Wong v The Queen
[2020] WASCA 195
•24 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WONG -v- THE QUEEN [2020] WASCA 195
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 20 JULY 2020
DELIVERED : 24 NOVEMBER 2020
FILE NO/S: CACR 120 of 2019
BETWEEN: TECK KONG WONG
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
Citation: R -v- LAW & ORS [2018] WASCSR 123
File Number : INS 62 of 2017
Catchwords:
Criminal law - Sentencing - Commonwealth drug offences - Aiding the importation of a border controlled drug (methamphetamine) - Whether sentencing judge sentenced the appellant on a wrong factual basis - Whether sentence infringed the parity principle - Whether sentence manifestly excessive
Legislation:
Criminal Code (Cth), s 11.2(1), s 307.1(1)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | D Renton and J Johnston |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
AB v R [2014] NSWCCA 339
Clarke v The Queen [2015] NSWCCA 232; (2015) 254 A Crim R 150
Hordern v The Queen [2019] NSWCCA 138
House v The King (1936) 55 CLR 499
Tang v The Queen [2020] WASCA 194
TH v The Queen [2019] NSWCCA 184
JUDGMENT OF THE COURT:
Summary
On 14 December 2017, the appellant was convicted, after trial by jury, of one count of aiding, abetting, counselling or procuring the commission by others of the offence of importing a commercial quantity of a border controlled drug, namely methamphetamine. That is an offence contrary to s 11.2(1) and s 307.1(1) of the Criminal Code (Cth), for which the maximum term of imprisonment is life imprisonment. On 26 June 2018, the appellant was sentenced to 26 years' imprisonment, with a 17 year non-parole period. The term was backdated to 24 May 2016, to take account of time spent in custody on remand.
The importation offence was allegedly committed on 1 May 2016, when at least 182.41 kg (145.6 kg pure weight) of methamphetamine was landed on the Western Australian coast by a tender launched from a fishing vessel. A number of persons at the landing site collected 15 large bags containing the methamphetamine and transported them to the Perth metropolitan area. 182 kg of methamphetamine from the fishing vessel was subsequently seized by police from two locations in Cannington and Embleton. The appellant and a co-offender met the landing site party at a point, known as the Wilbinga Grove rest stop, between the landing site and Perth.
The appellant now appeals against his sentence on a number of grounds. In essence, the appellant contends that the trial judge erred in finding that the appellant played a supervisory role in the operation, when he actually acted only as a driver and translator. The appellant also contends that his sentence infringes the parity principle and is manifestly excessive. For the following reasons, none of those grounds are established and the appeal must be dismissed.
The prosecution case generally
The prosecution case was that a tender launched from a fishing vessel landed at least 182 kg of methamphetamine at a location about 30 km south of Port Denison in Western Australia at about 5.30 am on 1 May 2016.[1]
[1] Trial ts 265.
Waiting at that location were the appellant's co-accused Yuen Kuan Chong, Fook Choi Ching and Chee Seng Tang, as well as Kian Kee Tan. Mr Tan, who was also referred to as 'Fat Boy', departed Australia before being arrested and was not charged with any offence. The men had three vehicles at that location - a red Mitsubishi hired by Mr Chong, a white Ford Ranger registered to Mr Chong and a white Mitsubishi Triton registered to Mr Tang.[2]
[2] Trial ts 265.
The methamphetamine was contained in 15 black bags, 14 of which were loaded into the vehicles at some time between 5.15 and 6.15 am on 1 May 2016. One of the black bags containing methamphetamine was inadvertently left on the beach. The vehicles drove in convoy towards Perth, and were sighted at Caltex Service Station in Jurien Bay at 6.34 am on 1 May 2016.[3]
[3] Trial ts 265 - 266.
The vehicles proceeded to the Wilbinga Grove rest stop, located about 70 km north of the Perth central business district. There the men met the appellant's co-accused Kinboon Yong and the appellant. Mr Yong and the appellant had driven to the Wilbinga Grove rest stop in a Toyota Hilux. Mr Yong drove a vehicle containing bags of methamphetamine back to Perth, while the appellant drove back in the Hilux.[4]
[4] Trial ts 272.
At some point, the men realised that they were missing one of the 15 black bags. A vehicle returned to the landing site and retrieved the bag, which had not been discovered.[5]
[5] Trial ts 266.
On 15 May 2016, police observed Mr Yong and the appellant meet Mr Ching and Mr Chong at a carpark at the Carousel Shopping Centre. Mr Ching and Mr Chong were followed back to their residence in Taradee Circuit, Thornlie. A search warrant was executed at the Taradee Circuit address on 20 May 2016.
Search warrants were also executed at other addresses. On 21 May 2016, about 131 kg of methamphetamine (105 kg pure weight) was located at a house in Gerard Street, Cannington that had been leased by Mr Yong. On 23 May 2016, about 51 kg (40 kg pure weight) of methamphetamine was located at a residence in Parsons Street, Embleton occupied by the Yokay Chan Chin (who pleaded guilty to an offence and was not tried with the appellant and his co-accused).[6]
[6] Trial ts 281 - 282.
