CDirector of Public Prosecutions v Ong
[2023] VCC 2005
•3 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01526
| DIRECTOR OF PUBLIC PROSECUTIONS |
| (CTH) |
| v |
| WEI KHANG ONG |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 October 2023 |
DATE OF SENTENCE: | 3 November 2023 |
CASE MAY BE CITED AS: | CDPP v Ong |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2005 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence (1,4 Butanediol) – trafficking a commercial quantity of controlled drugs (MDMA) – importing marketable quantity of border controlled drug (methamphetamine)
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Criminal Code Act 1995 (Cth), Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:Allami v DPP (Cth) [2021] VSCA 42 , Wing Thi Chu v The Queen [2018] VSCA 65
Sentence:11 years imprisonment with a non-parole period of 7 years and 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr P. Botros | Office of Public Prosecutions |
For the Accused | Mr A. Dickenson | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Wei Ong, you have pleaded guilty to three drug-related charges following a sentence indication hearing. The first charge is that between 15 September 2020 and 26 October 2020 you trafficked 1,4-Butanediol contrary to s170(1AC) of the Drugs, Poisons and Controlled Substances Act. The maximum penalty is 15 years' imprisonment.
2The second charge is under section 302.2 of the Criminal Code of the Commonwealth, that between 6 October 2020 and 22 January 2021 you trafficked in methylamphetamine and MDMA in a commercial quantity, maximum penalty life imprisonment.
3The third charge is that on 13 January 2021 under section 307.2 of the Criminal Code you imported a border controlled drug, namely methylamphetamine, in a marketable quantity. Maximum penalty 25 years' imprisonment.
Circumstances of the offending
4The circumstances of your offending are set out in the prosecution opening dated 15 June 2023, which was read in open court on the plea, and which your counsel did not dispute. You were involved in offending with other individuals, some of whom have already been dealt with and a co-accused, who has chosen to go to trial. A brief overview of your offending follows.
Charge 1 – Trafficking 1,4-Butanediol
5Your offending here involved you being complicit or acting in concert with your co-offender in the movement of a shipment of 1,4-Butanediol from China that arrived in Australia and was intercepted on 10 October 2020. The delivery contained 21 bottles of 1,4-Butanediol with a total weight of
19.66 kg and was addressed to Yi Siang Ong.6Your involvement commenced when you were recruited by your co-accused to obtain an address for persons to receive parcels and be compensated. The drug was described as 'water/liquid', which is the literal translation of 'shui' which in turn is a reference to 1,4-Butanediol, which comes in liquid form.
7You contacted Yi Siang Ong and provided instructions as to arrangements to be made for those individuals, including providing excuses that could be used raised by those individuals responding to concerns. On 29 September you were advising Yi Siang Ong that the remuneration will depend on the volume of liquid received and involve 'probably hundreds of dollars'. You were involved in passing on information as to the progress of the shipment that you had received from your co-accused to Yi Siang Ong in circumstances where it was due to arrive at the address of Yi Siang Ong in the Melbourne CBD.
8On 16 October you forwarded to Yi Siang Ong an image of the consignment note and asked him to follow-up with the shipper. On 26 October Yi Siang Ong was arrested for other matters. Subsequent to that you were in discussions with your co-accused and seeking to contact Yi Siang Ong about the progress of the shipment which had been intercepted by the authorities.
9Ultimately when police searched the address of your co-accused they found a notebook containing the address of Yi Siang Ong with a reference to the drug.
Charge 2 - trafficking methyl amphetamine and MDMA in a commercial quantity
10You have pleaded guilty to a rolled up trafficking charge involving two different drugs in a commercial quantity. You have admitted to effectively six discrete trafficking activities, two with MDMA and the balance involving methylamphetamine. The offending involved different aspects of trafficking and you were dealing with your co-accused, as well as other individuals, Floyd Weng Keat Lai and Koh Weng Cheah.
11In relation to MDMA in discussions with your co-accused, on
16 January 2021 you sent him a photo of some pills that the prosecution alleged were MDMA. You agreed to supply him with 30 pills that he would then seek to on sell at your request.12Further, on 4 January you had a discussion with Floyd Weng Keat Lai, who had earlier been discussing delivery of packages of methylamphetamine, and you discussed that you had access to 400 ecstasy pills which you could supply, and they could be sold at $10 per pill. You had a further discussion with Floyd Weng Keat Lai as to market rates and profits. Floyd Weng Keat Lai advised that he had told a purchaser to sell them at $60.
13In relation to methylamphetamine, on 9 December 2021 you had a text discussion with your co-accused using a coded symbol for methylamphetamine, where your co-accused offered to provide a package for $300.
