Director of Public Prosecutions v Eng

[2018] VCC 1840

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00148

DIRECTOR OF PUBLIC PROSECUTIONS

v

KUNHOW ENG

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 November 2018
CASE MAY BE CITED AS:	DPP v Eng
MEDIUM NEUTRAL CITATION:	[2018] VCC 1840

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Thomas
For the Accused	Ms D. Price

HER HONOUR:

1Kunhow Eng, you have pleaded guilty to two charges of attempting to possess a marketable quantity of a boarder controlled drug contrary to the Commonwealth Criminal Code.  The maximum penalty for that offence is 25 years' imprisonment.

2You are almost 32 years of age born on 21 November 1986.  You are a Malaysian national, the youngest of three children and grew up in Malaysia.  Your parents separated when you were very young and you have essentially had no contact with your mother who moved to Singapore shortly after that separation.

3Your father could not care for you and you were sent to your paternal aunt and cousins.  They became your family and you remain close to them.  You had a good record in Malaysia completing your schooling and then working various low-school jobs before enrolling in an information technology media course in your late 20s.  Thereafter you worked making and repairing computers.  You worked for a company importing Japanese goods.

4You married in 2012 and your wife is an accountant.  You have no children but your wife suffered a miscarriage of one time.

5Your plan in coming to Australia was to study and work with a view to having your wife join you here.  You came to Australia in May 2016, enrolled at an information technology course at the Victorian Institute of Culinary Arts and Technology.  You attended classes on three days per week while working as a kitchen hand in a Chinese restaurant.

6You and your co-offender, Mr Chen, had known each other through your local area in Malaysia.  He arrived in Australia in July 2016.  At some stage, you and he re-met in Australia and you and he commenced living together in a residence at 603/160 Little Lonsdale Street, Melbourne.

7On 31 March 2017, the Australian Border Force examined a consignment addressed to Jackie Yo of 31 Haig Street, Box Hill South.  It was found to contain 355.8 grams of methylamphetamine hidden in a coax cable.

8On the same day in Sydney, Australian Border Force examined a consignment addressed to Peter Wan of 1/6 Purser Avenue, Ringwood East.  It was found to contain 714.4 grams of pure methamphetamine hidden in a pool float bag and a Peppa Pig bag.  The consignee contact phone number belonged to your white Samsung mobile phone.

9At 8.30 am on 31 March 2017, a resident of the East Ringwood address telephoned the AFP reporting that a man named Sam contacted her and said he would come to collect the package.  That person posing as Sam was Mr Chen. 

10At 2 pm on the same day, AFP attended at the 31 Haig Street, Box Hill South address and arrested Mr Chen in the driveway.  A search located several sets of keys in his possession including keys to 31 Haig Street.  He was also in possession of two mobile phones, a gold Apple iPhone and your white Samsung.  He was arrested and participated in a record of interview wherein he made admissions to collecting packages on your behalf, that he would be paid for doing so and that you had provided him with keys to the premises in Box Hill.

11You were arrested on 27 June 2017 and have been in custody since.  Your Samsung phone was ceased.  It contained a large number of WeChat messages, SMSs and images.

12Between 25 March and 28 March, there are numerous communications regarding the expected timing of delivery of these two consignments as well as discussion about money and bank accounts.  Those messages reveal that you were clearly aware of the nature of what was going to be imported and the illegality of your involvement.  They also show your knowledge that the drugs were coming from America.

13You indicated in those messages that you were to be overseas at the time of the expected delivery competing in a darts competition.  For this reason, you involved Mr Chen as your stand in to accept delivery of the two packages.

14General deterrence, punishment and denunciation are important considerations in sentencing for offences such as these.  Importation and movement of drugs throughout the community is prevalent offending which is difficult to detect.  Importation of illegal drugs into this country furthers the scourge of those substances on the community.  Anyone who operates in this court knows only too-well how destructive and dangerous methamphetamine is.  It is highly addictive, results in erratic and violent behaviour and is behind a great deal of offending in our community. 

15Those who play roles such as yours, that is organising the logistics for collection of drugs and safekeeping of them for persons higher up the chain, are critical to the success of any illegal importation operation.  Most do it just like you for their own financial gain and at the great expense of other members of the community.  It is a well-established sentencing principle that persons who participate in the illegal drug trade at any level should therefore expect and receive heavy penalties.

16In assessing your criminality, I must consider the amounts of drug you attempted to possess.  In your case, the amounts are significant.  Taken together, they amount to a commercial quantity.  Even taken separately, particularly the Ringwood consignment, they are at the higher end of the range for this band of offending regarding marketable quantity of the drug.

