The Queen v Siew Tong Ku [1998] ACTSC 213 (8 May 1998)

  
  
  
  

  
   

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   HIGGINS J

   Criminal law - Sentence - Possession
of trafficable quantity of heroin and
attempt to obtain possession of commercial quantity of heroin - Appropriate
penalty - Credibility
of offender - Courier - Need for deterrence - Current
sentencing practice - Severe sentence appropriate.

   Customs Act 1901 (Cth), s.233B

   Crimes Act 1914 (Cth), s16G, Part 1AB

   R v Ferrer-Esis (1991) 55 ACrimR 231; considered

   Postiglione v R (1991) 57 ACrimR 301; considered

   Zakaria v R (1992)
62 ACrimR 259; considered

   R v Tee [1994] SASC 4434;  (1993) 71 ACrimR 181; considered

   R v Nghia Huu Le (Supreme Court of the ACT, Gallop J, 30 April 1997,
unreported); considered

   Hoong v R (1994) 75 ACrimR 343; considered

   Wangsaimas & ors v R (1996) 87 ACrimR 149; considered

   R v Lawson &
ors (Court of Criminal Appeal of New South Wales, Hunt CJ
at CL, James and Levine JJ; 12 December 1997, unreported); considered

   Chung Thi Le v R (Federal Court of Australia, Foster, von Doussa, Madgwick
JJ; 24 October 1997, unreported); considered

   R v Suen (1986) 25 ACrimR 393; considered

  

  

   CANBERRA, 15 April 1998 (hearing), 8 May 1998 (decision)

   #DATE 08:05:1998

   Appearances

   Counsel for the Crown: G C Lalor

   Instructing Solicitors: Director of Public Prosecutions (Cth)

   Counsel
for the Prisoner: R Livingston

   Instructing Solicitors: ACT Legal Aid Office

  

  

   Order:

   1. On the first count, posession
of a trafficable quantity of heroin,
namely 15gms, the prisoner is sentenced to 6 years imprisonment.

   2. On the second count,
attempting to possess a commercial quantity of
heroin, namely 1.6259kgms, the prisoner is sentenced to 14 years
imprisonment.

   3. Those sentences are to be served concurrently and are to commence on
11 December 1997.

   4. The non parole period is
fixed at 10 years.

  

  

   HIGGINS J

  

  

   1. On 15 April 1998 the offender, Siew Tong Ku pleaded guilty to two counts
alleging offences against the Customs Act 1901 (Cth) (the Act).

  

   2. The first was possession of not less than a trafficable quantity of a
prohibited import, namely 15gm
of heroin, contrary to s 233B of the Act.

  

   3. The second was attempting to obtain possession of not less than a
commercial
quantity of a prohibited import, namely 1.6259 kg of heroin,
contrary to s 233B of the Act.

  

  "The penalties"

  

  

   4. roin

  

  "The facts"

  

  

   5. her to Mr S T  

  

   6. After Mr Yam's departure, the package
was examined by DHL. It
comprised two separate stacks of 3 books. They were both hollowed out and
filled with packages which
apparently contained heroin. The books were trade
directories.

  

   7. Through the British Embassy, Thai and Australian police
were alerted. It
was decided to take the package to Australia in police custody. It arrived on
9 December 1997.

  

   8. It
was collected and taken to Eastern Region AFP Headquarters. A
controlled operation was authorised by a certificate signed by Acting
Assistant Commissioner Dau pursuant to Part 1AB of the Crimes
Act 1914 (Cth).

  

   9. The heroin was removed and weighed. The total weight was 2.0655kg. 20gm
thereof was removed and repacked with other
material in the package. It was
resecured and taken to Canberra by police to be delivered to the address
stated.

  

   10. cutive
Apartments, Nort

  

   11. He stayed 2 nights, moving out and booking again into Victor Lodge
on 10 December 1997.


 

   12. in B

  

   13. ice.

