R v Kho [2012] NSWDC 232

District Court New South Wales

Medium Neutral Citation: R v Kho [2012] NSWDC 232 Hearing dates: 14 September 2012. Decision date: 14 September 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non parole period of 7 years and a head sentence of 12 years Catchwords: CRIMINAL LAW - Sentence following jury trial - Supply more than commercial quantity of heroin - Relevance of sentence imposed by another judge Category: Sentence Parties: The Crown Chuan Tat Kho Representation: Mr D Marr - Crown Mr W Dawe QC - Offender Director of Public Prosecutions McKenzie Leamey Solicitors and Barristers - Offender File Number(s): 2009/139048

Judgment 1HIS HONOUR: On the 9 August this year, after a relatively short trial, a jury found the offender, Chuan Tat Kho, guilty of the offence of supplying more than a commercial quantity of heroin. In fact there was substantially more than one kilogram of heroin involved, fourteen times that amount. That, in itself, is enough to indicate the seriousness of this offence. 2Of course, however, the quantity of the drug involved in any drug supply transaction is only one factor relevant to the assessment of the seriousness of the offence. One other factor concerns the role played by the offender in the offence. Precisely what Mr Kho's role in what occurred on 16 January 2009 is not easy to determine. 3On that day police watched as the offender and his cousin, Yong Shun Lawrence Loh, left the hotel where they were staying in Chatswood and got the train to the city. Eventually they met up with a man by the name of Chin Lai Tan at a Starbucks café on the corner of George and Campbell Streets. A number of police were watching and Sydney City Council video cameras were operating. Those cameras were not targeted on the three men who met at the Starbucks café, but as they performed a 360 degree rotation the three men could be seen. There was, thus, intermittent video evidence of the meeting. 4When Mr Tan arrived he had a suitcase with him. He sat down at a table and conversed with Mr Loh. Video footage reveals this offender appearing to be relatively uninterested in the conversation which was occurring. He is seen sitting back in his chair smoking while Mr Tan and Mr Loh converse. They each consumed a drink and then they stood up. It was at this time that the offender, Mr Kho, took possession of the suitcase which Mr Tan had brought with him. He hailed a taxi, put the suitcase in the boot, told the taxi driver to go to Chatswood and got in the back seat of the taxi. Mr Loh got into the front seat. Mr Tan walked away. The taxi containing Mr Loh and Mr Kho and a suitcase with fourteen kilos of heroin in it did not get very far before police stopped it and arrested both men. 5When the bag was examined it was found to contain 13.99 kilograms of heroin at about seventy per cent purity. This was clearly a major drug supply. The quantity was high, as was its purity. The interception by police of the suitcase with the drugs in it stopped this highly dangerous product being distributed to many, many drug users. The interception of this drug prevented that drug causing misery and destruction on the streets of Australia. Had those involved in this drug supply, Mr Kho, Mr Tan and Mr Loh, succeeded in distributing the drug, great harm would have been caused. 6As I mentioned before, the quantity involved in this act of supply is only one matter to be looked at in determining the objective seriousness of what this offender did. Another important factor concerns the offender's role. I have already mentioned the independent video evidence as to Mr Kho's actions during the meeting. Also relevant in this regard is the circumstance that telephone records reveal telephone contact between Loh and Tan in the days leading up to the meeting on 16 January, but no contact, at least no telephone contact, between this offender and Tan, the man who brought the drugs to the meeting and, interestingly enough, no telephone contact between this offender and Lo. On top of that it is notorious that those high up in the drug supply hierarchy try to avoid physical possession of drugs, preferring foot soldiers to take the risks associated with moving drugs from one place to another. 7For those reasons I will sentence Mr Kho on the basis that he was less involved in this matter than Loh and Tan and lower down the drug supply hierarchy than those two men. 8It is at this stage that I should mention the sentences imposed on Loh and Tan by his Honour Judge Bennett. Tan was found guilty after a trial. He received a discount for assistance to the authorities, but if we ignore that assistance in order to provide an appropriate comparison with Mr Kho, Mr Tan would have received a head sentence of eighteen years imprisonment. Mr Loh received a discount for pleading guilty, remorse and assistance. His sentence, in the absence of that discount, would have been sixteen years imprisonment. 9I should mention also that his Honour sentenced Mr Kho, his conviction being overturned on appeal to the Court of Criminal Appeal because of the incompetence of his then counsel. Before that conviction was overturned this offender was sentenced by Judge Bennett to a head sentence of eighteen years imprisonment. This tends to suggest that his Honour's assessment of the position of this offender in the drug supply hierarchy is different to mine. I, of course, proceed on the evidence admitted in the trial over which I presided. There is no guarantee that the evidence adduced in the trial before Judge Bennett was the same. It is for that reason that I declined to receive his Honour's remarks on sentence when they were offered to me by the Crown. 