The prosecution case against the appellant
The prosecution case was that Mr Yong was involved in the collection of the methamphetamine from the Wilbinga Grove rest stop and the further handling, storage, packaging and repackaging of the methamphetamine. The appellant was not only aware of that, but was encouraging and assisting in that process.[7] The Crown case was that the appellant aided the importation operation by driving Mr Yong to the Wilbinga rest stop knowing that it was for the purpose of collecting the 182 kg of methamphetamine that had been imported into Australia.[8] Although the aiding was initially particularised as driving Mr Yong to the Wilbinga Grove rest stop, in closing the prosecutor identified a number of other steps which the appellant took to knowingly aid the operation.
[7] Trial ts 290.
[8] Trial ts 340.
The appellant arrived in Australia on 20 October 2015, at Sydney Airport. He came on a three month tourist visa from Kuala Lumpur, Malaysia. In his incoming passenger card, the appellant described himself as retired, and claimed that he had come to Australia for a 15 day holiday. He gave his expected address in Australia as a backpackers' lodge in George Street, Sydney, which he had booked from 20 to 25 October 2015. He had a return ticket to Kuala Lumpur for 25 October 2015, but did not take that flight.[9]
[9] Trial ts 295 - 296.
On 21 October 2015, the appellant opened a Commonwealth Bank account. Between 21 October 2015 and 16 May 2016, about $34,000 was deposited into that account by ATM cash deposits.[10]
[10] Trial ts 296.
The appellant travelled from Sydney to Perth on 2 November 2015. On that day he commenced renting a house in Thomas Street, East Cannington, where he was arrested.[11]
[11] Trial ts 296.
On 31 December 2015, the appellant rented another property in Mallard Way, Cannington for a period of 3 months, paying a cash advance of $1,950. He returned the keys to that property on 5 May 2016, saying that his job was over and he had no more work.[12]
[12] Trial ts 296.
The appellant's 3 month visa expired in January 2016.[13]
[13] Trial ts 296.
On 1 March 2016, the appellant was present when Mr Yong rented the Gerard Street premises where, on 21 May 2016, 131.32 kg of methamphetamine was located. Items found at that time at the Gerard Street premises included 'Magic Seal' bags. One of the employees of the company who sold the 'Magic Seal' bags to Mr Yong identified the appellant as one of the persons who attended to collect those bags.[14]
[14] Trial ts 297.
Phones seized from the appellant and Mr Yong revealed messaging between them.[15] At 11.21 am on 1 May 2016, the appellant messaged:
[15] Trial ts 296 - 297.
Have you receive? Have you receive?
At about 6.43 pm on 1 May 2016, Mr Yong messaged:
You get prepare. Get prepare. I'm reaching soon. You prepare. I'm going to take you.
Later in the chain of conversation, the appellant messaged:
Tomorrow morning very early start for work.
At 8.39 pm on 3 May 2016, the appellant messaged:
If you are free, come now. First go clean up factory. Do all the cleaning.
The messages also discussed getting paid.
The appellant's Thomas Street residence was searched by police on 20 May 2016, and he was arrested at the premises. A mobile phone found at his premises contained entries for Indian Ocean Drive, the Wilbinga Grove rest stop, the Taradee Circuit address occupied by Mr Ching, Mr Chong, Mr Tang and Mr Tan, and the Embleton address occupied by Mr Chin. Audio messages on the phone revealed the appellant talking about 'the company' and mentioned 'B2'.[16]
[16] Trial ts 281, 297.
The prosecutor summarised the contents of interviews by police with the appellant on 20 May 2016 and 24 May 2016.[17]
[17] Trial ts 332 - 335.
The appellant's case at trial
The appellant's case at trial was that he was a mere pawn in a venture controlled, financed and coordinated by other people located in China and Malaysia. He was given and paid for specific tasks, but knew nothing about the importation of the methamphetamine. The appellant's counsel contended that there was no evidence that the appellant knew that he was doing anything for the purpose of importing anything into Australia, let alone methamphetamine.[18]
[18] Trial ts 374 - 375.
Evidence led at trial as to the appellant's involvement
The following is a summary of the evidence led at trial as to the appellant's involvement in the enterprise.
Arrival in Australia on 20 October 2015
Border Force records indicated that the appellant arrived at Kingsford Smith Airport in Sydney on 20 October 2015, aboard a flight from Malaysia. His passenger arrival card showed that he intended to stay for 15 days and his intended address was 'Central Perk Backpackers' [sic].[19] He was the first of the 'shore party' involved in the offence to arrive in Australia.
Bank account opened
[19] Exhibit 79; trial ts 1107 - 1109.
On 21 October 2015, the appellant opened a Commonwealth Bank account at the Haymarket NSW branch with a $100 deposit. A total of $34,260 was deposited in the account by the following cash deposits made on the following dates:[20]
[20] Exhibit 165; trial ts 1999 - 2001.
