Yeoh v The King
[2025] VSCA 86
•28 April 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0173 |
| YAP YEOH | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGE: | TAYLOR JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 28 April 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 86 |
| JUDGMENT APPEALED FROM: | [2024] VCC 1323 (Judge Harper) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – Proceeds of crime and drug offences – Applicant has paranoid schizophrenia – Whether judge erred on factual basis that applicant did not have schizophrenia at time of offending – Whether application of general deterrence should be moderated due to applicant’s schizophrenia – Whether sentence manifestly excessive – Leave to appeal granted.
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| Counsel on the papers | |||
| Applicant: | Ms M Brown | ||
| Respondent: | Ms K Breckweg with Ms E Addams | ||
Solicitors | |||
| Applicant: | Stephen Andrianakis and Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TAYLOR JA:
Introduction and overview
On 22 July 2024 the applicant pleaded guilty in the County Court to three indictable charges, namely dealing with money reasonably believed to be proceeds of indictable crime worth $100,000 or more, attempting to possess a commercial quantity of a border controlled drug and trafficking a controlled drug. He also pleaded guilty to the summary offence of bringing a prohibited weapon into Victoria without an exemption.
Following a plea on 12 August 2023 the applicant was sentenced on 23 August 2024 as follows.
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Dealing with money reasonably believed to be proceeds of indictable crime worth $100,000 or more[1] | 1,200 penalty units and/or 20 years’ imprisonment | 3 years | Base |
| 3 | Attempting to possess a commercial quantity of an unlawfully imported border-controlled drug[2] | 7,500 penalty units and/or life imprisonment | 6 years | 4 years 6 months |
| 4 | Trafficking a controlled drug[3] | 2,000 penalty units and/or 10 years’ imprisonment | 18 months | 12 months |
| Related Summary Offences | ||||
| Bring into Victoria a prohibited weapon without an exemption under section 8B or an approval under section 8C of the Control of Weapons Act 1990[4] | 240 penalty units or 2 years’ imprisonment | 9 months | Nil | |
| Total Effective Sentence (State): | 9 months | |||
| Total Effective Sentence (Cth): | 8 years 6 months | |||
| Total Effective Sentence (State & Cth): Non-Parole Period: | 8 years 6 months 5 years 6 months | |||
| Pre-sentence Detention Declared: | 0 days | |||
| Section 6AAA Statement: | Total Effective Sentence 11 years Non-Parole Period 8 years | |||
[1]Contrary to s 400.4(1) of the Criminal Code Act 1995 (Cth).
[2]Contrary to ss 307.5(1), 11.1 of the Criminal Code Act 1995 (Cth).
[3]Contrary to s 302.4(1) of the Criminal Code Act 1995 (Cth).
[4]Contrary to s 5 of the Control of Weapons Act 1990.
The applicant now seeks leave to appeal against his sentence on the following proposed grounds.
(1)The total effective sentence and non-parole period are manifestly excessive.
(2)The learned sentencing judge erred in proceeding on the basis the applicant did not have schizophrenia at the time of the offending.
For the reasons that follow the application for leave to appeal against sentence should be granted.
Circumstances of offending
Charge 1 – Dealing with proceeds of indictable crime
Between 1 September and 24 November 2021 the applicant dealt with $153,285 believing it to be the proceeds of indictable crime. This encompassed:
(a)$15,000 deposited over five transactions into two bank accounts held in the names of individuals other than himself between 1 September and 15 October 2021.
(b)$10,000 deposited over five transactions into the applicant’s company account on 16 November 2021.
(c)$49,860 transferred from the applicant’s company account into a Chinese bank account on 24 November 2021.
(d)$4,000 transferred from the applicant’s company account into the applicant’s wife’s account on 24 November 2021.
(e)$78,425 cash found at the applicant’s residence on 23 November 2021.
