Director of Public Prosecutions v Cua and Zoch

[2016] VCC 872

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

AT MILDURA
CRIMINAL JURISDICTION

CR-16-00172

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANGELINE CUA
TYSON ZOCH

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	23 June 2016
CASE MAY BE CITED AS:	DPP v Cua & Zoch
MEDIUM NEUTRAL CITATION:	[2016] VCC 872

REASONS FOR SENTENCE
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Subject: importing a commercial quantity of a border controlled drug.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. M. Curmi	Office of Public Prosecutions
For Accused Cua	Ms.K Hancock
For Accused Zoch	Mr. P. Delorenzo

HER HONOUR:

1Tyson Zoch and Angelina Cua, you have each pleaded guilty before me to one rolled up count of importing a commercial quantity of a border controlled drug, this charge comprising three separate occasions of importation. 

2At the time of doing so, you Tyson, were 29 years old and you, Angelina, were 27 years old.  Both of you were working in Mildura.  You, Tyson, worked as a Disability Employment Services officer and you, Angelina, worked as an administrative officer with the Sunraysia Community Health Services.  Neither of you had had any contact at all with the criminal law before committing this offence.  In fact, both of you have been extremely well regarded, diligent and hard-working members of the Mildura community. 

3Nevertheless in this, your first foray into crime, you committed one of the most serious offences known to the criminal law.  If convicted of the offence of importing a commercial quantity of a prohibited drug, you are subject to a maximum penalty of life imprisonment.

4Neither of you could, in any sense, be described as drug addicts. Further, you had no intention of profiting commercially from the importation.  Rather your involvement in this crime came about in the most extraordinary circumstances.  The story begins with you, Tyson Zoch. 

5Until the age of 25 years, you had lived a productive and full life in this community.  Although your parents had separated, you were on good terms with each of them and you had spent your life working and using the money you made for overseas holidays.  Life was good.  You had met and formed a relationship with your co-offender, Angelina Cua, who was also a very mature and well regarded member of this community.  She was also engaged in stable employment and had a multitude of supportive family and friends.  Your future life together must have seemed rosy indeed. 

6Your world came crashing apart in 2011 when you, Zoch, were involved in a very serious motorbike accident.  You were very lucky to have survived.  The collision was not your fault, but as often happens, you, as an innocent party suffered the consequences.  You were placed in an induced coma for almost four weeks.  You underwent 20 hours of surgery to your legs. The majority of your injuries was from the waist down.  You were confined to a wheelchair for a time and you had to learn to walk again.

7In some respects, the story had a happy ending, for you were determined not to let your physical injuries rule your life. 

8You completed a qualification in that time that I have just been speaking about, and after the Transport Accident Commission payments to you ceased, you threw yourself into employment, even employment of a manual nature despite your significant residual injuries because you did not want to be reliant on a Disability Pension.  Your internal resilience is demonstrated by the fact that you were undeterred, even when one employer sacked you because he said he had not realised he was employing a cripple. 

9You became engaged to Cua in 2014 and you were both married in April of 2015.  You had both been able to save and were able to buy a house together.  At the time of that wedding, it must have seemed that the worst of the nightmare caused by this tragic accident had ended.  However, one terrible problem slowly emerged. 

10As I have said, you, Zoch, had done your best to overcome the effects of your injuries which were predominantly from the waist down.  Sadly, your injuries had significantly affected your libido.  What had been a previously full and satisfying sexual relationship between you ceased.  This caused understandable consternation to each of you, just recently married and with your whole future as a married couple in front of you.

11You both approached the problem initially in a mature way. You consulted a doctor.  You tried Viagra tablets.  Nothing seemed to be working.  Neither of you could contemplate a future together without sexual intimacy.  So you began some internet research.  You found out the drug, GBL, was reputed to have a strong aphrodisiac effect.  You, Cua, had on a handful of times in the past, taken this as a party drug.  You, Zoch, had been able to obtain a small amount locally and you both used it.  It seemed to both of you to have such an effect.  You found out that its use was legal in some countries, although not in Australia.  I pause here to say that it is banned in Australia because it is an extremely dangerous drug.  Nevertheless, it could be ordered openly over the internet.

12You both decided, knowing that GBL was illegal in Australia, but desperate to try anything that might improve the situation, to try to obtain a sufficient quantity to solve your problems of intimacy, so you Zoch, placed an order. 

13You attempted to order 500 grams. However the website specified that the minimum order was 1000 grams, so you ordered that amount.  It was clearly in excess of what you needed or wanted, but this was the only way it could be sent to you.  It cost about US$250.

14You had no idea of course, when you ordered it, that 1000 grams, that is the amount that you ordered, is the amount specified under Australian legislation as constituting a commercial quantity of GBL.  You had, by your actions, in so ordering 1000 grams, committed all of the element of the offence for which I am to sentence you today.