Date of deposit
Amount deposited
1 December 2015
$5,000
29 December 2015
$5,000
25 January 2016
$5,000
24 February 2016
$5,000
16 March 2016
$5,000
26 March 2016
$260.50
11 April 2016
$4,000
10 May 2015
$4,000
16 May 2016
$1,000
Total
$34,260.50
Flight from Sydney to Perth on 2 November 2016
Virgin Australia records showed that the appellant flew from Sydney to Perth on 2 November 2015, arriving in Perth at 11.40 am local time.[21]
Lease of premises in Thomas Road, East Cannington
[21] Exhibit 73; trial ts 1093.
The appellant leased the house in Thomas Road, East Cannington from the property owner for a term of 6 months from 2 November 2015. He paid 6 weeks rent in advance ($2,700) and a security bond of $1,800 on that day. The owner collected the $450/week rent every 3 weeks, and the appellant always paid in cash. The property owner saw a white Toyota vehicle parked at the premises from time to time, and the appellant told the owner the vehicle was his and that he had bought it.[22]
Lease of premises in Mallard Way, Cannington
[22] Exhibit 65; trial ts 1071 - 1073.
The appellant rented a house in Mallard Way, Cannington for $240 per week for 3 months from 31 December 2015, paying a total of $1,920 for the security bond and the first 4 weeks rent. He continued to pay rent in cash until he left in around May 2016.[23]
Purchase of Magic Seal plastic bags with Mr Yong
[23] Exhibit 151; trial ts 1809 - 1814.
Bruce Lim, a director of a company called A & T International Pty Ltd gave evidence that, on 1 February 2016, he was present when his father had sold a carton of 1,000 'Magic Seal' bags to two Mandarin-speaking Asian men for $165. On 22 June 2016, he identified one of the men on a Digiboard as the appellant.[24] His father, Albert Lim, who served the men, identified two men on Digiboards, neither of whom was the appellant or Mr Yong.[25]
[24] Trial ts 1252 - 1257; exhibit 98B.
[25] Exhibit 114; trial ts 1377 - 1381.
A credit card ending in the numbers 5067 was used to purchase the bags. The bags were subsequently located in a search of the Cannington premises where 131.32 kg of methamphetamine was found. The credit card was found in Mr Yong's wallet at the time of the search of his Fraser Road premises on 20 May 2016.[26] The box, which contained the Magic Seal bags, was located at the Gerard Street premises, with many of the bags having been used to repackage the methamphetamine into 1 kg packages. A plastic bag containing methamphetamine was also found in the box at Gerard Street.[27]
Lease of premises in Gerard Street, East Cannington
[26] Exhibit 63; trial ts 1054 - 1058.
[27] Exhibit 99; images 341 - 351.
On 26 February 2016, Mr Yong leased the Gerard Street property for 6 months, paying $1,840 for the rent and bond in cash. The owner of the property identified the appellant as the man who was with Mr Yong when she met with him to inspect the property and when the rental agreement was signed on 26 February 2016. She described discussions directly between her and Mr Yong.[28]
Meeting at Carousel Shopping Centre on 15 May 2016
[28] Exhibit 142A - 142D, 144; trial ts 1746 - 1754.
On the afternoon of 15 May 2016, the appellant and Mr Yong met with Mr Ching and Mr Chong in the carpark of the Carousel Shopping Centre. The appellant was captured by surveillance video sitting in the passenger seat of a silver Toyota Hilux driven by Mr Yong, and talking to Mr Ching and Mr Chong through the passenger window.[29] In his interview with police, discussed below, the appellant accepted that he was photographed with Mr Yong at the carpark of Carousel Shopping Centre on 15 May 2016, and that he met with Mr Ching and Mr Chong. The photographs of the appellant show him sitting in the passenger seat of vehicles.[30]
Search of the appellant's residence on 20 May 2016
[29] Exhibit 41 (video files contained in 'ACIC' folder, '15 May 2016' sub-folder); closed court ts 19 October 2017 at 36 - 38.
[30] Exhibits 119A and 119B.
Police executed a search warrant at the appellant's house in East Cannington on 20 May 2016. The appellant was the only person present. A white Toyota Camry was parked in the driveway at the premises. Amongst the items seized were four telephones:[31]
(1)A Samsung smart mobile phone (with an IMEI number ending in 486) found on a coffee table in the living room, in which the appellant indicated he also slept.
(2)A Motorola 'Moto e' mobile phone found under a cushion of a chair in the living room.
(3)A blue/black Nokia dual SIM mobile phone found on a coffee table in the living room.
(4)A Nokia dual SIM mobile phone found on the couch in the living room.
[31] Exhibit 13; exhibit 57; trial ts 597 - 599, 971 - 972.
The appellant provided police officers with the unlock pattern for the Samsung phone. He indicated that his carrier was Vodafone, and that he did not use the phone to make phone calls, but only used it to access the internet.[32] The appellant said that he did not remember the phone number for the Motorola phone and also used it only for the internet.[33]
[32] Exhibit 57 (Disc 1), 20/5/16 at 9.22 am - 9.23 am; 9.42 am - 9.44 am.
[33] Exhibit 57 (Disc 2), 20/5/16 at 10.05 am.
