IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	

 	Case No. CR-21-01663, CR-22-01439
 and CR-21-00042

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
Kelvin Lim Sii WEI

and

Raymond Leek How TING 		

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JUDGE:	His Honour Judge Moglia	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21 April 2023	
DATE OF SENTENCE:	9 June 2023	
CASE MAY BE CITED AS:	DPP v Wei & Ting	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1061		

REASONS FOR SENTENCE
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Subject:	Criminal law – sentence – guilty plea
Catchwords: 	Sentencing – attempting to possess a commercial quantity of methamphetamine – importing a marketable quantity of methamphetamine – possessing a controlled drug – possessing a prohibited weapon – relative difference in objective gravity – distinction between roles – no criminal history – likely deportation – reasonable prospects for rehabilitation – hardship in custody due to COVID – utilitarian value of plea during COVID pandemic
Legislation Cited:	Criminal Code (Cth); Migration Act 1958 (Cth), Sentencing Act 1991 (Vic)
Cases Cited:	Brown (aka Davis) v The Queen [2020] VSCA 60; Chenhall v the Queen [2021] VSCA 175
Sentence:	Wei total effective sentence 8 years 6 months with a non-parole period of 5 years 6 months; 1,031 days reckoned as already served; 6AAA: 9 years 6 months imprisonment with a non-parole period of 7 years. 
	Ting total effective sentence 6 years 6 months with a non-parole period of 4 years; 1,037 days reckoned as already served; 6AAA: 8 years imprisonment with a non-parole period of 5 years
	
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APPEARANCES:
	Counsel	Solicitors	
For the CDPP	S. Tatas	CDPP	
			
For Wei	T. McCulloch
	Nelson Brown Legal
	
For Ting	J. Swiney	Haines and Polites	

HIS HONOUR:

