Director of Public Prosecutions v Fung

[2016] VCC 120

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

AT MILDURA
CRIMINAL JURISDICTION

CR 15-01880

DIRECTOR OF PUBLIC PROSECUTIONS

v

TSZ YEUNG FUNG

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	24 February 2016
CASE MAY BE CITED AS:	DPP v FUNG
MEDIUM NEUTRAL CITATION:	[2016] VCC 120

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 J. McGillivray
For the Accused	Ms U. Ebsworth

HIS HONOUR:

1Tsz Yeung Fung, you are to be sentenced for one charge of importing a border controlled substance, methamphetamine, in a commercial quantity.  The maximum sentence is life imprisonment. 

2You pleaded guilty before me on 10 February 2016.  When arrested by police on 23 June 2015, you did not participate in a record of interview.  On 28 October, committal went by hand-up brief, after which you entered a plea of guilty.  The matter was then listed for plea hearing in this court.  You receive the benefit of your early plea of guilty and the level of cooperation, that short history of the proceedings shows.   You have expressed remorse.

3At your plea hearing, also on 10 February, Ms McGillivray for the Crown tendered a written Crown opening.  Mr Gullaci, for you, tendered documents related to educational programs in remand custody,  medical documents from Hong Kong related to your wife's pregnancy, the birth of your child and your mother's mental health.  He also tendered a number of letters of character reference, mainly by members of your family.

4The circumstances of your offending are comprehensively stated in the tendered Crown opening, which is Exhibit A.  My own summary maybe short.  I am also informed by matters put on your behalf by Mr Gullaci. 

5You arrived in Australia from Hong Kong on 17 April 2015, with your wife or partner.  You entered upon a 12 month holiday visa.  You began residing at an apartment in Little Lonsdale Street, Melbourne.  You planned to work here, having struggled financially in Hong Kong.

6On 7 May, your partner returned to Hong Kong,  having fallen pregnant.  You stayed here, having obtained employment.  I do not find beyond reasonable doubt that you came here to commit this offence.  As raised and discussed in the plea hearing, I do not reject,  on that standard, that during and perhaps toward the end of May  you were approached from Hong Kong and agreed to receive a consignment of what you knew to be illicit drugs from there.

7On 1 June, you moved to another residence in Franklin Street, Melbourne.  Delivery of the consignment was to be to the first,  Little Lonsdale Street apartment.  The package arrived in Melbourne on or about 9 June.  Between then and 11 June, you made phone contact with the freight forwarder on about 100 occasions.   On 10 June, border force examination of the package at the freight company revealed 778.8 grams of pure methylamphetamine.  This is marginally beyond the commercial quantity threshold of 750 grams.  On 22 June, the freight company contacted you to arrange delivery at the Little Lonsdale premises.  Surveillance, close circuit television, showed you to be in the area a good part of the morning.  You were arrested at or soon after 11.30 am.

8Evidence indicated that your role was at least to include taking delivery and then to hold the drugs for further collection.  Mr Gullaci put a context of financial need, exacerbated by your wife's pregnancy.  He stated that you received expenses of about $1,000 Australian.  You were to receive $2,000 on receipt of the drugs and a larger figure upon further collection.  He also pointed to amateurish aspects of your conduct in respect of the consignment.  For example, mobile phones acquired in Australia were registered in your own name or that of your partner. 

9You are 23 years of age, have no prior convictions and I was told there are no charges pending.  You are an only child, born and raised in Hong Kong.  Your mother suffers schizophrenia.  You have a nine or ten year old step-brother.  Your step-father died from cancer in 2014.  You have no meaningful relationship with your natural father.  Your partner  had your child in December of last year.  She is aged 22 and also has no criminal record.

10Your family struggles financially and awaits your return to Hong Kong upon release from prison here.  They are supportive, but isolated from you.  The high likelihood is that you will be deported upon parole release for this sentence.  It was not put that this has any significance to my sentence.  For example, you have no connection with Australia and were here for only about two months.  I should impose a head sentence and a minimum term consistent with and reflecting the relevant sentencing considerations. 

11You left school after Year 7.  You have since worked as a labourer, kitchen hand, storeman, in online sales and in an administrative role at a Hong Kong trading company.  You have no significant physical  or mental health problems.  Imprisonment here has been difficult and will continue to be so.  You are isolated by lack of English, culturally and from your family support.

12Self-evidently, this is a very serious offence, reflected by the applicable maximum sentence.  You chose, for reward, to take part in a significant importation, albeit only slightly beyond the commercial quantity threshold.  Your role, whilst not placed high in the entrepreneurial hierarchy, was trusted and important.  Your involvement ran over a number of weeks.  Drug importation and the harm it causes is seen to be a serious community problem.  In such a case, the sentencing purposes and considerations of deterrence, particularly general deterrence, your moral culpability and the need to sentence in a way to condemn the offending are relevant.  General deterrence is a particularly important sentencing purpose.

13The proportionate  punishment must be a sentence of imprisonment of some substantial length.

14I have also taken into account mitigating or moderating factors.  They include the following:

1.    Your plea of guilty and cooperation.

2.    That you have no prior criminal history.

3.    That you are still a relatively young man and should be seen as having  genuine prospects for rehabilitation.  The tendered character reference evidence speaks well of you and you seem to have used your time in custody in a rehabilitative way.

4.    Your personal circumstances.  These include your situation and      isolation in Australian prison.  This consideration is not undermined by     a finding, as is sometimes the case, that you came here for the     particular purpose of the offending.

15These moderating factors are relevant.  However, in the case of offending such as this  general deterrence stands as the dominant sentencing purpose.  I must sentence in a way to address that. 

16I have decided that this is a case in which those moderating factors personal to you I have identified may to an extent particularly reduce the minimum term I impose.

17Having considered and weighed what I see to be the relevant matters, I sentence you as follows.

18On one charge of importing a border controlled substance, in a commercial quantity, you are sentenced to six and a half years imprisonment.  I set a minimum term before eligibility for parole of three years and eight months.  Under s.18 of the Victorian Sentencing Act, which applies to this case, I declare 215 days of pre-sentence detention.  Under s.6AAA of the Victorian Sentencing Act which I understand to also apply to this case.

19I indicate that had you not pleaded guilty, I would have imposed a sentence of eight and a half years, with a minimum term of five and a half years.  Are there any other matters Ms McGillivray that I need to address?

20MS McGILVARY:  Yes, just one matter and I apologise that this actually might be my fault, Your Honour.  The calculation of PSD that was given to Your Honour on the previous occasion was wrong.  The current calculation excluding today that we've done, and my learned friend agrees with is 246 days.

21HIS HONOUR:  Thank you.

22MS McGILVARY:  I apologise, Your Honour.

23HIS HONOUR:  Well that is all right.  I will state the whole sentence again so it is completely understandable.  You are sentenced to six and a half years imprisonment.  A minimum term of three years and eight months.  Under s.18 of the Victorian Sentencing Act, I declare 246 days of pre-sentence detention. 

24Under s.6AAA of the Victorian Sentencing Act, I indicate that had you not pleaded guilty, I would have imposed a sentence of eight and a half years, with a minimum term of five and a half years.  All right, is there anything else?

25MS McGILVARY:  No, Your Honour.

26MS EBSWORTH:  No, Your Honour.

27HIS HONOUR:  All right.  Mr Fung can be taken to custody now. Thank you for your assistance today, everyone down there.  All right, thank you, we'll turn you off.

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