Director of Public Prosecutions (Cth) v Cheng

[2016] VCC 98

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-01286

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

CHING CHENG

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2016
DATE OF SENTENCE:	12 February 2016
CASE MAY BE CITED AS:	DPP (Cth) v Cheng
MEDIUM NEUTRAL CITATION:	[2016] VCC 98

REASONS FOR SENTENCE
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Subject:                   CRIMINAL LAW

Catchwords:                   Sentence – conspiracy to import commercial quantity of a border controlled drug

Legislation Cited:   Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Proceeds of Crime Act 2002 (Cth), Sentencing Act 1991 (Vic)

Cases Cited:R v Yau (unreported, County Court of Victoria, 6 March 2015), DPP v Peng [2014] VSCA 128, DPP v Huang [2015] VCC 235, DPP v Hui [2015] VCC 1373, Lam v R [2015] NSWCCA 143

Sentence:Convicted and sentenced to 10 years imprisonment with a non-parole period of 7 years and 6 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms O. Go	Solicitor for the CDPP
For the Offender	Mr C. Yang	Paul Vale Criminal Law

HIS HONOUR: 

1In this matter Ching Cheng, who is 21 and was 20 at the time of these events, being born on 12 February 1994, pleaded guilty in this Court on 1 February 2016 to two charges in Commonwealth Indictment No.CR-15-01286. Both of those charges are breaches of ss.11.5(1) and 307.1 of the Criminal Code Act 1995 (Cth) and are charges of conspiracy to import a commercial quantity of a border controlled drug. In this instance the border controlled drug was methamphetamine. The relevant category or amount for a commercial quantity of such is three quarters of a kilogram.

2Insofar as charges of conspiracy, the laying of such a charge requires the consent of the Director and the Director indeed did give that consent and that was tendered as Exhibit B.

3The first charge involved a period over four months from September 2014 through to January 2015.  The second charge is dated 17 and 18 March 2015, at or about the time Mr Cheng was arrested.  The seriousness of each of these offences is demonstrated by the fact that Parliament has prescribed a maximum penalty of life imprisonment.

4Mr Cheng has no relevant priors in Australia.  He has a minor dishonesty matter in Hong Kong, which I see of being no relevance in this particular matter. 

5Mr Cheng has served a considerable period by way of pre-sentence detention, which as at today, is agreed at 332 days.

6Mr Yang appeared on behalf of Mr Cheng and Ms Go appeared on behalf of the Director.  Ms Go tendered as Exhibit A the prosecution summary in regard to this matter.  The facts set out in such summary, which became Exhibit A, were accepted by Mr Yang as the facts upon which I was to sentence his client.

7The first charge, as detailed in the prosecution opening, relates to seven consignments, which were never actually physically intercepted. 

8The prosecution is based primarily upon the initial admissions made following arrest of Mr Cheng and the corroboration obtained from his iPhone and audio recordings and statements of himself.  It is somewhat unique, in my experience, in that regard.

9The seven consignments make up a course of conduct as detailed in s.16A(2)(c) of the Crimes Act 1914 (Cth) and each of such consignments, as admitted, was one kilogram.

10I will come to the role of Mr Cheng, but essentially when such consignments arrived in Australia, they were then weighed and photographed by Mr Cheng before delivery and, indeed, photographs of each consignment were downloaded by him from his iPhone and sent back to Hong Kong or wherever his principals were.

11In regard to charge 2, Mr Cheng was arrested coming into Australia and, again on his own admissions, he was entering Australia for a period of some three to six months in order to be involved in exactly the same criminal conduct.

12To fully understand what was involved in this criminality, it is necessary to take some time to refer to Exhibit A, the prosecution summary.  As set out in the executive summary therein and as I have said, the prisoner was 20 at the time, now 21. 

13The conspiracy was with a number of persons, in each instance to import a commercial quantity of a border controlled drug.  The commercial quantity, as I have said, is 0.75 of a kilogram.  Paragraph 10 sets out the details and the reliance on the unlawful agreement and the extended definition of import as set out in s.300.2 of the Criminal Code Act 1995 (Cth).

14The offending itself, insofar as details, occurred as I have indicated.  The charges were laid, as I have said, essentially upon the admissions as set out in paragraph 14 on the previous visit, which takes into account the period that I have detailed in regard to Charge 1, he had received seven or eight packages.  For the purposes of this sentence it was accepted that seven was the figure. 

