Director of Public Prosecutions v Kwag
[2023] VCC 1067
•23 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00749
Ind. M11892685
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEONG HWAN KWAG |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 December 2022, 8 February 2023 and 16 June 2023 |
DATE OF SENTENCE: | 23 June 2023 |
CASE MAY BE CITED AS: | DPP v Kwag |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1067 |
REASONS FOR SENTENCE
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Subject: Trafficking in a Large Commercial Quantity of drug of dependence (methamphetamine) 5x Large Commercial Quantity by pure weight. Trafficking in commercial quantity of cocaine. Knowingly deal with proceeds of crime. $895,000 cash. Retention of stolen goods. Summary offences: possess prohibited weapon and store explosives. 37 years of age at sentence. Early plea. Worboyes.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Simpson | Office of Public Prosecutions |
For the Accused | Mr P. Morrissey | Ann Valos Criminal Law |
HIS HONOUR:
1Seong Hwan Kwag, you have pleaded guilty to trafficking in a large commercial quantity of methylamphetamine, trafficking in a commercial quantity of cocaine, knowingly dealing with the proceeds of crime and dishonest retention of stolen goods. They are the four charges on the indictment. In addition, you have pleaded guilty to two related summary offences, being one charge of possession of a prohibited weapon and one charge of unlawfully storing explosives.
2The maximum penalties are correctly set out in the Crown sentencing submissions. The large commercial quantity charge is punishable by life imprisonment. Further, that charge and only that charge is subject to the standard sentence regime. The standard sentence for that crime is 16 years' imprisonment. The commercial quantity charge is no minor offence either. It is punishable by a 25-year maximum term of imprisonment and the proceeds of crime offence in the particular circumstances of this case is punishable by a 20‑year maximum.
3You are now 37 years of age and have a criminal history of no relevance to my task.
4The matter was opened to me on Friday of last week. The prosecutor Ms Simpson opened in accordance with a lengthy written opening dated 24 November 2022. That document was marked as Exhibit A. Your counsel Mr Morrissey told me that it was an agreed opening. I see no need then to set out all of the factual detail in my reasons as I will sentence in accordance with that agreed document and what is incorporated by it, for instance the many photographs within the depositions and the statement of analysis.
5I will say something briefly about the facts so that my sentencing remarks might be understood by anyone who happens to access them.
6By way of only a very brief summary then, on the afternoon of 6 September 2021, a fire alarm was activated in your rented apartment at 205/300 Swanston St, Melbourne. Firefighters attended and you eventually opened the door. You were soaked from the sprinkler system and gave unconvincing and conflicting accounts as to why the sprinklers had been activated. Firefighters worked to dam up the water and you gave them a towel with some blood on it which you said was from your hand. In the course of working to deal with the water, the firefighters made observations of some Snap Lock bags, SIM cards and crystalline substances scattered around the rim of the toilet bowl, with the toilet continually flushing. You were none too keen to have them there and shadowed them around the apartment. Large drums of acetone were observed behind a mattress and when asked what that was for, flustered and agitated, you said 'it’s not what you think'. Well of course, as later events were to prove, it was exactly as they thought.
7The police were informed, attended and arrested you on an outstanding warrant. That matter has no role to play in my task. It does not to this point even involve any finding against you and in any event, it relates to a totally unrelated subject matter.
8You had been injured in that you had sustained a burn to your shoulder. You would not say how. I should say the oven was on when the fire crews attended. You were taken to hospital and later to the police station where you were interviewed. The police told you that this was your opportunity to give your account as to what had happened. You provided a no comment interview, as was your right.
9The Clandestine Laboratory team arrived and they observed all the things commonly associated with the manufacture of drugs including various chemicals and glassware. Some cash was observed and the apartment was secured overnight.
10A warrant was obtained and the unit was searched more thoroughly the next day and the summary goes into great detail as to what was found. I will not. Amongst the items found were handwritten notes of chemical processes, chemicals and Snap Lock bags containing powder. There was chemical equipment and glassware containing solids within liquid, including in the freezer. A large number of SIM cards were located. There was a large amount of cash, over $895,000, and also a cash counter. Some of the cash was in trays or tubs. $135,000 cash was in a safe. There were also receipts from Bunnings and in fact CCTV footage subsequently obtained from that store showed you buying chemicals on earlier dates.
11The various items were seized and forensically examined. There was 2,668 grams of pure methylamphetamine. That was contained in various mixtures weighing over 7.7 kilograms.
12There was 235 grams by pure weight of cocaine in 939 grams by way of mixed weight.
