Director of Public Prosecutions v Chew

[2021] VCC 871

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00266

DIRECTOR OF PUBLIC PROSECUTIONS

v

MENG FEI CHEW

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2021
DATE OF SENTENCE:	25 June 2021
CASE MAY BE CITED AS:	DPP v Chew
MEDIUM NEUTRAL CITATION:	[2021] VCC 871

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW - Sentence             

Catchwords:   Traffick drug of dependence – commercial quantity –    possession of drug of dependence – negligently deal with    proceeds of crime - expired student visa – deportation

Legislation Cited:   Criminal Procedure Act 2009; s 145.

Cases Cited:  Gregory (a pseudonym) v The Queen [2017] VSCA 151; Fernando v The Queen [2017] VSCA 208; and DPP v   Condo [2019] VSCA 181; Worboyes v The Queen [2021] VSCA 169; Stephen Loftus v The Queen [2019] VSCA   24.

Sentence:   Total effective sentence of four years and eight months    imprisonment with a non-parole period of three years and    two months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Director of Public Prosecution
For the Accused	Mr N. Brown	Nelson Brown Legal

HIS HONOUR:

1Meng Fei Chew, on 25 June 2021, that is today, in the County Court of Victoria at Melbourne, you pleaded guilty to the following charges on Indictment No. K12724176.1:

Charge 1, trafficking in a drug of dependence in not less than a commercial quantity.  That drug was methylamphetamine.  This charge has a maximum penalty of 25 years' imprisonment;

Charge 2, trafficking in a drug of dependence.  This drug was cocaine.  This charge has a maximum penalty of 15 years' imprisonment;

Charge 3, trafficking in a drug of dependence.  This drug is colloquially known as ketamine.  This charge has a maximum penalty of 15 years' imprisonment;

Charge 4, possession of drugs of dependence.  There are a number of drugs, that included cannabis, morphine, MDMA and Phenazepam.  This charge has a maximum penalty of five years; and

Charge 5, on the indictment was negligently deal with the proceeds of crime.  This included, amongst other things, $75,000 cash, phones, and credit cards.  This charge has a maximum penalty of five years' imprisonment.

2You have consented to three related summary offences being transferred to this court pursuant to s145 of Criminal Procedure Act and you pleaded guilty to the following three summary offences;

Summary Charge 11, possess a prohibited weapon which was an extendable batten.  That charge has a maximum penalty of 240 penalty units or two years' imprisonment;

Summary Charge 19, exceed the speed limit of 60 kilometres; the alleged speed was 83 kilometres.  That charge has a maximum penalty of 10 penalty units; and

Summary Charge 21, which is unlicenced driving.  This charge has a maximum penalty of 60 penalty units or six months' imprisonment.

3All of your offending occurred on the single day, which was 19 October 2019.  You have been in custody since that day.  You have been in custody for 615 days, not including this day.

Circumstances of your offending

4The prosecutor tendered and read into evidence an Amended Summary of Prosecution Opening dated 17 June 2021. This was Exhibit “A” and I will refer to parts of it in my reasons.

5On 19 October 2019, you were intercepted driving a Toyota Camry vehicle along Footscray Road in Melbourne.  Your vehicle had been observed driving at 83 kilometres per hour in a 60 zone, the speed having been detected by a speed measuring device.  That is the basis of Summary Charge 19.

6You produced a Victorian Proof of Age card and subsequent police checks using the Victorian Police database confirmed that you were not licenced to drive in Victoria.  That's Summary Charge 20.

7The police database also showed that you were wanted in regard to an investigation in respect of unrelated drug offences.  You were arrested and police conducted a search of the vehicle that you had been driving.

8During the search of your vehicle, the police located the following substances;

a)    107.3 grams of methylamphetamine;

b)    118.5 grams of cocaine;

c)    A substance I already referred to as ketamine, 35 grams;

d)    1.9 grams of heroin;

e)    1.8 grams of MDMA;

f)     10 grams in tablet form of phenazepam; and

g)    8.3 grams of butanediol.

9Police also located a small amount of cannabis in a cigarette packet in the rear seat of your car.  An extendable batten was found in the front driver seat area of your car.  That is Summary Offence 11.

10The drugs were located in Ziploc bags in a black capsule case and a blue bag along with a digital scales and other drug paraphernalia.  During the search of your vehicle, police also located numerous items which are the subject of the proceeds of crime charge which is Charge 5 on the indictment.  Those items included;

·     $75,100 in cash;

·     Bank and identification cards in the name of Ronald Ugarte, Mohammed Sheikh and Robert Pellicano;

·     Mobile phones;

·     A Telstra SIM card holder;

·     An SD adaptor;

·     An Apple iPod; and

·     A SanDisk USB.

11Following your arrest, you were taken to the Prahran police station for interview.  You were assisted by a Mandarin interpreter and in that interview, you made a no-comment record of interview which of course is your right to do so.

Personal circumstances

12At the time of your offending, you had just turned 34 years old.  You were living in South Yarra.  You will turn 36 years old in October of this year.

