Director of Public Prosecutions (Cth) v Too
[2016] VCC 1510
•17 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01656
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TZE THONG TOO |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2016 | |
DATE OF SENTENCE: | 17 October 2016 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions (Cth) v Too | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1510 | |
REASONS FOR SENTENCE
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Subject: SENTENCE – PLEA
Catchwords: Possess a marketable quantity of unlawfully imported border controlled drug contrary to s307.6(1) of the Criminal Code (Cth) – young offender – short period of criminal offending – overseas national on tourist visa – reckless as to illicit contents of imported goods – rehabilitation – deportation – plea of guilty
Legislation Cited: Criminal Code Regulations 2002 (Cth); Sentencing Act 1991, s.18(4), s.6AAA
Cases Cited:Nguyen v R (2011) 31 VR 673; Cappis v R [2015] NSWCCA 138; Omorogbe v R (2013) 234 A Crim R 556
Sentence: Convicted and sentenced to four years’ imprisonment with a non-parole period of two years and nine months. Section 6AAA declaration: five years’ imprisonment, with a non-parole period of three years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP(Cth) | Mr A. Albore | Solicitor for Commonwealth Office of Public Prosecutions |
| For the Accused | Ms J. Munster | Victoria Legal Aid |
HIS HONOUR:
1 Tze Thong Too, you have pleaded guilty to one charge of possession of a marketable quantity of an unlawfully imported border-controlled drug, namely methamphetamine, the maximum penalty for which is 25 years’ imprisonment.
Circumstances of your offending
2 The facts are set out in the Prosecution Opening (Exhibit A), which I adopt.
3
You came to Australia in 2012 and completed a three-year Business Management Diploma while on a student visa. You graduated in June 2015, and returned to your native home of Malaysia. While in Australia, you met and formed a relationship with a Hong Kong national, Ms Au Po Man. Through
Ms Man, you met “Wayne”, also from Hong Kong, although it is not clear when the meeting took place.
4 In September 2015 you returned to Australia on a tourist visa to see Ms Man and to travel. According to your counsel, it was your intention to look for work in Australia with the prospect of living here on a more permanent basis. I am satisfied this was the reason for your return to Australia. At the time, you were residing in an apartment in Melbourne with a number of other people.
5 Wayne had requested you receive parcels for him containing various goods, including Chinese noodles. According to your record of interview, the arrangement was that you would be notified by Wayne when a parcel was ready to be sent, you were to open the parcel and photograph its contents, send the photograph to Wayne and then provide the parcel to Wayne’s customers.
6
You only received two parcels over the period from 24 September 2015 to
15 October 2015. The second delivery only is the subject of this charge. At the time, you were the subject of an Australian Federal Police investigation. The first parcel contained tapes with an Australian Federal Police logo. You became suspicious of the contents, and attended the Box Hill police station, where you were told you could return the parcel if it was not yours.
7 Some short time before 15 October 2015, you received a parcel, the subject of this charge, from Wayne. It was seized in a raid at the premises where you were living, and you were arrested on that day. The parcel contained small sachets containing 676.5 grams of methamphetamine, a pure weight of 543.2 grams, with a purity of 80.3 per cent.
8 It is accepted the substance is a border-controlled drug prohibited pursuant to the provisions of the Criminal Code Regulations (Cth).
9
According to intercepted telephone discussions, Wayne asked you to provide your bank details so money could be transferred to you, although there is no evidence you received any payment. According to your counsel, you were unaware as to the illicit nature of the contents, although you harboured suspicions; it is said you agreed to receive the packages out of affection for
Ms Man.
10 In the record of interview conducted on 15 October 2015, you denied knowing anything about the package containing drugs. You said you had discussed with Wayne bringing products into Australia. You denied being in any business arrangement with Wayne. You claimed that you were being “set up” and that you were innocent. You made some other limited admissions.
11 You pleaded guilty on 23 September 2016, prior to the commencement of the committal hearing. No evidence was called and no cross-examination of witnesses took place. You were incarcerated in October 2015 and have remained in custody since.
12 Your tourist visa has expired and at the conclusion of any term of imprisonment, it is likely that you will be deported to Malaysia.
