Director of Public Prosecutions v Chong

[2019] VCC 274

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01564

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAWRENCE CHONG

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2019
DATE OF SENTENCE:	7 March 2019
CASE MAY BE CITED AS:	DPP v CHONG
MEDIUM NEUTRAL CITATION:	[2019] VCC 274

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Traffick drug of dependence (methylamphetamine) – Burglary – Theft – Possess material, substance, document or equipment – Traffick drug of dependence commercial quantity (ephedrine) – Clandestine laboratory – Principal role in drug manufacturing and distribution business – Trafficking over period of nearly 6 months – Issue regarding definition of “traffick” (Charge 5) – Sentenced on basis that possession of large amount of ephedrine was for sale – Relevant and extensive criminal history including trafficking offences – History of drug abuse

Sentence:Convicted and sentence to Total Effective Sentence of 10 years’ imprisonment with a non-parole period of 7 years’ imprisonment – Pre-sentence detention 469 days declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Forfeiture and Disposal orders made

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Edwards	Solicitor for Public Prosecutions
For the Accused	Ms N. Menegas	Patrick Dwyer Lawyers

HER HONOUR:

1Lawrence Chong, you have pleaded guilty to the following offences:

a) Trafficking in a drug of dependence namely methylamphetamine, which has a maximum penalty of 15 years' imprisonment.

b) Burglary, theft, and possessing a substance, material, document or equipment for trafficking a drug of dependence; each of these offences have a maximum penalty of ten years' imprisonment.

c) Trafficking in a drug of dependence, namely ephedrine, in a quantity not less than the commercial quantity, which has a maximum penalty of 25 years' imprisonment

d) A related summary offence of possessing a prohibited weapon which has a maximum penalty of two years' imprisonment.

2The maximum penalties reflect the seriousness with which each of these offences are regarded by Parliament, and I must take these maximum penalties into account when sentencing you.

3You are now 33 years old and at the time of the offences, you were 32 years old.

4The learned prosecutor relied on an agreed summary of prosecution opening.  I was told that in February 2017, investigators from the Clandestine Laboratory Squad commenced an investigation into the manufacture and trafficking of methylamphetamine in Melbourne and its surrounding suburbs.  The investigation made substantial use of telephone intercepts and physical surveillance.  You were identified as the principal manufacturer and trafficker of methylamphetamine.

CIRCUMSTANCES OF OFFENDING

Charge 1

5The basis for Charge 1 is as follows:  From 30 May 2017 - 23 November 2017, you carried on a drug dealing business, in which you manufactured and sold methylamphetamine for profit.

6Initially, you were residing between a number of addresses including a leased address in Bulleen, your brother’s address in Bundoora and your parents’ address in Doncaster East.  In late July 2017, you were operating your trafficking business primarily out of a leased residential address in Lisa Close, Ringwood North.

7You imported scientific glassware from China for the purpose of manufacturing methamphetamine.  Packages containing the glassware were delivered to your parents’ residential address in Doncaster East.

8You sourced the precursor chemicals, hypophosphorous acid and iodine as well as ephedrine from unknown sources.  You also purchased various materials form Bunnings stores to assist in the manufacture of methylamphetamine.

9You used two mobile phones to carry on your trafficking business during this period. A  mobile phone service ending in the numbers 257 was registered in your name, and a mobile service ending in the numbers 094 was registered in a fictitious name of Andy Tang.

10On 29 May 2017, police obtained a telephone intercept warrant and commenced monitoring your mobile phone service ending 257.  A second telephone intercept warrant was obtained on 30 August 2017 for both of your mobile services.

11Over the course of the telephone intercepts, you were heard to arrange to meet with customers to sell methylamphetamine on a regular basis.  Some transactions were for amounts in exchange for $50 or $100, while on other occasions you arranged to traffic full ounces- that is 28 grams of methylamphetamine.

12You also used your mobile phones to conduct internet searches into manufacturing processes for methylamphetamine and fact sheets about precursor chemicals including hypophosphorous acid.