15However, this first shipment never arrived.  Unknown to you, it was confiscated by Customs.  You thought it had gone missing, and so you re-ordered.  Another 1000 grams was sent.  Once again, and still unknown to you, it was confiscated by Customs and this time you were both placed under surveillance. 

16You ordered the drug a third time.  Shortly after the third importation, you were both arrested and charged.  However, by this time, your culpability had tripled for you were charged not just with importing the 1000 grams of GBL for which you were waiting, but with importing the quantity you had actually ordered, which was over three times that amount. 

17Thus, you each come before me on one charge which is, as I have said, a rolled up count relating to three occasions of importation of a commercial quantity of a border controlled substance, a total amount of approximately three and a half litres. 

18You, Zoch, were directly involved with the ordering, but you, Cua, were just as closely involved with the importation and it was you who contacted the delivery firm on several occasions to see whether the shipments had arrived.  Indeed, you complained at one point, about what you thought was their incompetence in causing the delay. 

19Your texts between each other and your phone calls were monitored by the Federal Police.  In your text, Ms Cua, you expressed delight at the prospect of the drug arriving.  This is a clear reference to your naïve hope that this drug would solve your husband's medical condition.  You, Cua, in your record of interview and also in your interview with the psychologist, Mr Cummins, attempted to shoulder all of the blame for this offending because you had encouraged Mr Zoch down this path, and you were clearly eager for the drug to be the magic solution to your very genuine marital problems.

20The circumstances of both your involvement in this criminal activity were naïve in the extreme.  You used your own credit cards for the transaction.  You used your own addresses and phone numbers.  You were easily traceable.  As I have said, you, Cua, rang the despatch office of the delivery firm to complain about non-delivery on several occasions.

21Although you each knew it was illegal to import this substance, these surrounding circumstances reinforce my conclusion that neither of you had any idea at all about the seriousness of your offending.  I also find that despite the fact that a large quantity of the GBL was imported, neither of you had any intention at all to sell or give the substance to others.  This importation was expected by your both to address an extremely private problem of sexual dysfunction.  It is most unlikely that you would ever have told anyone else about the fact that you had it, had your importation not been discovered. I find as a fact, as I have said, that neither of you had any intention at all to sell or give that substance to others.

22So, I must sentence you for this most serious offence.

23The authorities clearly state that when sentencing for an offence such as this, I must pay great attention to the need for general deterrence.  This is the prospect that others may be minded to commit an offence such as you have committed. 

24The social harm caused by drugs of all descriptions is great.  The authorities have difficulty in detecting drugs imported into this country.  It is easy to do and very difficult to detect.  This substance, GBL, is very dangerous.  It is illegal in Australia because of the damage it does to the human body.  The taking of this drug as a recreational drug is a great social evil.  I acknowledge that this principle must be given careful attention by me in sentencing you today.

25Although general deterrence is not specifically listed in the Commonwealth Crimes Act, the law requires general deterrence to be taken into account and the maximum sentence of life imprisonment for this offence also underscores the relevance of general deterrence and serves as a basis of comparison between this case and the worst possible cases.

26I agree, as submitted by the prosecutor, that it is an important part, as I have said, of my sentencing function that I am now discharging, that persons who might otherwise be tempted to engage in this kind of offending, easily done and not easily detected, will receive a very strong and clear message that such conduct will not be tolerated.  I accept that the denunciation of your conduct is a significant aspect of the sentence to be imposed today. 

27In sentencing you both, I must also consider the question of specific deterrence - that is, the prospect of you reoffending into the future.  Can I say categorically that from all that I have heard and read in the plea, I do not expect that either of you will again have any contact with the criminal law.  You each come before me with glowing references from very respectable members of this Mildura community.  You are both, as I said earlier, otherwise upstanding and productive members of this community.

28Had it not been for the very difficult problem which you faced in your marriage, I have no doubt that neither of you would have ever come into contact with the criminal law. 

29My view about that is reinforced by the observations of Jeffrey Cummins, a respected forensic psychologist to whom I previously referred in brief.  He assessed both of you and he freely gives his opinion from his experience that your prospects of rehabilitation for Mr Zoch, and also for you Ms Cua, are very favourable.  He does not expect that you will reoffend.

30I also say, in sentencing you today, that your predicament points out a problem which the courts are increasingly confronting in various forms.  That is, that because the internet is an apparent cornucopia of things so readily available, to address the whole spectrum of human desire and longing,( be they prohibited or legal drugs, or other prohibited items or child pornography or other such services), there seems to be less inhibition in otherwise decent citizens falling into crime by accessing those services that the internet offers from the privacy of their own homes.

31You have each fallen into this trap.

