Director of Public Prosecutions v Chiu
[2019] VCC 2298
•20 December 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-02239
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KA HEI CHIU |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2018 | |
DATE OF SENTENCE: | 20 December 2018 | |
CASE MAY BE CITED AS: | DPP v Chiu | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2298 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Fisher | Office of Public Prosecutions |
| For the Accused | Mr R. Stary | Stary Norton Halphen |
HER HONOUR:
1 Ka Hei Chiu, you have pleaded guilty to one count of trafficking a drug of dependence, namely, cocaine which carries a maximum penalty of 15 years imprisonment and one count of possession of a drug of dependence, namely, methylamphetamine which carries a maximum penalty where I am satisfied on the balance of probabilities that the offence was not committed by a person for any purpose relating to trafficking of not more than 30 penalty units or one year imprisonment or both and in any other case to 400 penalty units or five years imprisonment or both.
2 The circumstances in which you came to commit those offences are set out in the Summary of Prosecution Opening dated 22 November 2018 which was read into evidence at your hearing (Exhibit A). I have had regard to that opening when determining the appropriate sentences in your case. Five photos of the packaging of the parcel you intended to collect was tendered (Exhibit B) to which I will return.
3 In addition to making oral submissions your counsel relied on a written Outline of Submissions dated 30 November 2018(Exhibit 1). Your resume was tendered by your counsel (Exhibit 2). A letter from the Australian Government Department of Home Affairs dated 22 November 2018 became Exhibit 3. A character reference was provided from your father, Mr Chiu (Exhibit 4). There was a bundle of certificates of completion of courses and a certificate of urine analysis (Exhibit 5) and they were all relied upon. Counsel also tendered your PAYG payment summary for the financial year ending 30 June 2018 (Exhibit 6).
Circumstances of the offending
4 On 6 June 2018 an Air Cargo consignment arrived in Melbourne from Argentina. The consignment was described as an electrical capacitor and the consignee was listed as Joseph Leung with a delivery address in Truganina.
5 The package was examined by Australian Border Force officers and the examination revealed that there was cocaine concealed inside the electrical capacitor. Police deconstructed the capacitor. Inside they discovered five bricks of cocaine with a total weight of 4935.78 grams. The cocaine was forensically examined and found to be between approximately 76 per cent and 79 per cent in purity. As I have mentioned, I have viewed and considered the five photographs of the deconstructed electrical capacitor (Exhibit B).
6 On 7 June 2018 the matter was referred to Victoria Police by the Australian Border Force.
7 A search of Victoria Police databases revealed no information linking a Joseph Leung to the Truganina address. Police exhausted all inquiries regarding the identity of a Joseph Leung. It is believed to be a fake name.
8 On 22 June 2018 police were informed that a male purporting to be Joseph Leung had contacted courier company DHL and requested that the consignment be delivered.
9 On 25 June 2018 police from the Drug Task Force substituted the cocaine inside the electrical capacitor with another item of similar weight and repackaged the box for delivery.
10 At about 6pm on the evening of 25 June 2018 Detective Senior Constable Sherry from the Drug Task Force went to the address in Truganina. The detective was wearing a DHL delivery driver uniform and was in possession of the package containing the substituted material. At the address a male answered the door and told Detective Sherry that nobody by the name of Leung lived at that address and he knew nothing about the consignment. That man is not a suspect.
11 At about 6.05 that evening Detective Sherry telephoned a number for Joseph Leung. A male answered that call. When Detective Sherry stated that he was from DHL the male responded saying he was on his way to Truganina to collect the package from him and that he would be there soon.
12 At about 6.15 pm a male purporting to be Joseph Leung called Detective Sherry and asked him to leave the package at the Truganina address. The detective stated that someone needed to sign for the package and the male responded saying he would be there shortly.
13 At about 6.20 that evening you approached the Truganina address by foot and approached Detective Sherry and introduced yourself as Joseph Leung, signed for the package and were given the package by the Detective. As you walked away with the package police arrested and cautioned you. This is the subject of charge 1. Trafficking is established by your attempts to possess the cocaine for the purposes of sale under s.70 of the Drugs Poisons and Controlled Substances Act 1991 of Victoria. I have been informed by the learned instructing solicitor for the prosecution by email dated 10 December 2018 which I will exhibit as Exhibit C on the plea, that the charge in its current form is valid notwithstanding that it does not allege the inchoate form of the offence, given that pursuant to s 71AC(1) of the Drugs Poisons and Controlled Substances Act, a person who attempts to traffic in a drug of dependence is at law trafficking in a drug of dependence. Mr Stary has this morning confirmed that the position is unified between defence and prosecution.
