Director of Public Prosecutions v Cheng

[2018] VCC 1399

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00147

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOON CHENG

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 August 2018
CASE MAY BE CITED AS:	DPP v Cheng
MEDIUM NEUTRAL CITATION:	[2018] VCC 1399

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 D. Holding
For the Accused	Ms E. Clark

HER HONOUR: 

1Boon Siau Cheng, you have pleaded guilty to two charges of attempt to possess a marketable quantity of a border controlled drug contrary to the Commonwealth Criminal Code.  The maximum penalty for that offence is 25 years' imprisonment.

2Your background, and the circumstances of that offending are as follows.  You are Malaysian national, born 5 September 1990.  You grew up in Malaysia in what you describe as an average Malaysian-Chinese family.  Your father worked renovating houses and your mother cared for you and your three sisters.

3You left school at the end of our equivalent of Year 11, and then worked in various jobs including following your father in house renovations.  In 2011, you commenced work with a construction company called Fusion Construction and you remained there until 2014.  You then moved to Skilled Company, again working in construction.

4In mid-2016, you made a decision to come to Australia as a tourist but with a plan to study English and make a life in Australia.  You arrived in Australia on 22 July 2016 on a three month tourist visa. 

5You applied for a student visa in September 2016.  Your tourist visa lapsed and your student visa was never granted.  Apparently unaware of this situation, you remained in Australia unlawfully.  By this time you had met your girlfriend, Sharon, who was also a Malaysian national studying in Australia. 

6When you came to Australia, you had no contacts.  Soon after arriving here, you were reacquainted with a man called Cun Hao Eng, otherwise known as David.  Mr Eng was a person who you knew in Malaysia as a teenager.  You commenced residing at an address organised by Mr Eng at 603/160 Little Lonsdale Street, Melbourne.  He later came to live with you there. 

7At some stage prior to 29 March 2017, Mr Eng told you he was going to travel to Singapore.  He asked you to collect two packages while he was away.  You were aware that those packages were likely to contain illicit substances however you agreed to collect them.  For this purpose, Mr Eng gave you keys to premises at 31 Haig Street, Box Hill South.  On 29 March 2017, Mr Eng departed Melbourne for Singapore.

8On 31 March 2017, the Australian Border Force examined a consignment addressed to Jackie Yo of 31 Haig Street, Box Hill South.  It was found to contain 355.8 grams of pure methylamphetamine, hidden in a coax cable.

9On the same day, in Sydney, Australia Border Force examined a consignment addressed to Peter Wang of 1/6 Purser Avenue, Ringwood East.  It was found to contain 714.4 grams of pure methamphetamine hidden in a pool float bag and a Peppa Pig bag.  The consignee contact phone number belonged to Mr Eng's white Samsung mobile phone. 

10At 8.30 am on 31 March 2017, a resident of the East Ringwood address telephoned the AFP reporting that a man named Sam contacted her and said he would come to collect a package.  The person posing as Sam was you. 

11At 2 pm on the same day, AFP attended at 31 Haig Street, Box Hill South and saw you standing in the driveway of that address carrying a backpack.  You told AFP that you were waiting for a taxi after leaving a friend's house.  You could not provide the friend's details or tell them which house your friend lived in.  You provided a Malaysian driver's licence bearing your name, Sian Boon Cheng.  You further stated you were at the house to return a key that your friend, David, had given you.

12A search located several sets of keys in your possession, including keys to 31 Haig Street.  You were also in possession of two mobiles:  a gold Apple iPhone and Mr Eng's white Samsung. 

13You were arrested and participated in a record of interview.  Despite your initial denials to police, you gave a complete record of interview wherein you made admissions to your past involvement in collecting two other packages on behalf of Mr Eng.  You said Mr Eng would provide addresses, keys to premises and had paid for your taxi to attend locations.

14You admitted that you knew the contents of two consignments on 31 March were illegal.  You said you thought they were likely to be cigarettes.  You were to be paid for collecting the packages.  You indicated payment would be in the vicinity of a couple of a meals and a couple of hundred dollars.  You were remanded in custody at that time and have now served 517 days imprisonment. 

15General deterrence, punishment and denunciation are important considerations in sentencing for offences such as these.  Importation and movement of drugs throughout the community is prevalent offending which is difficult to detect.  Importation of illegal drugs into this country furthers the scourge of those substances on the community. 

16Although I accept you played a minor role in that your participation was limited to collecting the package and keeping it safe until Mr Eng's return, along with your intention to collect the other package at Ringwood, those who play such roles are critical to the success of any illegal importation operation.  It is a well-established sentencing principle that persons who participate in the illegal drug trade at any level should expect and receive heavy penalties.

17You admitted your suspicion that the packages contained illicit substances.  The Crown have accepted that your state of knowledge was one of recklessness.  This does lessen your moral culpability to some extent.  Your use of the false name Sam and your initial statements made to police indicate your level of awareness of the illegality of your behaviour.  I accept, however, that there is a level of naiveté in your record of interview.

