Director of Public Prosecutions v Cheng
[2017] VCC 373
•5 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUET YEE CHENG |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2017 | |
DATE OF SENTENCE: | 5 April 2017 | |
CASE MAY BE CITED AS: | DPP v Cheng | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 373 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Importing a commercial quantity of a border controlled drug – methamphetamine – importing a marketable quantity of a border controlled precursor - ephedrine
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence of ten and a half years’ imprisonment with a non-parole period of seven years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Padmanadham | CDPP |
| For the Accused | Ms A. Ellis | Giorgianna & Liang Lawyers |
HER HONOUR:
1 Suet Yee Cheng, you have pleaded guilty to two charges: Charge 1, that of importing a commercial quantity of a border controlled drug, in this case methamphetamine, in breach of s.307(1) of the Commonwealth Criminal Code, which carries a maximum penalty of life imprisonment and/or a fine of 7,500 penalty units; and Charge 2, that of importing a marketable quantity of a border controlled precursor, namely ephedrine, contrary to s.307.12 of the Code, which carries a maximum penalty of 15 years' imprisonment and/or a fine of 3,000 penalty units.
2 The circumstances of your offending are set out in full in the Prosecution Summary and I sentence you on the basis of the facts set out in that document. It is not necessary to set those facts out in full here, but I summarise them briefly.
3 Charge 1 concerns a period between November 2015 and mid-April 2016. Charge 2 concerns conduct which occurred around 11 January 2016. The charges relate to three mail consignments containing methamphetamine, one consignment containing ephedrine, and a controlled delivery of the last of the consignments.
4 You arrived here from Hong Kong on 14 December 2014 on a working visa, stayed until 21 June 2015, returned to Hong Kong and then came to Australia again in late August 2015.
5 In March 2015, in the company of a male who described himself to the landlord as your brother but who is not your brother, you paid a landlord $3,700 in cash for a six month lease on a Docklands apartment. In early April 2016 you deposited $2,100 into the landlord’s account and made arrangements to extend the lease.
6 In late October 2015, you went to an address in Meadowbank Avenue Doncaster, and rented a small room for three months, paying a deposit of $800. You took possession of the room, showing the landlord your passport, but never had your possessions there. You advised the landlord on 5 January 2016 that you had moved out.
7 In late October 2015, you rented a room at 12 Hillingdon Crescent Doncaster for two weeks, paying $260 in cash. You went there twice during that period. You did not return the key or collect your bond money.
8 The first consignment which was addressed to Frankie Cheng at 12 Hillingdon Crescent, was intercepted on 1 November 2015. It was a package said to contain noodles and curry paste, but, when examined, the packets of curry paste contained methamphetamine, which when tested, weighed about 770 net grams.
9 The second consignment consisted of two packages addressed to you at the Meadowbank Avenue address, which were intercepted on 14 December 2015. The packages were opened and contained crystals found to be about 9.62 kilograms of methamphetamine.
10 The third consignment consisted of five boxes addressed to you at the Meadowbank Avenue address, which were intercepted on 11 January 2016. One of the boxes contained 542.9 grams of ephedrine in powder form.
11 The fourth consignment was addressed to you at the Docklands address. You were contacted by the freight company on 21 March 2016. You then communicated with the freight company, provided them with a copy of your passport and made a few enquiries as to why the consignment had not been released. The consignment was intercepted, and in one of the timber crates there were a number of silver foil packages contained in a rowing machine, which contained around 6.37 kilograms of methamphetamine. The Australian Federal Police replaced these drugs with an inert substance, before putting them back in the machine, and allowing the delivery to proceed on 13 April 2016. You made arrangements with the Docklands building manager to book the lift so that the crates could be moved to your apartment, and you also arranged for a person to come to help you move the crates once they had been delivered by the courier driver. You met the courier driver at the building, signed for the package, and the man you hired helped you move the boxes to your apartment. You were later recorded as talking to an unidentified male about a Ziploc bag and scales.
12 When police executed a search warrant after this delivery, they found you opening the consignment. They located the rowing machine, a number of mobile phones, a laptop computer, and your passport connecting you with the various deliveries, and delivery addresses. Western Union records show that you received about $3,000 from Hong Kong, and that on six occasions between April and June 2015, you remitted about $20,000 to persons in Hong Kong.