Data downloaded from a Navman GPS, seized from the dashboard of the Toyota Camry, showed entries for:[34]
(1)Mr Chin's Parsons Street address on 6 April 2016;
(2)Indian Ocean Drive, Wilbinga Grove and Mr Chin's Parsons Street address on 15 April 2015; and
(3)The Gerard Street address on 2 and 4 May 2015.
[34] Exhibit 86; trial ts 1148 - 1150.
The police witness who gave evidence about the download from the Navman agreed, in cross-examination, that the device was portable and did not identify the user.[35] The data indicated either a start point or a destination entered into the device, and did not necessarily mean that the device had been to the destination.[36]
Data from mobile phones found at the appellant's house
[35] Trial ts 1168 - 1170.
[36] Trial ts 1172.
The Samsung mobile phone referred to at [32](1) above contained JPG format images showing the appellant's personal correspondence and passport. It also contained a JPG image, designated as being modified on 26 February 2016, of the following note:[37]
A3 - 52
B3 - 47
_____
99
[37] Exhibit 172, report on the appellant's Samsung Note 4, page 8.
The significance of this note was that the 1 kg packages of methamphetamine found at the Gerard Street premises included 52 packages marked 'A3' and 47 packages marked 'B3'.[38]
[38] Exhibit 99, images 312 - 340.
Another note on the appellant's Samsung phone designated as being modified on the same date referred to 'Wilbinga Grove'.[39]
[39] Exhibit 172, report on the appellant's Samsung Note 4, page 7.
The mobile phone also had a number of voice messages on WhatsApp, which recorded what appeared to be the appellant complaining about the lack of payment, the amount of payment and the requirements of the 'company' in relation to reporting and reimbursement of expenditure.[40] The voice messages also referred to 'B2', 'B1' and 'B to B', generally reflecting the designations applied to the packages of methamphetamine found by police.[41] Police were unable to determine the 'direction' of these voice messages (ie whether they were sent from, or received by, the appellant's Samsung phone).[42]
[40] Exhibit 72.
[41] Exhibit 172, report on the appellant's Samsung Note 4, pages 20 - 22.
[42] Trial ts 2076 - 2077, 2083 - 2084.
Data on the appellant's Samsung phone associated with a GPS application called 'Waze' indicated that the phone had been used to search for or visit:[43]
(1)on 12 February 2016, the Tarradee Circuit address occupied by Mr Ching, Mr Chong and Mr Tang;
(2)on 17 February 2016, 26 and 27 April 2016 and 3 May 2016, the Parsons Street address of Mr Chin where drugs were subsequently found; and
(3)on 12 May 2016, the Gerard Street address where drugs were subsequently found.
[43] Exhibit 172, report on the appellant's Samsung Note 4, page 13; trial ts 2072 - 2074, 2084 - 2085.
The following 'WeChat' message was sent on 6 May 2016 from the Motorola phone found at the appellant's house:[44]
A3 0.052
B3 0.047
These notes correlate with the designations on the packages of methamphetamine referred to at [37] above. The appellant received responses to these WeChat messages from the person referred to at trial as the 'accountant'.
[44] Exhibit 172, report on the appellant's MP Motorola E, page 16.
Data from the appellant's Motorola phone showed that, between 5 November 2015 and 18 May 2016, 104 telephone calls were made to or from a telephone number (ending in 687) associated with Mr Tan.[45]
Messages found on Mr Yong's phone
[45] Exhibit 172 Index, page 1; report on calls to and from Motorola handset, pages 18 - 19; trial ts 2078.
There were also WhatsApp messages found on Mr Yong's phone to and from an address '[email protected]', which was contact data associated with the appellant's Samsung mobile phone.[46] The messages were exchanged between 11 April 2016 and 10 May 2016.
[46] Exhibit 172 Index, page 1; report on the appellant's Samsung Note 4, page 4; trial ts 2071.
The messages contain a number of messages on 1 May 2016 which appear to be coded messages dealing with the packaging of the drugs. There are a number of instructions issued from the operator of the Samsung phone to Mr Yong including, on 3 May 2016, for Mr Yong to go and clean up the 'factory'.[47]
Appellant's first interview with police on 20 May 2016
[47] Exhibit 172, report on Mr Yong's iPhone 6, pages 36 - 56.
The appellant was interviewed by police, with the assistance of a Cantonese interpreter, from 1.34 pm on 20 May 2016. The appellant indicated that he was fluent in Cantonese and spoke a little bit of Chinese and English.[48]
[48] EROI ts 20/5/16, Q 70 - 72.
The appellant said that he had five or six mobile phones, but some of them did not work. The phones were at his home. He did not remember any of the numbers, and mainly used the internet. When asked if anyone else used his phones, the appellant responded, 'Only myself'.[49]
[49] EROI ts 20/5/16, Q 54 - Q 61.
The appellant told police that he was in Australia looking for a manual labour job and working as a driver.[50] He did not have a visa.[51]
[50] EROI ts 20/5/16, Q 95 - 98.
[51] EROI ts 20/5/16, Q 104.