13While monitoring the telephone intercepts and conducting surveillance, investigators identified a number of associates who assisted you in your trafficking business including the following people:  Ala Tsui, Trent Murray, and Gordon Hicks.  Each of these associates discussed purchasing drugs from you and were seen by police attending the manufacturing address in Ringwood North. On occasions, Tsui assisted you by purchasing items required for the manufacturing process.

14On 14 July 2017 you arranged for Tsui to make an application for a new rental property for you to use, in order to manufacture methylamphetamine.  On
15 July Tsui submitted an online rental application in respect of the Ringwood North address. Murray helped you and Tsui to lease the property.

15Tsui signed the lease on 22 July 2017, and was able to move into the property on 26 July 2017, however, he did not move in and instead, you used the address to manufacture methamphetamine.

16You attended Bunnings Ringwood on 27 July as well as 4, 8, and 15 August 2017, to purchase items to assist in the manufacture of methamphetamine.  Tsui sometimes purchased items to help you to manufacture methamphetamine and was observed by police attending the Lisa Close address on a number of occasions.

17The exact amount of methamphetamine trafficked between 30 May and
23 November 2017 is unknown, however, given you were identified arranging to sell three full ounces of methamphetamine during this period, I was told that the amount of methamphetamine is toward the upper middle range of trafficking simpliciter.

Burglary of 121 Dublin Road, Ringwood East

Charges 2 and 3

18I now come to the basis for Charges 2 and 3, which are burglary and theft charges.  The basis for these charges is as follows:

19In the early hours of
23 September 2017, you entered an unoccupied residence at 121 Dublin Road, Ringwood, intending to steal items from within.  This gives rise to Charge 2, burglary.

20Investigators monitoring your phone calls heard you discussing the burglary with an associate, Gordon Hicks.  Hicks said to you, "Are you in?" You replied, "No, they have blocked it with wood".  Hicks suggested that you try and jemmy the door.  You eventually gained access to the house.

21You stole various stamp collection albums from the owner.  This gives rise to Charge 3, theft.

Charges 4 and 5

22In relation to Charges 4 and 5, I was told that on 23 November 2017 at about 6:30 am, police executed a search warrant at your premises in Lisa Close, Ringwood North.

23A police officer observed you coming out of the rear left-hand side bedroom, which was located directly behind the kitchen.  You were arrested and taken into custody.  Police located two sets of keys and $1,441.00 cash in your pockets.

24Police observed that the majority of items relating to the clandestine laboratory setup were packed up and located within one bedroom, which was closest to the kitchen.  There was black plastic sheeting on the floor in the room, the windows were blocked, and an extraction fan and charcoal filter system were in operation.

25A list of all equipment, prescribed substances and non-prescribed chemicals and substances that were found in the house was annexed to the Crown opening as Schedule A, and I have taken this into account in sentencing you.  You possessed each of these items and substances for the purpose of trafficking in a drug of dependence, giving rise to Charge 4.

26A police forensic scientist took washings from a number of exhibits seized from the house including plastic buckets, the range hood, a glass bottle, a flask, the esky, the electric fan, scales and metal bowl, and metal apparatus, which contained methylamphetamine.

27A total of 0.9 grams of methamphetamine was found in a plastic bag and a plastic container.

28By way of contextual information only, I was told that police also found the following:

a) 1 gram of 3,4-methylendioxyamphetamine (MDA);

b) 0.3 grams of cocaine;

c) 11 capsules containing a total of 1.1 grams of oxandrolone;

d) Three white tablets which contained less than one gram of nitrazepam;

e) One tablet containing 0.4 grams of 3,4 methylenedioxy-N- methylamphetamine (MDMA) and methylamphetamine; and,

f) 0.8 grams of sildenafil, which is a Schedule 4 poison.

g) A total of 785.8 grams of ephedrine was found in a plastic bag labelled 'Hercules' inside the wardrobe in the bedroom.

29The commercial quantity threshold for ephedrine is 100 grams and for large commercial quantity of ephedrine- 750 grams.  The finding of this substance gives rise to Charge 5, traffic in a drug of dependence in a commercial quantity.