17In a statement on the brief of evidence from Federal Agent Detective Sergeant Randall, he estimates the street value of these drugs to be somewhere in the order of $333,000 to $800,000.

18Secondly, in considering your criminality, assessment of your role is critical.  In my view, you are more than a mere courier or passive collector and holder of the packages.  Such was conceded by your counsel.  Your involvement is demonstrated by way of your communications with unknown person or persons in the lead up to the delivery of the consignments on 31 March; that is although not an importer of the drugs yourself, you were involved in organising the logistics of delivery of these drugs and of communicating with others about matters such as timing and location and payments of moneys.

19You admit that you expected to gain financially from these transactions although the figure is unclear.  Mr Chen says you were to pay him $400 for his role as collector of the packages in your absence.  It was sensibly conceded that in determining your role in this offending, you sit above your co-offender, Mr Chen.

20Your matter proceeded to a contested committal in January 2018 and was headed for a trial in September 2018.  In July, your co-offender, Mr Chen, took part in a reverse caution interview with the AFP wherein he outlined his and your involvement in these matters.  He then undertook to give evidence in your trial.

21Soon after those events, you made an offer to plead guilty to the charges which are now before me.  This was the first time such offer had been made and although I accept that your current legal representatives had only recently become involved in your case, capacity to admit your wrongdoing was a matter for you.

22To that end, I could not view your plea as equating to genuine remorse.  I do accept, however, that by your plea, you accept responsibility for your offending and that you have now expressed some remorse.  I accept there is also utilitarian benefit in that your counsel is correct that a potentially long and tedious trial has been avoided.

23Further, I note that other charges originally laid against you were withdrawn and that this also enabled the matter to resolve.

24Your time in custody has not been easy given your relative isolation.  However, as I stated in sentencing your co-offender, you took a calculated risk in serious criminal behaviour, that is being part of the trading illicit drugs.  Those who take such a risk in a foreign country must accept that they also risk being imprisoned in a place where they do not speak the language and where they are removed from their family.

25In my view, therefore, although it arouses sympathy, that factor cannot be a basis for any significant mitigation of penalty.  I have however had regard to the psychological assessment of Ms Carla Lechner to the extent that you are experiencing considerable distress as a result of your isolation.

26To your credit, you have taken what courses have been available to you and have taken the opportunity to improve your English language skills. 

27Similarly, I accept that the concerns you have outlined to psychologist, Ms Lechner, with regard to fears about repercussions from other persons involved in the attempt to import these drugs into Australia.  You willingly involved yourself with persons who are engaged in serious criminal behaviour.  It should be of no surprise that you therefore risked falling foul of those persons if things did not go according to plan.  I am told that you are anxious about repercussions from those persons or their connections upon your return to Malaysia although the prosecution point out that the drugs imported in your case came from the USA.

28I accept that, rational or not, you no doubt are fearful of persons with whom you were involved.  However, there is a limited evidence to substantiate any claim of actual threat to you so I cannot take it beyond a general consideration as part of the matrix in sentencing you.

29Your initial plan in coming to Australia was to study and eventually to bring your wife here.  Your offending has thwarted that plan.  Happily, you and she are still in contact. 

30Upon release, you are likely to be deported and I accept that this fact is likely to weigh on you during your time in custody.

31I accept your isolation and difficult experience in custody has acted as a deterrent to you.  You are person never previously incarcerated.  Your return to Malaysia will be with your aunt and cousins.  Your wife has been living in Singapore in your absence, however you hope she will return to Malaysia with you.  You anticipate returning to low-skilled employment.

32Given the salutary experience of incarceration and your lack of underlying issues such as drug use or mental health issues, in my view, your prospects of rehabilitation are reasonably good.  The need for specific deterrence is more limited in your case. 

33Your counsel sensibly conceded that this offending warrants a head sentence with a non-parole period, that is any sentence will be over three years.

34I have given consideration to sentences imposed in similar matters and to the table of comparative cases I was provided.  Most of those concern single consignments of marketable quantity of drugs and relate to persons playing roles roughly similar to yours.  All resulted in substantial terms of imprisonment.

35Notably the Court of Appeal in the case of Chan v The Queen and Tan v The Queen[1] looked at current sentencing practices.  Both Mr Chen and Mr Tang pleaded guilty.  Mr Tang attempted to possess 245 grams of pure heroin and Mr Chen in addition also attempted to possess 241 grams of pure heroin.  Mr Tang's sentence was reduced on appeal to five years with a non-parole period of three years.  Mr Chen received a total effective sentence of eight years and six months with a non-parole period of six years.