13
You were arrested on 13 April 2016. After a short contested committal on
9 December 2016, you entered a plea of not guilty. However, on 12 December your counsel began discussions to resolve the matter and you pleaded guilty on 29 March 2017. You have been in custody since 13 April 2017, and have spent a number of days in custody, not including today, and I will come back to that.
14 While in custody you have completed a number of courses and I have been given a number of certificates concerning kitchen operations, information technology, word processing courses that you have completed as well as a number of programs concerning your own personal wellbeing and development which you have completed. I note that you have been working in the kitchen as well as studying English. You have no family here and no money, and are isolated due to your poor English. You use the money which you earn in prison to phone home.
15 Your personal circumstances were outlined to me by your counsel. You are now 20 years old. You were born and raised in the New Territories of Hong Kong. Your father is a baker, and your mother is a housewife. You have two half-brothers and a younger brother. Your parents separated when you were 12 and you lived with your diabetic father, doing the washing, shopping and cooking while also attending school. You did not perform well at school but completed Year 12. After finishing school you were working casually washing cars, but earned very little. You fell in with a bad peer group and started using drugs. You became addicted to ice and ended up with a $14,000 debt. According to instructions given to your counsel, you were approached in Australia by a person to help them find addresses to which packages containing drugs could be addressed. You were to be paid for your accommodation, phone and living expenses, and for successful delivery to the various addresses, as well as to take delivery of the fourth consignment. As none of the packages were delivered, you did not receive any payment for that role, so you still remain in debt.
16 Your counsel conceded that your offending is very serious and warrants a substantial period of imprisonment. She conceded that you played an important role in the importation of each of the consignments, by arranging to lease premises so as to provide addresses for consignments one to three, and by taking receipt of the fourth consignment. You role also included getting the help of someone to lift the package containing the rowing machine. In particular, it was conceded that the quantity of methamphetamine imported, the number of separate importations, and the period of offending over five and a half months calls for the imposition of a significant term of imprisonment.
17 However, your counsel stressed that your offending was at a low intermediary level, because it lacked sophistication and you were vulnerable to detection for example using your own passport for identification and having the fourth consignment delivered to your home address, as well as being in the process of opening the consignment when the search warrant was executed. It was said that this kind of direct involvement could not be expected of someone higher up in the hierarchy. Further, there was no evidence that you communicated directly with anyone in Hong Kong about the packages nor that you received any financial gain beyond your living expenses paid for, nor that you were involved in the business of trafficking. It was also submitted that there was no evidence of your knowledge about the quantity of drugs involved in the first three consignments and no evidence that you made enquiries about them in the same way as you did about the fourth consignment.
18 The matters relied on in mitigation are that you have no prior criminal history, were aged only 19 years at the time of the offending, pleaded guilty at a relatively early stage, and told your counsel you were sorry about your offending. It was submitted that you should receive a discount in your sentence for your early plea because of its value in saving the expense and inconvenience of a trial and because it demonstrated your remorse. Given your youth, it was submitted that the need for general deterrence is to be balanced with the importance of your offending, and that some weight is to be given to your isolation in prison here with limited English and without any family support. You had a boyfriend who visited you earlier on, but the relationship has not survived, and you have no visitors. It was submitted that given your age and lack of prior convictions you have some prospects of rehabilitation. Finally, it was submitted the sentence imposed should give effect to the principle of totality.
19 The prosecution submitted that your role was much more than that of a courier or mailbox. You were an important intermediary in the importations. You came here on a working visa yet there was no evidence that you did any work here. You were instrumental in renting the Docklands apartment, in making cash payments to that landlord; in extending the lease on the property; in renting the other premises in Doncaster; and in relation to the fourth consignment you made active enquiries with the freight company, arranged for the delivery by courier and arranged for a man to help you move the crate into your apartment. You also started unpacking the consignment. It was submitted that if I were to find that you came to Australia to facilitate the importations, I should not give any weight to your isolation in prison. It was submitted that your offending is a serious example of these offences, given the amount of drugs involved. The amount of methamphetamine imported was 16.7 kilograms, which was about 22 times the commercial quantity threshold and which has a wholesale value of between 2.8 and $5.6m and a street value of between 6.5 and $11.1m. The amount of ephedrine imported was 542.9 grams, which was about 169 times the marketable quantity threshold, and which has a wholesale value of between 15,000 and $36,000. Although there is no specific evidence of your receiving large payments for your role, it was submitted that I should infer from your conduct that you were involved for profit. This made your offending more objectively serious.