30Although the quantity of ephedrine exceeded the threshold for large commercial quantity, the prosecution have proceeded with the lesser charge, on the basis that they accept that you did not have the requisite intention in respect of large commercial quantity.  I make it clear that I sentence you on the basis of the charge that you have pleaded guilty to.

31Police also located 2056.4 grams of a substance which contained the prescribed precursor chemical hypophosphorous acid, and 2996.0 grams of a substance that contained iodine which is a prescribed precursor chemical.

32In the summary of prosecution opening which was read aloud to the court, I was told that methylamphetamine can be manufactured from ephedrine in conjunction with hypophosphorous acid and iodine.

33The quantity of methylamphetamine that can be produced from 785.8 grams of ephedrine is in the order of 589 grams.[1]

[1]Statement of Wayne Mitchell, dated 12 April 2018.

34During the search, police also located a sword and asp baton.   This gives rise to the related summary offence of possessing a prohibited weapon without exemption or approval.

Interview

35You were interviewed on 23 November 2017.  You told police that your mobile number was the number ending in 257, but otherwise exercised your right to silence.

36Mr Chong, your offending is most serious and must be met with a punishment which is just in all of the circumstances.  Your conduct must be firmly denounced.  You actively played the leading role in a rather sophisticated drug manufacturing business over a period of nearly 6 months.  You went to great lengths to set up a clandestine laboratory, purchasing and sourcing numerous items to do so.  Clandestine laboratories are notoriously dangerous, as they are immensely volatile.  You set one up in a suburban house, exposing those nearby to great danger.

37You also sold methamphetamine, which you had manufactured, on regular occasions, and on three occasions, you sold your product in one ounce lots.  I accept that the trafficking offence is toward the upper middle range of offending for trafficking simpliciter.

38I regard the trafficking in a commercial quantity of ephedrine as a serious example of this offence, in the context of the surrounding circumstances, and in view of the quantity of the drug which was found in your possession, albeit that this offence is alleged to have been committed on one date, being the date that the drug was found.

39A dispute arose as between the parties in respect of the basis for the trafficking charge, that is, the trafficking ephedrine charge, in view of the definition of trafficking, but also in view of the agreed summary of prosecution opening.  Your counsel submitted that in view of the definition of "Traffick" in the relevant legislation, the only basis upon which I could sentence you is on the basis that you were in possession of the ephedrine for sale, and that because of this and that the offence was alleged on one day only, that I must not project that the ephedrine was to be made into methamphetamine, or sentence you in respect of what might have happened in the future, had the ephedrine not been found when it was.

40While there is a good degree of artifice attached to defence counsel’s submission in my view, and I must say, it would be expected that he would have taken issue with a number of paragraphs in the opening if you had taken this approach all along, and while it is arguable that the definition of "Traffick", is an inclusive definition and might be able to accommodate the situation, I am prepared to sentence you on the basis that you were in possession of this immense quantity of ephedrine for sale-  But, as I have previously said, in the context of someone who was also manufacturing methamphetamine, and apparently used ephedrine as one of the ingredients.

41Your role, although a principal one, must be seen in the context of the size of your operation which, although not a one-man band, was not a large hierarchy either.  In this regard, I note that you had a few people helping you, but you manufactured and also distributed your product.

42Strong weight must attach to general deterrence in respect of your offending.  Drugs are a blight on our society, bringing misery to those who become addicted, as well as to their families and friends and to the community at large.  They breed criminal offending, which is often of a violent nature.  They breed abject suffering, and, too often, untimely death.  The community is sick and tired of this blight, Mr Chong, but you thought it was a good idea to contribute to it and were motivated largely by profit in doing so.