13 The wholesale value of the methamphetamine seized is between $168,000 and $241,000.
14 You have no convictions for prior criminal offending.
Factors personal to you
15 You are now 25 years old and were 24 at the time of offending. You were born in Malaysia of Chinese ethnicity. Your parents separated when you were young. You completed secondary schooling and after a short time in the Army, worked as a motor mechanic. You are a practising Buddhist and have continued your involvement in that religion in Australia.
16 You are said to be close to your mother and your younger sister and brother. During your time in Australia, you sent money home to the family. Your relationship with Ms Man broke down when you were arrested.
17 You have disclosed your offending to your family, who were said to be shocked and disappointed. According to testimonials from your sister and mother, you have provided support to your family since your father left when you were only 12 years old. They said you are an otherwise good person, a pillar of support for the family, and have reflected upon your offending whilst in prison. You were said to be a devout Buddhist with strong morals and values. You have been involved in cultural and community projects and provided a positive influence to those around you.
18 According to a testimonial from Dr Ley Low, who has known you since 2013, you have carried the responsibility as the sole breadwinner for your family, have shown respect for your mother, are hardworking and disciplined and have undertaken voluntary community work assisting others in the Metropolitan Remand Centre, in particular, sharing the Buddhist philosophy.
19 According to your counsel, you accept the seriousness of your offending and do not suggest that it was brought about by the duress of others with whom you were associated.
Sentencing considerations
20 The purposes for which a court may impose a sentence are:
· punishment – to an extent and in a manner which is just in all the circumstances;
· deterrence, both specific and general;
· rehabilitation, and;
· denunciation and/or protection of the community.
21 In sentencing you I must have regard to a range of matters, including the seriousness of the offending, your culpability and acceptance of responsibility for it, and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking, so far as is possible, that offenders are rehabilitated and reintegrated into society. Of these various sentencing considerations, general deterrence is particularly important. Others minded to become involved in the drug trade must understand that, upon conviction, they face the prospect of a significant term of imprisonment.
22 I was taken to and have borne in mind the principles applicable in sentencing for drug importation offences as was set forth by Maxwell P in Nguyen v R.[1]
[1](2011) 31 VR 673 at paragraph [34]
23 You have pleaded guilty, albeit at a later time, and are entitled to have that fact taken into account in your favour. A plea of guilty, no matter why or when it is entered, must always attract a sentencing discount. Your plea evidences remorse. There is significant utilitarian benefit in the avoidance of the costs of a trial and sparing witnesses the ordeal of giving evidence.
24 Although you are not a “young offender” as defined, you are a youthful offender, and thus rehabilitation is an important sentencing consideration. I accept that your prospects of rehabilitation, given the close ties to your family, your religious involvement, and the remorse you have shown by your plea, are strong. Further, you have no prior convictions and in the course of your imprisonment I accept that you have attempted to undertake courses, and assisted other prisoners in their understanding of the Buddhist philosophy.
25 I accept the submissions of your counsel that because English is not your first language (although you have the ability to communicate to some extent, given you have completed a three-year business course), that you are a young man with only your sister presently in Australia to visit you while in prison (she will not be permitted to remain beyond December 2016) and with the remainder of your family living in Malaysia, that your time in prison will be somewhat more harsh and difficult than it would be for others without those restrictions. I bear this matter in mind in the sentence I am about to impose.
26 I bear in mind further that at the end of the period of imprisonment, in all likelihood you will be deported to Malaysia. It is put that, to some extent, this should be taken into account as a form of punishment. However, your case is very different from someone who faces deportation having spent years establishing a life, family and employment in this country. I accept, however, you had returned to Australia in September 2015 to consider the prospect of remaining here on a full-time basis, and gaining employment. In the scheme of things, I do not regard the prospect of deportation as a significant sentencing factor.
27 I further accept there will be some impact upon your family in Malaysia of your imprisonment. It is conceded that that impact does not satisfy the “exceptional circumstances” test. Again, this is not a significant aspect of your sentence.
28 I accept that you were not the principal in the transaction which led to your arrest. You were used by others higher in the scheme and your role was to receive the packages from Hong Kong, and then pass them on to others. Nonetheless, as the Court of Appeal has said on a number of occasions, your involvement is significant. Without you and others like you in the drug chain, transactions involving illicit drugs would not occur. I accept there is no evidence to suggest you received any financial gain for your involvement. However, it is difficult to reconcile your claim that your involvement in the affair arose out of your relationship with Ms Man when, in the course of telephone interceptions, you were asked to provide your bank details so that money could be paid into a bank account. I accept the submission of the prosecution that the inference to be drawn is that your involvement in the offending was for the prospect of profit.
