Director of Public Prosecutions (Cth) v Wang

[2016] VCC 975

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-16-00769

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

CHUN WANG

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JUDGE:	HIS HONOUR JUDGE MCINERNY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2916
DATE OF SENTENCE:	8 July 2016
CASE MAY BE CITED AS:	DPP (Cth) v Wang
MEDIUM NEUTRAL CITATION:	[2016] VCC 975

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – import a commercial quantity of a border controlled drug

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

Cases Cited:Pham v R [2014] VSCA 204, Nguyen v R [2011] 31 VR 673, R v Nguyen; R v Pham [2010] NSWCCA 238, Dao v R; Tran v R [2014] VSCA 93, R v Le Cerf (1975) 1 SASR 237, Konamala v R [2016] VSCA 48, DPP (Cth) and DDP v Garside [2016] VSCA 74, Hasan v R [2010] VSCA 352

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

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms H. Low	Solicitor for the CDPP
For the Accused	Ms N. Kaddeche	Emma Turnbull Lawyers

HIS HONOUR:

1This plea was heard before me on 4 July of this year, indeed this week, when Chun Chieh Wang, who is aged 29, having been born on 19 November 1986, pleaded guilty to one rolled-up charge in a Commonwealth Indictment, being a breach of s.307.11 of the Criminal Code Act 1995 (Cth).

2Ms Loh appeared on behalf of the Commonwealth Director and Ms Kaddeche appeared on behalf of Mr Wang. 

3That particular clause of the Criminal Code is an offence of importing a commercial quantity of a border controlled drug.  In this case, the particular drug is methamphetamine. 

4The seriousness of this offence is demonstrated by a reference to the Act itself and the fact that Parliament has prescribed as the maximum penalty that can be imposed for such an offence, a period of life imprisonment. 

5The prosecution summary, Exhibit A, was accepted by Ms Kaddeche as the facts upon which I am to sentence Mr Wang. 

6The Indictment itself, as I said, is a rolled-up charge and it in fact concerns five importations.  While two of those importations on their own do not meet the definition of commercial quantity, because in this instance the quantity charged in the particular matter is the importation of a commercial quantity of a border controlled drug. 

7The Crown relies on the provisions of firstly s.311.4(1) of the Criminal Code to prove the quantity for the rolled-up charge involving the five importations, by combining the quantity of the said five postal consignments, on the basis that Mr Wang was involved in an organised commercial activity as is required, pursuant to that section that involved repeated importing of such drug, and/or s.311.13 of the Criminal Code, where a combination of such five consignments took place within the required period under that Act, of a period of 30 days, in this particular instance, being from 28 December 2015 to 21 January 2016.  Hence, such an aggregated liability as to quantity was accepted by the plea and as indicated by Mr Wang's counsel.

8The quantity so imported, by way of aggregate in these five consignments, amounts to 3,653.2 grams, pure, of this drug, which is therefore some 4.87 times the commercial quantity threshold.  That threshold being 750 grams. 

9As was said by the Court of Appeal in the case of Pham v R [2014] VSCA 204 [1], the Commonwealth regime is quantity based and therefore, "…other things being equal, the larger the quantity imported, the more serious the offence."

10The values involved in regard to that quantity, were also not disputed.  The then street price is agreed at some $750 to $1,000 per gram, and the wholesale value of such amount was per gram between $1,011 and $1,400.  The street value therefore of the totality of this amount, when multiplied with those factors, amounts to a minimum of $3.4m and a maximum of $4.6m. 

11As I said to counsel, I will assess such values, for the purpose of sentence, at the lower level.  However clearly even at the lower level, this is an extremely large sum, by way of not only volume, but value.  That is not to say, of course, that this Court has not had to deal with larger sums, but this is, in regard to this offence, obviously a large sum. 

12The prescribed sentence pursuant to this particular sub-clause of the Crimes Act 1914 (Cth), the volume of the drug and the value, mean that this crime obviously, as I have said, is a very serious crime.

13When sentencing in regard to such crimes, the factors referred to by Maxwell P in Nguyen v R [2011] 31 VR 673, 681-683, are of particular relevance, in particular at [35], where he referred to the principles set out by the Court of Criminal Appeal in the case of R v Nguyen; R v Pham [2010] NSWCCA 238 [33], which was a New South Wales Court of Criminal Appeal decision.

14The first of those issues, apart from the amount which I have already spoken about, or the volume, is the role played by Mr Wang.  In this particular case, it is difficult to be precise.  His questions or answers to his record of interview says he was helping out a friend and it was the submission of Ms Kaddeche that there is no evidence before the Court that he played anything but a minor role. 

