Director of Public Prosecutions (Cth) v Yeung
[2017] VCC 1003
•27 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01932
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LI KWAN YEUNG |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2017 | |
DATE OF SENTENCE: | 27 July 2017 | |
CASE MAY BE CITED AS: | DPP (Cth) v Yeung | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1003 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug (Cth) – 13.86kg methamphetamine (over 17 times commercial quantity).
Legislation Cited: Crimes Act 1914 (Cth); Sentencing Act 1991
Cases Cited:DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; Nguyen v R; Phommalysack v R (2011) 31 VR 683; R v Nguyen; R v Pham [2010] NSWCCA 238
Sentence: Convicted and sentenced to 8 years imprisonment with a non-parole period of 4 years 10 months.
Section 6AAA declaration: 10½ years with a non-parole period of 7 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms E Linfoot | Office of the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr L K Barker | Theo Magazis & Associates, Solicitors |
HER HONOUR:
1 Li Kwan Yeung, you have pleaded guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug. This offence carries a maximum penalty of life imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening (Exhibit A). Briefly, those circumstances are as follows:
3 On 16 February 2016 a shipping consignment arrived in Melbourne from China via a freight forwarding and Customs assistance agency called Abba Logistics. The consignment consisted of 36 boxes, each containing 56 packages. Each package contained two push-up bra inserts which were filled with liquid. In 10 of the 36 boxes the liquid inside the push-up bra inserts was methamphetamine. The total quantity of pure methamphetamine was 13.086 kilograms. A commercial quantity of methamphetamine is 0.75 of a kilogram. Thus, the consignment contained 17.44 times the commercial quantity of methamphetamine.
4 Prior to the arrival of the consignment in Melbourne, Abba Logistics had received a bill of lading in respect of the consignment. The consignees were named as yourself and another person, Chunlu Wu, and the address was Unit 1/142 Thames Street, Box Hill North, Victoria. A mobile telephone number of 0416 822 178 (“the first mobile telephone number”) was listed.
5 After Australian Federal Police detected the presence of methamphetamine in the consignment, they substituted an inert substance for the drug, and reconstructed the boxes for the purpose of a controlled delivery. This took place on 4 March 2016 to yourself at the address of Unit 1/142 Thames Street, Box Hill North. A listening device had been concealed by Australian Federal Police inside one of the boxes, and, within a very short time of your having taken the boxes inside the unit, you used another mobile telephone number, 0406 977 525 (“the second mobile telephone number”), to telephone an unknown person in Hong Kong and had a discussion about the boxes. During the discussion, you apparently were directed to keep them for a few days and told that someone would come to get them. Also, there was a discussion about when you would get paid, because you stated that you had to pay the rent that day and had no money.
6 The Australian Federal Police kept you under surveillance. On the following day, 5 March 2016, you were driven from 142 Thames Street to 5 Christina Street, Burwood, by an unknown person. From that address you telephoned the landlord of 142 Thames Street, and also made five further calls to the Hong Kong number, prior to you being arrested at 5 Christina Street, Burwood, on 6 March 2016.
7 The steps which you had taken, in committing the offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, were as follows:
· On 23 January you entered a lease agreement with the landlord of Unit 1/Thames Street, Box Hill North, and paid $520 in cash, being a bond and two weeks’ rent. You contacted the landlord using both of the mobile telephone numbers which have been previously mentioned, up until the date of your arrest.
· You provided your name and the Thames Street address and the first mobile telephone number for the purposes of the bill of lading sent to Abba Logistics, together with a photograph of a Hong Kong passport in your name.
· On 24 February 2016 you deposited $2,125.46 into Abba Logistics’ bank account for port charges, Customs clearance, and delivery charges relating to the consignment of boxes. The deposit was made in cash at a Box Hill branch of the Commonwealth Bank, and was accompanied by a notation “49680 YEUNG”.