13In relation to Charge 1, that is the large commercial quantity charge, the large commercial quantity threshold for methylamphetamine is 500 grams pure or 750 mixed. By either measure you are very comfortably over the large commercial quantity. More than 5 times by pure weight, 10 times by mixed weight. I note also that commercial quantity for that drug is fixed at 50 grams pure or 250 grams mixed. I do take Mr Morrissey’s point however that the pure weight is in this case perhaps the more significant measure. Here, the 7.7 kilograms mixed weight was spread out over a number of separate exhibits, some in solution, some not, so it can be distinguished from a setting where there was for instance a backpack with 7.7 kilograms of powder containing the 2.6 kilograms of pure drug. So in other words, powder 'ready to go' as it were. That is not what I was dealing with here.
14For the cocaine charge (Charge 2) the threshold for commercial quantity is 250 grams pure or 500 grams mixed. You were comfortably over the commercial quantity threshold by mixed weight and in fact for that drug you are only just below the large commercial quantity threshold by mixed weight. Large commercial quantity is 1 kilogram mixed or 750 grams pure.
15Apart from the $895,0000 cash, there were three stolen passports and other identity documents that were found, hence Charge 4. Also an extendable baton and some explosives hence the two related summary matters.
16You have been in custody since your arrest on 6 September 2021.
17The summary sets out the listing chronology.
18So much then for what is really only a brief summary of the summary in this case. I will sentence on the basis of the more complete agreed factual statement and the documents incorporated by that summary including the various photographs. Though it is obvious enough that you had been involved to some extent in some form of 'cook' which led to the triggering of the sprinkler system, the basis of the trafficking in this case is your possession on 6 September 2021 of these drugs for sale. Again, it is obvious enough that the broader context is of your activity not being isolated to that single day as was directly conceded by Mr Morrissey.
19This was undoubtedly serious offending. As I have said already, Charge 1 carries a maximum penalty of life imprisonment and is a standard sentence offence with a standard sentence of 16 years.
In Mitigation
20Your counsel Mr Morrissey conducted a thorough plea on your behalf on 16 June. He relied upon a written outline of plea submissions dated 7 December 2022 as well as three reports from consultant psychologists Luke Armstrong and Tracey Allen. There were also two letters from your brother, one from late 2022 and one from earlier this week. Finally, there was a brief letter of apology from you.
21In his plea, either by reference to the written materials that had been filed or by way of oral submissions placed before me, your counsel informed the court of the detail of your family and personal background. He also took me to your educational, employment and relationship history as well as to your history of drug use. He made some submissions as to the steps you had taken in custody and as to your rehabilitative prospects more generally. He made some submissions as to the objective seriousness of the offending and your reasons for descent into such serious offending as this. He made submissions as to the relevant sentencing purposes as well as the operation of the standard sentence regime. He made some submissions as to your role.
22Mr Morrissey chiefly relied upon the following matters:
· your early guilty plea;
· the presence of some remorse; and
· the increased prison burden of prison owing to the COVID-19 virus;
23He also made some submissions as to the operation of the serious offender regime and the presumption of cumulation arising from s6E of the Sentencing Act and emphasized the need to adequately take into account the principle of totality of sentence and to otherwise order concurrency to a large degree in this case. He conceded the inevitability of a substantial prison term and one obviously of a dimension where a substantial non-parole period would also be required. He referred me to a sentencing decision of one of my brother judges, a case of Larrain.[1]
[1]Director of Public Prosecutions v Larrain [2022] VCC 1405 (“Larrain”)
Prosecution
24Ms Simpson who appeared on behalf of the Director of Public Prosecutions, relied upon some written submissions. I see no need to set them all out in my reasons. I should say she amended some aspects of them in the running. For instance as to Paragraph 26, she submitted orally that the large commercial quantity charge was placed at a high level, not a low mid-range as was mentioned in the outline. Paragraph 27 likewise was amended in the running to read that the commercial quantity offence was said to fall at the high end of objective seriousness.
25The written submissions were marked as Exhibit B and set out some well-established matters of sentencing principle. I see no need to set them out as it was readily apparent that there was no controversy in relation to them. Mr Morrissey in fact worked his way through the Crown written sentencing submissions in the course of his plea and made it clear that there was no challenge to most, if not all, of what was contained within that document. Ms Simpson submitted that your actual role was virtually impossible to determine on the materials placed before me. The Crown, whilst not necessarily accepting your counsel’s description of your role, submitted that there was insufficient materials for the Court to be satisfied beyond reasonable doubt that you were actually a principal. However, the label or the tag was not the critical thing. They submitted that whatever your actual role, it was quite apparent that you were a vital player with a high level of trust and that though this was a single date charge, the conduct was not isolated. Mr Morrissey had made that concession saying it was readily apparent that all that was within your unit did not just drop from the sky on a single date. Well of course it did not.