15However, as submitted by the learned prosecutor on behalf of the Crown, the consignments were all ordered by him, either in his direct name or derivatives of his name, they were delivered to addresses or addressed to be delivered to addresses at either where he lived or had been rented by him, they were picked up by persons directed by him so to do, and in circumstances where it was his role in whatever organisation he was partaking in, if there was such a larger organisation, where he was required to check for quantity, as referred to in the surveillance tapes which were placed in the material, and as disclosed by the discussions by him at that time, and as to discussions recorded as the transfer of funds.

16Albeit described by Ms Kaddeche in such circumstances, given the manner in which he used his own name, as unsophisticated, that however is the role that he played, as I have described. 

17Insofar as the role, there was nothing further put in plea as to mitigation, insofar as his role, nor any explanation as to why he played such role.  I accept the classification of the prosecutor, put that he was, for the purpose of sentencing, to be viewed as a key intermediary. 

18Albeit submitted by Ms Kaddeche that Mr Wang was, to use her words, "left in the frame", the circumstances demonstrate that he did play the role as a key intermediary in importing this aggregated amount and where there is no clear explanation as to the role, or explanation as to why he played that particular role, I refer to the comments of the Court of Appeal in Dao v R; Tran v R [2014] VSCA 93, in particular at [40]-[41], where a Court is left with uncertainty as to the particular role, and circumstances, which I find in this case, where it has not been demonstrated the drugs imported came into the prisoner's possession in any mitigatory circumstances.

19As to the role generally and the manner in which such is to be approached,
I refer to the comments of Wells J in R v Le Cerf (1975) 1 SASR 237, 239-240, and proposition 3 of Maxwell P in Nguyen that I have already referred to, being at p.682 of that judgment.

20Insofar as Wells J is concerned, I refer to that particular paragraph at [40], where the Court spoke about the failure of Courts generally, and the authorities, to find the top persons and spoke of how one should sentence recruits in regard to these crimes:

"It seems to me to follow that after making all due allowances for the personal circumstances and antecedence of a prisoner, the facts of the particular case and the need to show such mercy as is compatible with the safety of the public, a Court should impose such sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as potential recruits, the simple truth that
a man who participates in such an organisation at any level - - -"

21As His Honour said and I repeat:

"At any level must expect and will receive a heavy penalty." 

22The next issue mentioned in Pham by the President, at point 6, was the issue of motive. It was submitted on instructions on the plea by Ms Kaddeche that Mr Wang, indeed, had a financial motive for this criminal activity.  That is, that she was instructed to put to the Court that there have been arrangement that he would be paid $500 per consignment.  As I said at the time to Ms Kaddeche, I had no hesitation, nor do I still have any hesitation, in rejecting those instructions. 

23While I accept that such serious criminality was committed for financial reward, to accept the reward involved in those circumstances, was of such a paltry amount, given the quality and the quantity and the street value, it is, in my view, beggar's belief. 

24Coming then to point 8, as referred to by the learned President in Pham, the President stated that:

"Sentences to be handed down in these matters should be severe, so as such sentences must be seen as neutralising the potential financial rewards for committing such crimes."

25It is, of course, the hope of all Courts in sentencing that this deterrent effect can have such impact.  However, of course, the reality is that there are people who are unfortunately tempted, like Mr Wang has been in this case and the result of those temptations to continue to come before the Court.  However, it is the hope of the Court that sentences passed should, by their degree, have a neutralising effect, upon such criminality. 

26As to other factors raised, in particular by the submission tendered to the Court, Exhibit 1, Ms Kaddeche asked me to take into a number of matters, while of course considering the serious criminal culpability in the matter, and not in any way suggesting that an immediate period of imprisonment was not appropriate. 

27Insofar as his custody to date, she pointed to the issues of language, the limited contact that Mr Wang has with the family, his family being all located abroad.  Further, the issue as to what will happen to him at the end of his sentence was brought up before the Court. 

28I was referred to the Court of Appeal decision in Konamala v R [2016] VSCA 48 [25], and I consider, on the basis of those views, despite the submission of the learned prosecutor, that I should take a practical view and that there is no doubt in my view that the practical view is that Mr Wang, when he finishes his sentence, will be deported.

29As to what impact that has on him, insofar as what potentially had to settle in Australia is another matter.  He now has a student visa.  I suppose the answer is, having got a student visa, the odds are that had he not committed such serious criminal activity, he may well have been able ultimately to obtain citizenship, but there again he may not.  However, I do take into account in sentencing the fact that there is no chance whatsoever, if it was his intention to settle in Australia, of him ever doing so, given this conviction. 

30Ms Kaddeche also submitted that I should take into account that this plea was made at the earliest time. Given the time involved in this matter, there is no doubt about that.  It seems amazing that this matter was settled at committal mention and is now being finalised, such a short time thereafter.  I accept the proposition that a plea made at such an early time, whatever the circumstances, is appropriate to take into account by way of an indication of remorse and for its utilitarian benefit to the system of justice.

31The next matter was the issue as to the valuable admissions, insofar as the first two consignments were concerned.  It would appear that those consignments, albeit that they were intercepted, were never actually delivered and there were therefore, and what needs to be taken into account, insofar as Mr Wang is concerned, is that they were indeed valuable admissions.