1	Kelvin Lim Sii Wei, you have pleaded guilty to importing a marketable quantity of border-controlled drug on 25 July 2020 and possessing a controlled drug on 12 August 2020 both in case CR-22-01439, and to attempting to possess a commercial quantity of border-controlled drug with Mr Ting on 6 August 2020 in case CR-21-01663. 
2	Raymond Leek How Ting, you have pleaded guilty to attempting to possess a commercial quantity of a border-controlled drug with Mr Wei on 6 August 2020 in case CR-21-00042.
3	The agreed basis for your guilty pleas on your joint offending is set out in the prosecution summary filed 20 April 2023 and your further offending, Mr Wei, is set out in the prosecution summary dated 20 May 2022.
Offending in CR-22-01439 (Wei)
4	Mr Wei, in February 2020, you were in contact with a previous workmate who used the online name 'Joker' on WeChat discussing him sending you 200 grams of methamphetamine for which you would arrange to pay $11,000. You used a fake WeChat account in the name of someone whose stolen driver licence details you possessed. This arrangement was not the subject of a charge, and you will not be sentenced for it.
5	In late June and early July you were in WeChat contact again with Joker discussing him sending you pills for which you would arrange payment. 
6	On 19 July 2020, you asked Joker to send you 125 grams for which you would pay $6,500. You gave Joker Mr Ting's address for delivery and your phone number as the delivery contact. Joker gave you a bank account number for payment and sent you photos of the bags of drugs he was sending. The next day, Joker sent you photographs of the books in which the drugs were concealed and the consignment note details.
7	The consignment arrived in Sydney on 23 July and on 27 July the Australian Border Force inspected it to find 56.7 grams of pure methamphetamine concealed in it.
8	Between 31 July – 5 August you contacted various people including Joker enquiring after the package's status and tracked it on the internet. You discussed the delay in it being available for collection and the risks in doing so, including losing money if 'the stuff' is lost to you (Charge 1, CR‑22‑01439, importing a marketable quantity of border controlled drug).
9	You were under surveillance by the Australian Federal Police who monitored your move into an apartment in Melbourne city where a search on 7 August 2020 revealed you were in possession of 0.1 grams of methamphetamine (Charge 2, CR-22-01439, possessing a controlled drug).
Offending in CR-21-01663 (Wei) and CR-21-00042 (Ting)
10	On 29 July 2020, a separate consignment sent from Malaysia involving Joker arrived at Sydney where Border Force staff examined it and found 1.59 kilograms of pure methamphetamine concealed in four air cylinders. AFP officers substituted the drugs with a benign substance and arranged a controlled delivery. The consignment was addressed to you Mr Ting.
11	On 30 July 2020, you both discussed the consignment and whether it had arrived. You, Mr Wei expressed concern that it had not been delivered and you Mr Ting asked what details Mr Wei had put on it.
12	A week later on 6 August just after noon, an AFP agent delivered the consignment to you Mr Ting at your address, where you identified yourself and signed for it.
13	Immediately and over the next hour and a half, you contacted each other by 11 video and audio calls lasting about 45 minutes in total. You, Mr Wei also contacted Joker during this time, sharing images that Ting had sent you of him taking the cylinders apart. 
14	Within 2 hours of delivery, the AFP officers then came to your apartment Mr Ting, arrested you, found the consignment in your bedroom and the phones you used to contact Mr Wei (Charge 1, CR-21-00042 (Ting) attempt to possess a commercial quantity of border-controlled drug). 
15	Police interviewed you, Mr Ting, and you made no comment to the allegations.
16	Another person, Hatfield, was present during the search and arrest and later rang you Mr Wei to tell you that police had arrested Ting and found the package. You told him not to call you by name.
17	Mr Wei, you then called others about this emerging situation. During those calls, you admitted that you had asked Mr Ting to open the package. You discussed the parcel with one Leigha Cranston who seemed to know something about the situation; you asked her how much 'gear' it contained and for her to send you a copy of the search warrant. You admitted that you were 'Ryan', a name used in various communications about the consignments.
18	At 1.47 am the next morning, you called Joker and discussed your concerns about being caught and facing capital punishment, which reveals your level of involvement and knowledge of its nature (Charge 1, CR-21‑01663 (Wei), attempt to possess a commercial quantity of border-controlled drug).
19	On 12 August 2020, AFP arrested you and found you in possession of a copy of the 6 August search warrant for Mr Ting's place, a note of the tracking number for the consignment and a taser (summary Charge, possessing a prohibited weapon).   
20	Police interviewed you, Mr Wei, and you denied any wrongdoing with respect to the importation and your role in it. You claimed no knowledge of the consignment seized at Mr Ting's house, claiming Ting was the one having parcels sent to him and that Ms Cranston was the one who provided you with other relevant information. What you said were lies and they were attempts to avoid liability by blaming others.
21	On your role with respect to Mr Ting, I note a rather revealing conversation with an unidentified person '1688', who seemed to have a financial interest in the drugs. On 4 August 2020 at about 6.06 am, after 1688 expressed concern to you that you might be 'damned' if you collect the parcel, you said that Raymond (Mr Ting) would be the one in trouble, not you, and that you had always wanted to send him back (presumably to Malaysia) for a while because Mr Ting has no life here and he is bullied wherever he goes. 