Investigation and interview.
14 When arrested, you identified yourself and provided your date of birth and address in Sydney. You stated you were staying temporarily in an apartment in the Docklands and that you were given a Jeep to pick up the package and that you had parked nearby.
15 Police searched the nearby area and found the black Grand Cherokee. The car was registered to Man Chun Chan of Apartment 907W at 888 Collins Street, Docklands. The police opened the car with a key that was in your possession and searched the car. They discovered a Ziploc bag containing a small quantity of methamphetamine which is charge 2, numerous keys and mobile phones. They also found a handwritten note that contained the details of the electrical capacitor consignment.
16 You were taken to Victoria Police Crime Command in Spencer Street, Docklands.
17 Meanwhile police executed a search warrant at the Docklands apartment. They opened the door to the apartment with a key that was in your possession. Once inside police discovered;
approximately 2.5 kilos of pseudoephedrine, a precursor chemical used to make methylamphetamine,
Approximately 0.5 kilograms of methylamphetamine,
an inactive clandestine laboratory used to make methyl amphetamine, various steroids,
multiple Ziploc bags containing cannabis; and
$69,680 in cash.
18 Neither of the charges you face relate to those discovered items and the prosecution confirmed that these matters provide context to the charged offences by demonstrating that the occupier of the apartment was a drug trafficker and that person was not you.
19 During the investigation, police ascertained that the occupier of the Docklands apartment, Man Chun Chan was a friend of yours. Mr Chan arranged for you to collect the package. He departed Australia bound for Hong Kong on 22 June 2018, three days prior to your commission of the charged offences, and has not returned to Australia.
20 During the investigation, police obtained CCTV footage which shows you entering the apartment complex at the Docklands at 12.02am on 25 June 2018 using the key access pass that was located in your possession at the time of your arrest.
21 On 29 June 2018 while on remand at the Melbourne Custody Centre you participated in a formal record of interview with the assistance of a Cantonese interpreter. I note that the interview occurred later than your arrest due to the unavailability of an interpreter.
22 In your interview you told police you were to be paid $2000 to fly from Sydney to Melbourne to collect the package and then deliver it to an address, though you had not been provided with that address at the time of your arrest.
23 You told police the arrangement for you to collect the package was organised using a Chinese social media platform known as WeChat facilitated by your friend, Man Chun Chan.
24 You told police you flew from Sydney to Melbourne on 22 June 2018 where Man Chun Chan met you at the airport, gave you the keys to his apartment and Jeep. He gave you a bag that contained a cigarette pack with a crystal object inside which was the bag containing methylamphetamine found by police in the Jeep. This I have noted is the subject of charge 2. You returned to Sydney later that same morning.
25 You told police you returned to Melbourne on Sunday night, 24 June 2018 where you took a taxi to Mr Chan's apartment in Docklands. Once inside the apartment you took a large bag of powder from a cupboard and used some scales to weigh 30 grams of the powder before putting it in a Ziploc bag. You stated to police that you did this at the request of Mr Chan.
26
You told police you believed the parcel you collected from Detective Sherry on
25 June 2018 was to be clothing and you denied knowing that it contained cocaine or a substance substituted for cocaine. You also told police you had collected packages in Melbourne on four previous occasions, none of which are charged.
27
Through your counsel in the course of the plea it was submitted that Mr Chan was your long term friend whom you had first met in primary school in
Hong Kong. As you told police in your interview, Mr Chan and a third party introduced to you by Mr Chan, Mr Tin Dai Wei, facilitated the arrangements for you to receive a parcel from couriers leading to your interception by police.
28 As I have mentioned, I was told you were to be paid $2000 for your involvement, which is a considerable sum of money for collecting what you told police you believed would be clothing, even if it was high end clothing as you claimed.
Cooperation with police
29 I have noted your willing participation in your interview with police in which you admitted the circumstances of offending though denying your knowledge of wrongdoing. You also voluntarily provided a DNA sample and your fingerprints.
30 On 26 June 2018, the day after your arrest and prior to your police interview that I have just mentioned, owing to the lack of a suitable interpreter, your solicitor wrote a letter to police on your behalf indicating that you may be able to assist police with their inquiries in relation to the other people involved in the offending and then you did provide the police with the information identifying those who drew you into their scheme. However, no statement was required of you by police and the use of this assistance is unknown. I have allowed a discount on sentence for the assistance that you have provided to the authorities to reflect your cooperation.
