Director of Public Prosecutions v Chan
[2016] VCC 2096
•31 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01420
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| KA SHING CHAN |
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JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 31 March 2016 | |
CASE MAY BE CITED AS: | DPP v Chan | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2096 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. King | Solicitor for Office Public Prosecutions (Cth) |
| For the Accused | Ms U. Ebsworth | Lethbridges |
HER HONOUR:
1 Ka Shing Chan, you have pleaded guilty before me to one charge of importing a commercial quantity of a border-controlled drug, contrary to s.307(1)(1) of the Commonwealth Criminal Code. The maximum penalty for that offence is life imprisonment and/or 7,500 penalty units.
2 The facts were opened by the Prosecution and a summary of the Prosecution opening was tendered as Exhibit A on the plea. In brief, your offending occurred in the context of an importation. You, being a Hong Kong national, travelled to Australia to undertake certain tasks in relation to that importation.
3 You were asked to obtain rental accommodation which was to be used for the delivery of the consignment and you were to reside at that address. Secondly, you were to provide that address to your associates who were to secure the arrival of the consignment, and you were to communicate further with your associates in relation to the progress of the customs clearance of the assignment when it arrived and you would then be there to collect it.
4 You arrived in Australia on a temporary student visa for a period of three months.
5
You contacted the owner of the proposed premises where you were to rent,
8 Marshall Way, Glen Waverley.
6 On 1 November 2014, you inspected the room and you sought to take it initially for two to three weeks.
7 The following day you exchanged information with an unidentified associate who responded sending you a message detailing that address. You sent a message to him detailing the address of 8 Marshall Way, Glen Waverley.
8 On 3 November you moved into the premises, paying the owner for rent and board. You then sought instructions from your contact in relation to logistics, asking in code how many breakfasts are we having roughly? And you were advised to expect maybe twice for each one. The prosecution alleges that the reference to “breakfast” is a reference to receiving a consignment of the drugs.
9
On 9 November you were instructed to provide an address for the delivery of the consignment, indicating if such an address could not be provided, your unidentified co-offender would have to use the existing address of
Marshall Way.
10 Following an interchange, you eventually sent your address of 8 Marshall Way as the address for the consignment delivery.
11 For purposes of clearance, the consignment was declared as packages of body lotion sets valued at HK$1,280. However, clearance for the delivery did not occur automatically as hoped.
12 Records indicate that the consignment had been delayed at 12.30 pm on 12 November. This resulted in a message exchange which continued for several hours, speculating on the progress of the consignment. You used the colloquial term “sea dogs” in reference to custom authorities during these exchanges. Eventually, you were advised that you would have to wait and see what occurred the following day.
13 That speculation continued the next day and you related the information that the consignment was still at the "sea dogs". This situation continued and the consignment remained uncleared. At this point, you left the address of 8 Marshall Way.
14 In reply to a text message to you from the owner of the premises, you indicated you wanted to maintain the room for another week and that you had only moved some of your possessions out. The owner of that premises at 8 Marshall Way never saw you again.
15 You had secured accommodation at another address to which you moved on 13 November and you were ultimately arrested by the Australian Federal Police on 21 November 2014. At the time of your arrest, you were found in possession of three mobile phones and during the execution of a warrant at your premises you asked one of your flat mates to get rid of the phones.
16 They were seized and subsequent analysis revealed evidential material being the exchanges that I have outlined in relation to the delay of the consignment and one of the phones contained a job offer to you of A$100,000 to A$200,000 in cash to be paid in Australia for receiving delivery in Hong Kong.
17 It was indicated to you that you were to decide which location you wanted and asking, "Did you want the job?" The message was sent to you on 18 November 2014, and I note that that was after the offending which brings you before this court, and it is just a background piece of information.
18 On 15 October, the authorities detected the consignment and preliminary testing revealed the presence of methamphetamine and further testing indicated the purity of the methamphetamine. The total weight of pure amphetamine amounted to 1,382.2 g. The wholesale value of the consignment was estimated as being between $532,000 and $608,000 and the street value estimated at $1,936,400.
19 During your record of interview, you declined to comment in relation to the allegations of your involvement in the importation. You were remanded in custody on that day, 21 November 2014, and have remained there to this day.
20 You have no recorded criminal history and I now turn to matters personal to you.
21 You were brought up in Hong Kong, where you lived in a government housing apartment with your family. Your father works at a business printing gift cards, and your mother works as a part-time cleaner at a hospital. You have an older sister who also lives with the family and she works as a clerk in a company. None of your family have been involved, as far as known, in illegal behaviour and they have not been in trouble with the authorities.
