Director of Public Prosecutions v Chea

[2016] VCC 1429

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00916

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEREMY LEIGH CHEA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 September 2016
CASE MAY BE CITED AS:	DPP v Chea
MEDIUM NEUTRAL CITATION:	[2016] VCC 1429

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	Ms K. Eales
For the Offender	Mr S. Tovey

HER HONOUR:

1Jeremy Leigh Chea, you have pleaded guilty before me to one charge of importing a marketable quantity of a border controlled drug, contrary to s.307.21 of the Commonwealth Criminal Code; one charge of trafficking a controlled drug, contrary to s.302.41 of the Commonwealth Criminal Code; and have also pleaded guilty to the summary charge of possessing a prohibited weapon, which charge has been uplifted pursuant to s.145 of the Criminal Procedure Act.

2The facts underlying your offending are as follows:

3Between 14 May 2014 and 21 September 2015 the Australian Border Force intercepted 17 international post consignments addressed to you either at your home address or your post office box.  The contents of all the packages tested positive for the presence of a variety of small quantities of border controlled substances including MDMA, cocaine, LSD and amphetamine.

4Subsequent formal forensic testing of the contents of a package imported on or around 21 September 2015 found that it contained 9.9 grams gross of cocaine, subsequently found to contain 5.8 grams of pure cocaine, which represents a marketable quantity of cocaine.  The marketable quantity of cocaine, pursuant to the Criminal Code Regulations (Commonwealth) is two grams.  Those actions underlie a part of Charge 1 on the indictment. 

5On November 27, 2015 Australian Federal Police executed a search warrant at your home, during which a number of controlled drugs, namely MDMA, amphetamine and cocaine, were seized.  Your possession of these drugs, together with a number of items said to be trafficking paraphernalia, that is, deal bags, plastic funnels, scoops, electronic scales, a vacuum sealing machine, empty capsules, together with a diary, notes, which appear to be in relation to the sourced countries of importations and drug trafficking activity, cash of $8705, several iPhones, four laptops, three SIM cards, storage devices, a driver's licence belonging to persons other than yourself, indicated that these drugs were being trafficked, and your possession of these drugs for that purpose underlie Charge 2.  Sixty grams of MDMA, 6.5 grams of amphetamine and, as I have said, the cocaine, were also discovered in those amounts, as I have stated.

6In addition, police found at your home six prohibited weapons, they being a Taser, a Kubotan - could I just ask what a Kubotan is, Ms Eales?

7MS EALES:  Your Honour, it's a martial arts implement, that almost looks like a thicker pen, that's used to forcefully cause injury to someone at close distance.

8HER HONOUR:  Right, thank you.  A buck knife.  Again, what is a buck knife?  It is just interesting, that's all.

9MS EALES:  It's hard to explain.  It's just a form of knife.  Yes, it's like a hunting knife, yes.

10HER HONOUR:  All right.  No, that makes sense.  A slingshot, a credit card knife.  I am sorry, I have to ask, what is that?

11MS EALES:  Again, it looks like a credit card and it folds out to have a blade on the end.

12HER HONOUR:  And a punch dagger, again?

13MS EALES:  It's more of where it goes across your knuckles.

14HER HONOUR:  Really?  All right, thank you.  Were also found.  Your possessions of these items underlie the summary charge.

15You were interviewed by police but made no admissions.

16A review of notebooks and your diary also revealed names of Australian, international drug vendors and websites that enabled the sale of drugs.

17The matter proceeded to a contested committal, however, no witnesses were questioned, and a plea of guilty was entered at that stage, this being on 25 May 2016.  You spent seven days in custody at the Melbourne Custody Centre following your arrest in relation to these matters.

18I annex as an exhibit the prosecution summary to these sentencing remarks.

19I now turn to your personal circumstances.

20You are 20 years of age, the second of three children born to your parents, who came here separately as migrants/refugees from Cambodia, meeting each other in Australia and subsequently married.  Your parents run a dry cleaning business.  You have an older brother, who is a plumbing apprentice, and a younger sister, who is still at school.

21You have one prior criminal matter, which I will turn to in a moment, as you were dealt with that matter before me in 2015 and placed on a non-conviction community corrections order which you have breached by way of the offending which brings you here before court today.

22You completed Year 12 at Keilor Downs Secondary School and, soon after leaving school, went to work in Darwin, where you remained for seven months.  You worked with your uncle, who runs a cleaning company there.  You had some difficulty finding employment, although you did undertake in 2014 a pre-apprenticeship course with a view to gaining work as an electrical apprentice but have been unable to find employment in this area.  You are currently working in sales with a call company.