43In assessing your moral culpability, I have factored in that you were addicted to drugs yourself at the time of the offending, but not to such a high degree that you weren’t able to set up and maintain this fairly sophisticated drug manufacturing and selling operation.  Although your motivation was partially to feed your own habit, you were substantially motivated by greed.  I also accept that you did not appear to have the trappings of immense wealth or a luxurious lifestyle, so it appears that your drug manufacturing and selling business was still in its relative infancy when you were discovered.  In all of the circumstances, I assess your moral culpability as high, but it would have been even higher if you had not been addicted to methamphetamine yourself.

44I take into account your criminal history which commenced in 2007, and is a substantial one, with your last prior matter in 2013.  Most concerningly, you have committed the offence of trafficking on four prior occasions, with the last being dealt with in August 2012.  You were granted a Community Corrections order on that occasion but breached the Community Corrections order in 2013.  The Community Corrections order was varied to enable you to comply with the order and it involved treatment and rehabilitation conditions.  You also have a number of prior convictions for drug use and possession, dealing with property suspected to be proceeds of crime, dishonesty offences including aggravated burglary.  You also have priors for weapon offences and various driving offences. Generally speaking, you have been given the opportunity to rehabilitate on a number of occasions by being ordered to undergo Community Corrections orders and you have been given the benefit of suspended sentences, but you have often breached such dispositions.  I note that your last prior conviction was in July 2013, so there was a break of nearly four years before you commenced the offending for which I now sentence you.  This is a fairly substantial period and I take it into account, but you then resorted to the offending before me, which appears to be an escalation in your criminal conduct.  All of these matters are relevant to your prospects of rehabilitation.

45In your favour, you pleaded guilty on the day listed for a contested committal hearing, however, resolution discussions had commenced before that day, in circumstances where you were previously facing the more serious charge of trafficking in a large commercial quantity of ephedrine.  No witnesses attended for the hearing.  The matter proceeded by straight hand-up brief.  In the circumstances, I allow for a significant discount in the sentence that you would otherwise receive, as you have saved the witnesses the time and trouble of giving evidence, and you have saved the community the time and expense of contested proceedings.

46I was told that you are remorseful for your offending, that now that you are free from drugs and have had time to reflect upon your criminal conduct and how it has impacted on you, your family, and the broader community, you are sorry for what you have done.  You told Ms Cidoni, a forensic psychologist, that you are remorseful, and regret your criminal behaviour which occurred when you were disinhibited.  You now accept that you have a drug problem and wish to remain abstinent.  As against these expressions of remorse, as the learned prosecutor said at the plea hearing, you have committed drug related offences repeatedly and the nature of the offending now before me was of a deliberative nature, albeit that you were drug affected at the time. I must say that in view of your criminal history and the nature of the offending now before me, your expressions of remorse ring a little hollow; however, I give them some weight in circumstances where you are now drug-free and appear to be able to express appropriate regret and insight.

47I take into account your background:

48You are 33 years old and committed these offences when you were 32, as I have previously said.You were born in Melbourne to parents of Malaysian descent.

49You were raised by your mother and step-father.  Unfortunately, until the age of ten, you believed that your step father was your biological father.  You then learned, through overhearing a conversation between your mother and aunt, that your real father had died when you were only one.  Sadly, you and your older brother were mistreated by your step-father, giving you a very different upbringing to the one that was enjoyed by your younger siblings, who were his natural children.  He was an alcoholic and violent toward you and your older brother.  When you learned that your step- father was not your biological father, his poor treatment of you and your brother in contrast to your younger siblings, became more explicable to you.

50You were educated to Year 11, then worked at a takeaway shop for six months, then at a bar for 12 months.  After this, you worked sporadically from time to time, most recently as a handyman, but you were not in paid legitimate employment at the time of the offending for which I now sentence you.

51I was told that your step-father kicked you out of the family home when you were 22 years old and had been violent toward you up until that time.

52I was told that you and he have reached a level of understanding these days, whereby you maintain a civil relationship with him for the sake of your mother.  Your mother and your step-father, as well as your siblings, as I understand it, are supportive of you.

53Your older brother has also been in trouble with the law, in contrast to your two younger brothers, who have not, and who were in court to support you.

54Your offending and that of your brother's over the years, has caused a great deal of grief for your mother, and led to significant tension in the family.

