Director of Public Prosecutions v Hong
[2023] VCC 1406
•31 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01603
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TSZ KI KALA HONG |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2023 | |
DATE OF SENTENCE: | 31 August 2023 | |
CASE MAY BE CITED AS: | DPP v Hong | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1406 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Conspiracy to import a commercial quantity of a border controlled drug (1 charge); Fail to comply with order under section 3LA of the Crimes Act 1914 (Cth) (1 charge); Possess controlled drug (1 charge); Possess prohibited weapon (1 charge).
Legislation Cited: Control of Weapons Act 1990 (Vic); Criminal Code 1995 (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic).
Cases Cited:DPP v Tewksbury (A pseudonym) [2018] VSCA 38; DPP v Wan [2018] VSC 195; Lieu v the Queen [2016] VSCA 227; R v Nguyen; R v Pham [2010] NSWCCA 238; Worboyes v R [2021] VSCA 169.
Sentence: Total effective sentence of 7 years’ imprisonment with a non-parole period of 4 years imposed for the Commonwealth offences. Fine of $100 imposed for state summary offence.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Brown | CDPP |
| For the Accused | Ms A Dixon | Giorgianni & Liang Lawyers |
HER HONOUR:
1Tsz Ki Kala Hong, you have pleaded guilty to one charge of conspiracy to import a commercial quantity of a border controlled drug contrary to subsections 11.5(1) and 307.1(1) of the Criminal Code (Cth) (charge 1); one charge of fail to comply with order under section 3LA of the Crimes Act 1914 (Cth) contrary to subsection 3LA(6) of the Crimes Act 1914 (Cth) (charge 2); and one charge of possess controlled drug contrary to subsection 308.1(1) of the Criminal Code (Cth) (charge 3). You have also consented to the uplifting of summary charge of possess prohibited weapon contrary to s 5AA of the Control of Weapons Act 1990 (Vic) and have pleaded guilty to that offence. The maximum penalty for conspiracy to import a commercial quantity of a border-controlled drug is life imprisonment. The maximum penalty for fail to comply with a 3LA order is 10 years’ imprisonment. The maximum penalty for each of the offences of possess controlled drug and possess prohibited weapon is 2 years’ imprisonment.
2In sentencing you, I have taken into account all of the written material tendered and the oral submissions of counsel. The material relied upon by counsel includes: the Summary of Prosecution Opening for the Plea; written submissions by both counsel, including addendum submissions regarding concurrency and cumulation; your criminal history; the psychological report of Carla Lechner dated 21 May 2023; the application for and final Intervention Order; the clinical records of your treating general practitioner dated 12 July 2023; and the tables of comparative cases provided by each counsel.
3The circumstances of your offending are set out in the Summary of Prosecution Opening dated 2 March 2023, and I sentence you on the basis of the facts set out in that document. I summarise the offending briefly.
Details of Offending
4Between July 2019 and October 2020, you and Ms Ziyi Huang arranged for packages containing methamphetamine to be delivered to various residential premises around metropolitan Melbourne. You conspired together and with other unknown people to import 1884.3g methamphetamine, with a pure weight of 1060.1g. A commercial quantity of that drug is 750 grams. The seized amphetamine had a wholesale value of between $168,241 and $538,320 and a street value of between $376,860 and $753,720.
5Your role was to was liaise with overseas suppliers of the methamphetamine, providing the address details and dealing with the substances after their importation (including transferring money connected with the importation and providing the drugs to the unknown persons). You paid for Ms Huang’s phone credit and provided her with various instructions regarding how to pack the consignments. It was not suggested that you were the principal or instigated the conspiracy. However, extensive WeChat, WhatsApp, and Signal conversations between you and Ms Huang and other unknown persons illustrated the nature and extent of your role.
6There were 7 separate consignments of methamphetamine. Without detailing each of them, I note that consignments 6 and 7 contained measurable amounts of methamphetamine amounting to 1884.3g, and the other consignments contained smaller amounts of drugs. The packages were addressed to “Mandy Huang”, “Man Huang” and “Mary Huang”.