26The prosecution submitted that your moral culpability for this offending was high. The Crown sensibly recognised the existence of a number of matters in mitigation despite the high seriousness of your offending. As I say, it was one of those pleas where there was really very little, if any, contest as between the parties.
Background
27I turn now then to your background but I am going to do that briefly as I have no reason not to accept the details of your family and personal background placed before me. I just see no need to set it all out in great detail. It is in fact set out in some detail in the first report of Mr Armstrong.
28It was not an ideal background by any stretch of the imagination, though I suppose the reality is that we, as judges sitting up here, see precious few of those. Your counsel made it clear that he was not relying in any way upon any of the principles from the Bugmy[2] or Hermann[3] line of authority. Your background is still of importance as after all, you are the person that I am sentencing. I take into account your background as far as I am able to.
[2]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’)
[3]DPP v Herrmann [2021] VSCA 160 (“Hermann”)
29You are now 37 years of age born in February 1986 in South Korea. You came to Australia with your parents at the age of 14 and I should say that you are an Australian citizen. I asked that question directly, as I do whenever I have an accused who has been born overseas. Mr Morrissey confirmed that you are an Australian citizen and so there is not the spectre of deportation hanging over this case, as there is in many others.
30Your father was a carpenter, and you have some pretty unhappy memories of your early childhood, with some issues in your father's life including alcohol abuse and also some violence. You are close to your mother. Less so to your father.
31When you came to this country at that age, you spoke no English and so of course it was a difficult transition, especially to schooling where you were bullied. Your secondary schooling was unsatisfactory and by then you were already abusing alcohol. You barely passed VCE and you worked as a waiter and then in telecommunications sales, and then, accounts and management.
32There were some periods of stability and you married and had a child. That marriage started to deteriorate in 2009 and your wife left you in 2013 and you started abusing alcohol and drugs. There was also some gambling.
33Initially, upon separation, you were seeing your daughter every week but that dropped off and was followed then by a number of years where there was no contact.
34You did some construction work with your father for a limited period of time.
35You have a criminal history made up of one appearance and really all that single appearance in 2019 does is impede Mr Morrissey from stating to the court that you have no history before the courts.
36It is of no relevance at all to my task. Nor the outstanding matter. I put those matters aside altogether.
37An offender’s individual circumstances will always be of importance. Your background really does not in any way explain this offending. Nor does drug use actually explain it given the scale of these crimes. The only thing explaining your offending is the lure of significant enough financial reward as Mr Morrissey readily concedes. However, the fact of the matter is that I have very serious crimes being committed by a man in his mid-30s and a man with no relevant criminal history at all. One always would look for some explanation of such abhorrent behaviour and it seems clear enough that your life hit a bit of a speed hump in 2013 from which you really have never recovered.
38Far more significant than the single matter in your criminal appearance which, as I say, is of no relevance to my task, is the absence of any other criminal record. This offending represents a pretty spectacular descent into serious crime and the absence of any relevant prior history for a man of your age is suggestive of someone who might yet be a decent bet to rehabilitate. I will turn to your prosects of rehabilitation a bit later in my reasons.
The reports
39I turn then to the expert material placed before me, the reports from Luke Armstrong marked as Exhibit 2 and the letter from Tracey Allen, marked as Exhibit 3.
40I see no need to descend to the detail of those reports. I have already mentioned the useful nature of the background contained within Mr Armstrong’s first report. The reports show me that there has been a process where you have taken some positive steps in custody. You have engaged appropriately with Mr Armstrong and Ms Allen and you have completed the MASC program that is referred to. You did not need to. You chose to. Whilst there is nothing relied upon in any of those reports or elsewhere in the materials to engage any of the principles from the case of Verdins[4], indeed those principles are specifically disavowed here (see para 18), the reports are quite encouraging and they are relied upon for that reason by Mr Morrissey. They give me a sense of your make up and also of course, your prospects of rehabilitation. The Crown accept that these reports can be taken into account in a number of ways including in making judgments as to your future prospects of rehabilitation. See paragraph 38 of the submissions made by the Crown. I take into account these reports in the way Mr Morrissey urges me to. They do not however lead to any real reduction in your culpability, as is accepted by your counsel. You knew that you were committing very serious crimes indeed and that is conceded.
