Director of Public Prosecutions (Cth) v Cheung

[2024] VCC 2002

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00992

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

WAI CHUN CHEUNG

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2024
DATE OF SENTENCE:	12 December 2024
CASE MAY BE CITED AS:	DPP (Cth) v Cheung
MEDIUM NEUTRAL CITATION:	[2024] VCC 2002

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              One indictable charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug – consignment comprising 497.2kg of methamphetamine (662.9 times commercial quantity) – offender flew to Australia specifically to oversee and give directions in relation to the unpacking, repacking and reloading of drugs – evidence of prior knowledge of illicit nature of consignment and links with overseas organisers, as well as those involved in Australia who contacted the freight forwarding company and made a warehouse available to receive the consignment, as well as an earlier “dry run” of a clean container to that warehouse – conducted surveillance outside warehouse following delivery of the consignment whilst it was being unpacked, repacked and reloaded for distribution – arrested at Melbourne Airport International Terminal the following day attempting to flee to China – relatively early plea of guilty with some remorse and high utilitarian value – no prior convictions – reasonable prospects of rehabilitation.

Legislation Cited:      Sentencing Act 1991, Crimes Act 1914 (Cth.)

Cases Cited:Queen v Verdins [2007] VSCA 62, R v Nguyen (2010) 205 A Crim Rep 106, Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673.

Sentence:                  Total effective sentence is eleven years’ imprisonment with a non-parole period of seven and a half years.

S6AAA: Total effective sentence fourteen years’ imprisonment with a non-parole period of ten and a half years.

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APPEARANCES:	Counsel	Solicitors
For the DPP (Cth)	Ms H Baxter (on plea) Mr N Zvekic (on sentence)	Solicitor for the Commonwealth Director of Public Prosecutions
For the Offender	Mr A Jackson	Valos Black & Associates

HER HONOUR:

1Wai Chun Cheung, you have pleaded guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug (methamphetamine), which carries a maximum penalty of life imprisonment or a fine of 7,500 penalty units or both.

2The circumstances of your offending are detailed in the Further Amended Prosecution Plea Opening.[1]  The charge involves conduct by you, between 19 September 2023 and 10 October 2023, in relation to a consignment of 16 pallets of toilet rolls in a container which had left Malaysia by ship on 9 September 2023 and arrived in Melbourne on 26 September 2023 (“the consignment”).  Australian Border Force discovered that three of the pallets, unlike the other 13, comprised six, rather than eight, slabs of toilet rolls.  These three pallets were resting on two layers of white parcels.  Inside those parcels were 125 gold packets labelled “Freeso Durien Tea” and 497 green packets labelled “Guanyi Wang Tea”.  In total, there were 622 packets of tea, each weighing approximately 1 kilogram.  Each of the packets contained methamphetamine with a purity of about 80 per cent.  The total quantity of pure methamphetamine in the consignment was 497.2 kilograms.  A commercial quantity of methamphetamine is 0.75 kilograms. Thus, the amount of methamphetamine was 662.9 times the commercial quantity.  Australian Federal Police removed the methamphetamine and replaced it with an inert substance and, thereafter, a controlled delivery of the consignment was made to the named consignee, BRO&S Cleaning Supply Pty Ltd, at 12/45 Bunnett Street, Sunshine North, Victoria, 3020 (“the warehouse”).

[1]Exhibit “A”

3On 18 September 2023, you travelled from Kuala Lumpur to Hong Kong and, then, from Hong Kong to Australia, where you arrived on 19 September 2023, travelling on a Hong Kong passport.  Thus, your arrival was seven days prior to the arrival of the consignment in Australia.  On 4 October 2023, you attended the warehouse with a co-accused, Mr Koo, and you both then attended Melbourne Airport where you rented a Volkswagen Tiguan vehicle, registered number S343CFY, in both of your names (“the Tiguan vehicle”).