  

   14. At about 3.00pm on 10 December 1997 the offender had booked a bus
ticket to Melbourne
exchanging a ticket from Canberra to Sydney which he had
obtained in Melbourne before coming to Canberra.

  

   15. Initially,
he denied that the package contained other than
"trade...yellow pages". He also said he was told they were "phone books".

  

 
 16. The package was opened and he was confronted with the packages inside
the hollowed out books.

  

   17. He was asked what
was in those packages. He said "I don't know". Then
he was asked,

  

   "Right, well what do you think that might be?... Heroin

   I beg your pardon?... Heroin.

   Right. Why do you think it might be heroin?... I don't know. Just know it -
that by can say
checking or whatever [sic]".

  

  

   18. That'

  

   19. The offender said the package was to be delivered to some unknown
friend of Somchai (as I shall call him). He had not at the time of his arrest
received instructions concerning where and to whom
he should deliver it.

  

   20.  

  

   21. He was further interviewed with the aid of a Mandarin interpreter at
5.41pm.
That interview concluded at 10.03pm.

  

   22. In that interview, the offender advanced the explanation that he
believed he was
receiving "dama" or "gangia". That is a reference to cannabis.

  

   23. He explained that he had recently been in Thailand, where
he had met
Somchai. He had revealed to Somchai that he was generally unemployed and
needed money to get married to his then girlfriend.

  

   24. Somchai offered to pay him $10,000 (Singapore; roughly 1:1 to the
Australian dollar) to take delivery of a package in
Australia. He did not know
that the package was to contain heroin. He did not give thought to the legal
consequences of his actions
or the risk of detection. He said his actions in
Australia were dictated by step by step instructions from Somchai.

  

   25. The
offender has been in custody since 11 December 1997. The
heroin was found on analysis to be approximately 75% pure, yieding
the
quantities of pure heroin referred to in the indictment.

  

  "The Antecedents of the Offender"

  

  

   26. Information
as to the offender's antecedents are not entirely capable
of objective ascertainment.

  

   27. ion of 0.460gm of

  

   28. A
pre-sentence report was tendered. It was in large measure based upon
the offender's uncorroborated statements. Some information was
obtained from
Singapore from a person believed to be the offender's brother.

  

   29. Much of the history he gave, I accept, was
probably true, or at least,
accurately reflects his perception of that history.

  

   30. He gives his date of birth as 18 April
1967. He was born, the
oldest of 3 children, to Malaysian parents who were permanent residents
but not citizens of Singapore.
He has one brother and one sister. His parents
are now aged and infirm.

  

   31. His brother is the only family member who, it
seems, has substantial
income being an airconditioning contractor.

  

   32. His sister is, he reports, serving a 3 year prison
sentence for
drug related offences. That is the third such sentence she has received.

  

   33. It was confirmed by the brother
that the offender had been engaged to
be married in January 1998. That engagement is now ended because of these
charges.

  

  
34. The offender was educated at school in Singapore until age 15. He then
joined the Army, receiving further education. He was a
member of the Army for
6 years, retiring as a junior Sergeant. He had various casual jobs over
the next 10 years.
   35.
Whilst he received only $5,000SD on leaving the Army, that service did
enable him to become a Singaporean citizen and own a flat
for which he pays a
monthly sum by way of repayment of a loan. He has other debts totalling
$5,000-$6,000SD.

  

   35. Whilst he
received only $5,000SD on leaving the Army, that service did
enable him to become a Singaporean citizen and own a flat for which
he pays a
monthly sum by way of repayment of a loan. He has other debts totalling
$5,000-$6,000SD.

  

  
   36. He does claim that
he used heroin for the first time in 1994, in
Bangkok. He had used it only a few times before being apprehended there. He
used cannabis
only once, in 1994, but it did not agree with him.

  

   36. He does claim that he used heroin for the first time in 1994, in
Bangkok.
He had used it only a few times before being apprehended there. He
used cannabis only once, in 1994, but it did not agree with him.