18In characterising the actual criminality of your offending, I must consider the amount of drugs actually contained in the two packages.  The Commonwealth scheme for such offences delineates commercial quantity from the lesser marketable quantity which is what I am concerned with here.  Taken together, the two packages are over the commercial threshold.  The amount contained in package two is almost commercial on its own. 

19The amounts involved, therefore, place this offending at a higher level of marketable quantity.  However, I make this assessment mindful of the fact that amount cannot be determinative of sentence and particularly in circumstances such as here where it is not alleged you knew or were in any way aware of the actual quantities contained.

20Your matter proceeded to a contested committal in January 2018.  Discussions to resolve the matter commenced soon after.  You took part in a reverse caution interview with the AFP on 5 July 2018.  That procedure involves a recorded interview wherein an offender is free to disclose the full extent of their involvement in offending without fear of further prosecution.  The purpose is to ascertain any value of evidence offered against any co-offender.  

21You indicated your intention to plead guilty to these offences in the days following.  Information you provided during the July interview now forms material for the prosecution against Mr Eng.

22At the time of your plea, you swore an undertaking to give evidence in his trial, in line with the material outlined in your reverse caution interview.  You indicated your understanding that a failure to comply with that undertaking would likely result in you being resentenced.

23The Commonwealth Director of Public Prosecutions says there is value in the information you are willing to provide against Mr Eng.  Counsel at the plea  stated that the case against Mr Eng is ‘significantly strengthened’ by your evidence of his direct involvement.  In addition to other charges, he is also charged with attempting to possess the same two consignments in relation to which you have pleaded guilty.

24Your undertaking likely means you will be cross-examined prior to and during his trial and are likely to be challenged as to the truthfulness of your evidence.  This is likely to be a stressful experience.  Mr Eng's matter is currently listed for trial commencing next week on 3 September 2018 in this court. 

25As a matter of significant public policy, the law has always encouraged those jointly involved in criminal behaviour to betray the confidence of the other by providing for a discount for that cooperation at the time of sentencing.  That is particularly so in cases such as these where detection of offenders and proof of involvement is often difficult, relying as it often does on telephone intercepts and the like. 

26Your cooperation brings with it attendant personal risk.  In your case, that risk is threefold.  First, there is the general risk of being targeted in the custodial setting by other persons who become aware of your assistance to the prosecution.  Secondly, there is a general risk posed by those involved in this importation and thirdly, you and Mr Eng were known to each other in Malaysia and so even on return to your country of origin, you hold fears that you will remain a target for Mr Eng or any of his associates.

27You are entitled to a discount in your sentence for your willingness to assist the authorities.  I am satisfied in your case that your cooperation is also a reflection of genuine remorse at your involvement in this offending.  Such is reflected in your plea of guilty.  I note here that plea was given in circumstances where there may have been a live issue regarding knowledge. 

28Your plea of guilty, though not at the earliest stage is still early and carries a utilitarian benefit.  Genuine remorse also entitles you to a discount in sentence. 

29You have written a letter of apology to the court and the community.  You state, "I know an apology may not amount to much but I acknowledge my wrongdoing and I am willing to accept the consequences.  All I ask is if Your Honour may take into consideration my efforts at changing my life for the better so I can be there for what's most important to me, my family."

30Your parents have written letters which were tendered on the plea and which express their disappointment in you.  Your family remain supportive and you will reside with them upon your return to Malaysia. You are a person without prior convictions and you are a relatively young man still.  You are a person whose family have not had any involvement in criminal behaviour. 

31I have also received a letter from your girlfriend who is studying a master's degree at the University of Tasmania.  She describes you undertaking a ‘profound introspection’ over the past 16 months and says you have a new understanding of your future.  She says that in her view, you will be a person who contributes to society after your release from prison and that this is the reason she has not ended your relationship.

32Your parents have written, indicating that your father is not in good health and that both are aging.  They say they miss you and hope to be able to spend more time with you in their remaining days.

33Your time in custody has not been easy given your relative isolation.  However, you took a calculated risk in agreeing to collect these packages.  Those who take such a risk in a foreign country must accept that they also risk being imprisoned in a place where they do not speak the language and where they are removed from their family.  In my view therefore, that factor cannot be a basis for any significant mitigation of penalty.

34It is apparent that you are making what you can of your time in custody.  To this end, I have also received a letter of reference from Ryan McCarthy, assistant national fleet manager involved with the Department of Defence.  Mr McCarthy writes that he met you when you came to work as a billet in the prison shop at the Metropolitan Remand Centre.  He says you were recommended by one of the Corrections officers for being a model prisoner.  Mr McCarthy describes you as a ‘generally quiet man who works quickly, stays out of mischief and is a very efficient worker, always cooperative and courteous.’  He says you are making the most of your time in custody by undertaking English and by undertaking courses available to you.  You are also acting as a translator for new prisoners.

