Director of Public Prosecutions v Chan, Ka Chung
[2013] VCC 664
•26 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01838
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KA CHUNG CHAN |
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JUDGE: | His Honour Judge Parrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2013 | |
DATE OF SENTENCE: | 26 April 2013 | |
CASE MAY BE CITED AS: | DPP v Chan, Ka Chung | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 664 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence; Importation of a border controlled drug contrary to s.343.2
Grams of heroin
Legislation Cited: Criminal Code Act 1995; Crimes Act 1914 (Cth)
Cases Cited:R v Mills [1998] 4 VR 235; R v Tasker [2003] 7 VR 128; R v Marshall [2000] VSCA 167; R v Adams[2007] VSCA 37; Jailani v R [2010] VSCA 276.
Sentence: 5 years imprisonment with non parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth DPP | Mr J Manning | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr M Stanton | Lethbridges |
HIS HONOUR:
1 Ka Chung Chan, you have pleaded guilty to the following charge:
(a) that you at Melbourne in Victoria, between 16 May 2012 and 23 May 2012, did import a substance, the substance being a border controlled drug and the quantity imported being a marketable quantity, namely 343.2 grams of heroin.
The charge is contrary to s.307.2(1) of the Criminal Code Commonwealth and carries a maximum penalty of 25 years imprisonment and/or a fine of $550,000.
2 There is no issue that the heroin entered into Australia from Hong Kong by way of two airfreight parcels. The first parcel containing 173.4 grams of pure heroin, with an average of 50.11 per cent purity and the second parcel contained 169.8 grams of pure heroin, with an average of 49.03 per cent purity.
3 Section 314.4(1) of the Criminal Code provides that a marketable quantity of heroin is a quantity of two or more grams, up to 1.5 kilograms.
The prosecution have prepared a written summary of the circumstances leading up to and surrounding the offending. Such summary has been marked as an exhibit, that is Exhibit 2 and has been accepted by you and your counsel as an appropriate representation of the offending.
4 In particular I refer to the following:
(a) You are a Chinese National, who was issued a Hong Kong passport on 16 April 2012. On 10 May 2012, you travelled from Hong Kong to Melbourne by plane and arrived without luggage and were booked to return to Hong Kong on 13 May 2012.
(b) On your arrival in Melbourne you purchased two pre-paid mobile sim cards at Melbourne Airport and connected them in your name, with the address of 315 Collins Street, Melbourne.
(c) You then checked in at the Kingsgate Hotel at 131 King Street Melbourne and provided the hotel with a contact mobile number of 0422 401 457.
(d) On 13 May 2012, you changed your accommodation from the Kingsgate Hotel to Room 127 of the Pensione Hotel, located at 16 Spencer Street, Melbourne.
(e) On 16 May 2012, the Australian Customs and Border Protection Service, which I shall refer to as "customs", intercepted a parcel sent on as flight from Hong Kong to Melbourne, with the parcel being addressed to "Mr Chan, Room 127, 1/F, 16 Spencer Street, Melbourne, Victoria, 3000", and with a telephone contact number of "0422 401 457".
(f) The contents of such parcel were described as "primary school swimming trophies". Inspection revealed that there were cavities in various trophies, in which were concealed a total of nine clear plastic packages, containing quantities of powder, later identified as being heroin.
(g) On 20 May 2012, you checked out of the Pensione Hotel and moved to a boarding house, situated at 1/7 Reservoir Street, Reservoir. No.7 Reservoir Street, Reservoir, consisted of three adjoining units, numbered 1 to 3.
(h) Over the period from 18 May 2012 to 25 May 2012, Victoria Police intercepted a number of telephone calls between you and others, discussing in Cantonese the impending arrival of a DHL parcel. The contents of such telephone calls involved, amongst other things, an unknown male telling you that "it" will arrive on a certain day. You discussing with the unknown male the amount of money that you will be paid and further discussions about your living expenses and in what proportion monies would be split between you and co-offenders in Hong Kong.
(i) On 23 May 2012, customs intercepted a second parcel sent from Hong Kong to Melbourne. Such parcel was addressed to Nhi Chi San, 5/7 Reservoir Street, Reservoir.
(j) The contents of the second parcel were described as "gifts - home furnishings", but inspection revealed that parcel to have concealed aluminium foil packages, each contained a clear plastic bag of powder, later identified to be heroin.