[4]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
Guilty plea
41Let me turn then to the other matters raised on your behalf. Firstly, to your guilty plea. Well you have pleaded guilty. It is accepted that it was not a plea at the very earliest opportunity but it settled pretty swiftly once it came up to this court. I will treat this as an early plea and I take that early guilty plea into account in your favour. You have facilitated the course of justice. You have taken that early responsibility for your crimes. The community has accordingly been saved the time, cost and the effort associated with a committal being conducted in the Magistrates' Court or a trial conducted up in this court. Witnesses have not been required to give evidence in either court. There is a utilitarian benefit in pleading guilty in the way that you have. I take into account your early guilty plea and I will pass a lesser sentence owing to those various factors.
42I also take into account the heightened benefit of such a plea made amidst the global pandemic, for the many reasons spelt out in the decision of Worboyes[5] and a number of other that followed on from that decision. A large backlog of cases arose in the course of the global pandemic and yours is not one of them. It settled swiftly and there is a heightened value to your guilty plea even though we have emerged from the global pandemic. We still have a backlog and your case really has never been part of that backlog.
[5]Worboyes v The Queen [2021] VSCA 169
Remorse
43I turn to the issue of remorse. Your counsel argues that there is some remorse here to be implied from your guilty plea and from the materials more generally. A guilty plea is often, but not always, indicative of at least some level of remorse. The case against you was of course an overwhelming one. That fact does not in any way detract from the value afforded to your guilty plea. I have already spoken of those allowances and they are in no way dependent on whether or not I can find the presence of remorse or not.
44However, in the face of such a strong case as this, what can actually be inferred from your guilty plea? I have here your letter of apology and I have what you have told Mr Armstrong. I also have your efforts in custody.
45I consider all of the materials placed before me, not just the matters I have mentioned. I am ultimately prepared to find that there is some remorse in this case and I do take that into account in mitigation.
Rehabilitation
46I turn then to your prospects of rehabilitation. Your counsel was submitting that you had favourable or good prospects of rehabilitation. He pointed to your age and your very limited criminal history before the courts. Also your positive efforts in custody. You have pleaded guilty at an early stage and have a level of actual remorse.
47As against that of course, there is the serious and obviously calculated nature of these crimes and your long-term issues with drugs and alcohol.
48You have undergone some meaningful treatment at the hands of the psychologists and they are making encouraging noises. The sentences I will soon impose and the time you have already spent and will spend in custody deep into the future will surely serve to deter you to a large degree. You also still have family support as is made clear from the letters from your brother. I find that you do have favourable prospects of rehabilitation. I accept your counsel’s submissions that your future prospects are good.
COVID-19
49I turn to the aspect of COVID‑19 and the impact upon you a prisoner. It did not feature greatly in the course of the plea. I do accept that the COVID-19 virus and the response to it by those who manage the prisons has increased the burden felt by prisoners. Now that is a general statement of course. The extent of any increased burden will always be dependent on the actual conditions experienced on a case-by-case basis. I am prepared to find that it has increased your burden in that you have been in custody from September 2021. No doubt there would have been some worries about catching the virus in such a setting and no doubt you would have experienced the increased burden posed by quarantine and/or lockdown on occasions. Also of course, the absence of in-person visits and the absence of the full range of courses and programs being offered for some of that period.
50Things looked up in prison though from about March of last year and the restrictions have been very significantly eased.
51As to what lies ahead in the future on the COVID front for prisoners, well it is really impossible for the court to determine and I am really not free to guess about that. Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis. They would have the power to address any increased burden in your case by way of conferring emergency management days in relation to the sentence I am about to impose. I cannot know if that will take place or not but I make it clear that I do not proceed on the assumption that you will be credited with emergency management days. To take that into account in that way would be for me to contemplate future executive action, which is prohibited to me.
52I do not believe it is unreasonable though to think that prisoners may yet have some more minor issues thrown up by COVID-19 in the short-term. For instance there still might be the occasional lockdown and/or quarantine upon a positive test. I take that into account.
53So I take into account the increased burden imposed by the response to COVID-19 in the manners that I have described, so that which has arisen in the past and that which lies ahead.
The Offences
54I turn then to the offences. Your counsel conceded that this was very serious offending. He is right, it is. Your counsel placed before me your instructions as to your role.
55Though you instructed your counsel as to your role, you did not assist the authorities.
56Your instructions to your counsel are untested and I raised some of my concerns as to what you had said especially as to the extent of any anticipated financial reward. It seemed to me that on any view of it, you were highly trusted, whatever label or tag might be applied to describe your true role.
