Director of Public Prosecutions (Cth) v Chia
[2018] VCC 1503
•14 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00816
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DANNY CHIA |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2018 | |
DATE OF SENTENCE: | 14 September 2018 | |
CASE MAY BE CITED AS: | DPP (Cth) v Chia | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1503 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Law – Sentencing – Import a commercial quantity of border controlled drug contrary to s307.1(1) of the Criminal Code (Cth) and s311.13 of the Code – Immediate term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M J Brown | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr A Halphen | Matthew White and Associates |
HER HONOUR:
1 Danny Chia, you have pleaded guilty to one count of importing a commercial quantity of a border controlled drug, contrary to s307.1(1) of the Criminal Code (Cth) and section 311.13 of the Code.
2 I shall now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing and is marked Exhibit 1.
3 The particulars of your offending are that between 28 July 2017 and 18 October 2017, at Melbourne and other places in Victoria, and at Mascot and other places in New South Wales, you imported a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported was a commercial quantity. In total there were nine consignments.
4 The first consignment arrived in Melbourne on 2 August 2017. A quantity of border control drug was hidden in two boxes of oats that were contained in a package sent from Malaysia. Following analysis and testing, Consignment 1, was found to contain a total of 148.0 grams of pure meth-amphetamine.
5 The second consignment relates to a separate importation of border controlled drug that arrived in Melbourne on the same date. A border controlled drug was found within marker pens that were in a package sent from Malaysia. Upon analysis and testing, Consignment 2 contained 155.1 grams of pure meth-amphetamine.
6 Consignment 3 arrived in Sydney from Malaysia on 27 August 2017. A border controlled drug was found in two boxes of Artline markers. Following analysis a total of 93.8 grams of pure meth-amphetamine was found.
7 Consignment 4 arrived in Sydney from Malaysia on 31 August 2017. In that package were two packets of Omega oats and other items in which were found hidden further border controlled drug that was found to be meth-amphetamine. Following analysis of that consignment 227.3 grams of pure meth-amphetamine was found.
8 Consignment 5 arrived in Sydney on 10 September 2017. A border controlled drug was found secreted within a metal bottle located in that package. Upon testing it was found to contain 228.0 grams of pure meth-amphetamine.
9 Consignment 6 arrived in Sydney on 10 September 2017. The border controlled drug was found within two boxes of Artline markers and other items. The meth-amphetamine was analysed and found to be 135.7 grams of pure meth-amphetamine.
10 Consignment 7 arrived in Sydney on 11 September 2017. It contained Artline markers and other items in which border controlled drugs were found. Upon testing and analysis, 228.9 grams of pure meth-amphetamine was found.
11 Consignment 8 arrived in Melbourne on 14 October 2017. On that occasion, the border controlled drug was found located in a box that was said to contain shower-heads and other items. The analysis of the border controlled substance revealed 186.9 grams of pure meth-amphetamine.
12 Consignment 9 contained meth-amphetamine concealed in Artline markers. It arrived in Melbourne on 18 October 2017, and following analysis it was found to contain 208.7 grams of pure meth-amphetamine.
13 In total, Consignments 1–9 inclusive, contained a total of 1,612.4 grams of pure meth-amphetamine. A commercial quantity of meth-amphetamine is 750 grams.
14 The nine separate consignments constitute nine separate offences against Subdivision A of Division 307. The total quantity of meth-amphetamine imported in the nine consignments is reflected in a single charge on the indictment. Pursuant to s311.13 of the Code, the total quantity of meth-amphetamine imported amounts to a commercial quantity. The meth-amphetamine contained in the consignments represented approximately 2.15 times the commercial quantity threshold.
15 Mr Chia, this is very serious offending and that is reflected in the maximum penalty prescribed by the Australian Parliament for this offence, and that is life imprisonment.
16 You admit that you arrived in Australia on 10 June 2017 on a student visa. It is not in dispute that you travelled to Australia for an illegitimate purpose; rather, you travelled to Australia to assist a drug syndicate in Malaysia to import the border controlled drugs into Australia.
17 You are a Malaysian national. Your parents continue to reside in Malaysia and you are one of three children. You left high school aged 17, having completed the equivalent of Year 11. You then left your village and travelled to Kuala Lumpur and commenced living independently. You worked in a retail clothing outlet as a sales person for eighteen months, and then obtained employment with a bedding company for almost three years.