14You were also in discussions with Floyd Weng Keat Lai via WeChat in January 2021 in relation to details of packages and their collection. You met with Floyd Weng Keat Lai in the city and provided him with an address for delivery of a package. Floyd Weng Keat Lai later admitted that he had delivered a box to an address in Epping and was paid for doing so. You remitted $198 to his partner on 3 January. When police executed a search warrant at your property later a similar box was found containing methylamphetamine.
15On 5 January you were again in discussions with Floyd Weng Keat Lai requesting his assistance to push 'the merchandise', which the prosecution asserts was methylamphetamine. You cautioned him not to advise where the merchandise was coming from. You advised him to tell people that he was working in food delivery. He was telling you about his unsuccessful attempt to sell ecstasy pills.
16You were living with Koh Weng Cheah at the time in a King Street unit in the city and communicating via WeChat. On 31 December 2020 you discussed with him earning additional money to his role as a food delivery driver undertaking deliveries to earn $200. You also discussed him avoiding apprehension.
17Between 14 and 19 January Koh Weng Cheah performed four deliveries on your instructions that involved methylamphetamine. On 14 January Koh Weng Cheah undertook a delivery to Box Hill and collected $500 from a person to whom the package was delivered. On 16 January you told Koh Weng Cheah to come to an address which was that of your co-accused to pick something up. On 17 January Koh Weng Cheah performed another delivery and collected $5000 from the customer.
18On 19 January you asked Koh Weng Cheah to perform another delivery and he was told to collect $2400 from the customer. On the three occasions you confirmed to an unknown user that the delivery had been undertaken.
19Further, over the period 6 October 2020 to 16 January 2021 you were involved in discussions with unknown individuals that involved uploaded videos of white crystal substances on their own or being weighed and tested. The videos are largely about addressing calculations of what is owing and showing in some of the videos a white substance being placed on a scale. You have admitted that the unknown users are suppliers of methylamphetamine to you.
20The most serious element of the rolled up charge involves a property at Harbour Esplanade in Docklands. On 27 December 2020 you met with the owner of a property there, introduced yourself under a false name and agreed to lease the property. You signed the agreement and paid the bond and rent in cash and were provided with keys. Between 5 and 19 January 2021 you were seen carrying packages, a suitcase, boxes and bags from your car to the property, including attending with Koh Weng Cheah. Ultimately on
20 January a search warrant was executed on your King Street residence where $69,000 in cash was found, along with 19 SIM cards, drug paraphernalia and the keys and documents relating to the Harbour Esplanade property, as well is a cardboard box similar to one that Floyd Weng Keat Lai had delivered on 2 January.21On 22 January police executed a search warrant at the Harbour Esplanade unit where they located 10.654 kg of pure methylamphetamine in multiple bags throughout the apartment, as well as various supplies. Your fingerprints were throughout the apartment, including on plastic bags located within the suitcase.
Charge 3
22Your involvement in this charge is similar to your involvement in Charge 1 where you were acting in concert with your co-accused by providing an address for the delivery of a shipment of methylamphetamine from overseas. You provided the address from Floyd Weng Keat Lai which was the address next door to that of his partner. At the instigation of your co-accused you passed on the shipment details to him.
23The consignment arrived in Australia on 13 January and was intercepted and was found to contain 401.9 g of methyl amphetamine.
Arrest and record of interview
24You were arrested by police on 20 January 2021 and participated in a record of interview. You admitted that you use drugs with your friends and buy them off friends. You denied importing drugs and said that you had a friend named an Ah Jack, who the prosecution say is an alias of your co-accused.
25You also said that you knew that Yi Siang Ong had been arrested. You said that you are effectively a messenger after being called by Ah Jack. You claim that at one stage you had been threatened by him. When you needed assistance to do the jobs you got Yi Siang Ong to assist.
26Following your arrest, you were remanded in custody and have been in custody since that time.
Seriousness of the offences and moral culpability
Charge 1
27It is first necessary to characterise the seriousness of the offences. In relation to Charge 1, you are charged with trafficking simpliciter. It is important to note that a commercial quality of 1,4-Butanediol is 2 kilograms. The prosecution is not in a position to prove that you were aware of the quantity of the drug to be received. Notwithstanding this, the quantum of the drug is relevant as it involved an amount over nine times a commercial quantity.
28More relevant to your culpability is to look at your conduct. You were clearly not the principal in the transaction, and you were acting at the instigation of your co-accused. Notwithstanding this, your conduct over the period of the offending involved, contact with your co-accused, and then organising for Yi Siang Ong to take receipt of the proposed import. The exchanges in the prosecution opening show that you were prepared to counsel and reassure Yi Siang Ong in order to ensure the successful receipt of the package. You thus performed an important role as an intermediary or conduit between your co-accused and Yi Siang Ong, and were trusted by your co-accused in that role, including being aware of a previous unsuccessful delivery.