23It seems in the latter years of your high school you began to use cannabis, initially on a recreational basis, but it became increasingly regular.  You also progressed to use of ecstasy, cocaine and ultimately methamphetamine.  It appears that whilst it was not what would be seen as an overwhelming drug addiction, your use of it had become so regular that your purchase of it was outside what you were able to afford.  In addition, you were charged in relation to activities by yourself and some friends on muck-up day, that is the last school day, in 2012.  In a prank that got out of hand, one of your co-accused lit a large plastic rubbish bin which was placed in the door of a classroom, causing the building to catch fire. 

24Your parents were never informed of this activity, and you appeared in court charged with arson, as I have said, unbeknownst to your parents.  The result for you was a good one in that you were placed on a non-conviction community corrections order.  However, in addition to the bills you were facing for your own drug habit, you also had legal bills to pay, and it appears that in that context you began involving yourself in importation and trafficking of the drugs, as I have said.

25Fortunately for you, since your offending, your parents have been very much involved in your rehabilitation, which I am satisfied has been wide-ranging and successful.  You have engaged in a program with DayHab, an addiction treatment recovery program, which you began on 4 December 2015 as a
full-time inpatient client.

26I received a report from Neil Sanderson, a clinical counsellor, who worked with you in the subsequent months, and his report dated 17 August 2016 is tendered on the plea.

27In his report, Mr Sanderson said that you presented with the classic signs and symptoms of chronic addiction and anxiety, including obsessional thinking, poor impulse control, high levels of agitation along with very poor concentration.  He said that you also presented with feelings of helplessness and hopelessness and feelings of guilt, shame and regret, particularly in relation to the effects that the discovery of your offending had had upon your parents.

28You attended all program activities, responding, Mr Sanderson said, extremely well to treatment and making enormous strides in your recovery.  Mr Sanderson said that you had expressed genuine remorse for your past actions "and had accepted responsibility for those and his ongoing recovery."  You exited the program on 25 February 2016.  You have continued to attend every Monday for the follow-up sessions held by DayHab.

29On the plea, sworn evidence was also given by Ms Cheryl Brett, who also works at DayHab as a counsellor, who was also involved in the program with you, who described it to me - I should add that the program is a residential one - and described your participation in it in glowing terms.  She said that your participation was exceptional and that your follow-up in the program has been exceptional, that you have not missed a single session.  In addition, you also attend regularly at Narcotics Anonymous via the assistance of a sponsor who you met when you were undertaking the DayHab course.  It would seem that your prospects of rehabilitation, given the steps you have undertaken are exceptional.

30Your father also gave extremely important evidence on the plea, giving the court an insight, not only into your own recovery, but into the sort of family that you come from, and I am satisfied you come from an extremely supportive and law-abiding family.  Your father spoke of a situation whereby he and your mother were aware that something was wrong, but they were not sure what.  You were described as rather a quiet person who had always been very biddable but did not seem to have a great deal of motivation. 

31Ms Brett said that your offending really was some sort of rebellion against a reasonably strict family, but as I have said, she spoke in glowing terms, and
Mr Sanderson wrote in glowing terms, of your progress through this drug program and your follow-up.

32I also received a report from Professor Andrew Carroll, who interviewed you and, in his report dated 8 August 2016, noted that you had been using drugs on a regular basis, stating that you reported significant stimulus use in around 2013.  He noted that you were using intranasal speed, up to a gram fortnightly, in social context, you had been using cocaine for about 18 months prior to your arrest, mainly on weekends, and had smoked ice on about 20 occasions.  You also admitted to ecstasy use on a weekly basis in 2014 and 2015.

33In summary, Professor Carroll found that there was no evidence from your history to present major personality dysfunction or of mental illness, and noted that you had made extensive efforts in terms of personal rehabilitation, plus successfully completing the DayHab program, noting "and continues to enthusiastically engage with various follow-up groups.  In addition to this, he has adopted a very healthy lifestyle, including daily attendance at gym and a close relationship with his family of origin.  He appears to show good insight into the deleterious effect that substances have had, both on his own psychological functioning and on his own social functioning."

34Overall, Professor Carroll’s opinion was that your period in rehabilitation appeared to have been very successful, noting, "He has learnt a great deal from his time there and appears to be genuinely motivated to avoid relapsing into substance misuse in the future."

35Ordinarily, Mr Chea, engagement in the serious offending that you had, that is, the importation and trafficking of drugs, would be bound to lead you to being sentenced to a term of imprisonment to be immediately served.  However, for the following reasons, and I note this is not a course opposed by the prosecution, it is my view that I can, and should, deal with you by way of a disposition which does not involve you being immediately sent to gaol.  They are your youth, your plea of guilty, the fact that you come from a law-abiding and supportive family, your very good prospects of rehabilitation as a result of your successful participation in drug rehabilitation, and what I accept is your genuine remorse.  Because of these matters, it is my view that I should deal with you, as I have said, by way of the imposition of a further community corrections order in relation to the summary charges and by way of a recognisance pursuant to Commonwealth sentencing.