7You were arrested on 13 October 2020 by the Australian Federal Police. AFP members located a lime green iPhone in your jacket and a black mobile phone in your hand. Police served you with a notice under section 3LA of the Crimes Act 1914 (Cth) that ordered you to provide them with information, but you denied knowing the password to the green phone, which is the subject of charge 2. In your car, the AFP found a taser, which is the subject of the summary offence. You were taken to the AFP headquarters and made a “no comment” interview.
8A search warrant was also executed at your house in Hugo Drive, Point Cook. There, police located 5.8 grams of N-isopropylbenzylamine (4.6 grams pure), which is an analogue of methamphetamine and can be used as a cutting agent for methamphetamine. This is the subject of charge 3.
Guilty Plea
9You indicated an intention to plead guilty on 4 November 2022 and formally pleaded guilty to all of the charges on 11 November 2022. Not including today, you have accumulated 102 days of pre-sentence detention.
Personal Circumstances
10Your personal circumstances were set out in the psychological report of Carla Lechner. You were born on 14 July 1992 and are a citizen of Hong Kong. You were 27 years old when the offending began and 28 years old at the time of your arrest.
11You have an older sister and mother who live in Hong Kong. Your father was a violent alcoholic and you have had no contact with him since you were a young child.
12You experienced behavioural problems during primary school and were sent to a boarding school, which you described as being for “naughty adolescents”, until you were about 11 years old. When you were 15 years old, you left school and moved out of home to live with your then boyfriend. He was ten years older than you and lived a drug-oriented, party lifestyle. Around this time, you commenced using cocaine, ice and ketamine, and eventually became addicted to methamphetamine. From the age of 18, you were using 14g to 28g of ketamine per day.
13In 2013, when you were around 20 years old, you came to Australia with your sister, initially on a working holiday visa, which you had envisaged as an opportunity to break the cycle of drug and alcohol abuse. At the end of that year, you returned to Hong Kong when your visa expired. Unfortunately there you fell back into using ketamine again. In 2014, you returned to Australia on a tourist visa and enrolled in an English language course, after which you moved onto a student visa. You then met your most recent boyfriend, Phi Nguyen, who supplied you with ketamine. You applied for a partner visa on the basis of your relationship with him. In early 2016, Mr Nguyen was charged with false imprisonment and other offences. You were also charged and remanded because you were present at the time, but the charges were withdrawn shortly afterwards. You visited him in prison and were still in a relationship with him when you committed these offences. He introduced you to people involved in importing methamphetamines and your offending occurred in the context of wanting to please him.
14Your relationship with Mr Nguyen worsened, and he inflicted significant physical violence against you, resulting in the police seeking an IVO to protect you. You are no longer in a relationship with him. You have no family members in Australia and no close friends, and English is your second language. As such, you have been somewhat isolated whilst on bail and in prison.
15You have worked in various jobs from 2016 onwards, including in sales positions and as an administrative assistant to a migration agent. From the time of your release in 2016, you managed to reduce your drug use to the point where you were only using drugs very occasionally.
16Ms Lechner noted that you presented as having low self-esteem and as “immensely socially and emotionally immature with a very limited capacity to engage in reflective and consequential thinking”.[1] She considered that disrupted attachments in your youth and a degree of emotional neglect have led you to have “high emotional dependency needs” and be vulnerable to attaching yourself to “the wrong people”.[2] You were taking anti-depressants and whilst on bail you were drinking heavily. She assessed you as suffering from an Adjustment Disorder with Depression due to your court matters. You told her that you “realise that drugs cause so much harm to the community”.[3]
[1] Report of Carla Lechner dated 21 May 2023, 3.
[2] Ibid 2.
[3] Ibid 4.
Prosecution submissions
17In relation to charge 1, the Director submitted that in the light of the maximum penalty and the role you played in what was essentially an ongoing business enterprise, the only appropriate sentencing disposition for you was one of a substantial period of imprisonment with a non-parole period.
18It was submitted that your moral culpability for your offending is high, and that your offending is made more serious by your relatively senior role in the scheme, the level of sophistication of the scheme, and the length of the period of offending (15 months). The sophistication of the scheme may be inferred from a number of its features: you used mobile phones subscribed in false names; each of the seven consignments were sent to false consignees/aliases, at addresses that had been rented for short periods, for the sole purpose of receiving those consignments; at least some of the consignments required the drugs be extracted following a scientific process, on which you received specific instructions.
