Citation: Regina (Cth) v Chea Siang Lim; Regina (Cth) v Wai Hong Tee [2018] NSWDC 44
Court: District Court of New South Wales
Date: 12 February 2018
Judge: Judge AC Scotting
Background
Two Malaysian nationals, aged 24 and 25 at the time of the offence, pleaded guilty to possessing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth). Both had entered Australia on tourist visas and were living together in Sydney's south-west at the time of their arrest.
On 23 December 2016, Australian Federal Police intercepted multiple telephone calls between the two men as they drove in convoy through Riverwood. The calls revealed coordinated planning to collect and distribute drug packages. Police stopped both vehicles in a shopping centre car park and found six Kennards storage boxes, three in each boot, containing methamphetamine with a total pure weight of 102.66 kilograms and an estimated street value of approximately $88.5 million.
The men had collected the drugs from a contact known as "Adidas" at an underground car park in Campsie, where the boxes were transferred from a BMW. Both offenders admitted knowledge that the packages contained illegal drugs. Neither had a prior criminal record in Australia. Each cited financial pressures, including gambling debts and family obligations in Malaysia, as motivating factors.
Legal Issues
- What was the appropriate head sentence and non-parole period for possessing 102.66 kilograms pure of methamphetamine, an offence carrying a maximum of life imprisonment?
- How should the court assess the objective seriousness of the offending and balance it against each offender's subjective circumstances?
- Whether the parity principle required equal sentences given that the offenders had different roles and different reasons for participating in the offence.
- What weight should be given to mitigating factors including guilty pleas, remorse, absence of prior convictions, and personal hardship?
Decision
Judge Scotting treated the offending as objectively serious, given the enormous quantity of drugs involved, the coordinated planning evident from the intercepted calls, and the commercial scale of the operation. The estimated street value of nearly $88.5 million underscored the potential for significant harm to the community. General deterrence was identified as a significant sentencing consideration, with specific deterrence playing a lesser but still relevant role.
On the parity question, the court acknowledged differences between the two men. Lim had come to Australia specifically for the purpose of conducting illegal activities, while Tee had arrived as a fruit picker and was later recruited. Tee also expected a higher payment ($5,000) compared to Lim ($200 per package), which could suggest a more significant role. The court concluded these differences effectively cancelled each other out and that equal sentences were appropriate.
Both offenders received credit for their early guilty pleas, their cooperation with police, their remorse, their lack of Australian criminal history, and the hardship of serving a sentence far from family in a foreign country. The court accepted the pre-sentence reports' characterisation of both men as low to medium-low risk of reoffending. However, the court made clear that the gravity of the offence and the imperative of general deterrence necessarily made subjective factors subsidiary considerations.
Full-time imprisonment was the only sentence the court considered appropriate. The court applied the totality principle and fixed identical sentences for both men.
Orders Made
- Both offenders convicted of possessing a commercial quantity of a border controlled drug contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth).
- Each sentenced to 13 years and 6 months imprisonment, commencing 23 December 2016 and expiring 22 June 2030.
- Non-parole period of 9 years fixed for each, commencing 23 December 2016 and expiring 22 December 2025.
- Each offender eligible for release on parole on 22 December 2025, with any release subject to the Attorney-General's determination and applicable conditions.
Key Takeaways
- Possessing over 100 kilograms pure of methamphetamine with an estimated street value of $88.5 million placed the offending at a high level of objective seriousness, even where the offenders were couriers rather than organisers of a drug importation network.
- The parity principle does not automatically require different sentences where offenders have different roles; where countervailing factors on each side are roughly equivalent in weight, equal sentences may be appropriate.
- General deterrence carries substantial weight in Commonwealth drug offences of this magnitude, and the District Court confirmed that subjective mitigating factors, while relevant, are necessarily secondary to that imperative.
- Factors such as financial hardship, family obligations, and gambling debts were considered in context but did not substantially reduce the sentences, given the deliberate and planned nature of the offending.
- Serving a lengthy sentence in a foreign country, away from family, was acknowledged as a form of additional hardship relevant to the sentencing exercise, though it did not alter the fundamental outcome.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth) s 307.5(1)
- Crimes Act 1914 (Cth) ss 16A, 16A(1), 16A(2), 17
Cases
- Cameron v The Queen (2002) 209 CLR 339
- Johnson v The Queen (2004) 78 ALJR 616
- R v El Karhani (1990) 21 NSWLR 370
- Xiaou v R [2018] NSWCCA