4Prior to this, Mr Koo, apparently at the request of another co-accused, the owner of the warehouse, Mr Lin, had hired a removal truck, registration number 1YB-1ZA, from Europe Car in Blackburn (“the rental truck”).  On 6 October 2023, a “clean container” which did, in fact, contain only toilet rolls and which had arrived from Malaysia on the same ship as the consignment, was delivered to the warehouse at 3.27pm and accepted by Mr Koo, who unpacked it.  At 3.52pm on that day, Mr Koo telephoned you. The Tiguan vehicle was observed parked out the front of the warehouse. The prosecution case is that this “clean container”, which did not contain illicit drugs, was a ploy to distract authorities from the illicit contents of the consignment yet to be delivered to the warehouse.

5On 9 October 2023, a person described as Wei Heng Yu emailed the Brisbane-based freight forwarding company, Cargo Connect, requesting that the consignment be delivered before 12.00pm the following day. 

6On 10 October 2023, at 12.21pm, an unknown male drove a semi-trailer carrying the consignment to the warehouse.  At 12.35pm, Mr Koo parked the rental truck outside the warehouse and opened the roller door of the warehouse, and the semi-trailer entered through the open doorway.  From 12.40pm to 12.52pm, Mr Koo supervised the driver of the semi-trailer as he unloaded a shipping container with the consignment inside from the semi-trailer into the warehouse.  The unknown male then returned to the semi-trailer and drove away.  Mr Koo then drove the rental truck into the warehouse and parked it next to the container and closed the roller door.

7At 1.05pm, you arrived at the warehouse in the Tiguan vehicle.  You supervised Mr Koo, who was using a pallet jack, to unload the pallets of toilet rolls slabs comprising the consignment from the container. From 1.25pm to 1.29pm, you assisted him to remove plastic wrap from the pallets.  At 1.29pm, you began to remove wraps from the white parcels which were concealed under the slabs of toilet rolls, revealing the contents to be ostensibly packets of tea. 

8Between 1.34pm and 4.21pm, you left the warehouse at various intervals and completed surveillance laps in the Tiguan vehicle, but returned to the warehouse and unwrapped the white parcels and extracted the packets of tea (from which the drugs had been taken and substituted by Federal police with an inert substance).  You supervised Mr Koo as he constructed numerous empty cardboard boxes from flatpacks, and assisted him in unwrapping the parcels of tea packets. You ultimately left him alone from 2.56pm until 4.18pm, during which Mr Koo finished extracting the tea packets and began to load them into the cardboard boxes.  You briefly returned to the warehouse from 4.18pm to 4.21pm to check on Mr Koo. 

9At 4.20pm, the previously mentioned co-offender, Mr Lin, arrived at the warehouse. He and Mr Koo laid out several of the substituted tea packets on the floor, unpacked the packets which had been previously placed in the boxes by Mr Koo, and then replaced the packets into the boxes. They continued this task until 5.03pm.  From 5.19pm to 5.20pm, Mr Koo and Mr Lin loaded the filled boxes into the rental truck.  At 5.55pm, the Tiguan vehicle in which you had arrived, and an MG wagon, in which Mr Lin had arrived, were parked outside the warehouse.  You and Mr Lin got into your respective vehicles and you drove away from the warehouse. This concluded your involvement in the offending.  You had made phone calls to Mr Koo on a number of occasions between the hours of 12.32pm and 5.53pm.

10Mr Koo drove the rental truck containing the packed boxes to where Mr Lin was waiting a short distance from the warehouse.  They then drove, together, to a location in Westmoreland Road, Sunshine North.  At this location, Mr Koo got out of the rental truck and another co-offender, Mr Ng, got into the driver’s seat and drove off.  Mr Koo then got into the vehicle driven by Mr Lin, which left the area.

11On 12 October 2023, Australian Federal Police located the substituted consignment in Mr Ng’s storage unit at National Self Storage, South Melbourne. 

12You had been arrested on 11 October 2023 at Melbourne Airport, attempting to board a flight to China.  You were interviewed on that same day.  You admitted to having rented the Tiguan vehicle and to having attended the warehouse on 6 and 10 October 2003, but denied knowing Lin, Koo and Ng.  You claimed you had been asked to go to the warehouse by someone you knew as “Fat Boy” to watch, and claimed that the green tea packages had been separated from the toilet paper by the time you arrived and you had been asked by “Fat Boy” to stay in the area to see if there was any danger.  You claimed you thought that something illegal was happening and left straight away.  You claimed that you had come to Australia for travel and had been to see the Twelve Apostles and did not touch anything at the warehouse.

