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District Court 27 June 2012

R v Boon Piau HONG and Teik Chai LEE

[2012] NSWDC 267

Drugs
CRIMINAL LAW DRUG OFFENCE SERIOUSNESS OF OFFENCE NOT LARGEST AMOUNT IN CASE LAW PURPOSE FACTORS RELEVANT TO BOTH OFFENDERS

Citation: R v Boon Piau Hong and Teik Chai Lee [2012] NSWDC 267
Court: District Court of New South Wales
Date: 27 June 2012
Judge(s): Cogswell SC DCJ

Background

Two Malaysian nationals travelled together to Sydney in April 2011 to facilitate the importation of a large heroin consignment concealed inside furniture shipped from Myanmar. One offender (Hong) was found at the airport carrying five mobile phones and documents relating to the furniture export; the other (Lee) carried business cards for furniture shops and freight companies. Both men had rented an apartment in Blacktown to which part of the furniture consignment was to be delivered.

Australian Federal Police placed both men under surveillance. Intercepted communications revealed them directing the splitting and delivery of the consignment, receiving instructions from a contact in Malaysia, discussing the police surveillance, and arranging to destroy mobile phones. When arrested on 12 May 2011, police found scales, plastic gloves, clip-seal bags, and a drill at their accommodation.

The furniture consignment contained 41.5 kilograms of heroin at just under 60 per cent purity, representing approximately 24.69 kilograms of pure heroin. Both men pleaded guilty to one count each of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, an offence carrying a maximum of life imprisonment under s 307.5(1) of the Criminal Code Act 1995.

  • What was the appropriate sentence for each offender, having regard to the objective seriousness of the offence and their respective roles?
  • Whether the De La Rosa classification framework applied to categorise the offenders' roles and the seriousness of their conduct.
  • Whether either offender had established duress as a mitigating factor.
  • What weight to give to personal circumstances, including remorse, family situation, foreign nationality, gambling problems, mental health diagnosis, and conditions of custody.
  • How to maintain parity between the two sentences given the differences in their roles.

Decision

Objective seriousness and role. Cogswell SC DCJ found both men played a vital role in the importation enterprise. They were responsible for managing the heroin consignment from collection through to transit and onward distribution, though they were not principals: both reported to and took instructions from a contact in Malaysia. The court accepted that no drugs were actually distributed into the community, treating this as a factor reducing the seriousness of the offence relative to cases where distribution occurred. The amount involved, while large, was not the largest seen in the case law.

De La Rosa classification. The court acknowledged the classification framework from Director of Public Prosecutions v De La Rosa, which grouped offenders into categories based on role and seriousness. However, it declined to apply those categories in a way that would characterise the objective seriousness of the offences as low. The court was not persuaded by the defence submission that either offender fell into a lower category justifying a substantially reduced sentence.

Duress rejected. Both offenders raised duress as a mitigating factor: Lee through a forensic psychologist's report indicating he had been pressured by a drug trafficker to repay a debt, and Hong through a clinical psychologist's report linking his gambling debts to his offending. The court rejected both claims on the same basis: the evidence was hearsay, unsworn, and untested by cross-examination, and the onus on the balance of probabilities had not been discharged. The court did, however, accept the expressions of remorse from both men.

Parity and personal circumstances. The court sentenced Hong more heavily than Lee, reflecting his more senior role. Hong had possession of the key documents and the more frequent communications with Malaysia. Each man had no prior criminal record in Australia and both received a discount for their guilty pleas. The court took into account their isolation as foreign nationals in Australian custody, relative youth (31 and 35 respectively), Lee's family circumstances including a daughter with heart and palate conditions, Lee's diagnosis with adjustment disorder and limited English, and Hong's gambling problem. General deterrence was identified as a substantially important sentencing purpose given the nature of the offending.

Orders Made

  • Hong convicted of attempting to possess a commercial quantity of an unlawfully imported border controlled drug and sentenced to 15 years imprisonment, commencing 12 May 2011 and expiring 11 May 2026, with a non-parole period of 10 years expiring 11 May 2021.
  • Lee convicted of the same offence and sentenced to 13 years and 6 months imprisonment, commencing 12 May 2011 and expiring 11 November 2024, with a non-parole period of 9 years expiring 11 May 2020.
  • Both offenders' release on parole subject to the State Parole Authority.

Key Takeaways

  • A claim of duress advanced through psychologist reports based solely on the offender's self-reporting will not satisfy the balance of probabilities standard where the underlying account is hearsay, unsworn, and untested by cross-examination.
  • The District Court applied the De La Rosa categorisation framework but declined to treat intermediate-level couriers managing an entire importation consignment as falling within a low-seriousness category merely because they were not the organising principals.
  • General deterrence carried substantial weight in sentencing for large-scale heroin importation, notwithstanding the absence of actual distribution into the community.
  • Where two offenders participated in the same enterprise, the more senior role (evidenced by document control and frequency of communications with overseas principals) justified a meaningfully higher sentence, maintaining the parity principle by reflecting genuine role differentiation.
  • Foreign nationality, isolation in Australian custody, family hardship, and mental health diagnoses were considered as personal mitigating factors, though none was sufficient to displace the primacy of deterrence in cases of this seriousness.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.5(1) (attempt to possess commercial quantity of border controlled drug, maximum: life imprisonment)
- Criminal Code Act 1995 (Cth), s 307.2(1)

Cases
- Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- R v Nguyen; R v Pham [2010] NSWCCA 238