· After the consignment arrived in Melbourne, an email address of [email protected] was provided to Abba Logistics via the first mobile telephone number. This email address was used to receive documents from Abba Logistics. On 22 February 2016 Abba Logistics received from that email address a letter of authority in respect of the consignment which was signed by “Yeung”.
· Between 29 February 2016 and 4 March 2016 you made some 7 telephone calls to Abba Logistics making enquiries about the status of the consignment of boxes, the charges payable and the arrangements for delivery.
· You took delivery of the boxes on 4 March 2016, and placed them inside Unit 1/142 Thames Street, Box Hill North.
8 Following your arrest, your mobile telephone was seized and found to have two different SIM cards corresponding to the first mobile telephone number and the second mobile telephone number. Each simcard was registered to a subscriber’s name other than yourself.
9 Following your arrest, you declined to provide police with the access code for your mobile telephone, and were generally unhelpful. You admitted having accepted delivery of the boxes, but denied that they were for you, and denied knowing what was in them. You told a number of untruths to police, including that you had never heard of Abba Logistics or spoken to anyone who worked for that business. You claimed not to know how Abba Logistics got a copy of your passport, and expressed surprise that your name and address were on an arrival notice for the consignment issued by Abba Logistics on 12 February 2016, which notice was found in your backpack when police conducted a search following your arrest.
10 Initially, you were charged with an offence of importing a commercial quantity of a border controlled drug. Following a committal mention, you offered to plead guilty to the charge of attempted possession, but your offer was rejected by the prosecution. A contested committal was held on 3 November 2016 and, ultimately, on 7 February 2017, the prosecution offered to resolve the matter on the basis of your earlier offer to plead to the charge to which you have pleaded guilty. You were arraigned and pleaded guilty on 21 March 2017. In the circumstances, the prosecution has conceded that the court should regard you as having pleaded guilty at the earliest opportunity. In addition, I take into account that between the dates of you being arrested and pleading guilty to the charge, there has been a delay which is not attributable to you.
11 You are presently aged twenty-four years, having been born on 8 August 1992. You come before the court with no prior convictions.
12 In a plea on your behalf by Mr Barker, the court was told that you were born in mainland China, but raised in Hong Kong. Your language is Cantonese, and you have very limited skills in the English language. You have one brother, who is two years younger than you. Your father was a gambler and an alcoholic, and was violent towards your mother. This necessitated police and ambulance officers to be called on occasions. Your father abandoned the family when you were aged approximately eight years, and you have had no contact with him since.
13 Apparently your mother struggled financially to support you and your brother, and, ultimately, you left school at approximately twelve years of age, after completing only the equivalent of the first year of secondary school. Thereafter, you obtained unskilled jobs, doing cleaning or errand work at cafes and bars. You and your brother were left largely to look after yourselves from an early age. Although you had a bed in the apartment where your mother lived, you were not subjected to parental guidance or supervision, and worked as hard as you could in the hospitality industry. You managed to save some money, which you put towards ensuring that your brother remained at school and, also, you used your savings to fund a holiday to Australia.
14 Apparently, you arrived in Sydney from Hong Kong on a tourist visa on 29 January 2015. On 29 April 2015 you were granted a further visa for three months, but that expired on 31 July 2015, and at the time of your offending you were living in Australia illegally.
15 The plea material put before the court as to how you supported yourself in Australia, and what you did with yourself prior to the offending, was scant indeed. Your counsel stated that the only instructions that you had given to him concerning the period that you lived in Sydney, prior to moving to Melbourne on some date which is unclear, is that you enjoyed going to see the Blue Mountains. You told him that you had heard that Melbourne was a good place to visit because it had a large Chinese population, and this was why you moved from Sydney.
16 You found the Box Hill address on a Chinese-Australian website, and your counsel stated “it was around that time” that you received a call from a person known as “Tony”, whom you had met in Hong Kong about a year before you came to Australia. Apparently he was involved in the gaming industry. It was via Tony that you agreed to assist in the actions which have led to this offending.