The appellant confirmed that he lived alone in the house in Thomas Street, East Cannington, and that he was the only person with a key to the house.[52] He confirmed that the mobile phones at the house were all his.[53]
[52] EROI ts 20/5/16, Q 120 - 140.
[53] EROI ts 20/5/16, Q 134, 153.
The appellant informed police that he had been told to come over to Perth by a person in Malaysia who was also called Mr Wong, who paid for his rent and food and instructed him to pick people up from the airport and drive them. When he had time, he did manual labour work on construction sites.[54] Mr Wong from Malaysia also sent the appellant money to buy the Toyota car which he needed to pick up people.[55]
[54] EROI ts 20/5/16, Q 195 - 240.
[55] EROI ts 20/5/16, Q 245.
The appellant told police that, on 1 May 2016, he drove to the beach with a person he referred to as 'Fat Guy' 'for fun'. He identified a person in a photograph of Mr Yong taken with the appellant at Carousel Shopping Centre on 15 May 2016 as the 'Fat Guy'.[56] Although the distinction was not always clearly maintained during the interview, the appellant distinctly referred to 'Fat Boy' (contextually Mr Tan), as a different person who the appellant knew only from the internet. Mr Yong drove the appellant to a 'resting place' in his chocolate coloured car. When they got to the resting place Mr Yong asked the appellant, as a friend, to drive his car back to Perth. The appellant drove to Mr Yong's house in Canning Vale, parked Mr Yong's car outside, went to the toilet in the unlocked house and left.[57]
[56] Exhibit 119A.
[57] EROI ts 20/5/16, Q 261 - 350, Q 384 - 385.
When asked about his attendance at Carousel Shopping Centre on 15 May 2016, the appellant said that he had borrowed $300 from the persons in a car shown in photographs (Mr Ching and Mr Chong).[58]
Appellant's second interview with police on 24 May 2016
[58] EROI ts 20/5/16, Q 398 - 441.
The appellant was again interviewed by police on 24 May 2016. He essentially repeated his account of being driven to the rest stop by Mr Yong in Mr Yong's car, and driving Mr Yong's car back to Perth at Mr Yong's request.
Sentencing submissions
Written sentencing submissions provided by the appellant's counsel to the trial judge took no issue with the following factual findings invited by the Crown.
The appellant arrived in Australia on 20 October 2015 to prepare for the anticipated arrival of the vessel transporting the drugs to Australia. On arrival he opened a bank account to receive money from his controllers. The appellant reported expenses incurred in preparing for the arrival of the drugs to 'Abc' (the 'Accountant') and was in contact with Mr Tan, who had a level of oversight over the land-based operations of the criminal enterprise.[59]
[59] Crown sentencing submissions, par 69 - 71; Appellant's sentencing submissions, par 9.
The appellant rented the Mallard Way and Thomas Street properties. The Thomas Street property was used as his residential address. In such circumstances it is reasonable to infer the Mallard Way property was rented solely to further the interests and objectives of the criminal enterprise.[60]
[60] Crown sentencing submissions, par 72; Appellant's sentencing submissions, par 9.
The appellant accompanied Mr Yong to purchase Magic Seal bags used to repackage the imported drugs into 1 kg amounts.[61]
[61] Crown sentencing submissions, par 73; Appellant's sentencing submissions, par 9.
It was accepted that the appellant and Mr Yong drove to the Wilbinga Grove rest stop for the purpose of Mr Yong taking possession of the drugs, although the appellant contended that he was the passenger and Mr Yong was the driver.[62]
[62] Crown sentencing submissions, par 9(f)(iv) and 74; Appellant's sentencing submissions, par 5 and 9.
The Crown alleged that:
(1)The appellant communicated with Mr Yong regarding the drug repackaging and instructed Mr Yong to 'clean up the factory' - a reference to the Gerard Street property - and the removal of drug repackaging evidence at that property.[63]
(2)Material on the appellant's mobile telephone included references to 'Wilbinga Grove' and coded references that matched the quantities of drugs subsequently located by police (A3 - 52, B3 - 47, 99). The appellant therefore had significant knowledge of the quantity of drugs to be imported, the plans for subsequent distribution those drugs and where the handover of the drugs to Mr Yong would occur.[64]
(3)The appellant confirmed various quantities of drugs that had been packaged into suitcases in a coded message to the 'Accountant' after they had been repackaged. This confirmation accorded with the appellant's advance knowledge of how the drugs would be repackaged.[65]
[63] Crown sentencing submissions, par 75.
[64] Crown sentencing submissions, par 77.
[65] Crown sentencing submissions, par 79.
The appellant's submissions noted that the Crown conceded at trial that there was no evidence that the appellant was the author of the communications from the telephones found in his possession, but conceded that the jury may have inferred that the appellant was the author of the communications.[66]
[66] Appellant's sentencing submissions, par 10, 12 and 13; trial ts 3713 - 3714.
Trial judge's factual findings
The trial judge's findings and approach to the sentencing of the appellant and his co-offenders is discussed in this court's reasons in Tang v The Queen.[67] These reasons should be read with the reasons in Tang.
[67] Tang v The Queen [2020] WASCA 194.