22	I find you were in a position of control over Mr Ting and that you were using him and placing him in jeopardy, even though he knew the nature of the importation in which he was involved. 
Procedural history
23	Since your arrests, you have both remained in custody on remand in relation to these matters. 
24	Your answers during police questioning, both of you, do not reveal any meaningful admissions or expressions of remorse. You are not required to make those statements in an interview, but nevertheless I observe that was their nature.
25	Your guilty pleas are factors that favour you both and will result in reduced sentences. While you both pleaded guilty to the attempted possession offence on 2 February 2023, days before the commencement of your trial, it still had some utilitarian value and shows a willingness to take responsibility for your actions, albeit late. 
26	Mr Wei, you pleaded guilty to the importation and possession offences at a relatively early stage on the eve of a contested committal hearing, which attracts a greater degree of weight, comparatively. 
27	The fact that you have pleaded guilty and thereby saved the community of the cost and inconvenience of a trial, especially when the work of the Court is overloaded due to pandemic-related delays, has extra significance and this will be reflected in your sentence. 
28	Your pleas are consistent with you showing that you regret your offending. But I have not heard any evidence that has convinced me that any remorse you have is deeply genuine or that it represents a sustained change in your attitudes. On that, only time will tell. 
29	As for your letter to the Court, Mr Wei (Exhibit W2), it says all the right things, but words are easy and your words during the police interview were shown to be false. So, in the absence of other evidence to confirm any positive change in you, I have treated your sentiments as a sign of hope but have not attached great weight to them. 
30	As to your time on remand, I have not been provided specific evidence of any hardship in custody, but I accept that you have both spent all of your remand under restrictions, at times heavy ones, but always with the threat of quarantine and lockdown due to the COVID pandemic. 
31	It has taken 2 years 8 months to progress your cases from arrest to sentence. Much of that time has been due to you both maintaining your not-guilty plea until the eve of your trial. However, the time until that trial was made longer because of the COVID pandemic, which was beyond your control. It was to that extent unfair on you that your trial took so long to reach and your extended wait on remand is reflected in your sentences. 
32	I was told that you were both on bridging visas from a time just prior to your offending. Before that, you had both overstayed your temporary visas and were in Australia unlawfully. It is a dishonour to you both that you remained in this country contrary to its laws, enjoyed what our society had to offer you and yet offended against this community by attempting to bring in harmful drugs for your own profit. Having said that, I will not increase your sentence based on your, at times, dubious immigration status. 
Personal circumstances
33	You are both Malaysian citizens and came to Australia for a better future. You have worked here and supported your families back home with money you earned.
34	Mr Wei, you arrived when you were 22 in 2018 on a tourist visa. You do not speak any English, only Mandarin. You grew up in a rural province of Malaysia and have not enjoyed any relationship with your father since he left your mother when you were about 9-10 years old. You left school at age 14 and have worked since then to support your mother and your sister. While in Australia, your money has made it possible for your sister to attend university.
35	Mr Ting, you arrived when you were 20 in 2014 on a student visa. You speak good English and were intending to make a permanent life here. You completed Year 12 in Malaysia and then worked in factories. Your father disapproved of your lifestyle, involving as it did drug use, and he kicked you out of home. You are the oldest of your siblings and moved to Australia to study carpentry and construction but found it too difficult. You then worked as a plasterer where you met your co-accused.
36	Both of you struggled when COVID restrictions limited your work opportunities in 2020. You say this led you to offend as you did, seeking profit from drugs to permit you to pay the bills and support your family. I have not been provided any confirmation from other sources that your motivation was altruistic, but I accept that times in 2020 were hard. 
37	Neither of you have a criminal history.
38	While I cannot be certain that either of you will be deported upon your release from prison, I accept that it is likely. I make this finding based on the mandatory cancellation of any visa you hold as a consequence of the sentences I will impose today and in accordance with the Migration Act 1958 (Cth). Further, you both overstayed a previous visa; you have no current substantive visa; your offending is very serious; the sentence you receive will be well beyond 1 year in length; and neither of you have significant, if any, real ties to the community here. In all those circumstances, I am satisfied that you will have lost your opportunity to further the life you sought to create here and face the anxiety about this daily as you serve your sentence. I will reduce your sentence accordingly.
39	In custody, Mr Wei, I accept you have not been a troublemaker and that your random urine drug screens were clean (Exhibit W1). No doubt due to your lack of English language skills, you have remained relatively isolated other than daily contact with your mother and with other Mandarin speaking prisoners.