19It was conceded that your late plea of guilty has a utilitarian benefit and warrants a further discount due to the impact of the COVID-19 pandemic.[4] However, it was submitted that there was little evidentiary basis for a finding of remorse over and above that which inheres your plea of guilty.
[4] Worboyes v R [2021] VSCA 169.
20It was conceded that the likelihood of your deportation upon release is likely to make imprisonment more onerous for you, but it was submitted that its impact on you will be limited due to your lack of ties to the Australian community.
Defence submissions
21Your counsel conceded that your offending is inherently serious and that there were some indicia of sophistication in the conspiracy but submitted that you demonstrated naivety in leaving a digital trail behind. It was submitted that given your role and the quantity involved in the conspiracy, your offending sits toward the low end of the scale of offending for the offences of conspiracy to import a commercial quantity of a border controlled drug charge. Similarly, it was submitted that your failure to comply with an order under section 3LA was a relatively low level example of this offence.
22Your counsel submitted that you demonstrated remorse by pleading guilty and expressed remorse to Ms Lechner. It was submitted that your plea had utilitarian value in avoiding the need for a trial, and that an additional discount in sentence is warranted because your plea was entered at the time that the Court faces a significant backlog of cases due to the Covid-19 pandemic.
23Your counsel emphasised the delay of nearly three years between your arrest and the plea hearing and the social isolation you have experienced whilst on bail but also while on remand due to your limited English and absence of social support.
24She also submitted that custody will be particularly onerous for you because your limited English skills will make it difficult for you to socialise and engage in counselling and other programs, and because you are unlikely to receive any visitors. In addition, the likelihood of being deported upon your release will add to the anxiety and sense of uncertainty that you will experience during the course of any term of imprisonment.
25Finally, your counsel submitted that your prosects of rehabilitation are good, especially given your lack of criminal history, the fact that you have ended your relationship with Mr Nguyen, no longer take drugs, and have committed no further offences.
Sentencing Considerations
26The federal sentencing regime is set out at Part 1B of the Crimes Act 1914 (Cth).
27The court must impose a sentence that is of a severity appropriate in all the circumstances.[5] The court must not impose a sentence of imprisonment unless it is satisfied that no other sentence is appropriate in all the circumstances of the case.[6]
[5] Crimes Act 1914 (Cth) s 16A(1).
[6] Ibid s 17A.
28Whilst comparative cases may be illustrative, and each counsel handed up a table of comparative cases, consistency in federal sentencing arises from consistent application of the relevant legal principles rather than numerical equivalence.
29Where a court imposes upon a federal offender a sentence which, in the aggregate, exceeds three years imprisonment, the court must fix a non-parole period, unless it is inappropriate to do so.[7]
[7] Ibid ss 19AB(1), (3).
30Section 16A(2) of the Crimes Act 1914 (Cth) sets out a non-exhaustive list of factors that must be taken into consideration, where they are relevant and known to the court.
31On the authorities, unless there are particular circumstances warranting a different conclusion, general deterrence is the paramount sentencing consideration for drug trafficking offences.[8] The importation and trafficking of drugs has been aptly described as an “abominable social evil” that has “a devastating impact on lives, on families, and on communities”.[9] Whilst there are no specific victims of this offence, the offenders should be sentenced on the basis their offending has a deleterious impact on the community.[10]
[8] R v Nguyen; R v Pham [2010] NSWCCA 238.
[9] Lieu v the Queen [2016] VSCA 227, [54].
[10] Crimes Act 1914 (Cth) s 16A(2)(e).
32Where general deterrence takes precedence, personal factors such as prior good character carry less weight in sentencing. In sentencing you, I must consider the objective seriousness of your offending in the light of your position and the role you played in the drug trafficking/importation enterprise; the period of offending; the sophistication of the enterprise; your motivation in participating in the enterprise; the amount of drugs involved, or intended to be involved; as well as the weight of drugs involved; and any co-operation with law enforcement agencies.[11]
[11]This is not the primary or overriding factor but is relevant to determining the dimension of the enterprise and the expected profits to be derived; Lieu v the Queen [2016] VSCA 277, [42].
