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Goh v The Queen [2022] VSCA 24

The offender was sentenced following a plea of guilty to 1 count of attempting to possess a border controlled drug in a commercial quantity contrary to ss 11.1(1) and 307.5(1) of the Commonwealth Criminal Code. Offence related to 8.31kg of heroin. Original sentence imposed 11 years imprisonment with a non-parole period of 6 years and 9 months. Offender appealed on the ground that the total effective sentence and non-parole period was manifestly excessive, given the offender’s cooperation with the authorities, the offender’s plea of guilty, the effect of deportation on the offender, and parity considerations.  

Cooperation: It was relevant, in assessing the weight to be given to cooperation, to have regard to the fact that the offender told lies and sought to minimise their role in the offending in their record of interview. The offender’s cooperation was not of a kind that put their safety at risk by reason of informing on other persons involved in criminal activity. There is utilitarian value in persons assisting police in their investigations by consenting to searches that incriminate them and answering questions. It may also evidence remorse, however the nature of the offender’s cooperation was such that the sentencing judge was entitled to moderate the weight accorded to it.  

Guilty Plea: It is not open to the offender to rely upon the sentencing judge’s failure to expressly deal with the benefit of a guilty plea during the pandemic in circumstances where it was not expressly raised on the plea and, in any event, the omission did not render the sentence imposed manifestly excessive. The offender was given the benefit of their plea of guilty in the overall sentence, and the effects of the pandemic would have added little by way of additional mitigation.  

Deportation: It was plainly open for the sentencing judge to give the impact of deportation on the offender only ‘relatively modest’ weight, given their recent arrival in Australia and the fact they have no family here. Comparable cases affirm that the original sentence imposed was comfortably within the existing range of sentences that have been imposed in the past for this offence in comparable (but not identical) circumstances.  

Parity: Offender relied upon parity in their written and oral submissions as being relevant to their ground of appeal. Offender was more than a courier; they had a degree of agency that the co-offender, Tan, did not have. Offender was actively engaged in recruiting Tan and others, and coordinating their roles. The sentencing judge was correct to distinguish their roles in this manner. There is no significant difference between the offender and Tan in relation to the effects of deportation. Although the offender had commenced a course of study, and will not be able to make a life for themselves in Australia; as the judge observed, they have family in Malaysia who are supportive and with whom they have a close bond. In any event, any difference between the two offenders is outweighed by the seriousness of offending and the offender’s high moral culpability. It was open to the sentencing judge to impose a significantly greater sentence on the offender.  

Leave to appeal allowed. Appeal dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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