(k) Telephone calls intercepted between 23 May and 25 May 2012, included further discussions about the amount of money to be paid to you and discussions that "If nothing happens soon, you would return to Hong Kong". In one such discussion at 6 pm on Wednesday 23 May 2012, you were negotiating an increased fee and it was agreed that you would be paid "$26,000", and I have noted that to be Hong Kong dollars.
(l) There were further telephone conversations between you and an unknown male, as to the delay in the arrival of the parcel at the address in Reservoir. In one such conversation, you queried what you would be paid and that you needed to give your family household expenses, and they told your family that you were "coming here to make some money".
(m) On 25 May 2012, at approximately 10.30 Victoria Police officers undertook a controlled delivery of a parcel substituted for the second parcel, to you at 7 Reservoir Street, Reservoir. A detective senior constable attended the premises in a DHL Global uniform, in an unmarked van. A female resident answered the door, after which you emerged from the garage of Unit 1 and confirmed the address 5/7, and that you were waiting for DHL. You signed the delivery docket and when asked for your name, pointed to and confirmed the name "NG San", from the delivery docket.
(n) At 10.33 am on 25 May 2012, you had a telephone call from a different unknown male referred to as "The boss".
(o) On 25 May 2012, Victoria police officers executed a search warrant at 1/7 Reservoir Street, Reservoir, and the substituted pass was found in the hallway. At the time of executing the search, you were arrested attempting to leave the premises via the rear door. On being informed that you were under arrest for importing heroin you stated, "No, not mine".
(p) Later telephone conversations between you and other persons, continued to be intercepted after your arrest, and at 1.31 pm, when in custody, you called a different unknown male and advised that you had been arrested. In particular, you enquired about a possible family compensation payment, and were asked about how long the sentence would be, and you responded, "I don't know either, quite light".
(q) At 2.11 pm you participated in a recorded interview, with the assistance of an interpreter. During the course of such interview, you asserted;
· That you were not responsible for importing heroin into Australia and did not attempt to take possession of heroin earlier that day.
· You came to Australia alone to visit friends and had been planning the trip for about two or three weeks.
· A friend purchased the airfare for you and you did not buy a return ticket.
· Later you stated that you provided the funds to the friend in advance and that you had planned to return to Hong Kong "tomorrow".
· You only knew your friend by a nickname.
· When you arrived you stayed at the hotel in King Street for about "three to four days", during which time you slept and met friends. You can only name one of those friends.
· You had not received anything from anyone in Australia and that you "friend" found the accommodation for you at Reservoir Street because you did not have much money to continue at the hotel accommodation.
· Earlier in the day you had awoken to someone knocking at the door and when confronted by the delivery driver and DHL, you "just signed" for the package, as no one else was around or inside the unit.
· You were then advised that the contents of two telephone intercepts, on 21 May 2012 at approximately 4.30 pm, and 11.45 pm.
· At 4.30 pm an unknown male has told you, "It should be Wednesday or Thursday, roughly it would arrive about - around nine o'clock on that day, then I stand at the entrance, then you see it next door, put at the entrance, then I give you 575 so right" - and later "and then you returned to look and walk over".
·
At 11.45 pm an unknown male told you that, "The recipient's surname is Wong - Wong, something Ming and that the sender is NG - NG Chi - NG". The unknown male said later, "Now don't tell this to any third or forth person, only you, a third party and
I are aware of this, you understand? This is to safeguard everyone".
· After having the first intercept read to you, you stated, "No comment", and after the contents of the second intercept were read to you, you stated you could not recall that conversation.
· You stated you did not expect a package to arrive at Reservoir that day, "Because I don't know about that". You were upset "Because I'm not related to it".
(r) At 3.12 pm, following the record of interview, you telephoned a second unknown male and such call was intercepted. There were further discussions between you and the unknown male about a family compensation payment, and you were also asked by the second unknown male to enquire about the "airfare after sentence". You instructed him to "type on my Facebook that I will be back to Hong Kong in six months to a year's time. Who will defy know I've gone down". You were then asked if you thought the case was serious and you responded, "If I exposed someone then it is not a big deal". The second unknown male instructed you to call the other unknown male and threaten to "tell it all", if you did not receive any money.
(s) At 3.19 pm you again telephoned the second unknown male and you indicated that the family compensation payment needed to be "40 to 50,000", or you would "definitely hack him", and "would definitely go after him", when you return.
(t) The Crown accept that references to dollar amounts in the various interceptions are references to Hong Kong dollars, rather than Australian dollars. Furthermore the Crown accept that you are not the principle in relation to the importation of either the first or second parcel, but rather and "intermediate" in such a transaction.