Charge 3 – Attempting to possess a commercial quantity of a border controlled drug
Between 16 and 17 September 2021 the applicant attempted to possess a consignment of 1,527.3g of heroin (‘Consignment 1’). Consignment 1 was sent from Thailand to an address in Hawthorn, Victoria. This address was a mailbox rented through ‘G’Day Mailbox’ to customer ‘Yushi Wu’.
The applicant instructed another person, Xuetao Ji, to collect Consignment 1 and deliver it to an address in Tarneit in exchange for $80. The applicant took photos of Mr Ji from across the street when he (unsuccessfully) attempted to collect the package.
Between 29 September and 2 December 2021 the applicant attempt to possess a consignment of 4,784.9g of methylamphetamine (‘Consignment 2’). Consignment 2 was sent from Laos to a mailbox rented in Camberwell through ‘Anytime Mailbox’. This mailbox service was paid for with a credit card in the name of ‘Tony Zdravevski’ and connected to a phone number falsely subscribed in the name ‘Shuyun Wang’ and an address in Craigieburn. This address was the former home address of the applicant.
The applicant took steps to facilitate collection of Consignment 2 including verifying the account holder’s identity with a NSW Driver’s Licence and internet bill and providing a Company Registration Certificate for ‘Aurorae International Pty Ltd’ to allow a company representative to access the mailbox. The Australian Border Force intercepted Consignment 2.
Charge 4 – Trafficking a controlled drug
On 23 November 2021 143.6g of methylamphetamine packaged in seven zip lock bags was located by police in the applicant’s car. The applicant’s fingerprints were found on the zip-lock bags containing the methylamphetamine and two of the shopping bags in which they were located.
Police also located bank documents, scales, cash counting machines and a ledger with notations of ‘still owing’ and ‘paid’ beside a list of figures in the applicant’s home.
Summary Charge – Bringing a prohibited weapon into Victoria
During the search police further located a gel blaster imitation firearm which the applicant had received from Queensland on 19 September 2021.
Reports of Dr Alan Jager
Given the prominence of the applicant’s mental health in this application it is convenient to summarise the reports of Dr Alan Jager, forensic psychiatrist, tendered on the plea.
In his first report dated 18 August 2023 Dr Jager chronicled the applicant’s documented past psychiatric history (some of which is contradictory as to cause and diagnosis) as well as the applicant’s self-report of self-harming aged 15 years and experiencing hallucinations in 2022. On assessment the applicant told Dr Jager he could not remember the circumstances of him being charged and that he had been working and doing his job as a delivery driver well at the time of the offences. Dr Jager said that at the assessment the applicant did not describe any current fixed false beliefs or abnormal sensory perceptions. The applicant said he believed he had schizophrenia. Dr Jager summarised the situation as follows.
The accused developed a florid psychosis in February 2022, initially thought to be a consequence of taking herbal medication but treated, nevertheless, with atypical antipsychotic medication. Psychotic symptoms have persisted throughout, in the reported absence of any illicit substance use.
On the basis of the longevity and nature of the psychotic symptoms, he has Chronic Paranoid Schizophrenia.
He has reportedly experienced sporadic, isolated psychotic symptoms in his mid-teens. Importantly, his wife reported that he also experienced psychotic symptoms in June to July 2021. Is likely, therefore, that in the months leading up to February 2022 he was experiencing the so-called ‘prodromal’ phase of schizophrenia.
In answer to a specific question asked by the applicant’s solicitors, Dr Jager said that while the applicant did not have schizophrenia at the time of the offending, it was likely that he was developing that condition. Dr Jager continued that it was likely that the applicant’s mental functioning was deteriorating during that ‘so-called prodromal period’ making it possible that the applicant’s judgment was impaired. Dr Jager said that during the prodrome phase individuals have a general feeling that things are ‘not quite right’. Dr Jager said that he would require more collateral history to ascertain the level of impairment. Dr Jager noted that the applicant working and doing his job well at that time countered the conclusion of possible impairment to judgement. Again Dr Jager said that collateral history from the applicant’s employer would be helpful to determine how the applicant was functioning and to what degree his judgment was impaired, if at all.