20 In the circumstances, it was submitted that general deterrence is one of the principal sentencing considerations. It was conceded that you are a young offender without prior convictions and that rehabilitation is a primary consideration, but it was nonetheless submitted that given the primacy of general deterrence in offending of this kind, your youth and lack of prior convictions are to be given less weight than they might be given in other cases. In your case, because your family lives in Hong Kong, the possibility of your being deported does not constitute a mitigating factor. It was submitted that a lengthy sentence of imprisonment is warranted and that a significant part of that sentence should be required to be served.
21 I was taken to five comparable cases by the parties and I will set out the citations in full when I revise this sentence: they were the matters of Stephens, Peng, Eccheveri, Yung and Zhang] and I have considered each of them.
22 In sentencing you, I have applied the propositions applicable to sentencing for drug importation offences as set out in Nguyen v R [2011] VSCA 32 [34]. Relevantly, these may be summarised as follows. Firstly, the role you played is of great importance in assessing the objective criminality of the offence. I agree with both counsel that your role was that of intermediary, and more substantial than that of a mere courier. You rented properties to which the first three consignments were then addressed, and took several steps, including making enquiries of the freight company, organising and taking delivery of the fourth consignment at your home address. Your offending is objectively serious because it involved large quantities of two kinds of illegal drugs, imported over four separate occasions over a five month period, and involved a number of acts by you. I infer from your conduct that you engaged in the offending in order to make money. The fact that you needed money to pay off debts does not make you less responsible for your actions, although I accept that you did not in fact receive large amounts of money for your role.
23 Secondly, although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is relevant. In this case, the size of the importations involved in each charge is considerable, and in relation to the charge concerning methamphetamine, very considerable. While knowledge of the amount and kind of drugs is an aggravating factor, the fact that you may not have been explicitly aware of the nature or amount of the drugs imported on each occasion simply means that this aggravating factor is absent.
24 Thirdly, because of the difficulty detecting importation offences, and the adverse social consequences that follow, general deterrence is to be given chief weight on sentence and stern punishment, by way of a significant sentence, will be warranted in almost every case. The sentences imposed by courts must signal to would-be traffickers that the potential financial rewards of the activity are neutralised by the risk of severe punishment. For this reason, your lack of prior convictions and your youth are to be given less weight as mitigating factors than they might otherwise have been.
25 However, your youth at the time of offending does not cease completely to have weight as a mitigating factor. You were 19 years old, and clearly immature, drug addicted, in debt and vulnerable to exploitation by others. Your conduct was unsophisticated in that you produced your own passport for identification when leasing property and when arranging delivery of the fourth consignment, to your residential address.
26 Moreover, I consider that you have prospects of rehabilitation. Your offending occurred against the background of your own addiction and indebtedness, when you were young. Before then, you had committed no offences. It is clear from the number of certificates tendered that you have been using your time in custody to good effect, both to work and to study, and that these matters go to demonstrating that you have prospects of rehabilitation.
27 I consider that the sentence that I impose will serve to deter you from further offending.
28 I take into account your plea of guilty at an early stage, as well as your expression of remorse through your counsel. Your plea of guilty has spared the community the time, cost and effort of a trial in this court and warrants a substantial discount in sentence.
29 In fixing an appropriate sentence, I have given some but limited weight to the prospect that you will be isolated in prison here as a mitigating factor, because I am not persuaded on the evidence that you did not enter Australia for the purpose of engaging in the offending conduct. I note the principle of totality but indicate that there must be some degree of cumulation to reflect the fact that there were two offences.
30 For these reasons, I sentence you as follows. Would you please stand?
31 On Charge 1, you are convicted and sentenced to ten years' imprisonment.
32 On Charge 2, you are convicted and sentenced to three years' imprisonment.
33 I direct that 12 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. I will mention what I think the commencement dates are and I would be grateful for any assistance that the prosecution might give me in this regard.
34 The commencement date of the sentence on Charge 2 is 5 April 2017 and the commencement date of the sentence on Charge 1 is 5 October 2017.
35 The total effective sentence is that of ten years and six months’ imprisonment. I impose a non-parole period of seven years. You have spent 357 days in pre-sentence detention and I declare that this amount is to be deducted from the sentence I have imposed on you today and that this is to be noted in the court’s records.
36 Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your plea of guilty I would have imposed a sentence of 14 years with a non-parole period of 11 years.
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