(u) You were committed for trial on 8 October 2012, following a half-day contested committal, at which pleas of not guilty were made to three charges. The present charge in the subject indictment incorporates two of the charges at committal.
5 Your counsel informed the court that you are presently 26 years old, having been born on 26 September 1986, and were born in the Shia King district of Hong Kong.
6 At the time of offending you were 25 years old. You lived in a housing commission style flat and together with your two older brothers, who were raised by your mother, who worked as a cleaner. You father separated from your mother when you were aged five and apparently was a bad gambler and physically abusive to your mother. After the separation you only saw your father about once a year, up to 2011 when he died of a heart attack, aged 55.
7 From the age of 13 you worked after school, delivering take away meals for a café to help support your mother, and from the age of 15, you left secondary school to find full-time work, as your mother had become ill and was not able to work any more. During this time you would regularly accompany your mother to the hospital for her treatment.
8 You commenced employment as a chef apprentice in a restaurant and trained to cook Cantonese style food, and from the age of 18, you began to work independently from your teaching master. Other than one year when you worked with one of your brothers in a warehouse, you have worked as a chef before coming to Australia in 2012. Prior to coming to Australia you were earning approximately 11,000 Hong Kong dollars per month, which I am told is approximately 1,375 Australian dollars.
9 After the death of your father, your mother paid significant funeral expenses, which left her in a precarious financial state, and she had no savings to rely on. During this period of time, your mother's health continued to deteriorate. In particular, you believed that more money was needed in order to support your mother, who you had been informed required urgent medical treatment for cancer to the liver.
10 You were informed by an acquaintance that there may be "work" available, collecting and illegal parcel overseas. You agreed and were then contacted by phone by the other persons involved in the criminal enterprise. You were given a return plane ticket, which was paid for and also given $2,000 Australian currency for living expenses in Australia.
11 You have instructed your counsel that this is the first time you were involved in this type of conduct and your role was provide the address for the parcel to be delivered, take possession of the parcel, and then await its collection by others.
12 Furthermore you entered Australia and only intended to collect one parcel, but was then informed that you could collect further parcels, after the first parcel failed to arrive. Further you instructed your counsel that your family had not received any form of compensation. You have a girlfriend who remains supportive and you and your brothers are aware that you are in prison, but your mother has no knowledge of your incarceration.
13 You have also instructed your counsel that you did not assist authorities because you were concerned about the safety of your family in Hong Kong and your own safety.
14 Section 16(A) of the Crimes Act, that is, I will refer that as the Act, directs that in determining the sentence to be passed, the court must impose a sentence that is of severity appropriate in all the circumstances of the offence. Furthermore, sub-s.(2) of s.16(A) of the Act, directs that the court must take into account, in addition to any other matters, such are the matters therein set out, which are "relevant and known to the court".
15 I consider that is appropriate to take into account the following matters: the nature and circumstances of the offence, the degree to which the accused has shown contrition for the offence; the fact that the accused has pleaded guilty to the charge in respect of the offence; the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence; the deterrent effect that any sentence under consideration may have on the person; the need to ensure that the person is adequately punished for the offence; the character, antecedence, age, means and physical and mental condition of the accused; the prospect of rehabilitation of the person; and the probable effect that any sentence or order under consideration will have on any of the accused's family or dependants.
16 Section 17(A)(1) of the Act directs that "the court shall not pass a sentence of imprisonment on any person for a federal offence, unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case".
17 Your counsel has submitted that the nature of the offending calls for an immediate custodial sentence, but further submits that the following matters should be considered in mitigation:
(a)Given your age, you should be viewed as a "youthful offender" for the purposes of sentencing and that the principles expounded in R v Mills 1998, 4 VR 235, (see also Azzopardi v R, 20111 VSCA 372), had some limited application. I refer to the judgment of Redlich AJ in Azzopradi, and in particular paragraphs [34] – [36], where he highlighted that "young offenders" are "more prone to ill-considered or rash decisions"; that young offenders have the potential to be redeemed and rehabilitated; and "the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve the offender's prospects of successful rehabilitation".
In particular, your counsel submitted that you have strong prospects for rehabilitation, given the absence of any prior convictions, your experience of an adult prison and the specific deterrence you will receive for the sentence imposed by this court.
Your counsel advised the court that you have witnessed the harm caused by illegal drugs, during the period of time that you had been remanded in prison, and have gained "insight" into the damage that could have been caused by your offending.