  

  

  

   37. He has not used heroin, or any other illicit drug since 1994.

  

   38. He also revealed that he had been imprisoned
in Singapore in 1990. It
was for some offence in relation to poker machines but the details are
unclear. It may have involved an
unpaid fine.

  

   39. That was a prior matter not otherwise known to police.

  

   40. The offender has, both in oral evidence
and in writing, expressed
fulsome remorse for his offences.

  

   41. He offers as excuses a lack of firm parental discipline as
a young
person and the fact, he says, that he believed he was assisting in the
importation of cannabis, not heroin. He claims that,
having seen the misery of
heroin addiction, particularly in Thailand, he would not have participated
knowingly in the importation
of heroin.

  

   42. There is no suggestion that the offender agreed to participate in this
enterprise under any compulsion other
than his desire for money.

  

   43. The maximum penalty for importing 2kg or more of cannabis is the same
as for importing 1.5kg
or more of heroin.

  

   44. It may, of course, be argued that cannabis use is not regarded as being
as life-threatening as the
non-controlled and illegal distribution and use of
heroin.

  

   45. It is necessary to consider whether he was deceived as he
claims. It
is, necessarily, a matter of credit. It affects the weight to be given to his
expression of remorse. The offender gave
evidence and was cross-examined
carefully and skilfully by counsel for the Crown.
   46. His story did not stand up well. For example,
he had failed, before he
gave his evidence in chief, to reveal that he had met Somchai in a Thai
prison. His account given to police
of meeting Somchai gave the impression
that their meeting in Bangkok in 1997 was the first time since 1994 the
offender had been
to Thailand.

  

   47. The offender did reveal to police that he had received $3,800US for
expenses from Somchai. He did not reveal
till pressed in cross-examination
that he had later received a further $1,600US.

  

   48. He explained his apparent instant identification
of the contents of the
package as heroin as being not from his knowledge of what to expect but
because it was "the wrong shape" for
cannabis.

  

   49. I find that explanation unconvincing. It implies, in any event, that
the offender was familiar with packaged
cannabis.

  

   50. Further, when the offender was confronted with entries on his passport,
he had to concede three other trips
involving Thailand, even if his stay was
brief on those occasions. Further, he spent several months in China as part of
one such
journey which briefly included Thailand.

  

   51. How did this indigent courier in need of money afford such trips? He
says that
his girl friend paid for them. How did she afford it? He claimed she
won $5,000SD in a lottery.

  

   52. Notwithstanding that
$1,000SD of it, he said, was given to his family,
the remaining $4,000SD, I am asked to accept, was expended by the offender on
travel
and accommodation despite his pressing debts and forthcoming nuptuals.

  

   53. That explanation beggars belief.

  

   54. There
were two other matters which also adversely affected the
offender's credibility, though, by themselves, not decisive.

  

   55.
The offender falsely answered on his entry card that he had no
convictions. He claims he did not notice the question though he did
not claim
to be unable to read English or understand the question. That, in my view, was
a lie. The truth, in my view, is that he
did not wish to draw attention to
himself as a potential drug offender by revealing a past conviction for
possession of heroin, even
if it had been of only a small amount. His answer
and his explanation for it were, I am satisfied, deliberately false.
   56. Second,
he had initially booked a ticket for a bus from Melbourne to
Canberra and then to Sydney. However, he exchanged the second leg ticket
to
return to Melbourne. Why the apparent change of plans? He seemed unable to
explain that. Perhaps it was to put possible enquirers
off the track.

  

   57. Taking all these matters together, I am not satisfied that the offender
was unaware that the package was
to contain heroin. Indeed, I have no doubt
that he was well aware of the nature of its contents.

  

   58. How should the appropriate
sentence be determined?

  

   59. There can be no doubt that a lengthy custodial sentence is required.
The misery and devastation
that would have resulted from the uncontrolled
distribution of this quantity of heroin can only be imagined.