15Mr Cheng received instructions from overseas.  He became aware that drugs were being sent.  They were never in his name, the packages, which he received in Sydney, they were always sent from Hong Kong.  His role was to find a house or hotel and advise an address to where they sent the package.  Initially he was paid some AUD$3,200 a package.

16Further admissions, following his arrest, to the AFP led to an understanding that the contact person in Hong Kong was a person called Xiao Qiang.  He was in charge of the process, but again allegedly he was not the ultimate boss but another intermediary.

17It was said that Mr Cheng initially received a sample package to test the process and the address, before receiving four more packages. When he opened the second package he saw that it contained drugs.  He would take receipt of the package using a false name and somewhat surprisingly was never asked to produce identification at the time of any delivery.  The use of the false name obviously was part of the system.  The methamphetamine was secreted in various objects.  He was unaware of the purity of the drug.

18On p.6, paragraph L, an important paragraph which says as follows:  "Upon receipt of each consignment, the prisoner would open the package, photograph the methamphetamine using his iPad, weigh it on the electrical scales, which can be seen in the exhibits tendered, the photographs being Exhibit D, check the quality and how damp it was and communicate with Qiang.  In fact he would send photographs to Qiang via an application called WeChat."  WeChat provides a degree of anonymity because it is not necessary to register a phone number.  He subsequently deleted the photographs and conversations with Qiang to protect himself.

19In respect of the total number of packages received at each address, four packages were sent to the first address.  The first packages was a sample only.  Mr Cheng received the second and third packages at that address, however the fourth package did not arrive, as it was intercepted by Customs.  At the second address he was sent one package, however it was also intercepted by Customs before he received it, so he moved again and it was at the third address that he received another six packages.

20After receiving the consignments containing the drug ice, the prisoner would arrange delivery of the drugs to persons in Sydney, whose identity he did not know and who were different on each occasion.  As I said, for each international mail consignment of methamphetamine received and subsequently delivered to unknown persons in Sydney, the prisoner was paid, Hong Kong, between HKD$10,000 and HKD$20,000.  The money was transferred to the prisoner's Hong Kong bank account via cash deposits made at ATMs in Hong Kong by unknown persons.

21In regard to his own knowledge, the paragraph D, at the top of p.8, is important.  Mr Cheng apparently looked up the details of drug dealing, to the extent that one can on the internet and discovered that one kilogram of the drug ice was worth millions of Hong Kong dollars and felt that he should get a better share.  He calculated what he thought his payment should be given in relationship to the weight of the drug and thought he was getting less compared to others.  He was also asked if he could introduce anyone else to the job, that is to do the Australian side of the job. 

22He left Australia in January 2015.  There were discussions about him apparently doing a further trip and he had in his mind, so his counsel tells me, a lot less than a one year trip.  However he did return to Australia on 18 March, in possession of a return flight, however this was a pretence only as he intended to stay and receive packages for three months.  He thought that apparently those packages that he was to receive would contain larger quantities of ice and be delivered more frequently than earlier, as a result therefore he had negotiated a pay rise whereby he would get a 60 per cent increase, that is to HKD$32,000 per consignment.  There is no doubt that in regard to both of these charges the intent was financial gain.

23The police investigation by way of forensic examination of the prisoner's mobile phones, his iPad and his laptop and further enquiries of Custom's databases and freight forwarding companies corroborated the information provided by the prisoner.  As I say, it is unusual in my experience for a prisoner, facing such serious charges, to be so forward in the material he provides.

24One of the interesting aspects that I will subsequently refer to is the audio communication located on the WeChat audio file, in particular a chat located on the file dated 11 December 2014.  On that particular day there was a discussion insofar as the penalties involved for these matters.  The prisoner suggested he was told by someone that if he gets caught he would only get six months or half a year.  The prisoner said he had actually found out it was somewhere between 20 and 30 years. 

25In order to know the truth, he apparently went online himself.  He searched for maximum penalty for drug trafficking in Australia.  The result of that said that they received somewhere between 20 to 30 years' imprisonment and the most serious ones are prison for life.  I imagine what he was looking at there was maximum penalties.

26Interestingly enough on this WeChat the prisoner was advised, and spoke of the discount that one would get, even for such a serious charge by pleading guilty he thought that the sentence that he would serve would be somewhere between four and five years.  That will prove to be an underestimate of course, but it is interesting that not only do we have evidence in this case of a person prepared to take grave risks in regard to his liberty, but a person who was aware of the extent of such risk and was still prepared to go ahead and continue to commit this crime.