17 Mr Barker acknowledged on your behalf that this was clearly serious offending and that the only appropriate sentence was a significant period of imprisonment. However, he urged the court to note, in accordance with the monitored telephone conversation which took place between yourself and a person in Hong Kong shortly after you took the delivery of the boxes, that you were to receive only $3,000 (Hong Kong), which is equivalent to approximately $500 (Australian) for your assistance. The prosecution did not take issue with this submission.
18 Mr Barker also urged the court to note from the content of that call that you were totally reliant upon being directed by the person in Hong Kong, and actually asked “What am I going to do now?” and, initially, seemed to be of the impression that you would only need to keep the boxes “for a few hours”, until being advised otherwise. Mr Barker submitted that, although your role was an important one in providing an address for the delivery of the goods and acting as an intermediary, you did not have the wherewithal to organise an importation like this, and were clearly in a poverty-stricken situation, since you were overheard by police in the aforementioned conversation to say that you had no money and needed to pay the rent that day.
19 Mr Barker also asked the court to note that you were formerly a person of good character, with no criminal history in either Australia or Hong Kong. At the time of the plea hearing you had been held in custody at the Metropolitan Remand Centre for 500 days. Mr Barker stated that this has been a very isolating experience for you, as there were no other Cantonese speakers in your unit, and you were subjected to 22‑hour lockdown, like many of the other prisoners, following the 2015 riots. You have had no visitors and have lost contact with your mother and brother in Hong Kong.
20 At the plea hearing, I asked the prosecution to obtain information from the correction authorities confirming or otherwise that you had been subjected to 22 hours of lockdown at the Metropolitan Remand Centre. Today, the prosecutor, Ms Linfoot, has tendered an email dated 26 July 2017 (Exhibit “C”) to herself from Deborah Coombs, principal solicitor at the Victorian Government Solicitor’s Office. This states that, after being transferred from the Melbourne Assessment Prison to the Metropolitan Remand Centre on 17 March 2016, until 9 October 2016, you received seven hours out of your cell each day, whereas, before the riots at the Metropolitan Remand Centre, prisoners had been usually permitted 12 hours out of their cell each day. On 9 October 2016, you were transferred to Calder C mainstream unit, which is where prisoners who have work are housed. From that date, until 22 March 2017, you were working in the horticulture area. Generally, prisoners work nine days per fortnight and, on the days that they are working, have at least 11 hours out of their cell. On non-working days, seven to eight hours out of cell time is permitted. On 22 March 2017, due to an alleged prison offence, you were placed in a single cell and then, on 26 March 2017, until 12 April 2017, you were held in a management unit, during which time you were permitted only one hour out of your cell each day. On 12 April 2017, you were transferred to another unit, but remained on an intermediate regime of only two hours out of your cell for a period. The email states that, from 25 May 2017, you were cleared back to Albion mainstream unit, where you have remained to the present time and receive seven to eight hours out of cell time each day.
21 Whilst I accept that having out of cell time reduced by four to five hours per day does make serving a prison sentence more onerous, it seems that for a period of some six months from October 2016 to March 2017, whilst working in horticulture, you were out of your cell for 11 hours each day on nine days per fortnight. The period of time where you were permitted only one hour or two hours out of your cell each day, appears to have been for approximately two months from late March 2017 to late May 2017. This situation appears to be related to disciplinary action within the prison.
22 Tendered on your behalf as part of the plea material was a report from Mr Ian Mackinnon, psychologist, dated 16 July 2017 (Exhibit 1). He had assessed you at the Metropolitan Remand Centre on 14 July 2017. The personal history outlined in his report contained much of what had been put to the court on your behalf by Mr Barker.
23 Mr Mackinnon noted that, since late adolescence, you had occasionally smoked heroin, but denied any substance dependency. He considered that your lack of developed English-language skills precluded him from the application of the formal psychological testing tools, but opined that you did not appear to be suffering from symptoms that met the clinical criteria for any major diagnosable psychological disorder.