32Given the fact that he has no priors, it was put by Ms Kaddeche that the Court should consider that he is an appropriate candidate to effect a sentence which promotes rehabilitation.  I accept that.  He is still a relatively young man.  One would hope, especially with a person with no priors, that even having fallen for the temptation as he did in this situation and no doubt in my view, did so playing for substantial financial rewards, that given the consequences of such criminal activity and the sentence that he is to serve, one would hope that he would be a person that would not be before the Courts again. 

33The fact that he had no priors was a further matter put.  It is often mentioned in sentencing that these matters have limited effect, because these are the very types of persons chosen to commit these crimes. However as recently described by Priest JA in DPP (Cth) and DDP vGarside [2016] VSCA 74, one of the principles in sentencing in this State, and indeed in the Commonwealth legislation, is the antecedents of a person. Despite recognising the more limited role that the fact of no priors takes in this types of cases, it cannot be denied that this is an appropriate sentencing factor to be taken into account.

34What was also stressed was the matters of his background, his relative young age, his status and the personal background factors set out by Ms Kaddeche in her submission. 

35The prosecution tendered Exhibit C to assist the Court in the sentencing task, which cases I have indeed considered.  The learned prosecutor referred me in particular to the provisions of the Crimes Act 1914 (Cth) in s.16A(1), 16A(2) and s.17, and submitted and spoke to such factors.

36In that regard, that is in regard to the Exhibit C, that is the series of cases, I refer to what the Court of Appeal had to say in Hasan v R [2010] VSCA 352 [42]-[54], where it discussed appropriate sentencing factors, and in particular at [44] said this, where a Court has been given like cases.

"An examination of comparable cases will then assist the judge to make an objective assessment of the range of sentences applicable.  In cases where the gravity of the offences of a similar nature to the particular offence for which the offender is to be sentenced, but the limitations of this exercise must be borne in mind."

37Further, at [47], the Court said this: 

"Following an appropriate study of comparable cases, together with the application of relevant sentencing principles, the judge will be in a position to identify the boundaries, marking the range within which the particular sentence must fall.  Up to this point, the exercise will have been largely objective, but with an element of the subjective introduced by the process of instinctive synthesis, without which the case for which and the offender upon whom the sentence to be imposed cannot be assessed.  Beyond the point at which the boundaries are identified, however, a judge must exercise his or her discretion in deciding where within the range of the particular sentence should fall."

38Further they said:

"Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of like cases."

39The balancing of all of these factors is very difficult, especially when we are dealing with a person, as is submitted, of relative young age, being that
Mr Wang is still only of the age of 29.  I accept, however, that major considerations, apart from the totality of the considerations that I have referred to in the Crimes Act 1914 (Cth) and the Criminal Code, are general deterrence, denunciation and of course specific deterrence, and the general views, as I have detailed, of the need for condign punishment to effect those principles in cases of this sort. 

40Taking all those principles into account, I have determined a sentence,
Mr Wang, as follows: 

41Mr Wang, if you would stand up please.

42On this matter, you will be sentenced to a period of imprisonment of ten years, with a minimum to be served, or the non-parole period, as required by s.19A(b) of the Crimes Act 1914 (Cth), of seven years.

43Pursuant to s.16E of the Crimes Act 1914 (Cth), I order that the - what is the agreed days as of today?

44MS LOW_:  One hundred and sixty-three days, Your Honour. 

45HIS HONOUR:  One sixty-three, that is agreed, Madam Prosecutor? 

46MS LOW:  Yes, Your Honour.

47HIS HONOUR:  The agreed period of pre-sentence detention of 163 should be deemed as the service of this sentence and a declaration be made to that effect in this Court. 

48On the assumption that s.6AAA of the Sentencing Act 1991 (Vic) applies, can
I indicate to you, Mr Wang, that had you not pleaded guilty, the sentence that
I would have imposed upon you would have been a period of 13 and a half years, with a minimum of nine years and three months. 

49Madam Interpreter, I think it is important for you to indicate to Mr Wang, as a result of the seriousness of his criminality, I have sentenced him to a period of imprisonment of ten years, with a minimum of seven.  He has already served 163 days of that sentence.  But I need to explain to him, as is the Commonwealth requirement, that had he not pleaded guilty, I would have sentenced him to a period of imprisonment of 13 and a half years, with
a minimum of nine years and three months.  So it is important for him to understand the difference it made in him pleading guilty. 

50Yes, are there any other matters for me, counsel? 

51MS LOW:  No, Your Honour. 

52MS KADDECHE:  No. 

53HIS HONOUR:  Yes, you can take the prisoner away.  Yes, good luck, Mr Wang, and I hope my comments about rehabilitation come to fruition. Yes, thank you both.

54MS LOH:  Thank you, Your Honour.

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