55You have had one long-term relationship with a woman which was characterised by drug abuse, and which ended when she went to gaol.

56You commenced drinking alcohol when you were 15 and you were smoking cannabis by the time you were 18.  You commenced methamphetamine use when you were 20 and used this drug habitually until you were arrested in relation to the offending before me.  You had suffered from the debilitating condition of narcolepsy when you were younger, and your use of methamphetamine in the past apparently helped you deal with this condition, having initially been prescribed medication to help address the problem.

57You have spent your time in custody in a most constructive way, undertaking a number of courses to address your drug problem but you have also been able to develop skills- in particular, in welding.  You have worked your way up and have now achieved the highest status available in gaol of an "Essential work prisoner", and you work in the metal fabrication unit.  You make cattle crushes for farms and have learned how to make these from start to finish.  The prison has a contract for the supply of these.  You also make trailers and are called upon to repair various pieces of metal work in the prison.  Although you were meant to move to another prison which might have been a better environment for you, you elected to stay where you were, so that you could pursue your advancement in the metal fabrication unit.

58You are now highly skilled, and you propose to use your qualifications in legitimate work upon your release, so as to enable you to find paid employment.

59In view of the nature of the offending before me and your criminal history, as well as your battle with drug abuse, but also factoring in your early pleas of guilty, your family support, and attempts to rehabilitate whilst in gaol, and also allowing some weight in respect of remorse and insight, I find that your prospects of rehabilitation are fair.  I place moderate weight on specific deterrence and protection of the community.  I must place strong weight on general deterrence, as I have said, in a bid to deter others from being tempted to offend in the way that you have.

60It is accepted by your counsel that a term of imprisonment of a considerable length with an appropriate non-parole period was warranted but reminding me of the need to apply the principle of totality, and for the sentence to be just and appropriate in all of the circumstances.  I have applied these principles.

61The prosecution made submissions in respect of current sentencing practice and what our Court of Appeal has said in fairly recent times, in respect of sentencing in matters of this kind, but also accepting that as the High Court has indicated, current sentencing practice is but one consideration in the synthesis of the sentence that I arrive at in any case, including yours.

62After a good deal of thought, I have arrived at a sentence which, in my view, does justice to all relevant sentencing principles in your particular case.

63Would you please stand up, Mr Chong.

64You are convicted of each of the offences.  Firstly, I make the forfeiture and disposal orders which are not opposed by you.  You are sentenced to the following periods of imprisonment: 

65Charge 1, five years.

66Charge 2, two years.

67Charge 3, 12 months.

68Charge 4, three years.

69Charge 5, eight years, which will be the base sentence.

70Summary offence, six months.

71I direct that 12 months from the sentence on Charge 1, and six months from the sentences on Charges 2 and 4, be served cumulatively with each other and with the base sentence, producing a total effective sentence of ten years' imprisonment, and I direct that you serve seven years before becoming eligible for parole.

72I declare that you have already served 469 days by way of pre-sentence detention, which will be reckoned as already served.

73If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 15 years' imprisonment with a non-parole period of ten years.  Could you take a seat for a moment please, Sir.

74Is there anything arising?

75MS EDWARDS:  No, Your Honour.

76MS MENEGAS:  No, Your Honour.

77HER HONOUR:  All right, yes.  Thank you, if Mr Chong could be removed.  We will now adjourn, thank you.