22 You completed Year 11 at school. You then worked as a painter for two years before completing a one-year course to finish your secondary education.
23 You worked in various occupations, including loading and unloading shipping containers.
24 During your time in prison, that is since February 2015, you have worked in the horticultural section of the Metropolitan Remand Centre. You are paid for this employment, which is one which involves a certain amount of trust and responsibility, and you use the money mainly for phone calls to your family.
25 You speak with your parents every two or three days for up to 12 minutes.
26 During your time on remand, the alleged prison riots, which occurred at the Metropolitan Remand Centre, happened on 30 June 2015 and you at the time were sharing an apartment within the prison with other prisoners of an Asian background.
27 You were threatened by other prisoners during that disturbance. You did not take any part in the alleged riots. Following that incident the Metropolitan Remand Centre was in total lockdown. You were moved into another cell on 24-hour lockdown and were not permitted any outdoor recreation or participation in any courses.
28 Your offending occurred in the context of your gambling debts. You had previously travelled to Australia around September 2012 when you worked in Sale on a farm. During that period you became involved in online gambling, and to facilitate this habit you borrowed a large sum of money from a syndicate in Hong Kong. You returned to Hong Kong in July 2014, and were met with repeated demands for repayment of the gambling debt together with interest.
29 You agreed to comply with a request to collect the consignment, which brings you before this court, in Australia which would reduce your debt to the syndicate. You were told that you would receive some kind of payment, but were not informed as to the amount.
30 It appears that you are a person with no criminal background, and you have allowed yourself to become involved with powerful and dangerous people who exercise a certain amount of control over your life and your activities. This has led a person who is clearly dedicated to his family and without any prior history to become involved in very serious criminal activity.
31 You came to Australia on 30 October 2014 with precise tasks: to secure, and reside at that rental accommodation, the destination for the consignment. You were to provide the address as I indicated and to communicate with your associates as to the consignments progress. However, the consignment was seized, and therefore the collection by the syndicate representatives never occurred.
32 You however completed all the other tasks and complied with all the matters that were demanded of you. You, as I indicated, departed from that address on 14 November 2014.
33 Submissions made by Counsel on your behalf were that you are a young offender, and your background would suggest that you have strong prospects of rehabilitation once you have served your sentence.
34 It is clear that this is extremely serious offending, and I have been referred to various authorities as to the current sentencing practices for this offending in Victoria and interstate and I have taken those matters into account. Those cases indicate a wide range of offending, and I have looked to locate matters which are similar to yours in both quantity and circumstances.
35 I now turn to the other matters which I am required to take into consideration in sentencing you. I have taken into account all the matters specifically set out in s.16(A) of the Commonwealth Criminal Code where they are applicable to your circumstances. I note that the list of matters is not intended to be exhaustive, and that matters relevant to common law principles remain relevant, and indeed I have taken those into account as well.
36 Clearly, general deterrence is of great significance in any sentence imposed in a matter such as this, in order to deter others who may come to this country for the purposes of facilitating the importation of drugs into this country for the purpose of the market that flourishes in this country. Anyone tempted to enter into such an undertaking must understand that very severe consequences will flow if they are detected.
37 I do, however, accept that you were the person most likely to be apprehended in this venture, and that you were used by the more powerful people I referred to earlier who were involved in trafficking on an international scale. You did, however, play a vital part in that enterprise, and without people such as yourself, willing to risk everything for very little or due to the need to repay debts, that drug trade would be severely restricted.
38 I also take into account the hardship which you suffer by serving a sentence in a country where you are isolated from meaningful contact with family and friends. I also take into account the fact that you have, during your period in custody, been subject to the 24‑hour lockdown that I referred to earlier.
39 I take into account your plea of guilty, which has clearly saved the community expense and inconvenience which would result from the holding of a trial in this matter. It demonstrates your willingness to facilitate the course of justice, and I accept that in your actions there is also an element of remorse for your behaviour. Although I accept that the Crown case is very strong, that does not detract from that willingness to facilitate the course of justice, which I indicated.
40 I have considered all the matters that I have referred to, and have reached the conclusion clearly that an immediate term of imprisonment is the only appropriate penalty for this offending. However, the length of your sentence is tempered by the matters I have just listed.
41 Ka Shing Chan, could you please stand up for me? You are convicted and sentenced to six and a half years’ imprisonment. I order that you serve four years of that sentence before being eligible for parole.
42 I declare that the 496 days of pre-sentence detention be reckoned as time served in relation to your sentence and that that fact be entered into the records of the court and it will be taken into account when determining your release date. Thank you.
43 MS EBSWORTH: As Your Honour pleases.
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