27There was reference made by the prosecutor, because from further examination of the electronic communications, towards the end of his last trip in January 2015 and prior to returning to Australia, the prisoner took on somewhat of a mentoring role.  He provided advice on how to get through Customs without attracting attention, how to rent suitable accommodation and provided advice about the nature of the work.  I do not take those matters in any way into account by way of aggravating these crimes, and it is important that he is only sentenced for the actual criminality that he was involved in.

28The reason why I was at some pains to read out those portions of the history is that it is important in this matter to ascertain Mr Cheng’s precise role.  It was the submission of counsel on behalf of Mr Cheng, Mr Yang's submission, that I should classify him as a courier.  I do not so classify him.  I use the words "forward scout pioneer."  He is a vital cog to the operation in this matter. 

29In my view his culpability is higher than a courier.  He is a party to overcoming the Customs' safeguards set in this country to resist the importation of these sort of drugs.  His role was that of checking arrivals, packaging and thereafter arranging deliveries.  Not only was he a vital cog, but he can be classified as a main player in this particular enterprise, a main player in overcoming the risks previously involved, where people come through Customs loaded with drugs.  In saying that of course, I fully understand that he is not at the top of the scale in regard to criminality in this particular enterprise.  It is very rare that we get those people before Courts.

30I, however, agree with the very similar classification made by Judge Tinney in in this Court on 6 March 2015 of R v Yau (unreported, County Court of Victoria, 6 March 2015). In particular he spoke of the issue of the role of the prisoner, between paragraphs 36-42, and his views as to the importance of Mr Yau’s role are reflected in my determination. I would reject the proposition put by counsel that I should treat as merely a courier. He was not.

31There is no evidence before this Court as to the profits obtained in regard to the seven deliveries, or the profits anticipated in the second charge.  Clearly, however, given the amounts involved, they were substantial and given the knowledge of the Court of the widespread use of this drug throughout Victoria, it was clearly anticipated by the persons who were organising this and utilising
Mr Cheng to get product through Customs, that there would be substantial profits.  It is accepted insofar as Mr Cheng is concerned that he was and did get for each of the seven packages in regard to Charge 1, AUD$3,200 per package.  Also in regard to Charge 2 he had negotiated a 60 per cent increase in regard to his receipt, albeit that never occurred, but as to what he was to receive.

32Insofar as the submissions of Mr Yang are concerned, the defence outline submissions were tendered as Exhibit 1.  There was no denying, nor could there be, the seriousness of these offences.  There was also no denying that the motivation was financial.  There is also no denying that despite my classification of his role, there are others involved higher up the chain.

33Insofar as the plea itself, as set out in the prosecution summary to which I have already referred, on p.15 is the history of proceedings, proceedings of this dimension and seriousness, getting before the Court within a year again is remarkable in itself.  The prisoner was arrested on 18 March, the matter was listed as a committal hearing on 10 June, additional charges were filed and served on 8 July and an offer was made to plea to the matters contained in the Indictment on 20 July and he was finally committed on 29 July.  Clearly those circumstances are somewhat remarkable in themselves.

34However, it is clear, as I have earlier said, that not only has this plea come before the Courts quickly, but it is a very valuable plea.  It is a valuable plea because it is essentially based upon his own admissions and co-operation.  As I said, the admissions were made initially to the AFP and were then corroborated by the forensic searches that I have referred to.

35I accept in pronouncing this sentence that the Court are dealing with a young person.  I also accept that it will be very difficult and has been difficult for him during the periods in remand while in gaol, as language issues and indeed a failure to have the benefit of a family closely located.

36In oral submission and in particular on the second page and third page of the submission, was a background set out of Mr Cheng including the mental health diagnosis referred to in the psychological report, Exhibit 2, of Mr Geoffrey Cummins, psychologist, dated 27 January 2016.  I take into account that Mr Cheng had a difficult and impoverished upbringing.  It would be true to say that he was "ripe" for recruitment. 