18 At around the age of 20 you commenced gambling. You began losing heavily at the casino, playing the pokies, and gambling via the internet. Your gambling habit spiralled out of control, such that you had to borrow money initially from friends, and then later from a loan company, at extremely high interest rates. At its most problematic you owed $100,000 Malaysian dollars in respect to your gambling debt. Representatives from the loan company threatened to bring harm to your family because of your outstanding debt.
19 Because of difficulties coping with your situation and your anxiety, you began to lack concentration and eventually you lost your employment. Through personal connections you met some individuals who offered you a way out. They offered you financial security and in exchange you had to agree to travel to Australia to assist with the importation of drugs. The motivation for your offending was so that you would avoid your family members coming to harm, and because you were also wanting to repay the debt as quickly as possible.
20 A student visa was arranged on your behalf, you travelled to Australia and obtained some accommodation in Melbourne at a backpackers lodge, where you awaited instructions from the syndicate in Malaysia, and then you would pursue those instructions as they were received.
21 You do not have any connections with Victoria or Australia. Whilst in Melbourne, you met a young woman and commenced a relationship with her. She was here on a temporary visa, and has subsequently returned to Singapore to live. She has however travelled back to Melbourne to be present at the plea hearing and remains supportive of you.
22 By your own admissions, over the period commencing 10 June 2017 until your arrest on 18 October 2017, you facilitated the importation – that is, the bringing in to Australia of the border controlled drug namely, the meth-amphetamines- in the nine consignments. You played an active part in the organised syndicate to facilitate the importations. You apparently received $10,000 in five instalments, from an unknown male, for your participation. You used the money for living expenses and to defray some of the debt.
23 In formulating the appropriate sentence, I must assess your role in the offending and assess the objective criminality.
24 As I have stated, you were an important part in the syndicate involved with the importations. You used Melbourne addresses which you were either residing in or connected to as points of delivery (Consignments 1, 2, 8 and 9), you tracked the various consignments, you communicated with others unknown in Malaysia about the consignments’ progress, you provided information by way of passport photos to organisers to enable false subscriptions for mobile phones, you travelled to Sydney on the request of those parties to attempt to pick up consignments (Consignments 3, 4, 5, 6 and 7), and undertook relevant internet research for the purposes of the offending as detailed in the prosecution opening.
25 I am satisfied you knew that methamphetamine was being imported in the consignments, having regard to the communications that are detailed in the Crown opening.
26 You subscribed to mobile phones using false names. You were instructed on one occasion to travel to Sydney, collect “four sticks”, and then directed to take a train to Melbourne to drop off the parcel,[1]. You tracked the various consignments and received details of them and their progress. In relation to Consignment 6 you were to receive a “very dangerous drug”, and were directed “once you get the stuff, get back to the hotel, take a photo,” and let your source know you are safe, “then to pick one packet, open it a little to check its contents, and take a photo” to be sent back to your source. You visited various forums about topics including “customs... should I be worried?”.
[1]Paragraph 28, Crown opening
27 There were specific discussions where you offered your comments following seeing a video of a white crystalline substance being stirred[2]. You commented on the video and confirmed that the white crystal substance looked “beautiful” and said “do not crush it”. Thereafter you discussed how much of the substance could be fitted within the box and the importance of not crushing the crystals.
[2]Paragraph 62, Crown opening
28 You responded to unknown WeChat users about consignments, and obtained screen shots of the various consignments’ progress.
29 Therefore I am satisfied that you were knew that a border controlled drug, namely meth-amphetamine, was being imported in the various consignments.
30 I am further satisfied that you were aware that the nine consignments contained a quantity of border controlled drug that was valuable, although you were not given the precise weight of the border controlled drug.
31 I am satisfied you were part of the syndicate and that you were acting at the behest of others unknown in Malaysia to facilitate the importation of the border controlled drug that was contained within the nine consignments. The fact that the total amount imported was 2.15 times the commercial quantity threshold, is a factor that is highly relevant in determining the objective seriousness of your offending.[3]
[3]DPP v Masange; DPP v Kachunga [2017] VSCA 204 per Beale AJA at [139.1], adopting the principles summarised in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72]. This summary was endorsed by Maxwell P in Nguyen v R; Phommalysack v R [2011] VSCA 32 at [34].
