted to possess a commercial quantity of methamphetamine that was secreted in a shipment of 96 cans of bamboo shoots. That charge was dropped as against you, and you are presumed innocent of it. That transaction formed part of the rolled up charge to which Hew pleaded guilty. In all the circumstances, you and Hew are no longer “co-offenders” and principles of parity do not apply.
24 Following the determination of a preliminary issue, further negotiations ensued between your legal representatives and the prosecution, and as a consequence, a fresh single charge indictment signed 1 February 2016 was filed over the two charge indictment.
25 You pleaded guilty to the last mentioned indictment when arraigned on 2 February 2016.
26 As your counsel conceded, your guilty plea was not entered at the earliest opportunity. As I said earlier, you indicated your intention to plead guilty to an appropriately framed indictment around the time of the committal hearing.[4] A complicating factor in the negotiations was the fact that you and Hew were charged as co-offenders as previously indicated. As I understand it, you offered to plead on the basis that your state of knowledge was one of recklessness, but that was not possible because joint commission was alleged. Be that as it may, as mentioned earlier following a pre-trial ruling your offer to plead guilty to the current charge was accepted.
[4]Note paragraph 29 of Attachment A.
27 A guilty plea, no matter why or when entered, must ordinarily attract a sentencing discount, and you will be given the benefit of such a discount.
28 Your counsel submits that your plea is indicative of your true remorse. There is no other evidence of any such remorse, and accordingly it is difficult to assess the true level of your claimed remorse, if indeed you are remorseful.
29 Most significantly, your counsel submits, and I accept, that there is social utility inherent in your guilty plea.
30 In assessing the weight to be given to your plea, Ms Morgan also submits that I should take account of the strength or weakness of the prosecution case. She implied that the case against you was relatively weak. She noted that you had not yet taken delivery of the consignment, there is no listening device or telephone intercept evidence, and there is no surveillance evidence of you performing any acts or declarations in furtherance of the importation prior to your arrest. You made no admissions when interviewed by police. Indeed, yours was a “no comment” record of interview.
31 The case against you is based essentially on circumstantial reasoning. That does not mean it is necessarily a weak case. The circumstances from which your guilt could be inferred include:
a) your arrival in Australia relatively soon before the consignment landed here;
b) the false name of the consignee and the fact you had false identification in that false name;
c) you had the use of a mobile phone that received a text message containing the consignment number;
d) your mobile phone communicated with this number on a number of occasions in the days prior to your arrest;
e) you had a digital image of the consignment note on a camera said to be yours or under your control; and
f) the inherent unlikelihood of all of these circumstances combining and occurring within a limited timeframe unless you had prior knowledge of the consignment and agreed to play some role in its importation as the consignee.
32 Having noted the circumstantial evidence from which your guilt could be inferred, it must also be acknowledged that the prosecution case as first proposed was not without difficulties since the prosecution intended to rely on coincidence evidence and the acts and declarations of Hew. Leaving aside this last mentioned difficulty, the circumstantial case against you could not be described as either weak or overwhelming, in my opinion.
Remorse
33 As mentioned earlier, there is no evidence of your remorse apart from your guilty plea, which is at best only indicative of remorse, and is set against a backdrop of contesting the charge until after your trial had commenced.
34 You have not named the persons who procured your involvement or any other person implicated in this transaction, other than mentioning Hew, who is no longer charged with this crime. Although your failure to assist the authorities is not an aggravating factor, your silence in this regard cannot be counted as indicative of any remorse.
35 The fact that the methamphetamine never found its way onto the streets is no thanks to you. As I stated earlier, you were already in custody before notification of the consignment was delivered to Courtney Street. Because your reward was to offset, in part, your gambling debts, it is almost inevitable that you would have followed through with your crime had you not been apprehended. More particularly, there is no evidence or suggestion that you would not have executed your side of the bargain if free to do so.
Delay
36 As mentioned earlier, you pleaded guilty to the charge on 2 February 2016. However, the plea in mitigation was not heard until 17 October. The reason for the delay was that there were two cases pending in the Court of Appeal that raised the question whether a sentencing discount to recognise the social utility of a guilty plea is available for Federal offenders. The cases were heard together. The judgment, published on 10 October 2016[5] confirms that ordinarily the utilitarian value of a guilty plea is a factor to be weighed in mitigation of penalty. There is no warrant to deprive you of this mitigating factor.
[5]DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237.
37 Delay of itself is not significant in your case. Of more significance is what you have done in the period of delay. You have used that time to reflect on the reason for your offending and how you can improve your chances of leading a law abiding life.