24 He noted that you had felt very socially isolated in prison, and that most of your requests go ignored because you are unable to communicate them by filling out the request form, and there is no one who can help you to do it because there are no Cantonese speakers in your unit. This means that even a simple request, such as for Panadol for a headache, is impossible for you.
25 He considered that your functional intelligence fell within the normal range for your age, and your general cognitive functioning and short and long-term memory appeared normal. He stated that you did not appear to be suicidal, but were somewhat situationally/reactively anxious about your legal situation. He did not believe that you possessed an inherently anti-social or criminal character. He stated, as far as your offending was concerned, that through an interpreter you conveyed:
“I deeply regret it, that I was involved in this. It has spoilt my life and I have wasted a lot of time being locked up ... At that time, I was used up by someone ... Being locked up, I have no choice. I feel depressed. I’m not happy.”
26 He did not believe that you would benefit from any psychological therapy or other therapeutic counselling.
27 Mr Yeung, there can be no doubt about the seriousness of your offending. The quantity of drugs which you attempted to possess was 17.44 times the commercial quantity of pure methamphetamine. It was contained in a total net weight of 30,481.2 grams. The potential wholesale value of this combined net weight of methamphetamine was between $2,432,000 and $3,648,000. Its potential street level value was between $7,620,300 and $15,240,600.[1] Had this amount managed to be distributed, the potential for harm in our community was very high indeed.
[1] Exhibit B, Statement of Keith John Randall, dated 17 July 2017.
28 In sentencing you for this offending I must denounce your conduct. That means that I must state publically how evil it is to import illicit drugs. I must also emphasise the principle of general deterrence. That means that I have to send a message to other possible offenders that being involved in this sort of behaviour will result in substantial sentences of imprisonment. Illegal drugs are a huge problem in our society here in Australia. Users of them very often become addicted, and that addiction destroys their mental and physical health, their ability to be a functioning member of society, and shatters relationships with their families and friends. The problem of addiction costs our community a huge amount of money in order to treat addicts in our medical and hospital facilities. In addition, addicts regularly commit further crimes to support their addiction, which impacts on members of the community who are victims, and increases the amount of police work and public money involved in detecting their crimes. There is further cost involved in processing offenders through the criminal justice system, imprisoning them, and supervising them in the community. For these reasons, courts must impose punishment that is appropriate to the severity of the offending in order to try and protect the community and deter other people from committing these types of offences.
29 The acts committed by you which make up your offending took place over approximately 6 weeks between 23 January and 6 March 2016. There is some need in sentencing you to place emphasis on deterring you specifically. However, as you have been in custody for in excess of 16 months, I think it likely that there is a lesser need for emphasis on this factor, now, than there would have been the case when you were first arrested.
30 These offences involving the importation of illegal drugs can be very hard to detect. As I have said, the potential for terrible harm in our community is very high and so, it is necessary for me to send a strong warning to others who might be inclined to become involved in the drug trade that no amount of financial benefit to them is worth the risk of the substantial term of imprisonment that most likely will be imposed. The sentence to be imposed in your case must be sufficient to reflect the gravity of your offending and achieve the objects of denunciation, general deterrence, punishment and protection of the community, while also taking into account your prospects of rehabilitation, so that the sentence is not a crushing one.
31 I have taken into account the submissions made by your counsel and counsel for the prosecution, as well as the general sentencing principles set out in s16A of the Crimes Act 1914 (Cth) and the restrictions in s17A. In all of the circumstances, as conceded by Mr Barker, there can be no doubt that the only appropriate sentence is a term of imprisonment of a substantial nature.
32 I have mentioned the large quantity of drugs which were involved and their potential value, whether wholesale or at street level. While these are relevant factors, I accept that you were not aware of the actual amount of drugs that were to be imported. Had you been aware, then the size of importation would have been of greater significance in the sentencing process. I also accept your counsel’s submission that you did not have the wherewithal to either organise an importation of this sort, or to be involved in distributing the drugs once they had found their way into the country. Nevertheless, your role in facilitating the entry of the drugs into Australia by communicating with Abba Logistics, paying the amount of $2,125.46 for various charges and providing an address to which the consignment could be delivered and held for a time until collected by other persons unknown, are acts of significant assistance to those people involved in organising this evil trade.