13Your parents live in Malaysia.  Your father suffered a stroke in 2018 and requires ongoing medical care for his brain cancer.  You are the oldest child in your family.  You have a younger sister aged 31, who lives in Malaysia.  Your sister has young children of her own.  You also have a younger brother aged 25 years who works as a mechanic in Singapore.  No members of your family including yourself have any criminal history.

14You come before this court without any criminal history or convictions either here in Australia or in Malaysia.

15You attended school in Malaysia until you were 16 years of age.  Due to your family's straitened financial circumstances, you left school and initially worked as a kitchen hand and graduated to a cook whilst living in Malaysia.

16In 2012, you came to Australia on a tourist visa for three months.  You remained in Australia after your visa had expired.  Whilst in Australia, you worked in various restaurants as an assistant or a cook and was paid in cash.

17In 2018, you suffered a hernia which resulted in your admission to Box Hill Private Hospital.  Due to lack of funds at that time, you were unable to be treated further and you were discharged the next day.  You could not return to your work due to your health condition.  This of course occurred around the same time of the news of your father's stroke and cancer diagnosis which had been communicated to you from your family in Malaysia. In this setting of not being able to work and the news of your father's illness, you were introduced to methylamphetamine use by some of your associates.  You never returned to restaurant or cooking work between your time in hospital in 2018 and your arrest in October 2019.  

18As I said earlier, you have been in custody for 615 days, not including today.  Most of your remand time has been spent in Fulham prison. As I understand it, you speak very limited English and require the assistance of an interpreter both for your record of interview and your court appearance here today. Whilst in Fulham prison, you have a job as a cleaner. The three drug screens tendered on your behalf dated 23 May 2020, 6 October 2020 and 11 May 2021 are all negative for drug use.  You have completed courses for drug and alcohol addiction and abuse whilst you have been in custody.

Sentencing considerations

19The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of our community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you, as an offender, be rehabilitated and reintegrated into the society. 

20In your case, at the end of this sentence, you will be deported and the society I am talking about is in Malaysia.

21I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics and current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another. Of course, current sentencing practices is but one of the considerations I am required to take into account when determining a just sentence for your offending. 

22I refer to three cases which have been decided by the Court of Appeal for charges of trafficking in commercial quantity of a drug of dependence.

23The cases are Gregory (a pseudonym) v The Queen [2017] VSCA 151; Fernando v The Queen [2017] VSCA 208; and DPP v Condo [2019] VSCA 181.

24In Condo's case at paragraph 20, the Court of Appeal stated as follows:

'For the avoidance of doubt, however, we should make it clear that there is no tension between what this Court has said in Gregory and Fernando about the need for an uplift in current sentencing practices as they concern trafficking in commercial quantities of drugs of addiction, and the need for individualised sentencing as expressed in Dalgliesh and earlier decisions such as Elias v The Queen. Section 5 of the Sentencing Act 1991 requires a sentencing judge to have regard to current sentencing practices along with other factors as part of any sentencing exercise. This reflects the need for predictability and consistency in sentencing. While the uplifted sentencing practice is not a "controlling factor", it cannot be ignored. It remains a relevant factor in every sentencing exercise of this kind.'

25In your case, the relevant circumstances of your overall offending on 19 October 2019 as indicators of the seriousness of your offending are as follows;

i.The total pure weight of the methylamphetamine is 86.9 grams.  This is 1.7 times the commercial quantity for that drug;

ii.The pure weight of cocaine was 50.1 grams.  This is 16.7 times the traffickable quantity for that drug;

iii.The drugs involved in Charge 4 are small amounts of drugs, each of cannabis, heroin, MDMA and Phenazepam;

iv.The total weight of ketamine in Charge 3 was 35 grams.  This is 12 times the traffickable quantity of that drug;

v.You had in your possession seven different drugs of dependence when you were arrested.  You have all the hallmarks of a traveling drug salesman or delivery man;

vi.At the time of your arrest, you had in your possession $75,100 in cash.  This was a significant sum of money for a person to have in their possession in the circumstances of your arrest when you had not been in paid employment since 2018.  This fact adds to the commercial aspect of your drug trafficking charges;

vii.It is not clear what financial gain you were personally to receive from these criminal acts.  It is clear your motivation was for financial gain;

viii.There is no evidence that you travelled to Australia to engage in drug trafficking.  You had been in Australia since 2012 and your arrest was only in October 2019;

ix.You are of previous good character as you have no prior convictions in Australia or Malaysia, your country of origin;

x.All of your offending occurs on the one single day.

26You have pleaded guilty to these charges.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.

27Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.

28Further, the Court of Appeal in Worboyes v The Queen [2021] VSCA 169, at paragraph 39 has recently made a statement about the relevance to the sentencing process of a plea of guilty during the COVID-19 pandemic. The court says as follows:

'For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'

29The most relevant factor in determining the seriousness of your offending is the quantity of the drugs that you have pleaded guilty to for trafficking. In particular, trafficking in not less than a commercial quantity of drugs is a Category 2 offence for the purposes of s5(2H) to the Sentencing Act. As such, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44). I should not do that unless the court is satisfied of the subsections of s5(2H) is in existence.