37However, the Courts have repeatedly said that in these circumstances the fact of being youthful and having no priors does not have the strength that it might otherwise have, because these are the very persons utilised to be able to defeat the steps taken by this community to stop these dangerous drugs coming into the country.  The authorities are very clear that persons who take such big risks with their liberty, in this case Mr Cheng who knew precisely what those risks were by way of maximum penalty, must bear the consequences.  He is, as was put by Mr Yang, entitled to a discount for the plea of guilty.  That discount involves an acceptance of his co-operation, of his assisting the course of justice and also the utilitarian benefit to the community of such a plea.

38I also have been advised and I accept that it is necessary under s.320 of the Proceeds of Crime Act 2002 (Cth) to take into account the forfeiture order in this matter, which I will sign, and his co-operation in that regard. Those matters essentially involve the electronic devices and the sum of $2,000 that he was found with. I take into account in particular the Commonwealth sentencing provisions set out in s.16A(2), and as I have already said the course of conduct provision set out in s.16A(2)(c).

39Mr Cheng it is clear, as I have found, that your involvement was absolutely fundamental to the success of these importations.  You had many opportunities to pause for thought and consider the seriousness of what you were doing during the time that you were initially here, and the time before you then decided to come back.  Your offending was extremely serious in this country.  As I have said, you knew beyond doubt what you were doing, what the material was and the risks you were taking, as I have demonstrated from the chat message.

40There have been many instances where higher Courts in this State and in this country have emphasised that those who engage in the importation of drugs to this country must expect, if caught, to suffer significant punishment.  Our Court of Appeal has stated and referred to the difficulty of detecting importation offences and, indeed, you were part of what I considered a novel attempt to beat that detection system, certainly as far as this Court is concerned.  However, in reading the cases that were given to me, clearly such has been tried on other occasions.

41Deterrence in those circumstances, as has been decreed by the Court of Appeal, is to be given real weight and stern punishment is to be expected by persons who are involved in these type of crimes.  The sentences imposed by our Courts must signal to would be traffickers that the potential financial rewards on offer are neutralised by the risk of severe punishment.

42As I say, in this case, the facts demonstrate that despite your knowledge of such severe punishment you maintained your criminality, not only for the period set out in the first series of consignments, but you returned to Australia to effect more.

43It is obviously, given the type of charge, inherently a serious offence to be part of a conspiracy to bring drugs into this country in any quantity.  To do so in a commercial quantity is extremely serious offending.  In each of your charges Parliament has provided for the ability of this Court to imprison a person for life.  That surely spells out the seriousness of this offending.  Each of your crimes are punishable by the maximum term of life imprisonment.

44You, as I have found, Mr Cheng, have been an active and vital part of this pernicious drug trade.  You have been criminally concerned in the organised importation into this country of a very sizeable quantity of methamphetamine worth a very large amount of money, and you have set about distributing same as well.  Any person actively involved in importing into this country drugs of this quantity, as I have said, must expect to receive a very substantial immediate term of imprisonment.

45General deterrence therefore has a very vital role to play in this area of sentencing.  The amount of the drug is also an important consideration, the sentencing regime being quantity based, however it is not the only consideration.  As I have said, I take into all of the matters put to me in mitigation by your counsel, in particular your age.  However the quantity is sometimes the only point of differentiation between various instances of this offence.  Here the quantity involved insofar as Charge 1 was concerned was ten times the commercial quantity, albeit that it was a series of offences.  It is necessary therefore for this Court to send a loud and clear message to any person engaged in or thinking of being engaged in this activity, even to those vulnerable or financially pressured as it appears you may well have been.

46In determining the appropriate sentence, I have indeed taken into account, as best I can, the materials set out in the Sentencing Advisory Council statistics for this particular crime.  Again, by way of comparison, I have also looked at the Sentencing Snapshot No.163, which is the State charge, which warrants a term of life imprisonment for trafficking in a large quantity of drugs.

47I have also looked at the cases that were tendered by the prosecution by way of comparative cases, being DPP v Peng [2014] VSCA 128; DPP v Huang [2015] VCC 235 a determination of Judge Dean on 13 February 2015; Yau, the determination of Judge Tinney, which I have also mentioned; R v Hui [2015] VCC 1373 being a further decision of Judge Dean on 3 August 2015; and finally a New South Wales decision of Lam v R [2015] NSWCCA 143. With no disrespect to my fellow Judges, I must say that I thought the views expressed in Peng as to sentence were of far more assistance to this Court.

48It is necessary in regard to your sentence therefore to take all of those matters into account in the synthesis that is involved in this process and I do so.