Your counsel also tendered certificates from the Kangan Institute, certifying that when in prison, you have completed courses in asset maintenance, that is cleaning operations in hospitality and kitchen operations. Furthermore certificates were tendered of analyses of your urine on 27 November 2012, and 13 February 2013, both of which revealed no evidence of drug use.
(b)That you pleaded guilty, and in particular I was referred to R v Tasker 2003 VR 128 at 133, where Eames AJ stated:
"Pleas of guilty are worthy of significant sentencing discount, even if the only factor worthy of being given particular weight, was the avoidance of expense and inconvenience of a trial".
Furthermore it was stated in Tasker that:
"Ordinarily pleas of guilty are to be taken as evidence of some remorse, quite apart from the value they have in saving expense and inconvenience to the community".
Your counsel noted that after a contested committal which ran for half a day, with only the informant cross-examined about the investigation, the prosecution ultimately accepted a plea of guilty to a single "rolled-up count", relating to two of the three original charges.
(c)That you have no prior convictions, although your counsel does note, as stated in R v Marshal [2000] VSCA 167, Charles JA, with whom Tagell and Chernov AJJ agreed, stated at paragraph [17]:
"Lack of relevant prior convictions is of less significance in the case of drug couriers who are often chosen because they have no prior criminal history". Of course, as submitted by your counsel, the lack of prior convictions is a relevant matter, to be considered pursuant to s.16(A)(2) of the Act.
(d)That the main reason for the offending was to obtain money to assist your family needs, and in particular the needs of your mother. In such circumstances, the burden of imprisonment carries an extra weight, when you are unable to care for your mother. In this context, it should be noted the decision of R v Adams 2007 VSCA 37, where Vincent AJ has held at paragraph [24]:
"It would be incongruous to have regard to the separation of an offender from his family and friends, his home country, as constituting a base for the reduction of penalty, in a case where the person has come to this country for the sole purpose of committing a very serious crime here".
However your counsel referred to me to Markovic v R and Tullogh v R 2010 200 A Crim.R 510 and in particular paragraph 20, wherein Maxwell P, Nettle, Neave, Redlich and Weinberg AJJ stated:
"An offender's anguish at being unable to care for a family member can properly be taken into account as a mitigating factor - for example, if a court is satisfied that this will make the experience in prison more burdensome or that it materially effects the assessment of the need for specific deterrence or the offender's prospect of rehabilitation".
It was submitted that such an approach appears to have been accepted in the context of the drug courier in Jalani v R 2010 VSCA 276, at paragraphs 5 and 9, per Ashley AJ.
Furthermore it was submitted on your behalf that the burden of imprisonment is also compounded by your uncertainty as to what will occur to you when you return to Hong Kong as a person convicted of a serious drug offence.
(e)Your counsel also submitted that your role was at the bottom of the criminal hierarchy and that you should be viewed as a "courier". It is submitted that your actions in the various transcripts demonstrate a significant naivety, a lack of understanding about the criminal enterprise in which you were engaged. Furthermore the intercepts also revealed you decided to return home to be with your family, due to the illness of your mother.
18 Your counsel submitted, appropriately in my view, that notwithstanding his submission that you were a "youthful offender", general deterrence and denunciation of this offending remained important sentencing considerations.
19 It was submitted on your behalf that the non-parole period should be "significantly less" than the head sentence, given the factors in mitigation. As at the date of plea in mitigation, it was agreed that the accused had served 328 days of pre-sentence detention, solely related to this matter.
20 Counsel for the Crown also submitted that the nature of this offending clearly required an immediate custodial sentence. Furthermore, it was submitted that the accused had shown little, if any, remorse in relation to the offending, although accepting that the plea of guilty had a utilitarian effect, in that it avoided the expense and inconvenience of a trial. The plea of guilty only occurred after a contested committal and in circumstances where the case against the accused was strong.
21 Furthermore, counsel for the Crown contested that your role was at the bottom end of the criminal hierarchy, but further he submitted that the contents of the various telephone intercepts and the nature of your activities, which suggest you were an intermediate in the criminal hierarchy. In particular he referred to various telephone intercepts where you discussed money matters with someone seemingly on an equal basis, although it was accepted that there was reference to a "boss".
22 In particular it was submitted that the context of much of the telephone intercepts suggested that you were negotiating with another person as to what would be your share of a certain amount of money. To this end the Crown submitted that you effectively negotiated a fee of 35,000 Hong Kong dollars.