Dr Jager said that he did not identify any causative link between the applicant’s schizophrenia and this offending and the illness did not render him any more or less likely to reoffend.
Dr Jager also said that the applicant has a negative response to stress. His schizophrenia was also likely to make his time in custody more onerous than that of a prisoner without that condition.
In a second report dated 21 May 2024 Dr Jager detailed the contents of interviews he had conducted with two women who knew the applicant prior to and during the offending. Dr Jager noted the information provided by them to be internally consistent. Combining that information with that already known, Dr Jager said
… it is likely that the plaintiff (sic) has experienced auditory hallucinations for several years, probably since the age of 14. If one can accept the history that he was not exposed to illicit drug use at 14, then the auditory hallucinations were the consequence of an intrinsic psychotic illness.
…
The persistence of the plaintiff’s (sic) psychotic symptoms, in the reported absence of any illicit substance use is further evidence that he has an intrinsic mental illness and that mental illness is likely to be Chronic Paranoid Schizophrenia.
I now consider it more likely than not that he was already suffering from Schizophrenia when he arrived in Australia in 2016. Prior to the commission of the offences he had not been treated for the condition and his patchy occupational history since arriving in Australia is consistent with the notion that he was not psychiatrically well.
Overall, therefore, I consider it more likely than not that the plaintiff (sic) was experiencing Schizophrenia for several years prior to the commission of the offences and that his judgment was adversely affected by that condition.
The accused’s failure to remember the particular circumstances of the offences does not enable any more significant connection to be made between the plaintiff’s (sic) Schizophrenia and the commission of the offences. In that regard, I do not consider that a defence of mental impairment is available to your client.
I maintain my opinion that his psychotic illness, of Chronic Paranoid Schizophrenia will make any time spent in custody more onerous that (sic) it would be for a member of the general population.
The plea hearing
At the plea hearing counsel for the applicant accepted the inevitability that he would be imprisoned but argued that there were a number of features relevant to the length of sentence that should be imposed.
The first was his diagnosis of paranoid schizophrenia. After making submissions as to the relevance of limb 5 of Verdins[5] counsel argued that limb 3 was also applicable. Counsel said that the applicant was not an appropriate vehicle for general deterrence, arguing
That is not to say that general deterrence does not play a role, clearly it does, and again the authorities are very consistent in that it is a paramount sentencing consideration for offences [of this type]. In the case of [the applicant] the weight that attaches to general deterrence should be sensibly moderated to recognise the fact that he does not fall to be sentenced as a person with good health in that respect.
[5]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
In making that submission counsel accepted that there was no evidence of a causative link between the condition and the offending and acknowledged that the offending behaviour itself would be inconsistent with any such argument.
The judge observed that it was ‘quite advanced offending’ given the applicant’s schizophrenia in that it demonstrated commitment and foresight. Counsel again said it was very unusual but the schizophrenia and the deliberate, rational thinking involved in the offending were not mutually exclusive.
After the reports of Dr Jager had been tendered counsel submitted that their effect was that the applicant was experiencing schizophrenia prior to his arrival in Australia in 2016.
Counsel also made submissions as to the value of the applicant’s plea of guilty, his prior good character, his prospects for rehabilitation and the extra-curial punishment arising from his likely deportation at the expiry of his sentence.
The prosecutor accepted that limb 5 of Verdins applied and articulated her understanding that limb 6 was not relied upon. The prosecutor observed that, as a matter of common sense, it was probable that it would be more difficult to manage a serious conditions such as schizophrenia in custody but there was no evidence of it not being able to be managed appropriately. The prosecutor continued
Similar considerations are relevant to the weight Your Honour would give limb 3 to the extent that you find that it applies and also in considering that limb, Your Honour will have to consider the serious nature of the offences to which [the applicant] has pleaded guilty.