49On Charge 1, you will be sentenced to a period of imprisonment of nine years.

50On Charge 2, you will be sentenced to a period of imprisonment of six years.

51I order that one year of the period of imprisonment on Charge 2 be served cumulatively upon the sentence imposed in regard to Charge 1.  That, by way of a Commonwealth sentence, means that I have got to start the Charge 1, Madam Prosecutor, today, being nine years and then four years from now, which I take to be 2020, I start the next one, is that right, which would give me ten years.  Sorry, not four years.  No, I only want the one year, so nine years ‑ ‑ ‑

52MR YANG:  Five years.

53HIS HONOUR:  Five years from now, 2021.  The sentence of nine years in regard to Charge 1 will begin on today's date.  The sentence on Charge 2, six years, will begin on today's date in 2021. 

54Madam Prosecutor, can I set a total non-parole period?

55MS GO:  Yes, Your Honour.

56HIS HONOUR:  Right.  For both offences the total non-parole period that I have determined that you should serve before being eligible for parole is a period of seven and a half years.

57Albeit that this matter has not been finally determined by the High Court, but accepting for the moment that s.6AAA of the Sentencing Act 1991 applies, and indeed in this case I think it is important that you understand the value to you of your plea, which I have deemed as valuable.  Had you not pleaded guilty the sentence that I would have proscribed on you, would not be ten years with seven and a half to serve, but would have been 13 and a half years with ten years to serve.

58The pre-sentence detention that you have served to date, being 332 days, I declare to be part of this sentence and I make that declaration pursuant to s.18 of the Sentencing Act 1991 to be recorded in the records of this Court.

59What other orders am I making?

60MS GO:  A forfeiture order.

61HIS HONOUR:  Have I signed the forfeiture order?

62MS GO:  Your Honour, my recollection is on 1 February I saw you sign the order, but I have not ‑ ‑ ‑

63HIS HONOUR:  That is what I thought.  Yes, I have signed it.

64Mr Cheng, it is important to tell you in clear terms that essentially you have been sentenced to ten years' gaol and the period that you must serve before being eligible for parole is one of seven and a half years.

65As I said, had you not pleaded guilty, you would have had a sentence of
13 and a half years with a minimum of ten.

66Madam Prosecutor, have I done everything I am required to do under the Commonwealth legislation.

67MS GO:  Your Honour, if I could just have a moment to figure it out.

68HIS HONOUR:  Certainly, let us get it right.  Is that right, 2021, or should it be - if you serve nine years on today, that takes us to 2025, does it not?  If you serve six years on 2021, takes us to 2027, that will give him 11 years.  Should it not be 2020, six years?

69MR YANG:  Ten years as Your Honour envisaged in terms of the head sentence given one year cumulation.

70HIS HONOUR:  Yes.

71MR YANG:  Takes us to 2026.

72HIS HONOUR:  No, the first charge nine years on 2016 takes us to 2025.

73MR YANG:  To 2025.

74HIS HONOUR:  Right.  That is when he finishes that one.  If he starts 2021, another six years takes him to 2027.

75MR YANG:  Which is one year too many.

76HIS HONOUR:  Yes, so he should start 2021, should he not?

77MR YANG:  Yes, Your Honour.  The commencement should be 12 February 2020.

78HIS HONOUR:  Exactly.  It is always a joy doing a Commonwealth sentence.  That makes a total effective sentence of ten years for the both of them.

79MR YANG:  Correct, Your Honour.  Commencement for Charge 1 for nine years will be today.

80HIS HONOUR:  Today.

81MR YANG:  Then the commencement for Charge 2?

82HIS HONOUR:  Will be today 2020.

83MR YANG:  Will be 12 February 2020, which will give a total effective head sentence of ten years, Your Honour.

84HIS HONOUR:  Yes.  Otherwise from what we earlier had gave him 11, which I do not intend to.

85MR YANG:  Eleven, correct, Your Honour.

86HIS HONOUR: All right. PSD is right, s.6AAA is right, forfeiture order is right. Anything else?

87MR GO:  Your Honour, if I could have a copy of - if Your Honour's Associate could provide me a copy of the signed forfeiture order.

88HIS HONOUR:  Yes.  All right.  Apparently they are in Chambers, we will get it to you.  We can let the prisoner go.  Yes?

89MR YANG:  Yes, Your Honour.

90HIS HONOUR:  Yes, Mr Cheng, good luck.

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