AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 2 September 2021

R v Min Yok CHEAW

[2021] NSWDC 599

Drugs
IMPRISONMENT

Citation: R v Min Yok CHEAW [2021] NSWDC 599
Court: District Court of NSW
Date: 2 September 2021
Judge: Noman SC DCJ

Background

The offender, a Malaysian national, was found guilty by jury of attempting to import a commercial quantity of a border controlled precursor, namely ephedrine, contrary to the Criminal Code Act 1995 (Cth). The offence occurred on or about 16 September 2019. The quantity involved was 1,025.46 kg of pure ephedrine, with an estimated value of between approximately $25.6 million and $61.5 million, and a theoretical capacity to produce over 900 kg of methylamphetamine base.

The Australian Border Force had intercepted the shipping container prior to delivery and substituted the ephedrine with an inert substance, which is why the charge was framed as an attempt rather than a completed importation. The offender had been flown from Malaysia to Sydney, with his flights and accommodation paid for by others. He maintained throughout the trial that he believed he had been recruited merely to unpack furniture from a shipping container.

At sentencing, the offender's role was assessed alongside that of a co-offender (Chong), who had already been sentenced. Both were present at the warehouse on 16 September 2019 when the container was delivered and when boxes containing the substituted substance were handled and opened.

  • What was the offender's level of culpability and role in the attempted importation?
  • What weight should be given to the offender's cooperation via agreed facts, given he did not plead guilty and denied involvement at trial?
  • How did relevant subjective factors, including personal circumstances, health, character, and likely deportation, bear on the sentence?
  • How should the sentence be structured in relation to the co-offender's sentence, particularly regarding the ratio of non-parole period to head sentence?

Decision

The District Court was satisfied beyond reasonable doubt that the offender's role went beyond mere presence. He was found to have been actively involved in unloading boxes from the container, handling samples extracted from two opened boxes, and moving boxes back toward the container with the co-offender. The court accepted the inference that encrypted messaging and a message-deletion timer were used to conceal communications, and that the offender's family communications reflected awareness that his activities were not straightforward.

Although the offender did not plead guilty and denied all knowledge, he had signed agreed facts that reduced the length of the trial. The court recognised this as a modest facilitation of justice, warranting some reduction in sentence, even in the absence of remorse.

The court acknowledged several subjective matters in the offender's favour, including evidence of long-term good character and a health issue. His situation in custody was noted as more challenging than average: as a Malaysian national with limited English, he was likely to be isolated from much of the prison population, distanced from family, and unlikely to receive visitors. The anticipated deportation upon release was noted but treated as irrelevant to the sentencing exercise.

In calibrating the sentence against that of the co-offender, the court found the roles were not dissimilar in seriousness. However, the offender's lack of remorse weighed against him, while the good character finding and health matters operated in his favour. The court determined a slightly more favourable ratio of non-parole period to head sentence than that applied to the co-offender.

Orders Made

  • The offender was convicted of attempting to import a commercial quantity of a border controlled precursor contrary to ss 307.11(1) and 11.1(1) of the Criminal Code Act 1995 (Cth).
  • Sentence backdated to commence 17 September 2019.
  • Head sentence of 8 years and 6 months imprisonment.
  • Non-parole period of 4 years and 6 months (a ratio of approximately 52%).
  • Parole eligibility date: 16 March 2024.
  • Sentence expiry date: 16 March 2028.

Key Takeaways

  • The District Court confirmed that an offender's cooperation through agreed facts, even without a guilty plea or expression of remorse, can attract a modest sentencing discount where it meaningfully reduces court time and facilitates the administration of justice.

  • Where a precursor substance is substituted by authorities before delivery, the appropriate charge is attempt rather than the completed importation offence, but the sentencing exercise still reflects the full quantity and value of the substance originally contained in the shipment.

  • Absent an admission of guilt, disputed facts at sentence must be proved to the criminal standard (beyond reasonable doubt) if they are adverse to the offender; mitigating matters are assessed on the lower balance of probabilities standard.

  • Sentence structure relative to a co-offender is not mechanically applied: the court adjusted the non-parole ratio to account for differences in subjective circumstances, including good character and health, even where the objective roles were assessed as broadly comparable.

  • Anticipated deportation on release is not a relevant consideration in the sentencing exercise under this approach.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 307.11(1) and 11.1(1) (attempting to import a commercial quantity of a border controlled precursor; maximum penalty 25 years imprisonment)

Cases:
- No cases were cited in the provided judgment text. Reference was made to the remarks on sentence for co-offender Weng Kah Chong (unreported).