13You were arrested and remanded in custody.  You conducted a contested committal on 17 June 2024, albeit confined to cross-examination of the informant. At the committal, you had pleaded not guilty. However, the matter resolved by 5 July 2024 and you were arraigned on the indictment on 23 July 2024 and pleaded guilty.

14Mr Lin and Mr Ng have pleaded not guilty and are awaiting trial.  Mr Koo pleaded guilty on 26 April 2024.  Earlier today, I sentenced Mr  Koo on the charge of attempted possession of a commercial quantity of an unlawfully imported border controlled drug confined to one day, 10 October 2024, to a total effective sentence of five and a half years’ imprisonment with a non-parole period of three years.

15I regard your moral culpability for this offending to be very significantly higher than that of Mr Koo for the following reasons:

(a)   Mr Koo’s offending was confined to one day only, whereas yours was spread over a period of three weeks from 19 September to 10 October 2023.

(b)   Unlike Mr Koo, who had been living in Australia for four years on a dependent spouse student visa, you came to Australia specifically to engage in this offending and were arrested whilst attempting to flee from Australia the following day.

(c)   Mr Koo knew nothing of the illicit nature of the consignment until approximately 1.29pm on 10 October 2023, when you began to remove the wraps from the white parcels concealed under the slabs of toilet rolls forming part of the consignment, and revealed the ostensible packets of tea with their crystalline contents which had been substituted by police. The case against Mr Koo was that he had become reckless as to the contents of the consignment at this point. You were well aware of the illicit contents of the consignment and, indeed, had been well aware of the “clean container”, which did not contain illicit drugs which had been delivered to the warehouse on 6 October 2023. This had been the subject of a telephone call from Mr Koo to you, and the Tiguan vehicle which you had been driving since it was rented on 4 October 2023 was observed parked out of the front of the warehouse on 6 October 2023. I am satisfied beyond reasonable doubt that you knew that this “clean container” was designed to distract authorities from the contents of the illicit consignment which was to be delivered on 10 October 2023.

(d)   When you were arrested by police at Melbourne Airport International Terminal on 11 October 2023, you were found to be in possession of $6,330 cash.  In addition, you were in possession of three mobile phones.  These contained a quantity of incriminating material, including images of green tea packets opened and revealing a white crystal, identical to those located in the consignment, a WeChat image of an unknown person with toilet rolls in the background, images of tracking details for both the consignment and the “clean container” delivered to the warehouse on 6 October 2023, images of seals on both the consignment and the “clean container”, images of toilet paper on pallets, and an image of the business card of Wei Heng Yu (who had emailed the freight forwarders, Cargo Connect, in relation to the delivery of the consignment) as well as images of the warehouse.  These factors, together with your liaison with Mr Lin prior to leaving the warehouse on 10 October 2023, your surveillance role conducted on that day, and your directions to Mr Koo in relation to the extraction of the bags of tea and assemblage of flatpack cardboard boxes and repacking of the packages of tea into them, reveal a great deal more knowledge than Mr Koo of the overall illicit scheme involved in both the importation of this consignment and the proposed distribution of the illicit drugs thereafter (albeit that you were not involved in the latter). You were clearly involved for much longer than the one day, 10 October 2023, when Mr Koo became suspicious about the weight of the pallets and then became reckless as to their illicit contents. Indeed, what was to be done with the consignment was only revealed incrementally by you to him, as you gave him directions.

(e)   Mr Koo made significant admissions in his record of interview. Although you made some admissions to some aspects of your offending, you lied to police when you were interviewed on 11 October 2023, and insisted that you had departed from the warehouse as soon as you became suspicious as to the illegal contents of the consignment.

(f)    Mr Koo pleaded guilty to the Charge on 26 April 2024, albeit that from the date of the filing hearing in the Magistrates’ Court on 12 October 2023, there had been adjournment on three occasions of committal mention dates with a view to discussions and resolution of the matter, and he did not contest a committal.  You did conduct a contested committal and did not make an offer to plead guilty until somewhat later than Mr Koo, namely, 4 July 2024.