Charge 3
29The charge is importing a marketable quantity of methylamphetamine. A marketable quantity is 2 grams. The prosecution cannot prove that you knew the amount that was to be imported. Relevant to your culpability is that the actual amount that was imported was 401.9 grams which is 53 percent of a commercial quantity which is 750 grams.
30Your involvement in this charge is similar to that in relation to Charge 1. Again, you were acting as an intermediary between your co-accused and Floyd Weng Keat Lai who you had arranged to accept delivery at the next door address. You were performing an executive function for your co-accused in relation to a shipment of a very significant quantity of methylamphetamine, although the prosecution, as I said, is not in a position to prove whether you knew the precise amount.
31Your culpability in relation to this charge is enhanced given that Yi Siang Ong had been arrested on 26 October 2020 and thus had not been in a position to complete the transaction involved and you must be taken to have been aware of his arrest and notwithstanding that you were prepared to engage in a further offence of a similar nature. You had also been involved in the extensive trafficking activities that are encapsulated by the rolled up Charge 2.
Charge 2
32The offending here was of the most serious nature. In this rolled up charge, you were involved in trafficking two different types of drugs and the conduct that spanned the various modes of trafficking: agreed to sell, offer to sell, preparation for sale, and possession for sale.
33Your role is apparent from the various messages. You were agreeing to sell MDMA to your co-accused and Floyd Weng Keat Lai, and methylamphetamine to Floyd Weng Keat Lai and unknown others. You were also arranging to sell methylamphetamine to unknown persons to be delivered by Mr Lai and Mr Cheah. You were also preparing the drug for supply to other persons. You were thus in something of a management role.
34It is clear from the messages within the prosecution opening that over the period of the offending in Charge 2 you were significantly engaged in trafficking activity and this indicates a high level of culpability. This is notwithstanding that the prosecution is not in a position to fully expose the amount that you were to receive for your conduct. In addition, as conceded by your counsel, there were other people more involved and more important, including your co-accused.
35The depth of your involvement in trafficking over the period can be seen by the seizure of $69,000 in cash from your apartment in King Street, as well as the usual drug paraphernalia.
36Similarly, your involvement in renting the Harbour Esplanade apartment for cash and in a false name, and then using it as a base for trafficking such that when it was the subject of the search warrant 10.654 kg of pure methylamphetamine was located in various bags.
37The quantity of drugs found gives rise to a presumption of an intention to traffic. The money found at your home and the accoutrements of trafficking found there and at the apartment show that you were entrusted with a significant amount of valuable drugs and funds as part of your involvement in a trafficking operation.
38Overall, in relation to Charge 2, while clearly there were others including your co-accused who were higher than you in the hierarchy, your conduct shows that you were well above a street level dealer and your conduct shows that you were a trusted intermediary in the overall syndicate hierarchy.
Matters in mitigation
39I turn now to matters in mitigation put by your counsel on the plea.
40Your personal circumstances are that you are aged 32 and come from Malaysia. Your parents separated when you were aged 10, with your father working in Singapore. You lived with your mother and three siblings -an older brother and two younger sisters. The family was in a tight financial situation.
41You were educated to Year 8 and left school at 15. You worked in a restaurant and eventually became a kitchen hand and left home at 18 and moved to Singapore. There you worked in a number of restaurants in various capacities for 4 or 5 years. You married when you were aged 25 and were divorced after five years. You have a son aged 7 and have been in regular contact with him.
42A friend of yours invited you to come to Melbourne to work in a kitchen and you arrived in October 2018 on a tourist visa. At the time of the offending your visa had expired and thus you were unlawfully in the country. You worked in a number of restaurants, including in Southbank and the city. When the pandemic struck you had no employment and were unable to access unemployment benefits and began doing drug delivery to pay your rent.
43You had been a regular user of ketamine and MDMA which you commenced at 17 or 18 but have no other issues with drugs and alcohol.
44You had a gambling problem when you were in Malaysia and you lost significant amounts of money and owe money to loan sharks and thus are concerned when you return to Malaysia.
45Your counsel put a number of other matters that I take into account in your favour.
46No prior convictions are alleged against you. On that basis your counsel put that you have reasonable prospects of rehabilitation, particularly given your plea of guilty and acceptance of responsibility. You are also motivated to rekindle the relationship with your son.
47In mitigation your counsel also referred to your plea of guilty. Although the matter went to the committal a number of the charges were dropped, thus the plea of guilty was at a relatively early stage. You have facilitated the course of justice and save the need for a significant trial.
48Your counsel also noted that you are entitled to a perceptible amelioration of sentence under the principle of the case of Worboyes.
49I take that into account in your favour and also take into account that you have been on remand for a period of nearly three years. In prison you were struck down with the COVID at one stage for a period of two weeks, and particularly during 2020 and 2021 and to a lesser extent in 2022, the prison system was affected by the COVID restrictions, and thus a period on remand and indeed in prison was more burdensome than otherwise.