35You are likely to be deported upon your release and although that is a positive in reuniting you with your family, you and your girlfriend have formed a real bond in Australia.  So the prospect of being removed therefore is likely to weigh on you during your time in custody.

36Given your admissions and cooperation, your remorse and efforts to reflect and take advantage of what is offered to you in custody, my view of your prospects of rehabilitation is that they are good.  I accept therefore that specific deterrence can sensibly be moderated in your case given those circumstances.

37Your counsel sensibly conceded that this offending warrants a head sentence with a non-parole period.  That is that any sentence will be over three years.  She argued given the offending occurred on the same day that there should be modest cumulation only.  The prosecution submitted that imprisonment with a non-parole period was appropriate and confirmed that an aggregate sentence was open to me.

38I have given consideration to sentences imposed in similar matters and to the table of comparative cases I was provided.  But in particular, I have considered the matters of Samuels-Orunmwense v The Queen and Osifo v The Queen[1] which concern the same offence and the attempted possession of 398.1 grams of heroin.  The accused in that case ran an eight week trial.  The evidence suggested that although characterised essentially as couriers, their roles were more involved than yours.  Both received sentences of five years and nine months.  Mr Samuels-Orunmwense received a non-parole period of three years.  Mr Osifo's sentence was complicated by the fact he was serving another sentence.

[1] [2015] VSCA 152

39In turn, the Court in that case considered the decision in Chan v The Queen; Tan v The Queen[2], to which I have also had regard.  In that case, the Court of Appeal looked at current sentencing practices.  Both Mr Chan and Mr Tan pleaded guilty.  Mr Tan attempted to possess 245 grams of pure heroin and Mr Chan in addition to that also attempted to possess 241 grams of pure heroin.  Mr Tan's sentence was reduced on appeal to five years with a non-parole period of three years.  Mr Chan received a total effective sentence of eight years six months with a non-parole period of six years.  Both offenders in that matter had arrived in Australia specifically for the purpose of receiving the imported drugs.  Both to my mind, although essentially couriers, were also more involved in the lead up and in the attempt to possess those drugs.

[2]  Chan v The Queen; Tan v The Queen [2014] VSCA 301

40Of course, both cases are distinct from this one by way of the various aggravating and mitigating factors applicable.  They are not of course precedent, but they do provide some guidance.

41A most important aspect in sentencing you is of course your cooperation with the authorities.  I am required pursuant to s.16AC[3] to state the discount which you receive.  In considering that discount, I must consider the value of your cooperation, the risk to your personal safety, any resulting hardship in custody as well as ensuring that reduction does not result in a sentence which is an affront to community standards.  There is no mathematical rule in fixing the appropriate discount.  In considering that discount, it is your future cooperation which must be considered.  Your past cooperation is taken into account in general mitigation of your sentence.

[3] Crimes Act (Cth) 1914

42The discount given for cooperation must be specified so that in the event of a failure to comply with the undertaking made, you can be appropriately resentenced. In this state, that declaration is made more complicated by the existence of s.6AAA of the State Sentencing Act which also requires me to specify the sentence which would have been imposed but for the plea of guilty.

43The Court of Appeal in the matter of DPP v Couper[4] stated that regardless of the sequence adopted to reflect those declarations, it is important that the actual sentence imposed reflects the fact that the offender has had the benefit of both forms of reduction.

[4] DPP(Cth) v Couper [2013] VSCA 72

44I have considered the comments of the Court of Appeal in Couper.  It is a somewhat tortuous process given there is no guidance from the legislation as to the interplay between the two sections.  Further, in my view, it is difficult to conceive of a scenario where there would be cooperation that was not accompanied by a plea of guilty, yet I must consider them separately.

45In this case, I propose to impose an aggregate sentence, given events were to occur on the same day and despite the significant amount of drugs particularly in the second package, lack of specific knowledge of the contents reduces the impact of that fact.

46The sentence I impose is one of 48 months' imprisonment with a non-parole period of 24 months' imprisonment.  I am required to quantify the discounts that you have received for your plea of guilty and for undertaking to cooperate with the authorities.  But for those matters, the aggregate sentence I would have imposed would have been one of 66 months' imprisonment with a non-parole period of 42 months' imprisonment.

47I have reduced that sentence by nine months from both the head sentence and the non-parole period for your plea of guilty.  I have also reduced that sentence by nine months from both the head sentence and the non-parole period for your cooperation.

48I declare that your sentence is to start today and I declare 517 days' pre-sentence detention as already having been served.

49Are there any matters arising from that, counsel?

50MR HOLDING:  No, Your Honour.

51MS CLARK:  No, Your Honour.

52HER HONOUR:  All right, thanks very much.  Thanks for your assistance.  So Mr Cheng could be removed, thank you.

53(Prisoner removed.)

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