32I regard your offending as being quite unique.  It may be safely assumed in other cases of importation of a commercial quantity of a prohibited drug, that the purpose of the importation is to make a profit.  There is no such purpose in your case.  In your case, the importation was for what you thought were medicinal purposes.  It was to address a highly private and embarrassing problem.

33Since you have been apprehended, you have been able to take other therapeutic and medical means to address the problem.  You have each shown remarkable fortitude in facing the publicity accompanying your arrest.  You lost your jobs as a result, but you were prepared to ultimately obtain and hold jobs of a much lower status, each of your jobs now involving you in long hours of hard manual work as you strive to rebuild your lives together.  This has not been helped by extensive and in some respects, prurient media publicity.  You have been humiliated by the way your motives for this importation have been portrayed in some parts of the media in Mildura.  Your private sexual relationship has been exposed for public view. 

34In considering what sentence should be imposed on you, I must also be mindful of the requirements of s.17(A)(1) of the Crimes Act, which essentially states the common law position by providing that a court must not pass a sentence of imprisonment on any person unless the court, having considered all available sentences, is satisfied that no other sentence is appropriate in the circumstances of this case. 

35I have carefully considered the submissions made by your counsel on your behalf in relation to this matter, and particularly in relation to the alternative sentencing options to prison that are available.

36I am amply persuaded that a term of actual imprisonment is not appropriate for either of you.  The prosecutor openly agreed that this was the case.  The real question is whether I should utilise the alternatives of a fine, a Community Correction Order, or a combination of those matters, or whether the appropriate disposition should be to sentence you to a term of imprisonment, but then to effectively suspend that term by use of a recognisance release. This is a device open in Commonwealth sentencing, which effectively places you in the community with your sentence suspended for the time of the recognisance release.

37Mr Zoch and Ms Cua, I have received a report indicating that you are suitable to complete a Community Corrections Order.  If I were to place you on such an order with a condition of unpaid work and supervision and treatment, I have no doubt that both of you would complete that order.  This is thus, an attractive sentencing option.

38However, the maximum penalty for this offence is life imprisonment.  It is my view that in order to achieve the goal of general deterrence and also to reflect the fact that a significant quantity of this drug was imported by each of you, each knowing that the drug was illegal, a sentence of imprisonment is required.  A Community Corrections Order whilst having the advantage of requiring you to put something back into the community would not have the same deterrent effect. 

39I am satisfied for the purpose of the Crimes Act, that no sentence other than one involving imprisonment is appropriate in all the circumstances in order to punish you and to deter others from offending in the way you did. 

40However, as I have said, I am not satisfied that I should impose a term of actual imprisonment on you today.  I have decided to sentence each of you to a term of imprisonment but then to wholly suspend that term by way of a recognisance release order.  

41Now I will just stop there.  Madam Prosecutor, do I have some means of getting the recognisance release order sent to my associate?

42MS CURMI:   Your Honour, I emailed draft documents to Selena Pasouk yesterday.

43HER HONOUR:  All right, my associate will obtain those documents and I will make that they are here and available before I proceed to sentence, so Ms Cua and Mr Zoch, I will now need to leave the Bench whilst the documents which are required are obtained from the Registrar of the court.  I will just confirm this, that what I am proposing to do, is to sentence each of you to a term of imprisonment, but then wholly suspend that term by way of a recognisance release order.  I will have your solicitors receive a copy of those documents and explain the effect of them to you before I come back on the Bench and impose the sentence, so at this stage, Mr Tipstaff, I will leave the Bench temporarily.

44##A:S#     (Short adjournment.)

45HER HONOUR:  Thank you. 

46Tyson Zoch, can you stand up please. 

47Tyson Zoch, on the charge of importing a commercial quantity of a border controlled drug, you are convicted and sentenced to be imprisoned for three years.  Mr Zoch, the position is this, in relation to that offence, I have imposed sentence of three years imprisonment. 

48I intend, as I said before the break, to make a recognisance release order which will have the effect of fully suspending that sentence of imprisonment and I so make that order.  The order will take effect upon you entering into a recognisance which my associate will shortly bring to you, to be of good behaviour for a period of four years and the amount of the recognisance will be $5000.  You do not have to pay that $5000 at the moment.  Indeed, you will never have to pay it if you are of good behaviour over the next four years, but I am obliged to explain to you that in effect, what you will be permitted to do, is to serve that term of imprisonment of three years in the community. 

49You will be subject to a condition that you be of good behaviour for the next four years and if you fail to comply with that condition, and I particularly bring to your attention, the fact that you will fail to do so if you are convicted of any criminal offence, then you will be brought back before me and the order that I have made, may be revoked or cancelled.  The sum of $5000 will then be forfeited, and you will be dealt with afresh for the charge in respect of which this order has been made, and I emphasise that if that occurs, you may be required to serve the term of three years imprisonment which I have imposed upon you.