Counsel for the applicant was then permitted to make further submissions. She said
… I don’t understand that the learned prosecutor and I are necessarily at odds on this, that’s really about the application of the third limb of Verdins. Deterrence is punishing an offender to deter others from yielding to the same impulses. To say that an offender is not a suitable vehicle for deterrence does not, for example, displace denunciation, which is a more symbolic communication of the condemnation of the wrong that’s been committed. So, Your Honour could, in this particular sentencing synthesis, accept that [the applicant] is not an appropriate vehicle for general deterrence. That finding is not tantamount to a finding that denunciation also has no role to play or has limited role to play, and a finding that he’s not a vehicle, a suitable vehicle for general deterrence does not mean that the disposition itself changes. It’s about the length of the term.
Sentencing Reasons[6]
[6]DPP v Yeoh & Tan [2024] VCC.
The judge commenced her sentencing reasons by noting the applicable maximum penalties. The offending was then summarised. Next the judge addressed the objective gravity of the charges.
The judge noted that both charges 1 and 2 were rolled up charges. As to charge 1, the judge said that the applicant was to be sentenced on the most objectively serious fault element, namely that he believed the money he dealt with to be the proceeds of crime. The applicant was more senior in the chain of command than his co-accused and about $150,000 was dealt with over a protracted period. The judge termed the offending relevant to charge 1 a mid-level example of the offence. As to charge 3 the judge said that the applicant was involved at a high level. He distanced himself from the attempted collection of the consignments through the use of false documentation. The amount of drugs involved was significant, being over 1.5 kg of heroin and over 4.7 kg of methylamphetamine. As to charge 4, the applicant clearly intended to sell the drugs for profit.
The judge described the applicant’s guilty plea as entered at an early stage in proceedings which would otherwise have involved a lengthy and complex trial. He was thereby entitled to a benefit for the utilitarian value of his plea. The judge also accepted that the plea demonstrated an acceptance of responsibility for his offending and a level of remorse. The judge added that the applicant had little insight into his offending, a situation ‘perhaps explicable’ by his psychiatric condition.[7]
[7]Reasons, [35].
Next the judge summarised the applicant’s personal circumstances as follows. The applicant was 29 years of age at the time of sentencing. He was born in Malaysia and is the eldest of three children. His parents separated when the applicant was 12 years of age. His father has three younger children. The applicant left school at the age of 15. He worked as a hairdresser, attended technical school to study graphic design and then worked as a mechanic. At the age of 21 the applicant came to Australia with his mother for her work. He remained when she returned home. The applicant had a number of jobs, the most recent of which was as a delivery driver. The applicant married in Australia after meeting his wife in 2019. The relationship deteriorated upon the applicant’s offending. He last saw her in 2022.
The judge said that the applicant had neither alcohol or drug addictions but complex mental health and a diagnosis of chronic paranoid schizophrenia. The judge detailed the applicant’s psychiatric history and referred to his assessment by Dr Jager and the two reports authored by him tendered on the plea. Of Dr Jager the judge said
He opines that you were developing, but did not have, schizophrenia at the time of the offending. This fits with the deliberate, persistent and fairly sophisticated nature of the offences and the subsequent decline in your mental health.[8]
[8]Reasons, [48].
Turning to other sentencing factors, the judge said that general deterrence was the paramount sentencing consideration with respect to both proceeds of crime and drug trafficking offences. The need for specific deterrence was relevant but tempered by the applicant’s lack of criminal history and his good prospects for rehabilitation. The judge recorded that Dr Jager found no causative link between the applicant’s psychiatric condition and his offending, but did find that the applicant had a negative response to stress and his schizophrenia would make his time in custody more onerous than it would be for someone without that condition. The judge accepted that evidence vis-à-vis Verdins Limb 5. The judge further found Limb 6 to be applicable as the applicant’s negative response to stress made it possible that his condition would worsen in custody.