Plea of guilty
31 As I have mentioned, you were arrested, charged and remanded into custody on 25 June 2018.
32 You entered a plea of guilty at the committal hearing at the Melbourne Magistrates' Court on 1 November 2018. No witnesses were called. I note and take into account that this plea was entered at the earliest available stage given that this was the first occasion that the prosecution indicated that a plea of guilty to charge 1 would compromise the continuation of more serious charges. This plea has utilitarian value as well as reflecting your remorse.
Personal circumstances
33 You are now 28 years of age and were 27 at the date of offending.
34 You were born in Hong Kong and at the time of the offending you lived in Rhodes, New South Wales.
35 You completed the equivalent of year 11 at secondary school at Lok Sin Tong Ku Chiu Man Secondary College in Hong Kong in 2008. You have also completed your Hong Kong certificate of education. You actively participated in the school's sports program and completed your secondary education with four credits and one minor credit. I have read and considered your resume detailing your education and work experience which was tendered by your counsel (Exhibit 2).
36 You worked consistently between 2009 and 2016 in Hong Kong before coming to Australia on a working holiday. Whilst in Australia you have worked as a packer in the fruit and vegetable industry, picking blueberries and in night shift for the employer who provided the PAYG statement (Exhibit 6).
37 At the expiry of your holiday visa, and you were on that visa at the time of the offending, you had intended to enrol in further education at Queen's College, a business studies provider to commence on 9 July 2018.
38 You have a supportive and loving family who have travelled from Hong Kong to visit you whilst in custody and were present in court at your plea hearing. Mr Chiu, it is not lost on me that they are a family of modest means and they have shown their support of you now twice by visiting Australia. This plea hearing caused them considerable shame as a result of your wrongdoing.
39 You were also supported in court by two family friends who travelled from Sydney. Your family and friends continue to support you in spite of your wrongdoing. Your father, Chiu Wai Ming, wrote a character reference on your behalf which I have read very carefully and considered. Your father expressed his love and support for you as well as his shock at having learnt of your offending. He described you as someone who led a positive lifestyle, who graduated and earned the respect of your parents, your many friends and the neighbourhoods as well.
40 Your counsel submitted that you have no issues with drugs or alcohol and have not been diagnosed with any psychological or psychiatric issues. A certificate of urine analysis which shows negative results was taken during your time on remand and I have considered that certificate (Exhibit 5).
Remand
41 This is your first period in custody. As is the case with other remand prisoners, you have been detained in a maximum security prison. Your counsel submitted that aside from your parents visiting you in custody twice you have had no other visitors.
42 It was submitted that your period of incarceration has been particularly difficult as you have been held in a maximum security prison and your language limitations make it difficult for you to communicate and participate in work and other programs.
43
A letter from the Department of Home Affairs indicates that your plea of guilty to this offending is grounds for consideration of cancellation of your visa
(Exhibit 3). Your counsel submitted that at the conclusion of your sentence for this offending you will be deported back to Hong Kong. This is not a case where you came to Australia for the express purpose of committing criminal activity.
44 Given the lack of family and social support in Australia and that the prospect of deportation whilst unresolved is but a mere certainty, I accept that your term of imprisonment will weigh more heavily upon you than upon many other prisoners and I also allow for some mitigation of penalty on that basis.
45 Despite these limitations, you have to your credit been very productive and availed yourself of as many programs as you can whilst on remand. I accept and take into account your completion of courses whilst in prison including the completion of a certificate I in general education for adults, certificate I in skills for vocational pathways, certificate II in skills for work and vocational pathways, certificate II in cleaning and a certificate II in kitchen operations (Exhibit 5).
Prior criminal history
46 I note that you have no prior criminal record and in combination with your good work ethic, your endeavours to further your education whilst in custody and your past work history and education history, I consider you to be of good character prior to the offending and I consider that that is a matter to which I attach mitigatory weight.
Objective gravity of the offence
47 The prosecution have accepted you played a limited role in this matter. Your role encompassed accepting the offer to assist Mr Chan, travelling to Melbourne on 22 June 2018, travelling to Melbourne on the 24th before your offending on 25 June 2018 and some liaison in relation to collection of the package. Furthermore, you purported to be the fictional Joseph Leung at the time you collected the package. Your role was substantially inferior to others, yet in relation to the offending on charge 1, I find you were a trusted courier for a very substantial parcel of cocaine of high purity and that was for financial gain, though the gain that you were going to receive was but a very mere and modest percentage of its value and I have not been appraised of its value.