  

   60. Recent sentences
in this area have reflected the perceived need for
seriously deterrent responses. The trend seems to favour increased severity.

  

  

  

   61. d that on a Crown

  

   62.

  

   "The judge did take into account the circumstance that the respondent had
no previous convictions. That was an error. Couriers are usually selected
because they have no criminal records, and this Court has
on many occasions
said that the usual leniency extended to first offenders does not ordinarily
benefit couriers".

  

  

   63.
His Honour also held that cocaine was to be regarded as no less harmful
an illicit drug than heroin, though the sentencing judge
had thought
otherwise.

  

   64. His Honour considered the dominant consideration was (at 239),

  

   "...the need for the
courts of this country to make it clear to others who
are like minded that they will suffer severe punishment if they commit similar
offences".

  

  

   65. A sentence of 9 years, non parole 5 years was substituted.

  

   66. I make the observation
that I am not dealing with a Crown appeal.
Further, there is one relevant distinction between heroin and cocaine. In the
former case,
1.5kg is a commercial quantity not merely a trafficable quantity.
In the latter case it is 2.0kg.

  

   67.  

  

   68.
nder. The

  

   70. alue.  

  

   71. King CJ referred to the need for deterrence:

  

   (at 183) "It is well known
that there are drug merchants operating in other
countries, particularly countries from which illegal drugs originate, who seek
to
make very substantial profits by the export of those drugs to Australia and
other like countries. Their ability to do that depends
upon the availability
of couriers who are prepared to take the risks involved in order to gain the
financial rewards which are associated
with this trade. There is a clear need,
therefore, for the courts to impose sentences which will operate as an
effective counter
balance in the minds of persons who are tempted to be
couriers, to the financial rewards which can be offered them by the drug
merchants
in other countries".

  

  

   72. The effectiveness of such deterrence may be less for addicts importing
drugs partly for their
own use, but it is likely to be much more effective in
relation to persons, such as this offender, after easy money.

  

   73.
In Tee, however, the head sentence, though not the non parole period,
attracted a potential remission of one-third for good behaviour.
It was,
nevertheless, a Crown appeal against sentence.

  

   74. and no co-

  

   75. I was referred to a decision of the Court
of Criminal Appeal of the
Northern Territory in Wangsaimas & ors v R (1996) 87 ACrimR 149. It was
not suggested that the circumstances
of the offences there dealt with were
comparable.

  

   76. The importation was huge, 89.1kg of pure heroin. It was not accepted
that the offenders were merely crew on the importing vessel. Despite pleas of
guilty and co-operation with authorities, life sentences
were imposed. The
co-operation was not substantially useful. It was affirmed that the burden of
proving mitigatory factors rests
with the offender, not the Crown.

  

   77. The sentences were upheld but non parole periods of 22 years and
25 years
were fixed. The sentencing judge had declined to fix non parole
periods.

  

   78. ast s 

  

   79. In Lawson, of course,
the sentences imposed were not subject to
remissions under New South Wales law and were therefore analogous for present
purposes.

  

   80. as an older man w  

  

   81. The quantity of heroin involved did not reach a commercial quantity but
it
was substantial, being 666gms.

  

   82. It is unrealistic to take the view that an importation of 1.49kg of
heroin should attract
a significantly less penalty than 1.51kg. The actual
dividing line is necessary for legal purposes but that this importation,
unlike
that in Wangsaimas, is at the lower end of the commercial range is
significant.