33 On the other hand, I consider that your offending demonstrates gross naivety. That you would have been prepared to accept approximately $500 AUD ($3,000 HK) for what you did, shows that you appear to have had very little appreciation of the grave risk that you were taking and the magnitude of the legal consequences if you were caught. Your conduct was very unsophisticated. You provided your own passport with your own photograph on it to Abba Logistics, you made no attempt to disguise your identity when you inspected and rented the room and entered a lease arrangement with the landlord for the purpose of receiving the consignment. You telephoned Abba Logistics on multiple occasions, again apparently, without endeavouring to disguise your identity. Moreover, it would appear from the conversations with people at Abba Logistics on 2 March 2016, that you were under some pressure from those who were directing you from China to move things along. Further, the conversation that you had with the unknown contact in Hong Kong after you took delivery of the boxes, demonstrates that you had no idea what was to happen to the boxes. You seemed to be expecting that they would be taken from you within a few hours.
34 It is difficult to be precise about categorising roles, but it seems to me that you are at the lowest end of Group 3 in the categories of importation of a commercial quantity delineated by McLennan CJ in DPP (Cth) v De La Rosa[2] and approved by the Court of Appeal in Nguyen v R; Phommalysack v R[3] (2011) 31 VR 683. There is no evidence that you were to play any ongoing role with the consignment involved in this case, or with any future consignments.
[2][2010] 79 NSWLR 1 at [14] (267)
[3](2011) 31 VR 683
35 While being mindful of the general sentencing principles concerning serious Commonwealth drug offences,[4] it seems to me that, notwithstanding the gravity of the offending, your role in it smacks of immaturity. In this regard, I take into account that you were 23 years old at the time of offending and have had a disadvantaged background and limited education in Hong Kong. You have never known the guidance and love of a father figure and, in the short time that he was a presence in your life up to the age of 8 years, he exposed you to his drunken behaviour and the trauma of seeing your mother being physically abused by him. Your mother clearly had a difficult life and you have no emotional bond with her. You are poorly educated and, from approximately the age of 12 years have been effectively left to fend for yourself. I have commented upon the paucity of material about what you were doing in Australia after you arrived here over a year before the offending. While your move from Sydney to Melbourne appears to be linked in time to your involvement with these offences, it would be wrong of me to speculate about what had happened prior to this time. Moreover, it is to your credit that you have not come to the notice of any law enforcement agencies during that prior period and there is no prior offending of any sort alleged against you. I have commented upon the fact that the lack of prior offending is generally given less weight in cases of this type, although, given your background of social, emotional and financial disadvantage, it is perhaps surprising that you do not have a record of prior criminal offending.
[4]R v Nguyen; R v Pham [2010] NSWCCA 238 at [126] (72)
36 I am aware of the fact that your time in custody has been lonely and isolating. There is authority for the proposition that, where a person comes to Australia for the purpose of offending and then suffers such a consequence, they really have been the author of their own misfortune. It is somewhat different in your case, in that there is no evidence that you arrived in Australia a year earlier for the purpose of being involved in this offending. The prosecution has suggested that you, in effect, determined not to return to Hong Kong once you received the call from “Tony”, which led to your involvement in the offending. However, I do not consider that the evidence is as clear cut as that, although you had no legal status as a resident in Australia at the time of your offending and, in that sense, if taken into custody in the absence of such status, it is perhaps problematic to then complain that you are devoid of the support of friends and family. I must say that I do not find the psychological report of Mr McKinnon very helpful, and perhaps this is because he has not engaged in any formal psychological testing because of your lack of language skills. Nevertheless, especially for someone who has never been in custody before, I accept that incarceration which, for some periods, has involved a reduced allowance of hours out of your cell, has been a somewhat more onerous way, than usual, to serve your period of remand.