48 You carried out your role in the expectation of receiving an amount of money. It no doubt felt too good to be true because it was too good to be true. Your counsel submitted that this is a case of wilful blindness. In other words, given the circumstances, you would have suspected the nature of the substance but deliberately failed to make further inquiries for fear of learning the truth. This is a generous interpretation of the facts presented to you given your admitted involvement to police in weighing 30 grams of substance into a Ziploc bag prior to this collection which may or may not have been steroids, but it was a white powder, your two flights from Sydney to Melbourne in the short space of time, your expectation of a significant payment of $2000 in cash for your short involvement in the collection and your employment of a false name in collecting the parcel. Even if you considered that the powder was, for instance, a muscle supplement as you told police at the time of weighing, your expectation about receiving clothes is not completely plausible.
However, and in any event by your plea, you accept that through your wilful blindness you intended to traffic in a drug of dependence consistent with the way that charge 1 is framed. Though, I find by your plea that you intended to possess the cocaine via your wilful blindness, I must find that you were unaware that the package that you intended to possess contained the substantial amount of cocaine that it did. If you had so intended, that would have been the subject of a more serious charge but it wasn't. Instead you are pleading guilty to a charge of trafficking simpliciter. Though the quantity was not known to you but you were prepared to assume the substantial risk that this package contained a drug of dependence, this I consider to be a serious example of the offence of trafficking simpliciter by reason of that large quantity and the high purity. Though I repeat, the large quantity and the high purity were not known to you and I find that you simply intended to possess a drug of dependence of a simple quantity.
49 Given your counsel's submission that you are not a user of drugs or alcohol, drugs in particular, it was not argued that the methylamphetamine the subject of charge 2 was not possessed for any purpose relating to trafficking. See s.73(1)(b) of the Drugs Poisons and Controlled Substances Act. I am, therefore, bound by the maximum of 400 penalty units or five years imprisonment as specified in s.73(1)(c), though I find consistently with the facts adduced in relation to charge 1 and your counsel's submissions that you possessed the methylamphetamines as a bailee and on behalf of another or others.
Relevant sentencing principles and current sentencing practices
50 I take into account the purposes for which sentence must be imposed and the need for deterrence particularly general but also specific. It is absolutely indisputable that trafficking in a drug of dependence is a serious and concerning offence which has the potential to cause great devastation to the community.
51 The sentences I will impose will punish you and denounce your behaviour.
52 I consider that given your good character and work history, your family and supporting friendships and the strong salutary effect of a sentence of imprisonment in a country foreign to you, that your prospects of rehabilitation are very good.
53 I am obliged to have regard to current sentencing practices in determining sentence, though of course I note the guidance of the High Court in DPP v Dalgleish that current sentencing practices are one of the many factors that must be taken into account in sentencing.
Sentencing submissions
54 It was accepted by your counsel that in all of the circumstances a custodial sentence was required. It was submitted it should be served by way of a straight sentence. I am not permitted to speculate as to future executive action, hence I will order a minimum non parole period consistent with my obligation under s.11 of the Sentencing Act.
Could you please stand, sir.
Sentence
55 On the count of trafficking in a drug of dependence you are convicted and sentenced to a term of three years and three months' imprisonment.
56 On the count of possession of a drug of dependence, methylamphetamine, you are convicted and sentenced to 14 days imprisonment to be served concurrently with the sentence imposed upon count 1.
57 This results in a total effective sentence of three years and three months' imprisonment and I direct that you serve a period of two years before you are eligible to apply for parole.
You may be seated, please.
58 I declare 178 days pre-sentence detention excluding today and pursuant to s.6AAA of the Sentencing Act 1991 of Victoria, I declare that had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to four years and three months' imprisonment with a non-parole period of three years and six months.
59 By consent I make an order for disposal in the terms of the written disposal order dated 27 November 2018 and by consent I grant the forfeiture order dated today, the forfeiture in relation to the items listed in the schedule to the draft forfeiture order.
Thank you.
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HER HONOUR: Are there any other matters, counsel?
MR FISHER: No Your Honour.
MR STARY: No Your Honour.
HER HONOUR: Thank you to you both, I'll now stand down.
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