33I note that by your plea of guilty, you accept that over a period of 15 months: you agreed to import commercial quantities of methamphetamine pursuant to an agreement that was ongoing; you performed overt acts in furtherance of the agreement; that seven consignments containing methamphetamine were successfully imported into Australia; the minimum quantity of methamphetamine imported was 1060.1 grams (i.e. the contents of consignments 6 and 7), which constitutes 1.4 times the commercial quantity of that drug.
34In relation to charge 1, which is by far the most serious aspect of your offending, I consider that features of your offending show that it was reasonably sophisticated; that you were motivated by financial reward; and that your moral culpability is significant. These features include: you and your co-conspirator used mobile telephones subscribed in false names; each of the seven consignments were sent to false consignees/aliases; each of the seven consignments were sent to addresses that had been rented for short periods for the sole purpose of receiving those consignments; at least some of the consignments required the drugs be extracted following a scientific process, on which you received specific instructions. However, i also take into account that the weight of the drugs involved was not much more than the commercial quantity. Whilst acknowledging the inherent seriousness of your offending given the maximum penalty, I consider that your offending sits towards the lower end of the range of offending for conspiracy to import a commercial quantity of a border controlled drug.
35In relation to charge 2, I note that it cannot be treated as a circumstance of aggravation, but I merely note pursuant to s16A(2)(h) that there was no evidence of co-operation with law enforcement agencies. I consider that your failure to comply with the order under s 3LA was a relatively low level example of this kind of offence when compared with the seriousness of the offending comprising charge 1 and I note that this offending did not obstruct the police investigation.
36I consider that charge 3 is a relatively minor example of the offence of possess controlled drug.
37I also consider that the state summary offence of possess prohibited weapon is relatively minor in nature.
38In addition to the remorse which inheres your plea of guilty, I am satisfied that you expressed your remorse for your offending to Ms Lechner. While your plea was entered at a late stage (the first day of trial), you are entitled to a discount for pleading guilty, on the basis that you have saved the community the expense of running a trial. In addition, you are entitled to an additional amelioration of sentence because you made your plea at a time when the Court faces a large backlog of cases due to the Covid-19 pandemic.
39As you have no family or friends or social network in Australia, the mitigating impact of the fact that you face deportation upon being released is less than it would otherwise be.[12]
[12] DPP v Tewksbury (A pseudonym) [2018] VSCA 38, [96]; DPP v Wan [2018] VSC 195, [40].
40On the other hand, I also take into account that due to your poor English and the fact that you have no friends or relatives in Australia, that you will be socially isolated in prison, less able to engage in counselling and other programs and therefore that your experience in custody will be more onerous than that of another prisoner not facing these disadvantages.
41I also take into account the long delay of nearly three years in finalising this matter.
42Finally, I acknowledge that you are a relatively young woman with low self-esteem who is vulnerable to being influenced by others. I note that you have no prior convictions, have broken up your relationship with Mr Nguyen, and have not offended whilst on bail. I consider that if you remain drug free, and stay away from people involved in illicit drug importation and/or trafficking, you have reasonable prospects of rehabilitation.
43In all the circumstances, I consider that the appropriate sentence is as follows.
Sentence
44I note that were it not for the imposition of a term of imprisonment for charge 1, the remaining charges would not result in a sentence of imprisonment at all. Taking into account the principle of totality, I propose to direct that the sentences on charges 1, 2 and 3 are to be served concurrently.
45Ms Hong, would you please stand.
46On summary offence 4, which is a state offence, you are fined a sum of $100 with conviction.
47On the remaining charges, which are Commonwealth charges, you are sentenced as follows.
48On charge 1, you are sentenced to a term of imprisonment of 7 years commencing today.
49On charge 2, you are sentenced to a term of imprisonment of 1 month commencing today.
50On charge 3, you are sentenced to a term of imprisonment of 1 month commencing today.
51Given my indication concerning concurrency, the total effective sentence is one of 7 years, with a non-parole period of 4 years.
52I indicate that, but for your plea of guilty, the sentence I would have imposed would have been one of 10 years’ imprisonment with a non-parole period of 7 years.
53By virtue of s 16E of the Crimes Act 1914 (Cth) the time you have already spent in custody, that is, 102 days not including today, will be taken into account.
54I indicate pursuant to s 17A(2)(b) of the Crimes Act 1914 (Cth) that I have come to the conclusion that I have no option but to impose a term of imprisonment. I direct that my reasons for doing be entered into the records of the Court.
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