Prospects of rehabilitation
38 A number of exhibits[6] were tendered showing that since your remand you have been a model prisoner. You have taken on work, in which you have secured a privileged and trusted position. You have undertaken whatever personal development courses have been made available to you, including a gambling workbook undertaken at your own pace. The workbook shows you do not yet fully appreciate the dangers of gambling although it does show that you have identified some of the steps that you can take to get help with your apparent addiction.
[6]Sentence Management Unit, Case management Review Committee Report 29 June 2015 – exhibit TQ2; Comprehensive Prison History 11 February 2016 – exhibit TQ3; Sentence Management Unit, Case Management Review Committee Report 23 April 2015 – exhibit TQ4; Review of Local Plan 9 February 2016 – exhibit TQ5.
39 You are not a drug user, and you have excellent prospects for employment upon your return to Malaysia. You enjoy the love and support of your family and you have every incentive to stay out of further trouble.
40 In the circumstances I am satisfied that your prospects of rehabilitation are quite good.
Jail more onerous
41 You were on remand during a period of unrest and riots. You were no party to the riots but as a consequence of them you were moved from Calder unit to a crowded and more secure environment where there was limited time to exercise. Eventually you were returned to Calder unit.
42 The fact that your family lives overseas has isolated you somewhat and this has weighed heavily upon you.
Possibility of deportation
43 You committed the offence whilst on a tourist visa. Your entry to Australia was for the predominant if not only purpose of performing an illegal act to offset your gambling debts. As I understand it there is no suggestion that you held either Australian residence or citizenship. Although there was no evidence given at the plea hearing regarding your status and what will happen once your sentence is completed, I consider it likely that you will be deported as you have no lawful visa or permit allowing you to remain in Australia after your sentence has been served.[7]
[7]s501(3A) Migration Act 1958 (Cth) provides that the Minister must cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full time custodial sentence.
Analysis
44 In determining the sentence to be passed or the order to be made I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.[8]
[8]s16A(1) Crimes Act 1914 (Cth)
45 There are many factors that I must take account of when sentencing you, including:
1.
Principles of general deterrence, which I have already mentioned;[9]
[9]See s16A(2)(ja) Crimes Act – general deterrence is now specifically included as a matter to be considered.
2.
The nature and circumstances of the offence[10] including your moral culpability;
[10]s16A(2)(a) Crimes Act.
3.
The maximum applicable penalty;[11]
[11]See Makarian v R (2005) 228 CLR: The maximum penalty serves as a yardstick to enable a comparison between the case before the court and the worst case scenario.
4.
Any injury, loss or damage resulting from the offence;[12]
[12]s16A(2)(e) Crimes Act.
5.
The degree to which you have shown contrition for the offence;[13]
[13]s16A(2)(f)(ii) Crimes Act.
6.
The fact that you have pleaded guilty to the charge;[14]
[14]s16A(2)(g) Crimes Act.
7.
The social utility inherent in your guilty plea;[15]
[15]see DPP (Cwth) v Thomas [2016] VSCA 237, applied in Kim v R [2016] VSCA 238.
8.
The degree to which you have cooperated with law enforcement agencies in the investigation of the offence or of other offences;[16]
[16]s16A(2)(h) Crimes Act.
9.
The deterrent effect that any sentence or order under consideration may have on you;[17]
[17]s16A(2)(j) Crimes Act.
10.
The need to ensure that you are adequately punished for the offence;[18]
[18]s16A(2)(k) Crimes Act.
11.
Your character, antecedents, age, means and physical or mental condition;[19]
[19]s16A(2)(m) Crimes Act.
12.
Your prospects of rehabilitation;[20]
[20]s16A(2)(n) Crimes Act.
13. The probable effect that any sentence or order under consideration would have on any of your family or dependants;[21]
[21]s16A(2)(p) Crimes Act – also note family and family members include - de facto partner, child as defined in section 3, and anyone else who would be a member of the offenders family as defined see 16A(4) Crimes Act. Also note that there must be exceptional circumstances before this factor can be taken into account – Markovic v R [2010] VSCA 105.
14.
The probability of your deportation;[22]
15.
Delay; and
16. Principles of parsimony.[23]
[22](more than a possibility, and based on evidence) – Guden v R [2010] VSCA 196, and note that s501(3A) Migration Act creates the presumption of deportation in these circumstances.
[23]s17A(1) Crimes Act and see R v Carroll [1991] 2 VR 509.
46 The general principles applicable to sentencing Federal drug offenders were summarized in R v Nguyen:[24]
[24](2010) 205 A Crim R 106 at 126 – 128.