50There has also been the period of delay whilst on remand which is also a burden that must be taken into account.
51Further, a period of imprisonment is more burdensome for you as you do not speak English.
52In addition, a remand prisoner has less access to programs. I note, however, in your favour that you have undertaken a number of courses at a TAFE level, and I give you credit for that and it is relevant to your prospects of rehabilitation.
53Your counsel also referred to the fact that you will be deported upon the completion of your sentence as you have no right to reside in this country as your visa had expired, and any appeals for a visa have failed or been struck out.
54The prospect of deportation is thus a matter that will, to some extent make the sentence more burdensome. However, I give this little weight given that you had no right to continue to reside in this country at the time of your offending.
55Your counsel also emphasised considerations of totality. This was a course of conduct over a relatively narrow period and thus considerations of totality must be given significant weight. The court is required to impose a total sentence that is proportionate to your offending.
Sentencing submissions
56The learned prosecutor referred the court to the provisions of the Crimes Act that requires that a sentence of imprisonment be imposed as a last resort. In sentencing you I am required to take into account all the matters in s5 of the Crimes Act and in the Sentencing Act.
57Further, the learned prosecutor referred the court to a number of authorities in dealing with offenders under the Criminal Code. General deterrence is a very important consideration and a court is required to have regard to sentences imposed or confirmed in comparable decisions throughout the Commonwealth. Matters personal to an offender carry less weight.
58The Commonwealth provided a helpful table of cases. The learned prosecutor referred in particular to the case of Allami v DPP (Cth) [2021] VSCA 42 as having some relevance and also the case of Wing Thi Chu v The Queen [2018] VSCA 65, where the quantity traffic was 5.3 times a commercial quantity.
59I have had regard to the cases referred to by the learned prosecutor as providing something of a relevant yardstick for sentencing. It is difficult to find strictly comparable cases given the different offences, different drugs and different antecedence of offenders.
60Close attention must be paid to the reasoning in those cases rather than the ultimate outcome.
61Other offenders that were involved in this overall scheme have been dealt with four different offences including Mr Lai, and Mr Cheah. Yi Siang Ong was dealt with for an offence similar to your offending in relation to charges 1 and 3 however he was charged with attempting to possess a commercial quantity of methyl amphetamine being 6.1679 kg of pure methyl amphetamine. His sentence of seven years imprisonment with a non-parole period of four years cannot be seen as comparable, and I note however that an appeal against that sentence was dismissed.
Sentence indication
62This matter was the subject of a sentence indication hearing where I indicated that upon a plea of guilty I would impose a total effective sentence of 12 years' imprisonment with a non-parole period of eight years. Since that time, I have further reflected on the circumstances of the offending here and appropriate sentencing principles, and the matters put in mitigation, including issues of totality and the burden of the period that you have been on remand during COVID, and I have determined that a lesser sentence is appropriate.
Purposes of sentencing
63The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
64As I have indicated, general deterrence is a very important consideration in sentencing for drug offences. The sentence of the court must denounce your conduct, and send a signal to all those minded to engage in any part of the process of the distribution of illegal drugs that upon apprehension serious sentences of imprisonment will be imposed to deter others minded to engage in this economic crime.
65A further consideration is that offending of this type is very difficult to detect and this increases the importance of general deterrence. As I have indicated previously, you were significantly involved within the supply chain of illegal drugs over a considerable period involving substantial amounts of drugs and cash. The sentence of the court must send a signal to those minded to get involved in the drug trade that they will pay a heavy price when detected. I have taken into account all the submissions made on your behalf, including considerations of parsimony and of totality, and sentence you as follows:
Sentence
66On Charge 1 – trafficking 1,4-Butanediol you are sentenced to three years' imprisonment. That is a State offence. I impose a 1 year non-parole period
67Charge 2 – trafficking in a commercial quantity of methylamphetamine and MDMA, you are sentenced to nine years' imprisonment. This is the base sentence.
68Charge 3 – importing a marketable quality of methylamphetamine, you are sentenced to six years' imprisonment.
69I order that one year of the sentence on Charge 3 be served cumulatively on the sentence on Charge 2. I order that the Commonwealth sentence commences on the expiry of the non-parole period of the State sentence on Charge 1.
70I intend to impose a total effective sentence of 11 years' imprisonment with a non-parole period of seven years and three months.
71To avoid confusion on the interrelation of the State and Commonwealth charges, I note that the intention of this sentence is that Mr Ong be eligible for parole after serving 7 years and 3 months in custody, and note that he entered custody on the 20th of January 2021.
72I declare you have served 1017 days' imprisonment and order that it be deducted. I declare that had you not pleaded guilty I would have imposed a total effective sentence of 15 years' imprisonment, with a non-parole period of 10 years.
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