Director of Public Prosecutions v Cheng

[2014] VCC 1927

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01294

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHI WA CHENG

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2014
DATE OF SENTENCE:	12 November 2014
CASE MAY BE CITED AS:	DPP v Cheng
MEDIUM NEUTRAL CITATION:	[2014] VCC 1927

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Rountor
For the Accused	Mr P. Haag

HER HONOUR: 

1Chi Wa Cheng, you have pleaded guilty before me to one charge of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s.307.11 of the Commonwealth Criminal Code.  The facts underlying your offending are as follows. 

2You are a Hong Kong national and on 14 March this year obtained a tourist visa allowing you to stay in Australia for three months.  You arrived on 18 March 2014 in Sydney where you activated two mobile telephone numbers which were subscribed in false names, and a New South Wales address.  On 31 March 2014, you leased a room at 21 Mountfield Avenue in Malvern East for six months providing the second mobile phone number as your contact.

3On 3 April 2014, the Customs Service at Tullamarine Airport intercepted a packet containing various beauticians supplies which included 11 bottles of lotion and shampoo, each of which contained a colourless liquid or crystals, the total net weight being 4094.6 grams.  The intercepted package was addressed to a Sam Lung at the Mountfield Avenue address you had arranged and included a mobile phone number you had activated in March in Sydney.

4The bottles' contents tested positive to the presence of methamphetamine and were later found to contain 1789.3 grams of that drug.  The commercial quantity for methamphetamine is 750 grams so the amount discovered was approximately two and a half times that weight.

5Between 3 and 4 April, telephone calls between you and an unknown male were intercepted where you advised you had received "it" that day, were advised to check your surrounding before unpacking the package, that if questioned about the contents to state you did not know what was inside and that other "brothers" had had the same experience and by saying that they did not know what was inside the package nothing happened to them.

6In the second telephone conversation between you and the same unknown male on 4 April 2014, you were told the parcel had been sent, would arrive the next morning, that he would check online with Customs to see if the package had been cleared and if it didn't arrive as planned, you should have your belongings packed to leave immediately.  You were told the package was addressed to Simon Lung, that the parcel had arrived at Customs and that if not clear, was most likely held by police and that you would then be apprehended.

7In the third call that day, you were told the package had not been cleared by Customs and you should wait until you were told whether or not it would or had been.  In a final conversation that day between you and that male, you were told the package had not been cleared, to wait for further information, that if apprehended you should not admit to anything and you would be let go in a few months and to ask one of your housemates - you were living in a boarding house - to sign for the package, you replying you knew the name of the person next door and it would be better to put that name down next time and ask the person to sign for it.

8You were then seen checking your letter box at your address and using two separate mobile phones outside your house.  You rang the same unknown male and asked whether you should leave and were advised to do so.  Police then saw you go to the Discovery Melbourne Backpackers Hostel in Franklin Street, Melbourne where you booked in for a two night stay and telephoned the unknown male saying you would collect the bond money and use it to start a hotel and find other housing in the meantime.  You also asked for $1000 to place into an account which you said you had to do on a monthly basis.

9Later that afternoon you were arrested by police in the area of the Discovery Hostel at which time you had the two mobile phones and $150 in cash and in a record of interview with police said you had come to Australia for travel and done nothing wrong and mostly answered "no comment" to questions.

10The wholesale value of the drugs received was over $1 million with a potential street value of over $4 million.  You were remanded in custody after your arrest where you have since remained.  The matter was eventually listed for committal mention on 4 July when an adjournment was sought by your legal representatives and on 18 July you entered a plea of guilty and the matter proceeded by way of straight hand‑up‑brief.

11You have pleaded guilty on the basis of the extended definition of import in s.300.2 of the Criminal Code and it is conceded by the prosecution this was an early plea of guilty.

12You have no criminal history in Australia but have volunteered to police the information that you had been gaoled in Hong Kong in a youth justice centre for six months over drug related offences.  I now turn to your personal history.  You are still only 20, and turn 21 on 29 November.  You were born in Hong Kong, the elder of two children.  Your father has always worked at a factory in mainland China and was home only on weekends.  Your mother developed a gambling problem and also worked as a cleaner and was often absent from home and you took over a parental role with your younger brother.

13You left school partway through Year 10.  A letter from the principal of your former school, Cognitio College, Wan Chung Le Man, noted that you had attended the school between 2005 and 2008 and described you as a good natured student who was a caring brother and whom you had taken responsibility for looking after as well as doing household chores as both your parents needed to work.

14The principal wrote that your father worked in mainland China, only occasionally returning to Hong Kong to visit his family and that, "without enough supervision and parental care" you got into bad company and started drifting from school. 

15A second reference dated 12 August 2014 from Wong Ying Ning, a social worker at the Methodist Epworth Village Community Centre, Epworth Integrated Youth Team, wrote that he had come to know you through Outreach Services in the estate park where you lived and described you as an easy going polite and honest young man.  In the letter, Mr Ning said you lacked parenting and were badly influences by peers and to quote Mr Ning, he described as, "He is also teachable, vulnerable to peer influence, takes care of his family, respects his parents and loves his brother".

