Director of Public Prosecutions v Chea

[2017] VCC 1572

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00723

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHANNA CHEA

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 October 2017
CASE MAY BE CITED AS:	DPP v Chea
MEDIUM NEUTRAL CITATION:	[2017] VCC 1572

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Keks
For the Accused	Ms A. Ellis

HIS HONOUR:

1Phanna Chea, you have pleaded guilty to intentionally importing goods, namely tier one goods comprising pseudoephedrine, being reckless as to the fact that the goods were tier one goods.  You have no previous criminal history.

2The facts of the matter are set out in the summary of the prosecution opening, Exhibit 1, except for the conclusions that I will mention which are in dispute, the facts themselves are not in dispute and I will not refer to them in any great detail.  Any reader of these reasons can refer to that exhibit to place the sentence in its full, factual context.

3Briefly stated, you arrived in Australia on 10 December 2016, completing an incoming passenger card which stated you had nothing to declare.  Your baggage was selected for examination by the ABF and inside a blue bag which it was stated contained coffee and make up, a number of packages were discovered. Two of the packets were opened and they contained a white or beige powder presented for tests indicated positive results for pseudoephedrine and ephedrine.

4You told officers during the baggage examination that you were in Australia for a holiday to visit your cousin.  In a later record of interview you said you had flown from the USA, your country of residence, to Cambodia and therein travelled to Vietnam and several days later you flew to Australia.

5You were given a blue bag in the city of Ho Chi Minh by a friend of your mother and asked to take it to Australia and deliver it to a friend of hers in Australia.  You were told that upon arrival you should call the intended recipient on the phone number that was provided to you and the friend would pick you up and take the package from you and then deliver you to your cousin's house.

6The total amount of pure pseudoephedrine was 4766.06 grams, which is approximately 191 times a critical quantity.  The illicit sale of such material would have realised between $143,000 to $190,000.

7I have read the prosecution's written submissions and heard oral submissions.  Mr Keks, on behalf of the prosecution, submitted that I should look at the table of comparisons and I have done that.  The prosecution's submission is that a sentence in addition to the time that you have served should be imposed, together with a recognisance release.

8The prosecutor conceded that your role in this operation was limited to the extent that you were to be the courier to bring the drugs into Australia.  The prosecutor submitted that in the absence of evidence as to motive I should draw the common sense inference that you had done this for profit.

9He also submitted that I should consider that you travelled to Cambodia and Vietnam without a ticket to Australia and thus conclude that you were not initially planning to come to Australia.  You bought the ticket in Vietnam to Australia after receiving the blue bag and agreeing to take it to Australia.

10Initially you were charged with a more serious offence and after a short committal on 10 April 2017 you pleaded guilty to this indictment on 28 June 2017.  You provided to the police the name of the person who gave you the bag, a friend of your mother's.  You provided contact details for your mother and the phone number of the person to whom you were to give the bag.

11Police did not act on any of this information.  This is unfortunate as further investigation could have been revealing as to the context of your involvement and the scope of the operation.

12On your behalf your counsel filed written submissions and made oral submissions.  In mitigation she relied on one, your plea of guilty, and although it is not entered at the earliest opportunity I understand the circumstances and consider it to be a relatively early entry of a plea of guilty.

13You have saved the court the time and costs of a jury trial and it is also an acceptance of responsibility for your offending and I have given you the appropriate discount in my sentence.  Two, your age, you were 44 with no criminal history and that is a significant factor as far as I am concerned.

14Three, your good work record as set out in the numerous work references and in your counsel's submissions.  Four, the actual references themselves.  There are many and I will refer to the one from the Sam & Rose Stein Education Centres dated 23 June 2017 where you had been working.

15During the nine years that you have been working there you have received an employee of the year award, you have had good attendance and demonstrated to your employers that you are reliable and hard working.  You are described as reliable, compassionate, kind, honest, dedicated and conscientious.

16Five, your counsel outlined your personal details which included the following facts.  You were born in Cambodia in 1972.  After travelling through a refugee camp in Thailand the family moved to the USA and lived in New York.  At that time you were aged ten.  The family moved to California when you were around 12 or 13.

17The family at one stage also moved to Philadelphia.  You completed high school in Philadelphia and moved to San Diego in 1994 and have been residing there since.  You have been working at the Sam & Rose Stein Education Centres between 2006 and 2016, after having a variety of jobs prior to then.

18Six, as to the circumstances of the offending your counsel submitted, one, that there was no evidence of profit and I should accept that you did this as a favour to the friend of your mother and two, that you always had the intention to travel to Australia from Cambodia to see your cousins.

19Seven, she pointed to your admissions in the record of interview.  Eight, she submitted that you are a foreign national in custody here and that makes custody more onerous.  Of course you only have yourself to blame for that and it has very little weight in my opinion.

20Nine, she has told me of the steps you have taken towards rehabilitation whilst in custody.  You have been working and undertaking courses and that is a significant factor.

21Ten, she said you had concerns for your sick mother.  However, I note that it was your mother who was with you on this trip to Cambodia.  Eleven, she submitted you had excellent prospects of rehabilitation based on all the material.  Twelve, she admitted that the evidence of the gambling as found by way of the gambling invoice was irrelevant and I accept that submission.

22Sentencing Reasons

23I have taken into account the matters set out in s.16A(2) of the Commonwealth Crimes Act.  Because of the seriousness of the offending I am satisfied that imprisonment and a recognisance order is the only appropriate sentence.  I have taken into account all the submissions made and cases referred to.

24Amongst other things, I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community to seek to ensure that as far as possible offenders are rehabilitated into society.  I express my denunciation of the behaviour.  This society has a serious issue with drugs and your actions here contributed to that problem.