The findings made by the trial judge in relation to the appellant's role in the offending and personal circumstances are summarised below.
The bags from the landing site loaded into the three vehicles were driven to a rest stop at Wilbinga Grove on Indian Ocean Drive, where Mr Yong was waiting, having been driven there by the appellant in a fourth vehicle.[68]
[68] R v Law & Ors [2018] WASCSR 123 (Sentencing remarks) [30].
The trial judge found that the jury must have been satisfied that the appellant did acts to assist or provide support to others in the importation of a border controlled drug, knowing that was what they were doing. The trial judge was satisfied beyond reasonable doubt that the appellant, in fact, played a significant role in the importation and the preparation of the drugs for distribution.[69]
[69] Sentencing remarks [58].
The trial judge made the following findings as to the appellant's knowledge of the type and quantity of drugs being imported:[70]
In your case, Mr Wong, there were entries in the mobile phone you were using that were made or modified on 26 February 2016, some three and a half months before the importation took place, which suggest you were well aware of the quantities of drugs that would be marked for particular distribution. There was also a message sent to the accountant on 6 May 2016, when you were accounting for expenses, which referred to the same information. Having regard to other evidence, I am satisfied that you were the author of the note of 26 February 2016 and the message of 6 May 2016. That other evidence includes messages in which I find you instructed Mr Yong to clean up the factory, which I am satisfied was a reference to one of the premises at which the drugs were repackaged and put into suitcases. The note and message refer to 'A3' with the number 52 next to it, and 'B3' with the number 47 next to it, and a total of 99, which is the sum of those two figures. Those numbers correspond with the numbers and letters found on a number of the clip seal bags found with those markings in suitcases at Gerard Street, East Cannington.
[70] Sentencing remarks [66].
The trial judge was not satisfied that the appellant was aware of the purity of the drug. However, the enormity of the enterprise in which the appellant was involved and the potential for great financial gain would have been obvious, both from the quantity of the drug and the arrangements that had been made for him.[71]
[71] Sentencing remarks [68].
The trial judge was satisfied that the appellant was, with Mr Yong, involved in the repackaging of the drug and was aware that the drug was methamphetamine.[72]
[72] Sentencing remarks [72].
The trial judge was satisfied that:[73]
(1)The appellant arrived in Australia on 20 October 2015, opened a bank account shortly after and reported expenses he incurred to the 'accountant'.
(2)The appellant rented two premises in order to further the interests of the syndicate in some way, including having a place where he could reside and from which he could operate.
(3)On 1 May 2016, the appellant drove Mr Yong to the Wilbinga rest stop, knowing that they were to receive the drugs at that location. Like Mr Yong, the appellant was involved in the purchase of items used in the repackaging of the drugs and communicated with Mr Yong about cleaning up the premises where they were repackaged. Among the items purchased were the Magic Seal bags, which were used to repackage the methamphetamine.
(4)The appellant had prior knowledge of the importation and the amount of drugs that were to be distributed, and had a supervisory role, similar to Mr Yong.
(5)The appellant had a high level of trust and responsibility within the enterprise.
(6)The appellant's motivation in the enterprise was principally for commercial reward.
[73] Sentencing remarks [107] - [113].
The trial judge made the following observations about the comparative roles of the appellant and Mr Yong:[74]
Mr Yong and Mr Wong, I am satisfied that Mr Tan was at a higher level of responsibility and authority than you were. That does not necessarily mean that you are less culpable from the point of view of assessing the seriousness of your conduct. One can envisage a situation in which an offender who did not have as much authority as another in a criminal syndicate may still be deserving of a sentence of similar severity because of the nature and extent of the activities the first person may have undertaken. However, I am satisfied in your case that, if Mr Tan were being dealt with, he would be deserving of a sentence of higher severity.
In assessing what it was that you did, I am satisfied beyond reasonable doubt that your roles in the land-based team went beyond the collection of the drugs. I am satisfied that both of you were involved in the preparation of the drugs for distribution, by repackaging the drugs and labelling the bags and suitcases. In your case, Mr Yong, I am satisfied you physically performed those tasks, commencing with the removal of the original sealed bags from the black carry bags that were found in your bathroom. In your case, Mr Wong, I am not able to find that you physically performed those tasks, but it is obvious to me from your communications that you at least had a supervisory role.
[74] Sentencing remarks [117] - [118].
The trial judge noted that the appellant was born in 1961 and was 56 years of age. He had been married for about 25 years and had two children aged 15 and 22. Prior to coming to Australia, the appellant was involved for some 25 years in an air conditioning company in Singapore. He had no previous convictions, so came before the court as a person of prior good character. The appellant was in reasonable health.[75]
[75] Sentencing remarks [159] - [161].
Grounds of appeal
The appellant appeals against his sentence on the following four grounds (which are unnumbered in the appellant's case but which are given numbers below):
1.Manifestly excessive.
2.Parity. Despite no physical evidence against myself I received the same sentence as Yong.
3The [trial judge] erred in determination of criminal culpability based on factual evidence.
4.The prosecutor misled the jury.