16In a plea on your behalf by Mr Jackson, it was submitted that you were not the organiser or financier of the consignment, and neither did you have any role in the distribution of drugs within Australia.  Your counsel relied upon the history which you had given to Ms Carla Lechner in a psychological assessment conducted by her on 2 September 2024, and embodied in a report dated 6 September 2024.[2] The history recorded by Ms Lechner was that “I met a friend who asked if I wanted to make fast, quick money … go to Australia and be ‘on guard’, not touch anything, no danger.” You told her that you understood that being “on guard” meant that, whilst others were inside doing something, you would be outside on watch, so if there was police or danger you would notify them.  You claimed to have been unaware of the contents of the delivery, although you thought it was illegal, and maintained that you were to be paid $4,000 but “I didn’t think I’d be in trouble because not touching anything”. 

[2]Exhibit “1”

17Your explanation given to Ms Lechner is extremely vague.  It does not even mention where you met the friend who asked you to be involved.  However, apart from this, it minimises your role. Clearly, you did make preparation for the delivery of the consignment by way of ensuring that you had a vehicle hired for your use. You attended the warehouse on both 4 and 6 October 2023 in relation to the first “clean container” of toilet rolls which was delivered apparently for the purpose of distracting authorities from the consignment of illicit drugs to follow. Moreover, the images on your mobile phones shows well and truly your knowledge of the green packets of tea and contents, tracking details for both the “clean container” and the consignment, and also images of the business card of the person who had liaised with the freight forwarding company, images of toilet paper stacked in the warehouse and images of the packed rental truck with the sealed boxes containing the packets of tea from the consignment.

18I am satisfied beyond reasonable doubt that you engaged in this enterprise for profit.  I am not satisfied on the balance of probabilities that you were to only be paid $4,000 for your efforts albeit that I am unable to define the extent of your financial gain.

19In sentencing you, I am conscious of the principle of parity, which requires that like offenders should be treated in a like manner.  However, it also allows for different sentences for different offenders which reflect their different degrees of culpability or personal circumstances.

20In pointing out what I regard to be significant differences between your role and that of Mr Koo, together with some difference in the time of your plea (being later than Mr Koo’s, and after a contested committal, albeit one where only the informant was cross-examined) I have provided the basis for regarding your role as well above that of Mr Koo, who was essentially employed by Mr Lin to provide “the muscle” for unloading the consignment, repacking it and loading it into the rental truck.  As I have stated, Mr Koo only became aware of any future plans for the consignment when you directed him to do specific tasks at the warehouse, after he had become reckless as to the contents of the consignment being illegal drugs.

21Compared to Mr Koo’s recklessness on the day of packing and unpacking, you were aware prior to arriving in Australia that there was to be methamphetamine inside packets of tea, as is evident from Images 41 and 42 which had been deleted from one of the phones found in your possession at the time of your arrest.[3]  Thus, although I cannot be satisfied beyond reasonable doubt that you knew the precise quantity of drugs in the consignment, you did have actual knowledge that drugs were to be contained in the consignment and where they would be positioned.  Further, the images on your phone, which include a consignment of toilet paper dated 30 August 2023,[4] show an apparent association by you in the sense of knowledge of the earlier “clean consignment”.  However, on one of your phones is a further photograph taken on 29 August 2023 which shows a person packing packages which are consistent in appearance with those utilised to conceal the packets of tea hidden at the base of three of the pallets of toilet paper in the consignment.[5] Also on your phone were freight bills addressed to Foo Hoong Trading in Malaysia on 30 August 2023 describing the consignee as BRO&S Cleaning Supply Pty Ltd, and the description of the goods as toilets rolls, as well as documents relating to the tracking of the consignment.