37 Mr McKinnon maintains that you have expressed “appropriate remorse”, however, your utterances upon which he relies to support that opinion seem to me to be an expression of regret about the impact that your involvement has had on you, personally, rather than an acknowledgment of the potential harm to society flowing from your offending and an avowal not to offend in that way again. However, my overwhelming impression is that you are an unsophisticated and uneducated person and it would perhaps have been surprising if you were to have given an insightful account of the impact of trading in illicit drugs on Australian society.
38 When interviewed by police you were not truthful. However, the prosecution has acknowledged that your plea of guilty should be regarded as an early one in that well over a year ago, following the committal mention, you offered to plead guilty to the charge to which you have ultimately pleaded guilty. However, it was not until 7 February 2017, that the prosecution did offer to resolve the matter on the basis of such plea. You are entitled to have such an earlier indication of a plea of guilty taken into account in your favour for its utilitarian benefit in saving the time and expense of a trial and, also, as indicating a preparedness to facilitate the course of justice. In addition, I take into account the delay in that you have been waiting for a longer period than would have been the case to find out your fate. It is to your credit that, while remanded in custody you have made some attempt towards rehabilitating yourself by undertaking courses at Box Hill Institute and also undertaking horticultural work at the prison. The courses have comprised units in giving personal information and basic learning strategies as part of a Certificate I in Spoken and Written English, a unit in the use of hygienic practices for food safety in a Certificate II in Kitchen Operations, and a unit of participating in workplace safety arrangements as part of a Certificate II in Cleaning Operations. Mr McKinnon has assessed you as not possessing an inherently antisocial or criminal character and, given your lack of prior criminal history, you probably have reasonably good prospects of rehabilitation. I must say that I am concerned about a person of your relative youth, who has never been in trouble before, remaining for a very lengthy period inside an Australian prison. In all of the circumstances, I consider that a somewhat shorter than usual non-parole period is probably appropriate in your case, even though it seems likely that you will be unable to serve a parole period within the Australian community because you will be deported. I hasten to mention that, in the circumstances of your case, I do not treat your likely deportation as in any way mitigatory, as you have no entitlement to be resident in this country in any event.
39 Would you stand up please.
40 On one charge of attempting to possess a commercial quantity of an unlawfully imported bordered-controlled drug you are convicted and sentenced to be imprisoned for a period of 8 years commencing from today. I fix a period of 4 years and 10 months as the period to be served before you become eligible for parole. I declare a period of 508 days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
41 Mr Yeung, what this means is that you are to serve a term of imprisonment of 8 years, and after having served a period of 4 years and 10 months you can be considered for release into the community on parole. Parole is a form of supervision in the community while the rest of your sentence is still hanging over your head. Whether you are granted parole is a matter for a body called the Adult Parole Board, and the 508 days which you have already served will be taken into account in determining when you become eligible to apply for parole. As you are aware, even if granted parole, it is highly likely that you will be deported from Australia to Hong Kong. If you are granted parole and do not obey any conditions, such as by re-offending, even prior to being deported, then your parole order may be amended or revoked. If that occurs, the likelihood is that you would then be returned to prison to serve the balance of your sentence.
42 Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your plea of guilty, the total effective sentence imposed would have been 10½ years imprisonment with a non-parole period of 7 years.
43 Mr Yeung, I do understand that a person of your age, from a different country, who cannot understand or speak English very well, is in a very difficult position. I urge, you as best you can, to try to do as many courses or work whilst you are in custody here. Try to use that time as best you can to improve your education and be very careful to stay away from people in custody who might tempt you into doing anything illegal, particularly in relation to drugs.
44 If you behave yourself while in custody there is good reason to expect you will get parole after the period I have set as the non-parole period. Whether you do get parole, as I explained, is up to the Parole Board. The court sincerely wishes you well for your rehabilitation Mr Yeung.
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