10I repeat, in apparent contrast to the finding by his Honour I will sentence Mr Kho on the basis that he was less involved in this transaction than Loh and Tan and lower down the drug supply hierarchy than both of those other two. I should note that the Crown does not argue to the contrary. 11The offender is now thirty-eight years of age and has no prior criminal convictions either in his native Singapore, in Australia or anywhere else in the world for that matter. He was a hard and industrious worker in Singapore where he took on many responsibilities involving his family and, in particular, his parents. Immediately before coming to Australia he was working as a taxi driver. 12He said that he came to Australia for a holiday. Evidence admitted at the trial showed that the offender did do some tourist activities whilst he was here but, of course, as the jury verdict shows and as the evidence regarding Mr Loh showed, doing tourist activities is not at all incompatible with the offender also being here to involve himself in a major drug supply transaction. 13Precisely when it was that Mr Kho learnt that there was to be a supply of drugs on 16 January is impossible to determine. If it was to be submitted that he only learnt immediately before the transaction took place, I would have to make that finding on the balance of probabilities in the offender's favour. If it was to be submitted by the Crown on the other hand that Mr Kho knew about the drug supply transaction at the time he came to Australia, then that would have to be proved beyond reasonable doubt. I cannot be satisfied at that level either and so I will make the finding that at some indeterminate time before 16 January the offender became aware that there would be a drug supply transaction between Tan and Loh and became involved in it at that stage. 14Mr Kho's industriousness has continued whilst in custody where he has been since his arrest on 16 January. He has improved his English to the stage where, although he was provided with an interpreter during the trial, he did not need any assistance at all. He is studying and certificates showing his completion of various courses were tendered today. He is planning for his release and working towards that in an industrious manner. 15He is, as is quite common place, depressed whilst in gaol. I do not find that at all surprising. Gaols are terrible places and it would be a remarkable person that does not feel depressed whilst being held in custody there. 16Of course he will be serving his sentence in a foreign country. He will not have the benefit of visits from his family in Singapore, but, of course, not too much can be made of this. It was the offender's decision to commit the offence in a foreign country and so he can hardly complain when he is required to serve a sentence there. Nevertheless, it does add to the hardship that he will experience and so I will take that into account. 17On a related matter his time in custody will also be harder because he knows that through his actions he has deprived his parents of the assistance that he used to provide them. A report tendered to me today suggested that Mr Kho was the main carer of his parents, being a single man, whilst his other siblings, his sisters, are married and thus provide less assistance to their parents than Mr Kho did before his arrest. 18Evidence about the condition of his parents, both financially and physically was put before me. They will also suffer as a result of the offender's incarceration. That is also common place and the hardship that they will suffer is not sufficiently exceptional that I can take it into account. I will, however, take into account that the offender will know that through his misconduct he has deprived his parents of the assistance he used to provide for them. That will add to the conditions of custody that he experiences whilst serving his sentence. 19Parity is an important aspect of this case. The offender must not have a justifiable sense of grievance when he compares the sentence imposed upon him with the sentences imposed upon Mr Tan and Mr Loh, who, in common with the offender, had no prior convictions. Parity of course only works one way. The offender is entitled to rely on it, but the Crown is not. 20There are clearly special circumstances in this case. The offender will be serving his first sentence in custody and so I will extend the eligibility of a period on parole at the expense of the non-parole period. 21The offender's sentence that I am about to impose is much less than that imposed by his Honour Judge Bennett, but that is a natural consequence of there being different evidence placed before two different judges. In my view the appropriate sentence is this. 22The offender is sentenced to imprisonment to date from 16 January 2009. I set a non-parole period of seven years, which will expire on 15 January 2016, on which day the offender is eligible to be released to parole. I set a head sentence of twelve years. 23In the event that the drugs have not yet been destroyed, I will order their destruction.