[1]Chan v The Queen; Tan v The Queen [2014] VSCA 301

36Both offenders in that matter had arrived in Australia specifically for the purpose of receiving the imported drugs.  Both to my mind although essentially couriers were involved in a similar way to you in the lead and in the attempt to possess those drugs.

37Of course the cases are distinct from this one by way of various aggravating and mitigating factors applicable.  Consistency in sentencing is however desirable so although those cases are not precedent, they do provide some guidance.

38In terms of parity, your counsel submitted that Mr Chen essentially performed the role you were intending to perform and that that should be informative in my sentence.  However, given the concession that you do sit above Mr Chen in the hierarchy and that you were involved in the preceding time period in organising the delivery and collection of these consignments, it is essentially accepted that your role was greater and that you were more involved than him.  It was conceded that you will receive a longer sentence.

39Further, as I outlined in my reasons for sentence regarding Mr Chen, he was entitled to a substantial discount for his cooperation with authorities and this was a critical factor in sentencing him.  In addition, I viewed that cooperation and his early plea of guilty as an indication of genuine remorse.

40In this case, allowing for your greater role and therefore your higher moral culpability, but taking into account your plea of guilty and your other mitigating matters, I propose to impose an aggregate sentence as follows.

41If you could stand, Mr Eng.

42The sentence I impose in relation to these two charges is an aggregate sentence of 65 months' imprisonment with a non-parole period of 41 months' imprisonment.

43But for your plea of guilty, the aggregate sentence I would have imposed would have been one of 74 months' imprisonment with a non-parole period of 50 months' imprisonment.

44I declare that your sentence is to start today and I declare 506 days pre-sentence detention as already having been served.

45You can have a seat, Mr Eng.

46Firstly, are there any issues to raise, counsel?

47MS PRICE:  No.  May it please the court.

48HER HONOUR:  Thank you.  And then in relation to the order regarding forfeiture, Ms Price ‑ ‑ ‑

49MS PRICE:  Yes.

50HER HONOUR:  ‑ ‑ ‑ did you have a chance to ‑ ‑ ‑

51MS PRICE:  It was stalled somewhat because my intention was to cross-reference these documents with the exhibit list, however many of these are not on the exhibit list ‑ ‑ ‑

52HER HONOUR:  I see.

53MS PRICE:  ‑ ‑ ‑ so I was not in a position to actually determine what they are.

54HER HONOUR:  All right.

55MS PRICE:  So what has been discussed at the Bar table is if it were permissible by the court to adjourn that for a short period of time ‑ ‑ ‑

56HER HONOUR:  Yes.

57MS PRICE:  ‑ ‑ ‑ so that both counsel can be provided with a list of what is actually meant by those exhibit references ‑ ‑ ‑

58HER HONOUR:  Sure.  Yes.

59MS PRICE:  ‑ ‑ ‑ and then it may be that the matter can proceed by way of consent but ‑ ‑ ‑

60HER HONOUR:  Yes.

61MS PRICE:  ‑ ‑ ‑ unfortunately until I know what the documents are, I am somewhat hamstrung.

62HER HONOUR:  Yes.  No, I understand.  Well, I am happy to do it that way and if counsel can reach agreement, I can do it on the papers then with counsel's consent.

63MS THOMAS:  Yes, Your Honour.

64HER HONOUR:  If there is any issue obviously, I will have to bring the matter back.

65MS PRICE:  Certainly.

66HER HONOUR:  So I will not set a date.

67MS PRICE:  All right.

68HER HONOUR:  I do not think I even have to adjourn that sine die really.  I mean it is an adjournment really to the sentencing order ‑ ‑ ‑

69MS PRICE:  Yes.

70HER HONOUR:  ‑ ‑ ‑ so I will leave that for counsel on the understanding that perhaps there can be an indication within the next 14 days ‑ ‑ ‑

71MS PRICE:  Yes.

72HER HONOUR:  ‑ ‑ ‑ if that is enough time as to whether that can be dealt with by consent or whether it needs to come back.

73MS PRICE:  Yes.

74HER HONOUR:  All right.

75MS PRICE:  It sounds convenient.  Thank you.

76HER HONOUR:  Thank you, Ms Price.

77MS THOMAS:  If Your Honour pleases.

78HER HONOUR:  All right.  Thank you, counsel, for your assistance.  Yes, Mr Eng can be removed.  Thank you.  Thank you.  Yes, half past nine on Monday.  Yes.  Thank you.

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