  

   83. I also bear in mind the admonition of
Hunt CJ at CL, in Lawson with
which I respectfully agree, contained in the following passage:

  

   "(at 1-2) Where this Court
refers to a range of sentences which have been
imposed for a particular offence, it is doing no more than recording, as an
historical
fact, that that is the general pattern of sentencing at that
particular time, so that sentencing judges will have regard to that
general
pattern when imposing sentences in the particular case. Such patterns are not
immutable; this Court has at times said that
some sentencing patterns have
been too low, and that more severe sentences should be imposed. A range or
pattern of sentencing does
not imply that every case within that range is of
precisely the same type: some of the cases within that range will have more
serious
objective circumstances than others; some will have more impressive
subjective considerations than others. It is for the sentencing
judge to
determine where the facts of the particular case fit within that pattern.

   It is, of course, wrong to pick just one case
within the range and to
attempt by a comparison of the facts of that case with those of the subject
case to assess what the sentence
should be in the subject case. It is equally
wrong to say that a sentencing judge is bound by the range or pattern which
has been
referred to. Such a range or pattern is not to be equated to the much
and justly criticised "gridline" system of sentencing adopted
in some
jurisdictions in the United States."

  

  

   84. I note that sentences for substantial dealing in heroin, particularly
by those commercially motivated, even in respect of quantities much less than
this offender was involved with, have led to heavy
sentences.

  

   85. d users. He had not pl""

  

   86. I accept that none of the sentences previously imposed, including that
in R v Suen (1986) 25 ACrimR 394 (13 years, non parole 4 years)
creates a tariff, either as to head sentence or non parole
period.

  

   87. entenc"

  

   "(at 21) While it is proper that sentencing judges value consistency
highly, sentencing is a
discretionary exercise and the available range of a
sound discretion will, inescapably, often be wide".

  "The appropriate sentence"

  

  

   88. In this case, it seems to me that the offender played a significant
role in a deliberate and commercially based enterprise
to introduce a large
quantity of heroin into Australia.

  

   89. I am not satisfied that there is any mitigating personal factor
other
than his plea of guilty.

  

   90. Even that plea offers little mitigation. The offender was caught
red-handed. Proof of
his guilt would, by then, have been inevitable. I am not
satisfied that his efforts at co-operation with police were genuine. I am
not
satisfied that he has any positive previous good character. I cannot conclude
that he has previously acted as a paid drug courier
but I am certainly not
persuaded that he has not.

  

   91. Even accepting it may have been his first such venture, for reasons
given by Hunt J in Ferrer-Esis, that carries little, if any, weight in
mitigation.

  

   92. s""

  

   93. The personal
risk of detection was thereby lessened so far as this
offender was concerned. Unless the delivery was permitted to go through under
surveillance, as in fact occurred, he ran a risk of apprehension only if, by
chance, he was found with the heroin before he had delivered
it to the
distributor to whom he, presumably, was to deliver it. It appears from the
surveillance tapes that it was intended that,
if the parcel failed to arrive
or if surveillance was noticed, the enterprise would be abandoned. The
offender would then slip out
of the country without having been in possession
of the drugs. There would have been no reason for Customs to stop him leaving
the
country.

  

   94. ave been the o

  

   95. He clearly expects that, having been caught with the drugs, he will get
a lesser
sentence if he claims to believe he was to collect cannabis, not
heroin. He says he was told that by the drug merchant who hired
him. I have
already concluded that this claim is false.

  

   96. I have no doubt that the offender had planned, if caught, first
to deny
he knew of the contraband in the parcel, then, if that failed, to claim that
he was a poor dupe involved in a more serious
offence than he had been led to
believe.

  

   97. But for the perspicacity of DHL and the carefully conducted operation
by police,
this delivery may have successfully reached many end-users.

  

   98. As to the first count, I bear in mind that it is necessarily
a part of
the same transaction as is referred to in the second count.

  

   99. The moral culpability is the same for each. There
must, as I have said,
be a severe penalty. Indeed, this is the worst example to date in this
Territory of this kind of offence.

  

   100. Siew Tong Ku, stand.

  

   101. onmen

  

   102. Those sentences will be concurrent and are to commence on
11 December
1997. I fix a period of 10 years as the non parole
period.