‑ ‑ ‑

SCHEDULE A

Equipment

1.     A scale weights

2.     Digital scales

3.     Plastic tubing and glue sticks

4.     Pump, tubing and plastic buckets

5.     Plastic tubing, tape, black plastic hose attachments and two metal   rings

6.     Two 1 Litre spray bottles, quantity of tubing, four submersible pumps      and a quantity of rope.

7.     A 1 Litre custom distilling head

8.     Glass 2 neck round bottom flask labelled ‘5000ml’

9.     An electric range hood

10.   A number of pairs of rubber gloves

11.   Two metal retort stands

12.   Two glass bottles labelled ‘Schott Duran 2000ml’

13.   A three neck round bottom flask labelled '5000 ml'

14.   A glass condenser

15.   A glass condenser

16.   A glass separating funnel labelled '3000ml’

17.   A glass separating funnel labelled ‘1000ml’

18.   Four glass rods

19.   A glass biuret

20.   A glass measuring cylinder

21.   A glass bottle labelled 'Schott Duran 1000ml’

22.   A glass measuring jug

23.   Two glass beakers

24.   An esky

25.   An electric fan

26.   A portable gas cooker

27.   A set of electronic scales and stainless steel bowl

28.   A metal filter with duct

29.   A plastic basket containing tubing, funnel and paint stirrer

30.   A heating mantle

31.   A face respirator

32.   Two filters

33.   A face respirator

34.   Two filters

35.   A pair of rubber gloves

36.   A glass bottle

37.   A set of digital scales

38.   Deal bags

39.   A number of pairs of rubber gloves

40.   A funnel

41.   A glass flat bottom flask

42.   A plastic sieve

43.   A glass pig adapter with gas inlet, a glass flask with two inlets

44.   A glass round bottom flask

45.   A glass four neck flange top and base

46.   A double neck glass round bottom flask

47.   Four glass bottles and a glass flask

48.   Four glass beakers

49.   A glass sintered funnel

50.   A glass apparatus with four taps

51.   A glass measuring cylinder

52.   A glass condenser

53.   A metal gas burner stove

54.   A box of plastic pipettes

55.   A number of filters

56.   A number of pH filters, pH probes, pH meter and filter papers

57.   Thirteen glass beakers

58.   A glass distillation head with glass condenser and glass vacuum      adapter

59.   A three glass side arm conical flask, a Buchner funnel, two glass      sintered funnels, two rubber sleeves and a rubber stopper

60.   Ten flasks and five rubber stoppers

61.   Filter papers

62.   A glass jar

63.   A plastic funnel

64.   An esky

65.   An industrial chiller

66.   Two glass condensers

67.   Three volumetric flasks

68.   A glass conical flask

69.   Two glass round flat bottom flasks

70.   An esky

71.   A number of plastic containers

72.   An electronic heating mantle

73.   A glass round bottom flask with flange top

74.   A glass conical flask

75.   An industrial chiller

76.   A glass condenser

77.   A plastic syringe

Substances

Drugs Poisons & Controlled Substances (Precursor Chemical) Regulations 2007 Schedule 1 substances

1.Iodine (1816g)

2.Phosphorous (450.2g)

3.Iodine (2996g)

4.Hypophosphorous acid (2056.4g)

Other non-Schedule 1 chemicals and substances

1.Buffer solution

2.A metal drum labelled ‘Toluene 20 Litres’ containing liquid

3.Two plastic containers labelled ‘Tradelink Drain Cleaner 1 Litre’ containing liquid

4.A plastic container labelled ‘Sodium Hydroxide 550g containing solid’

5.A metal container labelled ‘Thinning Solvent 1 Litre’ containing liquid

6.Two 20L metal drums labelled ‘Toluene’ containing liquid

7.Three plastic containers labelled ‘Diggers Caustic Soda 500g’ containing solid

8.Two plastic containers labelled ‘Damprid 3.4kg’ containing solid, one with hand written label ‘Magnesium Sulphate’

9.A plastic bottle labelled ‘Tradelink Drain cleaner 98% Sulphuric acid 1 Litre’ containing liquid

10.Iodine- sc 1 prescribed precursor

11.A plastic container labelled ‘WT Demineralised Water 2L’ and hand written label “HYPE’ containing liquid

12.A plastic container labelled ‘BE Products Distilled Water’ containing liquid

13.A glass bottle labelled ‘Isopropyl-benzylamine 100ml’ containing liquid

14.A metal drum labelled ‘Recochem Acetone 20Litres’ containing liquid

15.A plastic container labelled ‘Bondall Hydrochloric Acid 5 Litre’ containing liquid