[3]Part of Exhibit “B”

[4]Exhibit “C”, Image 28

[5]Part of Exhibit “B”

22Whilst there is no evidence that you had funded or organised this consignment, or secured the warehouse, it is plain that you were trusted by others higher up in the chain of organisation to specifically come to Australia and oversee the safe unpacking and repacking of this very valuable consignment of illicit drugs.  The documents on your phone, which show an association with the trading company and freight details relating to shipping of consignments from Malaysia to Australia, were not specifically addressed at the plea hearing by your counsel, who described you having been employed in the construction industry.  These photographs show a significant affiliation by you with the other parts of the organisation overseas, whereas Mr Koo had no such affiliation. Further, the photographs of the freshly repacked packets of tea in boxes in the back of the rental truck show a concern by you to document that the job had been done prior to you attempting to flee the country.[6]

[6]Exhibit “D”, Photograph 35 taken on 10 October 2023

23In sentencing you, I am obliged to take into account such of the matters set out in s.16A of the Crimes Act 1914 (Cth.) which are known to me and arrive at a sentence of a severity appropriate in all the circumstances. I am conscious that this offence is a quantity-based offence and, whilst not the predominant sentencing principle, the weight of the drugs will be a significant factor in sentencing, along with the role undertaken by an offender. I am mindful of the 13 sentencing propositions which have been held to be relevant in drug importation cases.[7] I have had regard to sentences imposed in other cases in other jurisdictions across Australia as yard sticks and as examples of the application of relevant sentencing principles.

[7]R v Nguyen (2010) 205 A Crim Rep 106, as adopted in Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673 at 681-2, and many subsequent cases.

24I take into account as part of your personal circumstances that you had an upbringing which Ms Lechner describes as characterised by emotional neglect and abuse, which has led to features of Complex Post-Traumatic Stress Disorder.  You are the youngest of three children, who was born and raised in Hong Kong.  Apparently, your parents had illegally immigrated there and were deported back to China, and you were left in Hong Kong with a distant relative and had limited contact with your parents until the age of 12, although you would apparently visit them once a month in China.  You described being emotionally and physically abused by the distant relative with whom you were left in Hong Kong, as well as that person asking you to expose yourself to him.

25Your parents returned to live in Hong Kong when you were aged about 12 years, and, although you lived with them for a further four to five years, you apparently felt isolated from the family unit.  You attended school until age 14-15 years and then worked part time, mostly in unskilled employment.  You used to provided money to your parents, in particular, provide help for your father’s expensive medical treatment because he was diagnosed with cancer and died about three years ago.  You have apparently had nothing to do with the family since his death.  You have a girlfriend who lives in China and, although you continued to work in Hong Kong, you would return to China to stay with her on a regular basis.  She continues to keep in touch with you by telephone, but you fear that your long separation from her will lead to the end of the relationship. 

26Ms Lechner diagnosed you as suffering “features” of Complex Post-Traumatic Stress Disorder on a background of early attachment disruption and emotional disconnection from your family.  She also described you as suffering an Adjustment Disorder with Depression which is reactive to you being in custody, where you feel extremely isolated.  On administering the Beck Depression Inventory, she noted a score in the “extreme range”, which was consistent with your appearance during interview.

27Your counsel did not submit that any of the matters raised in Ms Lechner’s report enlivened the principles of The Queen v Verdins[8] and, clearly, your depression and anxiety and Adjustment Disorder are reactive to the very serious legal predicament in which you have placed yourself.  It is part and parcel of the consequences of your criminal offending that, if arrested, you would end up in a prison in Australia, where language barriers and isolation would be part and parcel of such imprisonment. 

[8][2007] 16 VR 240

28Nevertheless, I take into account in a general way your dysfunctional family background, albeit that I am unable to find that it has any relevant nexus in causing you to commit this crime. I also take into account that imprisonment is a lonely experience for you and will probably continue to be so, as you are not well acquainted with the English language, albeit that it is to your credit that you have apparently undertaken some English study whilst in custody, as well as some study in cleaning operations, certificates of which were tendered at the plea hearing.[9]

[9]Exhibit “2”

29Mr Cheung, the extreme gravity of this offence is indicated by the maximum penalty of life imprisonment which applies to it.  Illicit drugs cause great harm in our community to the health of those who use them and to the community in general.  Those abusing illicit drugs very often commit crimes to support their habit and this impacts adversely on the safety and welfare of the entire community.  The resources needed to treat those who suffer the effects of drug addiction, as well as the resources of police to investigate crimes like the one you have committed and of courts to deal with such crimes, consumes an enormous amount of time and money.