50I am also required to inform you that the Crimes Act enables you in certain circumstances, to apply to the court for a discharge or variation of the duration of this recognisance release order and you should consult your solicitors if that is something which you need to do in the future.

51So Mr Zoch, you will have this term of imprisonment that I have imposed today hanging over your head for the next four years.  If, in fact, you have rehabilitated yourself and do not reoffend, you will not come back before the court, but if you do reoffend or otherwise are not of good behaviour over the next fours, you face the real likelihood of being sent to prison.  Do you understand what I have explained to you?

52OFFENDER ZOCH:  Yes, Your Honour.

53HER HONOUR:  Yes, thank you, if the documents can be provided to Mr Zoch for him to sign, and I note that these documents have been explained to him by his solicitor. 

54Yes, thank you, can sit down Mr Zoch.

55Angelina Cua, can you stand up please.

56On the charge of importing a commercial quantity of a border controlled drug, you are convicted and sentenced to be imprisoned for three years.  The position is this, so in relation to this offence, I have now just imposed a sentence of three years imprisonment.  As with Mr Zoch, I intend also with you, to make recognisance release order which will have the effect of fully suspending that sentence of imprisonment and I have made that order and signed it. 

57Ms Cua, I am obliged to explain to you also in language you are likely to understand, the sentence and the recognisance release order.  What this means is that you will effectively be permitted to serve that sentence of three years imprisonment in the community.  You will be subject to a condition that you be of good behaviour during the period of the order which is four years from today.  I also inform you that if you fail without reasonable excuse to fulfil or comply with this condition, in particular by committing another criminal office, you will be brought back before me and the recognisance release order will be revoked.  At that time, you will required to pay a sum of $5000 which is on a recognisance release order and you may be dealt with for this offence afresh. 

58I emphasise if this occurs, then you may be required to serve the term of three years in prison.  I am also required to inform you that there is some circumstances in which a discharge or variation of a recognisance release order can be made and you should consult your solicitor if you think that you may need to make such an application, but I want to stress that if you do not take this opportunity which I have given to you today, you face the real likelihood of being imprisoned for three years.  Do you understand what I have just explained to you?

59OFFENDER CUA:  Yes, Your Honour.

60HER HONOUR:  Yes, thank you, if Ms Cua could now be brought he documents to sign and I am happy for her solicitor to be involved in that process.  I note that the solicitor has, during the break, explained these documents to Ms Cua. 

61Thank you.  You can take a seat Ms Cua.

62Under s.6AAA of the Sentencing Act, I am required to tell you the sentence that I would have imposed, had you not pleaded guilty to this offence.  Taking into account all the matters that I have referred to on this plea, I state that but for your guilty plea, the sentence I would have imposed would have been a sentence of four and a half years actual imprisonment and I would have ordered that you serve a period of two and a half years actual imprisonment before being eligible for parole, and I order that that indication be noted in the records of the court.

63I also note that you have each served one day in custody for this offence, and pursuant to sub-s.18(4) of the Sentencing Act, I declare that that period be reckoned as time already served under the sentence passed today. 

64Ms Curmi, are there any other matters?

65MS CURMI:  Yes, one other matter, Your Honour.  I seek to apply to have three charges transferred back to the Magistrates' Court.  There was a written application to that effect in Your Honour's materials and e-lodged with the court. 

66HER HONOUR:  Yes.  I am happy to also make that order.  There is no issue about that, is there, on behalf of - - -

67MS HANCOCK:  No, Your Honour.

68MR DELORENZO:  No, Your Honour.

69HER HONOUR:  Yes.  I think I have signed something in that regard.  All right, I will make that order and what it will mean, just as an administrative matter, is that the parties will have to stay here for a little bit longer so that the order can be revised and printed out, including the transfer back to the Magistrates' Court of the three charges.  I have forgotten, Ms Curmi, whether they were given a particular date in the Magistrates' Court, but that can be sorted out when I leave the Bench.

70MS CURMI:  Could it possibly be listed for 27 July, Your Honour, because we have other summary matters listed on that date, that's the Commonwealth list date.

71HER HONOUR:  Yes, I notice we have got the Registrar in court.  Is that - is there any issue about that?

72REGISTRAR:  No, Your Honour.

73HER HONOUR:  All right.  I will order that those charges be listed for 27 July 2016 at Mildura Magistrates' Court.

74MS CURMI:  Thank Your Honour.

75HER HONOUR:  Are there any other matters, Ms Curmi?

76MS CURMI:  No, that’s it, Your Honour.

77HER HONOUR:  Thank you.  If you could stay on the screen just while my associate sorts out that order with you.  Are there any other matters in relation to each of the accused?

78MS HANCOCK:  No, Your Honour.

79MR DELORENZO:  No, Your Honour, thank you.

80HER HONOUR:  Thank you.  I will adjourn till 2.15 this afternoon Mr Tipstaff.

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