Ground 3: alleged factual error
It is convenient to begin by considering ground 3, which alleges a factual error by the trial judge in assessing the criminality involved in the appellant's offending.
Appellant's submissions
The appellant's written and oral submissions contain a number of factual assertions which are not supported by the evidence led at trial. Putting those assertions aside, the essence of the appellant's submission was that the judge erred in finding that the appellant's role extended beyond that of a driver and translator who assisted Mr Yong with tasks such as purchasing the plastic bags, renting a house and meeting with Mr Ching and Mr Chong at Carousel Shopping Centre. The appellant contends that the trial judge erred in concluding that the appellant had a supervisory role in the operation based on a few messages on his phone. He said that was particularly the case where there was no evidence that he was the author of the messages sent from his phone, and the expert who gave evidence in relation to the data could not say whether the messages were incoming or outgoing. He also points to the absence of evidence of communications between him and the 'top level', and the absence of forensic evidence (such as DNA and fingerprint evidence) linking him to the drugs found by police or the places where they were found.
Challenges to factual findings in sentencing appeals
We note that there is a division of opinion in the New South Wales Court of Criminal Appeal as to the proper approach to be taken to challenges to factual findings made by sentencing judges.[76] The approach taken by Basten JA and Hamill J in Hordern v The Queen[77] and Clarke v The Queen[78] rejects as clearly wrong the view that House v The King[79] requires that factual error can only be reviewed on a 'constrained' basis. The issue was not the subject of submissions before us, and need not be resolved in this appeal. Having reviewed the presently relevant evidence based on the trial record, we agree with the trial judge's conclusion that the appellant was not merely a driver and translator, but had a supervisory role in the operation. In our view, the evidence establishes that conclusion beyond reasonable doubt.
Evidence establishing the appellant's role
[76] See the discussion in TH v The Queen [2019] NSWCCA 184 [22] - [23] Davies J (Leeming JA and Hidden AJ agreeing) as to the two approaches. See also AB v R [2014] NSWCCA 339 [60].
[77] Hordern v The Queen [2019] NSWCCA 138 [5] - [20].
[78] Clarke v The Queen [2015] NSWCCA 232; (2015) 254 A Crim R 150 [32] - [33], [133].
[79] House v The King (1936) 55 CLR 499, 505.
The most significant evidence is the chain of messages between the appellant's Samsung phone and Mr Yong's iPhone 6, which were accessed by police from the latter mobile phone. The messages from the number associated with the appellant's phone show him issuing various instructions to Mr Yong (it may be inferred) in relation to the packaging of the methamphetamine in the Magic Seal bags. Those instructions include, but are not limited to, the instruction to 'clean up the factory' issued on 4 May 2016. These messages give rise to an inference, which is the only reasonable inference, that the appellant was in a superior position in the organisation to Mr Yong (who himself had a supervisory role). They are not consistent with the appellant being in the subordinate role of driver and translator for Mr Yong.
The appellant in effect indicated that the Samsung phone was his during the video-recorded execution of the search warrant on his residence, giving police the unlock pattern and explaining how he used the phone to communicate. In his recorded interview on 20 May 2016 he indicated that no one else used that phone. It can readily be inferred that the messages from the appellant's phone were sent by the appellant. The appellant's answers to police exclude the inference that the incriminating data on the appellant's Samsung phone resulted from some other person using that phone.
It is also significant that messages on the appellant's Samsung and Motorola phones referred, in a coded manner, to 52 packages of methamphetamine for A3 and 47 packages for B3. The packages located by police were labelled with designations, it being readily inferred that the references to A3 and B3 were to the intended recipient of the methamphetamine. The fact that the appellant was aware of the designations and amounts proposed for these persons, and the Wilbinga Grove rest stop, on 26 February 2016 shows an advance awareness of the planning of the operation.
The appellant's submission in this court that he was merely a driver is inconsistent with what he told police. He said that it was Mr Yong who drove him to the Wilbinga Grove rest stop on 1 May 2016, rather than the other way around. He denied being employed to drive at this time, and said that he drove Mr Yong's car back to Perth as a favour to a friend. While the trial judge ultimately found that the appellant was the driver in both directions, it may be noted that the appellant's position on appeal that he drove to Wilbinga Grove is inconsistent with his case at trial that he was a passenger.
Other evidence of the appellant's activities does not suggest he was acting merely as a driver or interpreter. His presence with Mr Yong when he bought the Magic Seal bags and leased the Gerard Street property was not for the purposes of interpreting. The discussion with Mr Lim, who sold Mr Yong the Magic Seal bags, was in Mandarin. The appellant spoke Cantonese, and told police that he spoke only a little (contextually Mandarin) Chinese and English. The owner of the Gerard Street property spoke directly with Mr Yong. Mr Yong had his own car and did not require a driver. The photographs of the appellant at Carousel Shopping Centre on 15 May 2016 show him sitting in the passenger seat, rather than the driver's seat.