29 It was further put on your behalf that you had no knowledge of the real contents of the package, although were suspicious your involvement was part of some illicit activity. This, it was said, was consistent with your visit to the Box Hill police station the day before you were arrested, about an earlier package. However, given that the package contained contents marked with the Australian Federal Police logo, your actions were more of a person thinking that he was the subject of an investigation. There was no evidence to suggest that you had any knowledge of the true contents of the relevant package, although it must have been relatively obvious from the nature of the transaction and the fact that only part of the contents were required for delivery, that the contents were illicit. Nonetheless, I accept that your involvement was one more of recklessness, or wilful blindness, than a true understanding that you were involved in the drug trade.
30 The quantity of methamphetamine involved, on any view, was substantial. It was a quantity towards the upper level of the maximum quantity for the charge of possession of a “marketable quantity”. The weight involved was approximately 70 per cent of the maximum weight for the charge. This is a measure of the seriousness of the offending.
31 I was taken by the prosecutor to a number of sentences in cases where the facts were said to be comparable with the circumstances of your offending.
32
The first of these cases was Cappis v R[2], where Mr Cappis pleaded guilty to unlawfully importing 679.7 grams of pure methamphetamine and was sentenced to six years’ imprisonment with a non-parole period of four years.
Mr Cappis also had no prior criminal history and was granted a sentencing discount for entering an early plea of guilty. While there was no evidence that he received any financial gain, the Court found that he was “an active participant” and was at a level of “some significance” in the importation process and for its distribution with a third party. He was over ten years older than you at the time of committing the offence and, although a foreign national, there was no evidence to suggest he struggled with the English language, lessening the hardship for a term of imprisonment.
[2][2015] NSWCCA 138
33 In Hong Hoe Tan v TheQueen[3], Mr Tan pleaded guilty to importing 241.4 grams of pure heroin and, on appeal, was sentenced to five years’ imprisonment with a non-parole period of three years. While Mr Tan entered an early plea of guilty, was a foreign national and also had no prior criminal record, he was aged 54 years at the time of offending and had a previous history of drug use. In his record of interview he admitted to receiving a financial gain of two thousand dollars for importing the package.
[3][2014] VSCA 301
34 Finally, in Omorogbe v R[4], the offender pleaded guilty to importing 245.6 grams of white powder, 42 per cent of which was pure cocaine, and was sentenced, on appeal, to four years’ imprisonment with a non-parole period of two years and six months. Despite the fact that the offender also had no prior criminal history and there was no evidence of financial gain, the offender initially fled from police when they attempted to arrest him at a newsagency collecting a package, and had to be apprehended at a later time. Further to this, in his record of interview, he failed to assist police with their enquiries, denying attending the newsagency at all.
[4](2013) 234 A Crim R 556
35 Although each case must be assessed on its own facts and circumstances, I bear in mind the sentences imposed in these matters.
Sentence to be imposed
36 Taking into account all the matters to which I have referred, I impose the following sentence:
37 On the charge of possessing a marketable quantity of an unlawfully imported border control drug, you are convicted and sentenced to a term of imprisonment of four (4) years. Given your youth and the various other factors to which I have referred, I direct that you serve a minimum period of two (2) years and nine (9) months’ imprisonment before becoming eligible for parole.
Pre-sentence detention
38 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that a period of 368 days is to be reckoned as a term of imprisonment already served under the sentence, and I direct that this declaration and its details be noted in the records of the Court.
Section 6AAA of the Sentencing Act 1991
39 Pursuant to s.6AAA of the Sentencing Act 1991, I state that but for your plea of guilty, I would have imposed a total effective sentence of five years’ imprisonment, with a non-parole period of three years and six months.
40 MS MUNSTER: If Your Honour pleases.
41 HIS HONOUR: No ancillary orders?
42 MR ALBORE: There are no ancillary orders, Your Honour. If Your Honour pleases.
43 MS MUNSTER: If Your Honour pleases.
44 HIS HONOUR: Anything further?
45 MS MUNSTER: No, Your Honour.
46 MR ALBORE: No, nothing further arising, Your Honour.
47 HIS HONOUR: Thank you. Please allow Mr Too a few moments with his family and lawyers before being taken to the cells. Thank you, I will temporarily adjourn.
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