The judge accepted that there had been a significant delay in the matter. The matter had been hanging over the applicant’s head for nearly three years. He had used that time to demonstrate a substantial period without offending. The judge also considered the prospect of deportation as relevant to the sentencing exercise.
Finally the judge recorded that she had considered issues of totality, current sentencing practice and parsimony.
Applicant’s contentions
Ground 1
The applicant acknowledges that his offending was objectively very serious, a prison term with a head sentence and non-parole period was the only appropriate sentencing disposition and that subjective matters are not the only important considerations in sentencing for Commonwealth drug matters. He contends nonetheless that the sentences imposed failed to reflect the subjective matters on which he was able to rely.
With respect to his mental health, it is argued that the evidence was that it was likely that he experienced chronic paranoid schizophrenia before his arrival in Australia in 2016 and that his judgment was adversely affected by his condition at the time of the offending. It is submitted that at the plea hearing limbs 3, 5 and 6 of Verdins were relied upon and it was argued that the applicant’s condition was an unusual feature for the type of offending for which he fell to be sentenced. While the judge accepted that limbs 5 and 6 were engaged, she made no reference to the moderation of general deterrence due to the applicant’s mental health.
Additionally it is argued that the judge gave insufficient weight to the issue of delay, the value of the applicant’s plea of guilty, the prospect of his deportation and his good character.
Ground 2
It is contended that the judge’s reference to Dr Jager’s opinion from his first report that the applicant was developing but did not have schizophrenia at the time of the offending ignored the effect of his opinions in the second report, in particular:
(a)That it was more likely than not that he had suffered from schizophrenia when he arrived in Australia in 2016.
(b)Prior to the offending the applicant had not been treated for that condition.
(c)That it was more likely than not that the applicant had experienced schizophrenia for several years prior to his offending and that his judgment was adversely affected by that condition.
The applicant submits that before the judge it was argued that the application of general deterrence should, in those circumstances, be sensibly moderated. The prosecution position was not that limb 3 of Verdins was not engaged. Rather, it was submitted that the issue was one of weight.
It is argued that the judge did not indicate whether she accepted the opinions expressed in Dr Jager’s second report, nor how she dealt with limb 3 of Verdins. It is submitted that the misapprehension of the judge as to the likelihood of the applicant having schizophrenia at the time of offending along with its likely effect on the applicant’s judgment has arguably led to the imposition of a lengthier sentence on him.
Respondent’s contentions
Ground 1
By reference to authority the respondent delineates the principles relevant to sentencing an offender for Commonwealth drug and money laundering offences. Against those principles the respondent submits that the sentences imposed are not manifestly excessive when considered against the relevant maximum penalties and the nature of the applicant’s offending.
It is argued that the sentences imposed by the judge adequately synthesised the objective seriousness and the mitigating factors accepted by her, namely his plea of guilty, delay, the likelihood of deportation, his prior good character and his mental health.
As to the latter it is argued that the judge paid considerable attention to the applicant’s complex mental health presentation. The judge accepted Dr Jager’s opinion and gave weight to limbs 5 and 6 of Verdins. It is submitted that whether an offender is an appropriate vehicle for general deterrence depends upon the nature and severity of the symptoms and the effect of the mental impairment upon his or her mental capacity, either at the time of the offending or at the date of the sentence or both. The respondent argues that it was open to the judge to not moderate general deterrence on the basis of the applicant’s mental health. Three reasons are advanced.
First, in his original report Dr Jager said that the applicant did not have schizophrenia at the time of offending. Dr Jager’s opinion in his second report that the applicant was experiencing schizophrenia for several years prior to the offending and that his judgment was adversely affected says nothing as to whether the applicant’s judgment was actually impaired at the time of the offending and, if so, how it was impaired and whether it contributed to the offending. It is suggested that Dr Jager’s ‘central conclusion’ in his second report was that the applicant did not have a defence of mental impairment available because his failure to remember the circumstances of the offending did not enable Dr Jager to make any more significant connection between the applicant’s schizophrenia and the commission of the offences.