36In relation to Charge 1, I am sentencing you to 18 months' imprisonment; and in relation to Charge 2, I am sentencing you to 18 months' imprisonment.  However, in relation to each charge, I am going to order that you be released forthwith upon you giving security in the sum of $1000 to comply with the following conditions:

37Firstly, that you be of good behaviour for 18 months; and secondly - and can you assist me here, Ms Eales?  How do I express a condition that he is to attend upon Community Corrections?

38MS EALES:  You can't, Your Honour.  You can't have the conditions of a community correction order as part of a condition of the recognisance release order.

39HER HONOUR:  So it's best if I just simply say he's released, and that's it?

40MS EALES:  Yes, totally separate, yes.

41HER HONOUR:  Yes, thank you.  Do I need to fill that out?

42MS EALES:  We've got some drafts here that we can prepare if Your Honour would ‑ ‑ ‑

43HER HONOUR:  All right, then, if could just be 18 months.

44MS EALES:  Yes.

45HER HONOUR:  Now what that means, Mr Chea, is - stand up, please, sir.  That means that simply that I sentence you to 18 months' imprisonment.  They are to be served concurrently, just to make that perfectly clear, but you are not going to serve that sentence if you stay out of trouble, basically, for the next 18 months.  The $1000 recognisance would only be paid by you if you committed a criminal offence in the next 18 months, all right?  So in short terms, as long as you keep your nose clean and stay out of trouble, that will be the end of that.

46Now in relation to the charge of being a prohibited person, I am going to place you - but I can only do this with your permission.  It is my intention to place you on a community corrections order for a period of 18 months.

47I need to explain the core conditions to you, even if you do not remember them from last time.  They are that whilst you are on the order, firstly, you must not commit any offence punishable by imprisonment.  That does not mean you would have to be gaoled, Mr Chea, it just means if you commit an offence for which theoretically you could be punished by imprisonment, that would breach the order.  So stealing something small from a supermarket would be a good example of that.  You must report to the Office of Corrections within two working days of the making of this order, that is, by Tuesday of next week.  Whilst on the order, you may not leave Victoria without the permission of the Office of Corrections.  You must inform the Office of Corrections of any change of employment or residence within 48 hours of that change.  Whilst on the order, you must not attend upon Community Corrections whilst under the influence of either drugs or alcohol.  You must report to and receive visits from the Office of Corrections and you must obey all lawful directions of the Community Corrections Office.  I am going to order that you undertake 300 hours of unpaid community work.  You are to attend for assessment and treatment for drugs.

48Are you prepared to enter that order?

49OFFENDER:  Yes, Your Honour.

50HER HONOUR:  Thank you.  I am also to deal with you for breach of a community corrections order.  I find the breach proven, and I make no further order.  Thank you.  We will just prepare the paperwork.

51OFFENDER:  Thanks, Your Honour.

52HER HONOUR:  Thank you.  Pursuant to s.6AAA, in relation to the prohibited weapons, I declare that had you not pleaded guilty, I would have sentenced you to a term of six months' imprisonment. 

53Do I have to make a similar declaration in relation to the Commonwealth charges, Ms Eales?

54MS EALES:  It's discretionary, Your Honour, but it is available to you.

55HER HONOUR:  I am going to decline that. 

56MS EALES:  If I could just ask that Your Honour states just the commencement dates for each of the Commonwealth ‑ ‑ ‑

57HER HONOUR:  Yes.  The commencement dates for each of the sentences I have imposed is today, 23 September 2016.  I am sorry about that, Ms Eales.

58MS EALES:  Thank you, Your Honour.

59HER HONOUR:  Does that take care of everything?  Now there were some orders you wanted me to sign?

60MS EALES:  Yes, and also if I could just clarify, I think the days already served was eight days, not seven, that the ‑ ‑ ‑

61HER HONOUR:  I declare that eight days of the sentence - do I even declare it?

62MR TOVEY:  I don't think you have to declare it, Your Honour, it's just a part of your reasons.

63MS EALES:  Yes.

64HER HONOUR:  I don't think I declare it, because he has already been released.

65MS EALES:  Yes.

66HER HONOUR:  All right.  So he has just got that up his sleeve if anything goes wrong.

67MS EALES:  In relation to the orders, Your Honour, I discussed this with my learned friend earlier, that under the Proceeds of Crime Act, that can also be taken into account on behalf of the accused just in relation to the forfeiture of the money that was seized and is to be forfeited.

68HER HONOUR:  I can take that into account under Commonwealth legislation?

69MS EALES:  Yes, I've got a copy of the - under the Commonwealth Proceeds of Crime Act.

70HER HONOUR:  I'm not allowed to do that in Victoria.