30Crimes like yours are difficult to detect. This factor and the very adverse consequences which flow to our community from importation of illicit drugs mean that denunciation of your conduct and emphasis upon general deterrence must be the main sentencing principles for this offending.  Courts have repeatedly made plain that stern punishment will be warranted in almost every case, so that a message will get through to would-be drug importers that the potential financial rewards to be gained from such criminal activities will not be worth the risk.  Unless significant sentences of imprisonment are applied, this principle of general deterrence will not be served.

31Although there is no evidence that you personally funded or organised the shipment of the consignment or selected the warehouse to be used, it is very serious and offensive behaviour to come to this country specifically for the purpose of committing a crime which has the potential to cause so much harm.  Although I have noted your prior good character in not having previously committed any criminal offences, it is generally acknowledged that this factor is to be given less weight in mitigation where sentencing for serious cases of drug importation.  The sheer quantity of the drugs involved and the length of time over which your offending was conducted, showing you to be trusted by those higher up on the organisational scale, as well as the fact that you flew into Australia specifically to supervise this consignment and give directions in relation to its unpacking, repacking and reloading. These factors make this a grave example of this offence in which your role was a very significant one.

32Certainly, a degree of cooperation by way of admissions when you were interviewed, together with your plea of guilty are important factors in mitigation.  Although your plea was not entered at the earliest time, there is some remorse which forms part of it. However, your statement of regret to Ms Lechner, that you were “very silly…over such a small amount of money”, shows a lack of insight into the evil consequences of importation of illicit drugs, and, as previously mentioned, your version of events to Ms Lechner minimised the extent of your offending behaviour. Nevertheless, your plea of guilty was still entered at a relatively early time and does exhibit some remorse and acceptance of responsibility and willingness to facilitate the course of justice.  In addition, the community has been spared the time and expense of a criminal trial.  The utilitarian value of your plea of guilty is very significant as a mitigatory factor in your favour.  You are entitled to a real and tangible discount on the sentence which otherwise would have been imposed by reason of your plea of guilty.

33In some respects, I acknowledge that there was a lack of sophistication exhibited in your offending in that your passport and identity documents were in your own name and the hire of the Tiguan vehicle was also in your own name (as well as the name of Mr Koo).  I have assessed your prospects of rehabilitation as being reasonably good, although the relative social isolation that you suffer is of concern. It seems that your girlfriend in China is your main social support and the future of that relationship is understandably uncertain.  Although I have not been able to find any nexus between the features of Complex Post-Traumatic Stress Disorder found by Ms Lechner and your offending[10] (which seems to be motivated by an opportunity to make quick money), these features, together with your reactive Adjustment disorder and Depression and the extreme isolation which you suffer in custody, and are likely to continue to suffer, will make serving a sentence burdensome for you. I take this into account.

[10]        I specifically reject Ms Lechner’s assertion that you appear to have been an easy target to recruit (Exhibit “1”, p. 2), as being outside her area of expertise.

34Obviously, when your sentence is completed, you will be deported to Hong Kong.  By that stage, many years will have passed and I understand and take into account your anxiety that your relationship with your girlfriend may well not survive this lengthy period.  I have previously stated that it is to your credit that you have been working whilst in custody and have already undertaken a couple of courses to try to improve your English and a vocational course in cleaning operations, which you have been putting into effect by working as a cleaning billet in custody.  One can only hope that you continue to use your time in custody in as rehabilitative a way as possible.

35In all of the circumstances the only possible sentence is a very significant term of imprisonment involving a head sentence and a non-parole period.

36On Charge 1, attempting to possess a commercial quantity of an unlawfully imported border controlled drug, you are convicted and sentenced to be imprisoned for a period of eleven years.  I order that you serve a period of seven and a half years’ imprisonment before becoming eligible for parole.  The commencement date of this sentence is today and I declare a period of 428 days presentence detention to be time reckoned as already served under the sentence imposed.

37Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty, the total effective sentence imposed would have been fourteen years’ imprisonment with a non-parole period of ten and a half years.