32 I am satisfied that the offending is serious and is a serious example of this offence. I place your offending in the higher end of the low and then to the mid-range of seriousness for this type of importation offence involving a commercial quantity of drugs.
33 I am satisfied that you participated in the importation for the purposes of profit, in part related to your need to repay the gambling debts you had accumulated in Malaysia.
34 In sentencing you I have had regard to the matters put in mitigation by your counsel Mr Halphen. You entered an early plea of guilty at committal prior to witnesses being cross-examined. There is real utility in your plea. You have facilitated justice and the sentence will be discounted accordingly. I have had regard to the cooperation with police at the time of your arrest. You admitted to owning a mobile phone found in your possession and provided the authorities with the pass code that enabled the forensic examination to be conducted, following which the Crown case was considerably strengthened.
35 You are a person who is otherwise of good character. You do not have any prior criminal history. However the predominance which must be given to general deterrence for this sort of offending means relatively less weight is accorded to prior good character[4]. Nonetheless, it is a factor I have taken into account.
[4]R vNguyen; R v Pham [2010] NSWCCA 238; Nguyen v R; Phommalysack v R [2011] VSCA 32 at [34]
36 The indictment involves a rolled-up charge reflecting the nine instances of offending, represented in the consignments. Each consignment is capable of constituting a separate offence. Therefore, the criminality involved is greater than a charge involving only one episode of criminal conduct, and you will be sentenced accordingly.[5]
[5]R v Richard [2011] NSWSC 866 at [65f]
37 Upon your ultimate release from prison, you intend to return to Malaysia to take up paid employment and live a more law-abiding life.
38 I accept that as a Malaysian national whose first language is not English, your time in custody will be difficult. You have however, made the most of your time in custody. I note that this is the first time you have ever been in a custodial setting.
39 You are currently at Port Phillip Prison, where you are working in the kitchen seven days a week. You have been able to undertake some courses, including an English course, occupational health and safety courses, food handling courses, and a coping with change program.
40 Your Malaysian family does not know why it is that you have remained here in Australia. You have been too ashamed to tell them about why it was that you have been charged. I accept that your time spent in custody, being so isolated as a consequence of your cultural and linguistic difficulties or differences, will mean that your time spent in custody will be quite onerous.
41 Overall, I consider that you do have reasonably good prospects of rehabilitation and the risk of reoffending is low.
42 General deterrence is a paramount sentencing consideration for drug importation offences.[6] This is because it is very difficult to detect such offending and the great social consequences that follow from the distribution of such drugs in the Australian community. Courts here in Australia have consistently stated that stern punishment will be warranted in almost every case, and involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.
[6]R v Nguyen; R v Pham [2010] NSWCCA 238
43 I have had regard to the authorities and current sentencing practices and the comparative sentences that were discussed during the plea hearing. Those cases provide guidance to the court as to the identification and the application of relevant sentencing principles. Consistency in sentences is very important. The sentences provide a yardstick to the court to help the court, to inform it as to the appropriate sentencing range.
44 Having regard to your personal circumstances and the need for me to apply the sentencing regime as set out in Part 1B of the Crimes Act (Cth), and in particular the factors that I must take into account as set out in s16A(2) as are relevant and known to the court, I consider that a sentence of imprisonment is warranted.
45 I must impose a sentence that is of a severity appropriate in all the circumstances.[7]
[7]S16A(1)
46 Both Ms Brown, on behalf of the Crown, and Mr Halphen on your behalf, submitted that an immediate term of imprisonment ought be imposed with a non-parole period as the appropriate disposition in your case.
47 Could Mr Chia please stand now. I will impose the formal court order.
48 The formal court orders are:
49 In respect to the one charge of import a border controlled drug in a commercial quantity, you will be convicted and sentenced to eight years’ imprisonment, such sentence is to commence from today's date, and I fix a non-parole period of six years.
50 I make the following declaration of pre-sentence detention:
51 I declare that you have spent 331 days in detention, and I make a direction that the pre-sentence detention that has been declared be entered into the records of the court and it is time already served in respect to the sentence imposed this day.
52 Finally, but for your plea of guilty, pursuant to s.6AAA of the Sentencing Act Victoria I declare that but for your plea of guilty I would have imposed a term of imprisonment of ten years, to serve eight years.
53 I think that covers everything, because there are no ancillary orders.
54 MR HALPHEN: Correct.
55 HER HONOUR: Yes, okay, good. Thank you. We will adjourn.
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