40	Mr Ting, your time in custody has been similarly free of trouble and drug use. You have some contact with an aunty in Melbourne but none with family in Malaysia. You continue to work in the prison as a cleaner, having found work in the kitchen to be too stressful. 
41	Psychologist, Ms Cameron in her report dated 13 April 2023 (Exhibit T1) stated you, Mr Ting, suffered with low self-esteem, an avoidant personality, and escaped life's challenges into drug use. So much is consistent with Mr Wei's assessment of you that I just summarised – that you are bullied wherever you go.
Sentencing issues
42	The applicable maximum penalties are as follows:
(a)	Attempting to possess a commercial quantity of border‑controlled drug contrary to s307.8(1) of the Criminal Code (Cth) – life imprisonment;
(b)	Importing a marketable quantity of border‑controlled drug contrary to s307.2(1) of the Criminal Code (Cth) – 25 years;
(c)	Possessing a controlled drug contrary to s308.1(1) of the Criminal Code (Cth) – 2 years;
(d)	Possessing a prohibited weapon contrary to s5AA of the Control of Weapons Act 1990 (Vic) – 2 years. 
43	I note that from 9 December 2021, according to the Crimes Amendment Remission of Sentence Act 2021 (Cth), neither of you are to receive the benefit of emergency management days. This means that even if you have spent part of your sentence in lockdown through no fault of your own, your sentence will not be reduced by those who control the service of your sentence. I have taken this into account when calculating the term of your sentences.
44	As to the objective gravity and your moral culpability of your offending, Mr Wei, I find you to be at a higher level than Mr Ting. You were a key organiser of the importations; you dealt with the consignor, Joker; you liaised with them about each of the consignments; you facilitated payments for the marketable quantity and given the timing and the same Malaysian contact involved, I infer that you were likely in a similar if not the same position with respect to the second consignment. You were entrusted by others in the scheme with the quantities that were sent; upon Mr Ting's arrest you requested and received a copy of the search warrant. You directed Mr Ting to open the package delivered to him and spoke to him as someone you could 'send home'. You clearly knew that the imported goods contained a border-controlled drug, even if you did not know the precise quantity. Of course, with reference alone to the charges to which you have pleaded guilty, you were instrumental in repeat offending of a similar nature.
45	Mr Ting, I find that you were subordinate to Mr Wei in your role, however, I find that you also knew you were receiving a delivery of an imported drug. You liaised with Mr Wei about the delay in receiving the delivery and immediately upon receiving it you were online with him, including providing images, as you took the package and its contents apart in search for what it contained concealed within.
46	The quantity you imported, Mr Wei, was over 28 times the threshold marketable quantity for that offence. The quantity that you both attempted to possess was twice the commercial quantity for that offence. 
47	I accept the prosecutor's submission that your sentences should deter others and impose stern punishment on you for attempting to profit from the misery of others in our community who use addictive harmful drugs. 
48	Your lack of criminal history and your otherwise good character attract less weight in this context. 
49	Mr Wei, I will make orders as to the relative commencement of your different sentences so as to ensure that the totality of your sentence is in proportion to the totality of your offending. 
50	I regard both of your prospects for rehabilitation as to be reasonable only. You are both relatively young and will likely return to Malaysia where you have family and a history of working. I expect you will both think twice before getting involved with the movement of drugs there, because you will expect it likely that the relevant authorities in Australia and Malaysia will share information about what you have done here.
51	As agreed by your counsel, I have had regard to the comparative cases provided by the prosecutor and I accept that they provide assistance when calculating your sentence, although every case is different and is to be assessed on its individual facts. 
52	There was no dispute that you both should be imprisoned for a term of more than 3 years each and so attract orders setting a non-parole period.
53	Mr Wei, I sentence you as follows:
(a)	On CR-22-01439, Charge 1, importing a marketable quantity of methamphetamine –  5 years, commencing today;
(b)	On Charge 2, possessing a controlled drug – 1 month, commencing today;
(c)	On CR-21-01663, Charge 1, attempting to possess a commercial quantity of methamphetamine – 7 years 6 months, commencing 1 year after the commencement of the sentence imposed on importing a marketable quantity of methamphetamine (Charge 1 in CR‑22‑01439);
(d)	On the summary offence of possessing a prohibited weapon – 1 month, commencing today. 
(e)	Your total sentence Mr Wei is 8 years 6 months.
(f)	I fix a non-parole period of 5 years 6 months.
(g)	I declare that you have served 1,031 days and direct that this be reckoned as a period already served under the sentence.
(h)	In accordance with s6AAA of the Sentencing Act 1991 (Vic), but for your guilty plea I would have imposed 9 years 6 months imprisonment and fixed a non-parole period of 7 years.
54	Mr Ting, I sentence you as follows:
(a)	On CR-21-00042, Charge 1, attempting to possess a commercial quantity of methamphetamine – 6 years 6 months, commencing today;
(b)	I fix a non-parole period of 4 years;
(c)	I declare that you have served 1,037 days and direct that this be reckoned as a period already served under the sentence.
(d)	In accordance with s6AAA of the Sentencing Act 1991 (Vic), but for your guilty plea I would have imposed 8 years and fixed a non-parole period of 5 years.
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