The evidence summarised above indicated that the appellant was the first of the offenders to arrive in Australia in October 2015. He was present when the Magic Seal bags used to package the methamphetamine into 1 kg lots were purchased. He was present when the Gerard Street property, which was used to store the bulk of the methamphetamine, was leased. Data from the Navman in the appellant's car and the appellant's Samsung phone strongly suggested that he had been at the Parsons Street property where the rest of the drugs were stored. The data also suggested that he had been involved in scouting the area around Indian Ocean Drive and Wilbinga Grove. He leased the Mallard Way property for the purposes of the operation. He was in regular phone contact with Mr Tan, who appeared to be the main supervisor of the land based operations. It is clear that the appellant's involvement in the operation was not simply that of a driver and interpreter for Mr Yong.
The appellant's assertion in this appeal that he was collecting a debt from Mr Ching and Mr Chong at Carousel Shopping Centre on 15 May 2016 is inconsistent with what he told police (that he had arranged to borrow $300 from them).
The appellant points to the fact that the 'direction' of the WhatsApp voice messages accessible from his Samsung phone (as being made from or to that phone) was not ascertainable. However, those messages, summarised at [39] above, mainly involve complaints about accounting requirements of and payments from the 'company'. Significantly, the sender and receiver of the messages between the appellant and Mr Yong on Mr Yong's iPhone 6 were indicated in the downloaded data.
The absence of fingerprint or DNA evidence linking the appellant with the drugs, while relevant, is not inconsistent with him having a supervisory role in the operation.
Disposition
Taken as a whole, the evidence admissible against the appellant comfortably supported the trial judge's conclusion that the appellant played a supervisory role in the importation operation. It was well open to the trial judge to be satisfied, beyond reasonable doubt, that the appellant was more than a mere driver/translator and had the supervisory role described above. We reach the same conclusion having reviewed the evidence before the trial judge.
We recognise that the trial judge and the appellant's trial counsel had a significant advantage over this court in seeing and hearing the evidence as it was given over the course of a long trial. The conclusion that we reach on a review of the evidence is reinforced by the fact that the trial judge reached the same conclusion and that the appellant's trial counsel accepted that the conclusion was open in sentencing submissions.
For the above reasons, ground 3 has not been established.
Ground 2: parity
The issue of parity is considered in Tang. For the reasons explained in that decision, the trial judge appropriately accounted for the differences in the criminality of the respective offenders in the different sentences he imposed. Given the factual findings as to the appellant's role in the offending which have not been successfully challenged, the differences or lack of difference between the sentences imposed on the appellant and his co-offenders do not give rise to any objectively justifiable sense of grievance. Ground 2 is not established.
Ground 1: manifest excess
The considerations relevant to assessing whether the appellant's sentence is manifestly excessive are addressed in Tang. Although the appellant was charged as an aider rather than a principal offender, the maximum penalty is the same as for the importation offence of which other offenders were convicted. As explained above, the appellant's role in the operation was no less than any of the other convicted offenders. The appellant knowingly played a supervisory role in a very sophisticated criminal enterprise involving the importation of a very large quantity of border controlled drugs into Australia. He travelled to Australia for the sole purpose of participating in the criminal enterprise, and spent over 6 months in the country working towards that purpose. He was involved in the packaging and proposed distribution of the drugs. He was motivated by commercial gain and, apart from the lack of prior criminal convictions, had no significant mitigating factors operating in his favour. Having regard to the maximum penalty and the customary sentencing standards referred to in Tang, to all relevant sentencing principles and considerations (including the trial judge's findings of fact and such of the matters set out in s 16A(2) of the Crimes Act 1914 (Cth) as were relevant and known to the court) and to all of the circumstances of the case, we are satisfied that the sentence imposed on the appellant is not unreasonable or plainly unjust.
Ground 4: alleged misleading conduct of the prosecutor
Ground 4 alleged that the prosecutor misled the jury. That bare assertion does not provide any arguable basis for interfering with the sentence imposed on the appellant. Misleading conduct by the prosecutor, if established, would at best be relevant to an appeal against conviction, with which this court is not presently concerned.
Orders
As the appellant's notice of appeal was not lodged until 19 August 2019, he requires an extension of time in which to appeal. He deposes that he wanted to appeal after he was sentenced, and sought legal aid. He was assigned a solicitor who in effect indicated he had no grounds on which to appeal. After failing in an application before a legal aid review committee, he subsequently reviewed his own case. The appellant refers to the difficulty in doing so, given the large volume of material and his limited English.
Given that the appeal raises an arguable (albeit ultimately unsuccessful) ground as to manifest excess, and the difficulties faced by the appellant representing himself in a foreign country, we would grant an extension of time. We would also grant leave to appeal on ground 1 (but not on grounds 2, 3 and 4 which, in our view, had no reasonable prospect of succeeding). However, the appeal should be dismissed.
Therefore, we would make the following orders in the appeal:
(1)The time for the appellant to commence the appeal is extended to 19 August 2019.
(2)Leave to appeal is granted on ground 1 (as identified in [70] of these reasons).
(3)Leave to appeal is refused on grounds 2, 3 and 4 (as identified in [70] of these reasons).
(4)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell24 NOVEMBER 2020
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