“Some General Sentencing Principles Concerning Serious Federal Drug Offences
[70] The importation and possession offences now contained in the Criminal Code Act 1995 (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts “a quantity-based penalty regime” by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen [2008] HCA 15; 234 CLR 143 at 146 [2].
….
[72] The following general propositions emerge from the authorities:
(a)the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];[25]
[25]R v Lee [2007] NSWCCA 234.
(b)problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];
(c)it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];
(d)although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen[26] at 607-608 [64]; R v Lee at [23]-[24];
[26](2001) 207 CLR 584.
(e)the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];
(f)as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];
(g)the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at 607-608 [64];
(h)the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];
(i)involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];
(j)the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];
(k)where offenders are not young …. the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];
….
(n)the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong and Leung remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s.16G Crimes Act 1914 (Cth): R v Taru [2002] NSWCCA 391 at [12]; R v Bezan at 438 [34]-[36]; R v Mas Rivadavia [2004] NSWCCA 284; 61 NSWLR 63 at 67-68 [65]-[66]; R v SC at [27]; R v Chea [2008] NSWCCA 78 at [40];
….”
47 These principles have been cited with approval in Victoria.[27]
[27]See for example Nguyen v R; Phommalysack v R (2011) 31 VR 673.
48 In Nguyen v R; Phommalysack v R[28] Maxwell P observed:
[28](2011) 31 VR 673.
“[35] In De La Rosa,[29] McClellan CJ at CL identified the following as key reference points for sentencing (and for comparing sentences) in cases such as these:
·quantity;
·role;
·reward;
·assistance to authorities;
·criminal history; and
·prospects of rehabilitation.”
[29][2010] NSWCCA 194, [267].
49 In your case, the prosecution has provided a table of cases said to be indicative of appropriate sentencing range. It should be noted that current sentencing practice is to be interpreted from sentencing practice Australia-wide, and not just from Victoria[30] where, as it has been observed, sentencing practice has been lower than in other States.[31] But caution must be exercised when statistical information is relied upon. In Alavy v R,[32] where at the earliest opportunity the offender pleaded guilty to importing a marketable quantity of methamphetamine (495.5 grams with a purity of 80.3%), Weinberg and Coghlan JJA observed:
“[24] …[T]he limitations of such statistical material have been well documented, and commented upon by the High Court,[33] as well as by intermediate courts of appeal.[34] We have examined the tables, although we cannot say that we have gone into the details of the cases set out therein. The facts in some of those cases are known to us. All of them have their points of similarity, and their points of difference, with regard to the facts of this case.
[25] All that can be said in relation to the statistical material presented by both parties is that the sentence of seven years imposed in this case seems to be fairly typical of the levels of imprisonment fixed for offending of this very serious nature. There is nothing to suggest that this case stands out, or that the appellant has been singled out for heavier punishment than others who have engaged in like offending.”
[30]R v Pham (2015) 325 ALR 400 at [18] – [19].
[31]Pham v R [2014] VSCA 204 at [44] and Attachment B to those reasons.
[32][2014] VSCA 25.
[33]Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen [2014] HCA 2.
[34]Hasan v The Queen (2010) 31 VR 28; Hudson v The Queen (2010) 30 VR 610; Director of Public Prosecutions (Vic) v CPD (2009) 22 VR 533.
50 Most recently, in DPP v Pham,[35] the Court of Appeal re-emphasised that while sentencing statistics offer guidance and promote consistent sentencing practice throughout Australia, they are not determinative of the sentence to be imposed in any particular case.
[35][2016] VSCA 259
51 In your case, the statistical table was accompanied by the judgments referred to in it. I have read all of the cases provided to me. There is no case in the bundle that constitutes a direct match with your offending or your personal circumstances.
Sentence to be imposed
52 I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case.[36] In all the circumstances I have no alternative but to impose a term of imprisonment. On the charge of importing a marketable quantity of a border controlled drug (methamphetamine) contrary to subsection 307.2(1) of the Code you are convicted and sentenced to six years’ imprisonment. That sentence will commence today.
[36]s17A(1) Crimes Act.
53 In fixing the non parole period I must pay regard to s19AKA of the Crimes Act which sets out the purposes of parole. Those purposes are:
a) The protection of the community;
b) The rehabilitation of the offender;
c) The reintegration of the offender into the community.