30It is not submitted on your behalf that there are any substantial and compelling circumstances in your case which could be established.  Your counsel appropriately conceded that the appropriate sentence was a term of imprisonment with a non-parole period to be fixed.

31In your case, there has been considerable delay between the day of your arrest and this plea hearing.  Part of that delay was caused by other matters which were subsequently withdrawn against you.  The effect of the delay in your case is that the majority of your time on remand has been served in COVID conditions within the Corrections system.  Undoubtedly, that has resulted in your period of remand has been more onerous than in normal times. Secondly, the long period of remand custody means that you have had the cloud of uncertainty hanging over your head which would result in a more onerous time for you. I take these aspects of delay into account when finalising your sentence.

32I am also required to take into account the sentencing principle of totality and I have made orders for cumulation in respect of each of the charges to reflect the additional criminality but have moderated the degree of cumulation so as not to impose a crushing sentence upon you.  In this case, the principle of totality is particularly relevant given that your offending all occurs on the one day.

33You will be deported to Malaysia after you have completed your sentence.  In the case of Stephen Loftus v The Queen, the Court of Appeal said as follows:

'The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways.  First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation.  This, in turn, may render the incarceration more difficult.  Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.'

34I take into account that it is most likely you will be deported to Malaysia at the completion of your sentences.  I accept that that prospect will render your incarceration more difficult and that whilst you were staying in Australia without an appropriate visa, any hope on your part of remaining in Australia has been destroyed.

35You have been and will continue to be isolated from your family for the whole of your time in custody.  You have limited English, and this is a further isolating factor whilst you are in custody. 

36I assess your prospects of rehabilitation as fair. On your release from prison, you will be deported to Malaysia after spending from 2012 until the date of your arrival in a foreign country.

37Trafficking in methylamphetamine in a commercial quantity is a very serious offence.  The maximum sentence of 25 years fixed by Parliament is a clear indicator of the seriousness of this offending.  Your offending is in the low midrange for this offence as it occurs on the single day.

38I am sentencing you on Charge 1 on the basis that the amount of drugs is 1.7 times the level of the commercial quantity for that drug; on
Charges 2 and 3, which are trafficking simpliciter drugs based on the amount of the relevant drugs; the drugs in Charge 4 are small quantities of those respective drugs; and, for Charge 5, the possession of the $75,100 and the other bank cards and phones are a concerning feature of your overall offending.

39The principles of general and specific deterrence, protection of the community and just punishment dictate that the only appropriate sentence is a term of imprisonment for each of the charges before the court.  I will cumulate some of the sentences to reflect the additional offending but not to the extent of arriving at a crushing sentence so as to offend against the principle of totality.  As I said before, the only appropriate sentence is a term of imprisonment with a fixed non-parole period.

40Would you stand please?

41On Charge 1, which is the trafficking in a commercial quantity of methylamphetamine, you are sentenced to three years and six months' imprisonment.  That is the base sentence.

42In respect of trafficking in cocaine, Charge 2, you are sentenced to two years' imprisonment.

43In respect of Charge 3, trafficking in ketamine, you are sentenced to 18 months' imprisonment.

44In respect of possessing the number of drugs, MDMA et cetera, you are convicted and sentenced to six months' imprisonment.

45On Charge 5, you are convicted and sentenced to six months' imprisonment.

46As I say, Charge 1 is the base sentence.

47Six months of the sentence in Charge 2, four months of the sentence in Charge 3, two months of the sentence in Charge 4 and two months of the sentence in Charge 5 are to be served cumulatively upon the base sentence and on each other.

48That is a total effective sentence of four years and eight months.

49I fix a non-parole period of three years and two months and I declare that you have served 615 days pre-sentence detention in respect of those sentences.

50Under s6AAA, but for your plea of guilty, I would have sentenced to seven years and six months with a non-parole period of five years and six months.  I will sign the forfeiture order and the disposal order.

51In respect of the summary charges, on Charge 11, that is possession of the prohibited weapon, you are convicted and fined $500.

52In respect of Charge 19, exceeding the speed limit, you are convicted and fined $200.  On that charge, all licences are cancelled, and you are disqualified for a period of three months from this day.

53On Charge 20, which is unlicenced driving, you are convicted and fined $300.  That means the total fines are $1,000.

54First of all, gentlemen, are my calculations for sentence correct?

55MR PICKERING:  Yes, Your Honour.

56MR BROWN:  Yes, Your Honour.

57HIS HONOUR:  Thank you.  Is there anything further?

58MR PICKERING:  No, Your Honour.

59HIS HONOUR:  Thank you.

60MR BROWN:  No, Your Honour.

61HIS HONOUR:  Mr Chew, when you get back to Malaysia, you are going to tell all of your friends if they are coming to Australia and they get into the drug business here, they go to gaol and we just send them home.

62Thank you.  Thank you for your assistance, Madam Interpreter.  You are free to stand out of there.

63INTERPRETER:  Thank you, Your Honour.

64HIS HONOUR:  Thank you very much.  Take your book.

65Thank you.  You can remove the prisoner.  Thank you.

66Mr Brown, Mr Pickering, thank you very much for your assistance.

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