Second, the nature of the offending itself does not readily allow a finding that the applicant’s judgment was impaired at the time. It was deliberate, persistent and sophisticated. It spanned some three months.
Third, the applicant accepted before the judge that there was no link between his schizophrenia and the offending that meant that it was that condition which impacted his decisions to engage in the offending. Other evidence before the judge showed that in 2024 the applicant’s mental health was stable.
Finally with respect to ground 1 the respondent pointed to a series of cases said to be comparable to support the submission that the total effective sentence of eight and a half years with a non-parole period of five and a half years was not only within the appropriate range but very lenient.
Ground 2
It is submitted that in his second report Dr Jager did not resile from the opinion expressed in first report that the applicant was developing schizophrenia at the time of the offending. It is argued that at no time did Dr Jager give anything more than a general view that the applicant’s judgment was adversely affected at the relevant time. It was not possible for Dr Jager to do so in circumstances where the applicant could not remember the offending but said he was working and doing well in his job.
In these circumstances it is argued that the diagnostic label of schizophrenia alone did not assist the judge, particularly as the applicant’s counsel accepted that there was no link between the condition and the offending.
In any event the judge did have regard to the applicant’s mental health as a factor in her sentencing discretion.
Consideration
It is convenient to consider the proposed grounds of appeal together. Ground 2 concerns the manner in which the judge regarded the evidence of Dr Jager and the submissions of counsel as to the effect of that evidence. Those issues are also central to Ground 1.
To succeed on this application the applicant does not need to establish that either or both grounds will succeed, only that it is reasonably arguable that that is so. In my view he has done so.
There is force in the respondent’s arguments as to the lack of detail in the opinion of Dr Jager as to whether, and if so, how, the applicant’s impaired judgement consequent upon his schizophrenia impacted upon the actual offending. And, at the plea hearing the applicant’s counsel accepted that ‘there [was] no link between the condition and the offending that meant that it was the condition which really impacted his decisions to engage in the offending’. Nonetheless, a submission was made that the applicant’s condition of schizophrenia should operate to moderate general deterrence. That submission was not opposed by the prosecutor who submitted only that the weight of any moderation had to be considered in the context of the seriousness of the offences to which the applicant had pleaded guilty.
In her Reasons the judge noted both reports by Dr Jager but referred only to the opinion expressed in the first. Notwithstanding some deficiencies in the material, the impact of the second report on the opinion first expressed was not insubstantial. Dr Jager’s opinion had changed from it being likely that at the time of the offending the applicant was developing schizophrenia to it being likely that he had schizophrenia (and that that condition had been present for some time).
Immediately following the reference to the unmodified opinion in first report, the judge said that general deterrence was the paramount sentencing consideration. Neither then nor later did the judge address the issue raised on the plea with respect to whether the application of general deterrence should be moderated, leaving denunciation to do more of the work. Where the judge expressly referred to limbs 5 and 6 of Verdins it is reasonably arguable that the omission to make express reference to limb 3 is explicable because the judge did not consider whether general deterrence should be moderated because of the impact of the applicant’s schizophrenia. That is, the judge did not consider Dr Jager’s revised opinion that it was likely that the applicant had schizophrenia and resultant impaired judgment at the time of offending. The Reasons also do not disclose any consideration of whether the applicant’s condition rendered him an inappropriate vehicle for general deterrence as at the time of sentence.
In turn it is reasonably arguable that such omission, in combination with the other subjective matters relied upon by the applicant, may have resulted in a lengthier sentence than would otherwise have been the case. That is so notwithstanding the objective seriousness of his offending. In this regard, the comparative cases relied upon by the respondent do not discuss an offender with the complex mental health issues of the applicant.
In short, in all the circumstances, the absence of any consideration by the judge as to whether or not the applicant’s schizophrenia at the time of the offending was of significance to the weight of general deterrence in the sentencing exercise invites scrutiny.
Conclusion
Leave to appeal against sentence will be granted.
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