25The basic purposes for which a court may impose a sentence are punishment, general deterrence and specific deterrence.  General deterrence means I have to impose a sentence that should suggest to others not to do this.  Specific deterrence relates to whether you think you would do this again.  I am generally satisfied that this will probably be your one and only infraction of the criminal law and;

26General rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, the culpability for it and your personal circumstances.

27As to the issues in dispute on the facts and what conclusions can be drawn from them I draw the following conclusions.  One, because of your admissions in the record of interview I am satisfied that you only decided to come to Australia after you agreed to take the blue bag to Australia.

28Prior to this you had made no travel arrangements to do so.  I refer to questions and answers in your record of interview.  You said, beginning at question and answer 20, that you bought a two way ticket, America and Cambodia and America.  When asked at question 15, "Why didn't you buy the ticket in America for Australia?" you said, "Because I wasn't planning to go.  I went to go visit Ho Chi Minh first and then I come to Australia for just a couple of days, for ten days."

29At question 40 it was put to you, "It's fair to say you've come to Australia with no plans and no plans to meet anyone?"  You said in answer 45, "No, not really."  Your counsel pointed to questions and answers you gave further on in the interview.

30Perhaps I should give the page numbers.  I have been reading lines.  The matters I have just referred to are between pp.53 and 56.  At p.68 you said you had told your family that you may be visiting Australia.  "I did so in coming to visit Cambodia and then maybe Australia."  At p.69, "I've been telling my friends a long time I'm going to maybe visit Australia but I wasn't sure."

31As I said, I am satisfied based on those answers that if you in fact had commenced the trip with an intent to come to Australia you would have bought the needed plane ticket before you left America.  As to the consequence of that finding I do not think it matters one way or the other.  Indeed it might have been worse for you if I had formed the view that you had left America intending to come to Australia and part way through the journey you picked up this bag.  That might have suggested that you had left America for this specific purpose.

32Two, as to your motive you say that you did it as a favour.  What you did was indeed a very reckless act, especially going through Singapore.  If you had been apprehended there you would not get a kindly judge like me.  However, in the absence of any evidence of enrichment I am not satisfied that you offended for profit.

33If further investigations had been undertaken there may have been material to enlighten what it is was going on but that was not done.  I am tempted to speculate otherwise but speculation cannot form the basis of a factual finding.

34In mitigation in particular I take into account one, your plea of guilty, two, your age and you have no criminal history, your very good work prospects and my conclusion that you have good prospects of rehabilitation.  I have considered the comparative cases in the manner in which the High Court says I should and weighing up all those matters, doing the best I can, I have arrived at this conclusion.

35On the charge I sentence you to a term of imprisonment of 12 months with the starting date today's date which is 26 October 2017.  Pre-sentence detention is now 320 days.  I declare the time that you have already served for 320 days to be reckoned as part of the term of imprisonment that I have just imposed, and upon the expiry of that term of imprisonment you are to be released on a recognisance order in the sum of $500 for a period of two years.

36I declare pursuant to s.6AAA of the Sentencing Act that is you proceeded to trial before a jury and you were convicted you would have received a sentence in the order of five years with a non-parole period of three.

37MR KEKS:  Your Honour, I apologise for the interruption.

38HIS HONOUR:  That is all right.

39MR KEKS:  In terms of the framing of that order I understand that the way that it is to be done is that a term of imprisonment is imposed.  At a certain point during that term, in this case it may be 12 months, the order is that the prisoner would be released on the RRO with a portion left unserved, in effect suspended.

40I do not believe that you can - if the entire term is spent I do not think that they can then be ‑ ‑ ‑

41HIS HONOUR:  They can be released on a recognisance order?

42MR KEKS:  That is correct, Your Honour.

43HIS HONOUR:  Is that how you understand it, Ms Ellis?

44MS ELLIS:  Yes, Your Honour, yes.

45HIS HONOUR:  That is easily fixed.  I direct that you be released - you be placed on a recognisance order - sorry, I will start again.  I thank you for telling me that.  I actually wanted to do 12 months so I will impose a sentence of 13 months and you are to be placed on a recognisance order after serving a period of
12 months.  Is that right?

46MR KEKS:  Yes, that achieves the purpose, Your Honour.

47HIS HONOUR:  Thank you.  I see the Court of Appeal again had some very severe comments to make about the Commonwealth Sentencing Provisions yesterday.  That is not something I will miss when I retire, I can tell you.  Any other orders I need to make?

48MR KEKS:  No, Your Honour.  I will fill out the order and pass it to Your Honour.

49HIS HONOUR:  Are you right to go out with my associate, Ms Ellis, to your client?

50MS ELLIS:  Yes, Your Honour.

51MR KEKS:  And of course Your Honour is required to explain the effect of the RRO to the accused.

52HIS HONOUR:  Ms Chea, if you could stand up again please?  What all this means is that you have to do 12 months.

53ACCUSED:  Yes, Your Honour.

54HIS HONOUR:  Upon being a given a 13 month sentence you are then released on an order in which you say you will comply with the condition that you will be of good behaviour for two years.

55ACCUSED:  Yes, Your Honour.

56HIS HONOUR:  Do you understand that?

57ACCUSED:  Yes, Your Honour.

58HIS HONOUR:  If you were to breach that order you would be brought back before the court and be dealt with.

59ACCUSED:  Yes, Your Honour.

60HIS HONOUR:  Do you understand that?

61ACCUSED:  Yes, Your Honour.

62HIS HONOUR:  Thank you.  Are there any other matters I need to consider?

63MS KEKS:  No, Your Honour.

64HIS HONOUR:  Take Ms Chea out, thanks.

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