54 I direct that you serve a minimum term of four years before becoming eligible for parole.
55 I am required to explain the impact of my order.[37] The total effective sentence is six years’ imprisonment. I have directed that you serve a minimum period of four years before becoming eligible for parole. Accordingly you will be required to serve a minimum period of imprisonment of not less than four years, and thereafter if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole and subject to any order for deportation. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
Direction under section 17A(2)(b) Crimes Act
[37]s16F(1) Crimes Act.
56 Having come to the conclusion that I have no alternative but to impose a term of imprisonment, under section 17A(2)(b) of the Crimes Act I direct that my reasons for so finding be entered in the records of the court. I direct that a copy of my revised reasons for sentence be entered in the court’s records and stand as the reasons under section 17A(2)(b).
Declaration of presentence detention under section 16E Crimes Act
57 Under section 16E of the Crimes Act, I declare that the period of 656 (six hundred and fifty-six) days be reckoned as time already served under this sentence and I direct that the details of this declaration be entered in the court’s records.
Statement under section 6AAA Sentencing Act 1991 (Vic)
58 Under section 6AAA of the Sentencing Act, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea I would have imposed a total effective sentence of seven and one half years’ imprisonment. I would have fixed a non-parole period of five years. In real terms, your sentence has been discounted by 20% to reflect your guilty plea.
59 I direct that the sentence that would have been imposed but for the plea of guilty be noted in the Court’s records.
60 MS MORGAN: As Your Honour pleases.
61 HER HONOUR: Is there anything further?
62 MS ELLIS: No, Your Honour.
63 MS MORGAN: No, Your Honour. Now, I will of course need to speak with my client, but I suspect Your Honour requires the interpreter for the next matter. Does Your Honour intend to leave the Bench before proceeding to sentence in Mr Hew's matter?
64 HER HONOUR: Yes, but it will only be as long as it takes to have Mr Hew brought up.
65 MS MORGAN: Of course Your Honour, perhaps if I can, just during that period, communicate to my client that I will arrange to see him later today?
66 HER HONOUR: You are going to see him later today?
67 MS MORGAN: Well Your Honour, I will need an interpreter, and the interpreter that is present in court - - -
68 HER HONOUR: She has just heard what you have said, she can interpret that.
69 MS MORGAN: Yes, that is correct, Your Honour. Thank you.
70 HER HONOUR: All right, anything else you need to communicate at this minute?
71 MS MORGAN: No, Your Honour.
72 HER HONOUR: All right, please remove the prisoner.
- - -
ANNEXURE “A”
PROSECUTION OPENING ON PLEA
1.TIAN CHEW QUAH has pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, contrary to subsection 307.2(1) of the Criminal Code (Cth), on 7 January 2015 (Methamphetamine).
2.On 28 November 2014, QUAH arrived in Australia from Malaysia.
Consignment of toilet brushes
3.On 7 January 2015, a consignment addressed to Wai Leong CHIN arrived into Australia from Hong Kong, and was conveyed to Australia Post North Melbourne branch located at 70 Errol Street, North Melbourne.
4.The contents of the consignment were six smaller boxes containing decorative toilet brushes. Concealed inside the base of two of the toilet brush holders was liquid. Some of the liquid had leaked and crystallised into powder causing damage to the boxes[38]. The consignment remained at the North Melbourne Post office until collection by police on 13 February 2015.
[38] Statement of AFP Forensic Officer HUGHES.
5.The consignment details were as follows:
Waybill: EA 212 465 727 HK (Speed Post – EMS)
Consignor: Mr Joe WONG
Hong Kong Happy Valley Broadwood
Beverly Hill Block C 12/B
PJ725232
Consignee: Wai Leong CHIN
63 Courtney Street,
North Melbourne 3051
0470 268 267
Description: Toiletries x 6
63 Courtney Street, North Melbourne
6.On 13 February 2015, members of the Australian Federal Police attended 63 Courtney Street, North Melbourne, Victoria. Enquiries identified that the owner of the premises was Mr John Hong Ping SO. AFP spoke with Mr SO who gave the AFP permission to search his premises. AFP observed that, at this time, the premises was being renovated and was vacant.
7.During the search, AFP located an Australia Post ‘package collection card’ in the mail box addressed to W CHIN of 63 Courtney Street, North Melbourne[39].
[39] Statement of AFP GRENFELL.
8.Inside the premises two more collection cards addressed to W CHIN and Wai Leong CHIN of 63 Courtney Street, North Melbourne were located. All of the cards were sent from the North Melbourne Post Office, 70 Errol Street, North Melbourne, Victoria.
9.AFP subsequently made enquiries with Australia Post North Melbourne Post Office and then seized the consignment addressed to Wai Leong CHIN[40].