71MS EALES:  In our State, yes.

72HER HONOUR:  Gosh, the Commonwealth law merciful.

73MS EALES:  Well, sometimes.

74HER HONOUR:  And it has still got suspended sentences.

75MS EALES:  Yes.

76HER HONOUR:  Right.  Thank you very much.

77MR TOVEY:  Just to the extent - obviously what Your Honour's given is an extempore sentence which will be edited.  Just two very, very small, in fact, insignificant matters, Your Honour.

78HER HONOUR:  That's all right.

79MR TOVEY:  He's 21 years old at present.

80HER HONOUR:  That's right, I'm sorry.

81MR TOVEY:  Just when Your Honour's doing the revision.

82HER HONOUR:  Yes, thank you.

83MR TOVEY:  And in terms of the record of interview, there were some admissions made, just not with respect to the importation ‑ ‑ ‑

84HER HONOUR:  Admissions about where he lived and ‑ ‑ ‑

85MR TOVEY:  Yes, and I think he showed them where the drugs were and admitted that they were in his possession, so there's that.

86HER HONOUR:  All right.  I will work that in.  Thank you.

87MR TOVEY:  Those are the only matters, Your Honour.

88HER HONOUR:  Thank you very much.  Thanks, Mr Tovey.  He has got to sign on the second page in relation to those.  Thank you very much.  I will just sign these orders.  Thank you. 

89You will have done a lot of community work, 700 hours' worth. 

90MR TOVEY:  He will have just about taken out the record by the end of it, Your Honour.

91HER HONOUR:  I was going to say, not bad.

92MR TOVEY:  Just so Your Honour is aware, it's been explained to Mr Chea as well, in terms of the way that Your Honour has made the orders, of course, in terms of the recognisance order, any breach of the community corrections order, even by non-compliance, would be an offence that would also breach the recognisance release order, and that's something that has been explained to him as well. 

93HER HONOUR:  That's actually a very good point.  Thank you, Mr Tovey. 

94So if you do not stick to the order, that is, if you do not turn up, not just by committing further offences, Mr Chea, if you just simply do not do what you are supposed to under the order, that would actually breach the recognisance as well, so really you are just completely strung up.  All right?  I do not think there will be any problems.  You have done very well.  You should be proud of yourself.  It is often the case with young people like you that getting charged reveals a whole lot of other problems that were operating in a person's life and they can attend to them, and as I said, you should be very proud of the way you have gone about this, Mr Chea.  I mean it has not been a very happy road, but I am quite sure that you will be a terrific law-abiding contributing member of the community, and yes, it is just a shame you cannot get the electricians - is it commercial or domestic you are interested in?

95OFFENDER:  Either one of them, whatever comes first.

96HER HONOUR:  Yes.  Commercial is a good one.

97OFFENDER:  Yeah, but you learn more in domestic. 

98HER HONOUR:  Yes.  Sometimes they're still doing them.  There is a fantastic one you can get with the Railways.

99OFFENDER:  I've heard about that, it's hard to get in.

100HER HONOUR:  Yes, you make a fortune.  And just the last 14 or 15 years they started doing apprenticeships again.  Anyway, look, I know it is very difficult and very hard for young people in a lot of ways these days.  So good luck with that, Mr Chea.  But as I said, you have done incredibly well, you seem to be on the up and up, and I am sure something will come up for you eventually.

101OFFENDER:  Thanks, Your Honour.

102HER HONOUR:  Maybe you could start a dry cleaning empire with your father.

103(VOICE from body of court):  (Indistinct words).

104HER HONOUR:  I can see it now, "Chea Dry Cleaning" everywhere you go.

105(VOICE from body of court):  I can retire.

106HER HONOUR:  That would be nice.  Thank you.  I will give those back.  Thank you very much.  What do we do with these, Ms Eales? 

107MS EALES:  The copies of the recognisance?

108HER HONOUR:  Yes.

109MS EALES:  Mr Chea will need to keep one, we keep one and ‑ ‑ ‑

110HER HONOUR:  Thank you.  I will give those back to you.  I thank counsel very much for their assistance in this matter.

111MR TOVEY:  As Your Honour pleases.

112HER HONOUR:  It was a very well conducted plea.  Thank you.  I particularly enjoyed having witnesses being called.  Thank you, Mr Tovey. 

113MR TOVEY:  I'll spread the word, Your Honour.

114HER HONOUR:  Good luck.  Good luck with that.  It makes a huge difference, and particularly it makes a very big difference - often can make a very big difference to your opponent.  It is very rare the prosecution is going to be moved by counsel's fabulous eloquence, but sometimes the appearance of witnesses does make a difference, and that is another - I certainly used to find that.  That is often another big plus, as I said, in terms of what sort of response you are going to get from the prosecution.

115All right, there you go.  Thank you very much.

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