16After leaving school, you began going out at night with friends as your brother was older and presumably required less assistance from you.  You started using drugs and alcohol, got involved in fights and were ultimately detained in the Juvenile Centre in Hong Kong when you were picked up in the street by police, made admissions to using ecstasy and ketamine and were found in possession of stolen mobile phones.

17In addition to caring for your brother, it appears you also assume considerable responsibility for your mother.  As a young boy, you had to beg your father not to divorce her when he discovered she had sold his gold and jewellery to raise money for her gambling and were thereafter complicit in keeping her continued gambling a secret.  The theft of mobile phones you engaged in was also to assist your mother's financial difficulties.

18Once released from custody, you got work as a sushi delivery driver and stopped using drugs and associating with old criminal associates but then suffered a workplace injury when your feet were trapped under the tray of your delivery vehicle and your toes broken.  You were unable to work for many months, were confined to a wheelchair and the company only compensated you to the extent of paying you a month's salary.

19You drifted back to old associates and started gambling as a means of getting extra money and to overcome boredom.  You developed an addiction to Russian poker which you played every two or three days, eventually borrowing money from a Japanese money lender to repay the gambling debts of both yourself and your mother.

20The company soon put pressure on you to repay the debt, threatening to put red paint on the family door which would have publicly indicated the family's financial problems.  You were very worried your father would divorce your mother if he knew about her debt.

21About this time, you had become involved with a girl who had fairly expensive tastes which you also tried to meet by gambling and who suddenly ended the relationship.  About this time, you had determined you needed to take some positive steps in your life.  You had previously attended a drug counselling centre at the Tung Wah Group of Hospital Services and a letter from the assistant supervisor, Wong Chun Weh, tendered on the plea and dated 19 August 2014 confirmed you attended that service between 1 April 2011 and 23 December 2012.  In the letter, Wong Chun Weh stated:

"Owing to taking drug again, Mr Cheng has taken initiative to seek for our medical care for tackling his drug problem on 22/1/2014".

22It was shortly after this however that your girlfriend ended the relationship and then about two weeks later, approached you with her brother whom you had met on a couple of occasions and who told you he had a solution to your debt situation.  You were introduced to a third party and agreed to become part of the criminal enterprise which has brought you before this court.

23Although not cooperative with police in your record of interview, in September this year you voluntarily disclosed information to them about those involved in the importation.  Police confirmed the information you gave was genuine but that because of the delay it was of no use.  You also revealed you were to be paid Hong Kong $200,000, about A$28,500 in payment for your role.

24Psychologist Carla Lechner, whose report dated 12 September 2014 was tendered on the plea said at interview you impressed as a genuine young man who was greatly dismayed at the path your life had taken.  You tested as suffering a moderate level of depression which she said was partly reactive to your current situation but that your history suggested you had suffered low mood for many years due to your family difficulties and the burden of protecting your mother's gambling problem and caring for your younger brother.  She stated:

"Several times he sought reassurance that the contents of this report would not be made available to his father as he wishes still to protect his mother from his father's potential anger and the threat of marital separation."

25She said you felt suicidal when first brought into custody, and found that your behaviour warranted a diagnosis of gambling disorder.  It was her view you have a very strong loyalty to your mother and are very protective of your younger brother but have a more distant relationship with your father.

26You told Ms Lechner you felt small and ashamed whenever you thought of your offending stating:

"It's a joke, all those years of trying to defend my family and now it's all about debts.  I worry about my younger brother, what he'll end up like.  Will he be like me trying to support the family (mother).  I try to protect my mum but she's been victimised by me because I tried to protect her.  My younger brother wants to be a policeman but he won't be able to with no clean family record".

27Your brother also wrote a letter dated 14 August 2014.  He is 16 and studying and began his letter seeking to "apologise to the community on behalf of my brother of importing around 1.8 kilograms of methamphetamine from Hong Kong."  He spoke of the family worry at your plight, detained overseas and not speaking fluid English and understandably asked the court to be merciful towards you.

28That you were labouring under the load of your mother's demands is supported also by the transcript of the intercepted conversations which included telephone conversations with your mother where she, on a number of occasions, asked you to send her money.  You yourself wrote a letter to the court apologising and stating you realised you had committed, "a very serious crime".  You said you were trying to do your best while serving a sentence, studying hard and that you intended to spend your time there, "to control myself, not to take drugs and become a law abiding citizen."  You stated:

"The lesson has taught me that I must stay away from the bad friends around me, put my focus on my family and myself creating a good life and building a good living environment."

29You have used your time in custody usefully, obtaining a certificate of attendance at the prison legal education, an assistance court readiness program, a certificate 2 in general education, a certificate in cleaning operations, a certificate 2 in kitchen operations, all from the Kangan Institute.

30Your counsel told me you have taken as many courses as offered at the Remand Centre and have been prevented from undertaking only more because of a shortage of available places.  You hope to take full benefit of whatever courses are offered in mainstream prison once you are sentenced.