23 The fundamental submission made on behalf of the Crown was the nature of the offending was serious and that denunciation to the offence, specific deterrence and general deterrence are important considerations when considering an appropriate sentence.
Conclusions
24 Both counsel for the Crown and accused have submitted that the nature of the offending calls for an immediate custodial sentence. I have to make and independent assessment about the seriousness of the offending and the appropriate range, and I am satisfied that no sentence other than one of imprisonment, is appropriate.
Heroin causes untold misery to countless people, not just of those who use it, many of whom are in the grips of addiction, but to their families, to their friends and to victims of all the crimes committed by those. Because of their addiction, they are unable to avoid their hits and are desperate enough to do whatever they can to pay for the next supply. Those, who for profit or personal gain, exploit those in the grip of heroin use or addiction, by playing a part in the importation, distribution or supply of this pernicious drug, take a calculated gamble and they should expect little mercy or compassion when they are caught.
25 In such circumstances, I have formed the view that denunciation, general deterrence and specific deterrence are important considerations in sentencing you. Furthermore, I find, after a perusal of all of the material, little evidence of any remorse that you have in relation to such offending. I do take into account your plea of guilty, which can be construed as some evidence of remorse, although as I have earlier indicated, at the time of your plea of guilty, the case against you was strong. However I do accept that your plea of guilty has had a utilitarian benefit in that the cost and time of a trial has been avoided and I take this into account in sentencing you.
26 I do accept that your primary purposes for being involved in the criminal enterprise was to acquire funds to assist your family, in particular your ill mother. I do consider that given your age, your lack of prior convictions, your experience in prison and the knowledge that you have been trained as a chef, the prospects of rehabilitation are good. Accordingly I take this into account when sentencing you.
27 I do consider that it is inappropriate to describe your role as a mere courier in the criminal enterprise, although I clearly accept that you were not one of the organisers of the criminal activity. I consider that the context of the various phone intercepts indicates that the unknown people to whom you are speaking, other than the "boss", seemingly were on an equal basis with you, given the discussion as to how monies were to be divided up in payment for services.
28 When confronted with your alleged offending in the record of interview, you denied any involvement, although within a short time thereafter, you were ringing Hong Kong, seeking to organise various payments.
29
However, as submitted by your counsel, you have no known criminal record, although such circumstances are of less significance in the case of drug couriers, who are often chosen because they have no criminal history, (see
R v Marshall[2000] VSCA 167 and in particular paragraph ([17]).
30 I give limited consideration to the added burden of imprisonment, when one considers that you will no longer be able to assist your mother with income. Such consideration must be balanced against the decision that you made, to commit a serious crime and the consequences which flow from the commission of such crime. In particular it must be borne in mind that you entered this country for the sole purpose of committing a very serious crime here.
31 Mr Chan, be upstanding, yes.
32 In relation to the offence, you are convicted and sentenced to a period of five years imprisonment.
33 Pursuant to s.19 of the Act, I order that the sentence commence from 26 April 2013.
34 Pursuant to s.19(A)(B)(1) of the Act, I order that you serve a minimum term of three years, before you become eligible for parole.
35 I declare that you have served 336 days of pre-sentence detention, solely related to this matter.
36 I further declare, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a period of six and a half years, and I would have fixed a period of four years imprisonment, before you would have been eligible for parole.
37 Mr Chan, it will be explained to you that I have set what is called a head sentence of five years imprisonment, of which you must serve three years before you are eligible for parole. The court has noted that you have served or been remanded in prison for a period of 336 days to this point and that will be taken into account when you serve this sentence.
38 You have been found guilty of a serious offence, although I do believe that given your age, your employment background and your endeavours in prison, that there is scope for your rehabilitation.
39 Furthermore, if it is not obviously to you now, I state in no uncertain terms, the offence of which you have been guilty, is a very serious offence and will not be tolerated in this country.
40 Yes, thank you. Anything to add, gentlemen?
41 COUNSEL: As Your Honour pleases.
42 HIS HONOUR: I hope my calculations of the pre detention period is correct, is it?
43 COUNSEL: Yes, that's a figure that we've agreed upon before Your Honour.
44 HIS HONOUR: Yes.
45 COUNSEL: Yes, thank you, Your Honour.
46 HIS HONOUR: Thank you very much. Yes, you are excused.
47 COUNSEL: Thanks.
48 COUNSEL: If it pleases Your Honour.
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