[40] Statement of AFP GRENFELL.
10.Presumptive tests of the liquid concealed in the base of the toilet brushes provided a positive indication to methamphetamine.
69 Old Burwood Road, Burwood East
11.On 3 February 2015, AFP executed a search warrant at 69 Old Burwood Road, Burwood East, Victoria.
12.These premises were rented out by Xiao Mei WU to a Malaysian man in December 2014, using the name “Kevin”.
13.QUAH was identified by the landlord as having resided at this address. Another man, Keng Hong HEW was identified as ‘Kevin’ who had paid the rent.[41]
[41] WU [508- 520]
14.During the search at this address, a number of items were seized, some of which included:
·A Malaysian passport number A25084727 in the Accused’s name of Tian Chew QUAH
·Two false NSW drivers licences in the names of Wai Leong CHIN and Ah Wah LIM bearing the photograph of Accused QUAH
·One mobile phone
·One SIM card
·One micro SD card
·Handwritten notes
15.The false NSW drivers licence with the name Wai Leong CHIN bearing QUAH’s photograph[42] had the following details:
[42] Statement of NSW Transport Roads and Maritime Services.
Wai Leong CHIN
3 April 1982
177 Livingstone Road, Marrickville NSW 2204
Lic. No. 13255090
Card No. 2024167832
16.The sand disk memory card that was located with QUAH’s passport contained a photograph of consignment note showing the consignment number “EA 212 465 727 HK”, the consignee name “Wai Leong Chin’ and a partial address including “North Melbourne”. This image was created on 7 January 2015.
17.The Nokia Mobile phone that was located with QUAH’s passport contained a text message received from 0469 744 007 on 8 January 2015 at 7:50am with the consignment number EA212465727HK. The Accused had telephoned this number from a Samsung mobile telephone (which was found on QUAH at the time of his arrest). Phone records indicate that QUAH called this number on:
·9 December 2014 (attempted call)
·8 January 2015
·10 January 2015
·11 January 2015
·13 January 2015
·15 January 2015
18.The mobile telecommunication number 0470 268 267 listed on the consignment was subscribed to Michael DU of 118 Russell Street, Melbourne and was partially listed in a notebook located on HEW at the time of his arrest. This mobile number (0470 268 267), was used between 4 and 5 January 2015 by a black Nokia mobile[43] seized from HEW at the time of his arrest[44].
[43] With dual IMEI numbers of 357892047204606 and 357892047204614
[44] Statement of AFP GRENFELL.
19.AFP Melbourne Forensics later[45] examined the liquid contained in the consignment and determined the total weight to be 0.58 kg[46].
[45] On 23 February 2015
[46] Statement of AFP Forensic Officer HUGHES [350].
20.The liquid was submitted to the NMI for conclusive analysis. NMI confirmed the presence of methamphetamine in the liquid with a purity of 39.7 per cent. Based on this analysis, the total net weight of pure methamphetamine in the liquid is 0.2334 kg[47].
[47] Statement of NMI Scientist RUSSO [359].
21.A marketable quantity of methamphetamine is 2 grams.
22.The potential wholesale value of the methamphetamine is between $78,880 and $127,600.[48]
[48] Statement of Keith Randall
23.The potential street value of the methamphetamine is $326,700.[49]
[49] Ibid
ARREST AND CAUTION
24.On 16 January 2015, QUAH and another male, Keng Hong HEW were arrested and conveyed to Australian Federal Police for interview.
25.At the time of arrest, QUAH was carrying a satchel bag.[50] On searching the satchel bag, a number of items were located which include:
[50]Statement of AFP CONSTANTINOU [79-93].
·One Samsung mobile phone;
·One electronic tablet;
·Two SIM cards;
·One NSW Government issued Photo ID card bearing the photo of HEW in the name Keng Hong HEW; and
·One NSW Government issued Photo ID card bearing the photo of QUAH in the name Tian Chew QUAH
·11 passport sized photographs.
26.The Accused gave a no comment record of interview.
ANCILLARY MATTERS:
Maximum Penalty
27.The maximum penalty for the offence of importing a marketable quantity of a border controlled drug is 25 years imprisonment.
Plea of Guilty
28.QUAH entered a plea of guilty to the charge on 2 February 2016.
29.However, QUAH originally offered a plea to this charge on 25 September 2015.
Days in Custody
30.QUAH was arrested on 16 January 2015 and has been in custody since that date. Accordingly he has spent 640 days in custody (up to but not including plea date of 17 October 2016).
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