31The prosecution urged that I regard your role as more than a courier, as it involved travelling to Australia, activating telephones and hiring premises for the ultimate delivery of the drugs.  On the other hand, your counsel urged that I regard you as less than a courier because you had had no hand in the actual importation of the drugs or their movement.

32You were ordered about on a minute to minute basis by those above you in the hierarchy and your counsel said you were simply to obtain the drugs and hand them to someone else.  It was his submission you were ultimately on the lowest rung of the hierarchy and utterly expendable to those who would profit most from the importation.

33Ultimately it is my view that your role is akin to that of a courier.  It is quite clear your primary role was to receive the drugs once they were released from customs and pass them on.  There was no evidence that you were to be part of any further distribution.  That role may have involved you leasing premises and so forth but I am satisfied you were very much at the direction of others and that like a courier, you were the person to be used to transport the drugs at a point where they were most vulnerable to detection.

34It is clear from the authorities that you must receive a sentence of imprisonment to be immediately served and that must be a sentence of imprisonment in an adult detention, notwithstanding that you are still a young offender as defined by the Sentencing Act.  Importation of a border controlled drug in a commercial quantity is an extremely serious offence which carries a maximum penalty of life imprisonment.

35The principle of general deterrence dominates the sentencing exercise of any court dealing with such a charge.  Drug couriers charged in relation to importation of a commercial quantity of a border controlled drug are less able to rely on the mitigating factors of a lack of prior criminal history or isolation from family and friends whilst serving a term of imprisonment in a foreign gaol.  Lack of prior convictions are often seen by major drug importers as a valuable commodity in a potential courier who is then less likely to attract attention and those who seek to offend in a foreign jurisdiction cannot complain if they then find themselves serving long sentences isolated from family and friends there.

36However, it is my view that your youth and difficult background have a mitigatory role in your offending of some significance.  On the material provided to me during the plea by your counsel, I am satisfied you grew up in difficult circumstances, playing a parenting role to your younger brother and becoming responsible for a financially dependent mother addicted to gambling in a scenario where your father was largely absent and where overall you experienced parental neglect.

37In those circumstances, it is to your credit that your prior criminal history is as limited as it is.  Further those pressures upon you, together with your youth and relative immaturity made you, I am satisfied, a more vulnerable target for those seeking to exploit you in the way that they did and your capacity to make a sensible decision in the face of the pressures in your life was undermined by those factors, that is your youth and immaturity.

38Your counsel submitted that to some extent I should find that you were naïve and certainly you seemed to accept without question the assurances of the unknown male as to the unlikelihood of your prospects of being gaoled for no more than a few months, if at all, if you maintained ignorance of the drugs involved.

39I accept you were highly biddable and followed instructions as they were given to you and that finally your decision to participate in the entire enterprise was, given your youth and immaturity, relatively overborn by family and financial pressures.

40Those who knew you in Hong Kong have written positively of you and have confirmed the difficulty of your domestic circumstances.  I accept that you have sought to rehabilitate yourself in circumstances where you have had little parental support whilst in Hong Kong and whilst in gaol you have undertaken a wide variety of courses so that I must accept you have at least a fair prospect of rehabilitation.

41Additionally I am prepared to find that your youth, combined with your lack of English, will make the services of a sentence of imprisonment in an adult setting, which at the age of 20 you are now experiencing for the first time, relatively more difficult for you.  You are still of an age where, had you been charged with a less serious offence, you could have been eligible for detention in the far more rehabilitative environment of a Youth Justice Centre as oppose to adult gaol.

42Importation of a border controlled drug is an extremely serious offence as I have said and it has been rightly conceded that the only way I can deal with you is by a sentence of imprisonment to be immediately served.  Again principles of general deterrence overwhelm the sentencing exercise before me and you have been involved in the importation of a very significant quantity of that drug.

43The fact that you may not have been explicitly aware of the amount is not a factor which means I can sentence you any less seriously.  It is simply not an aggravating feature.  Methamphetamine is a drug which is awash in the Australian community causing widespread misery, injury, ruination and death and the courts of course must deal most severely with those persons involved in bringing it into this country.

44In sentencing you I take into account your early plea of guilty which I regard as indicative of remorse, given your ultimate cooperation with police, your representations to Ms Lechner and your communications with this court.  I regard you as having at least fair prospects of rehabilitation and as I have clearly stated, regard your youth and immaturity as factors of particular mitigation in this case.

45I have also had regard to the number of authorities provided to me by the learned prosecutor and elsewhere and other apposite Victorian Court of Appeal sentencing decisions in like case.  It is clear that sentences imposed in Victoria for this sort of offence are less than those imposed elsewhere in Australia.  I therefore sentence you as follows.  Could you stand up, please.

46On the charge of importing a border controlled drug in a commercial quantity, I sentence you to five years' imprisonment and order that you serve a minimum term of three years.

47Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of seven years with a five year minimum.  What is the PSD?

48MS ROUNTOR:  222 days, Your Honour, not including today's date.

49HER HONOUR:  I direct that 223 days of this sentence have already been served by way of pre-sentence detention.  Thank you very much.

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