57Even if ‘only’ storing items, it would signify a very high level of trust to leave you, a drug user, in charge of large amounts of drugs and hundreds and hundreds of thousands of dollars of cash. It also seemed slightly strange to me that if your premises were being used to safely store drugs and chemicals and cash, that your principals would grant you leave to conduct an amateur cook in a setting where if it came unstuck, large amounts of drugs and cash might come to police notice, as in fact they did.
58When the cook that you were engaged in went awry, you were taking what seemed to be pretty much executive action, obviously flushing powder down the toilet.
59The basis of trafficking in this case is that you were in possession for sale. I know that much given your plea. As to your precise role, it really is impossible for me to know with any certainty. That is not an uncommon setting in this sort of case. I am however in this case not able to conclude beyond reasonable doubt that you were the or a principal. I have no reason to doubt that you used drugs but I am not satisfied on the balance of probabilities that your drug use had any large role to play in your decision to offend. Nor could I be satisfied on balance that any debts you might have had played any large role either. There really is no reduced culpability in this case. Given the scale of what you were involved in, unmistakably you were in this for very substantial financial gain. I cannot determine the actual extent of your anticipated financial gain.
60I do not accept on the balance of probabilities your instructions to counsel of your having some style of interest over $40,000 of the $895,000 cash found in the apartment. So, $40,000 or so of the money in the safe that you say that you had actually bought.
61The fact is in that safe alone there was $135,000. There were hundreds of thousands of dollars outside the safe, probably for no other reason than the safe was too small. I have no idea how much of that very large sum you were actually entitled to or how much money you had received or were likely to receive but the amount of money in the apartment gives a sense of the scale of the criminal enterprise that you were caught up in.
62You must have known how serious these crimes were. I have no doubt about that at all and nor does you counsel argue against that finding.
63Whatever your precise role, it was unmistakably a vital and trusted one or it would not have existed. Again, that is conceded. You are a relatively intelligent man and you were shouldering the sizeable risk and would not have done so unless the rewards on offer were very substantial indeed.
64Again, I make it plain, I am dealing with you for these drugs possessed for sale on the date on which they were found, not for any earlier illegal conduct. However, I am not satisfied on the balance of probabilities that this trafficking was to support your own need at all. Nor does your counsel suggest that it was exclusively driven by that. The quantity is in no way suggestive of a finding that this was trafficking to support your own need. Maybe your drug use had some minor role to play but you are a mile removed from those unfortunate addicts who are caught up in the pretty miserable existence of small-scale trafficking to support a habit. In a way, need and not greed is on display in those cases and in that sort of setting, there is the absence of the aggravating feature of financial gain. That is to say, the absence of greed. Moral culpability may be reduced in such a setting as that, and for obvious reasons. That is not the character of your crimes at all. There is only one reason to be committing these crimes at the scale you were committing them; large financial reward. That is accepted by Mr Morrissey. I am not convinced that the argument about your living in a pokey flat and in seemingly modest circumstances carries much weight given the scale of what was found within, but it must be said there is no suggestion of your living some sort of extravagant lifestyle on the materials.
65There has been, from time‑to‑time, criticism of the practice of Judges in this court applying adjectives to describe where the particular offending sits on the spectrum of offence seriousness (see the case of Weybury[6]).
[6]DPP v Weybury [2019] VSCA 120
66But other cases out of the same Court of Appeal make it plain that we have to engage in this process and that is because I do have to make a judgment as to the gravity of your offending. Now, here, whether dealing with the large commercial quantity charge or the commercial quantity offence, the weight of the drug is a fixed matter. The quantity of drug is undoubtedly always an important consideration. It is not the only or even necessarily the most important matter but often enough the quantity of the drug is the only matter distinguishing one case from another. I will not let the quantity of drugs swamp other considerations but plainly it is important to my task. I spoke earlier of the relationship that your quantity of drugs bore to the large commercial quantity threshold in the case of Charge 1 and to the commercial quantity threshold in the case of Charge 2. The fact is, in relation to the methylamphetamine, you had over 5 times the large commercial quantity by pure weight. You have not just marginally exceeded or tipped over the large commercial quantity threshold. You are well above it and this is a quantitative-based regime. As to the commercial quantity trafficking, the same applies in that you have not just edged over the threshold. By pure measure you are approximately 1.88 times over the commercial quantity threshold by mixed weight. In fact, as I said earlier, you are by mixed weight only just below the large commercial quantity threshold for the drug cocaine. I cannot then accept your counsel’s contention that on a quantity basis the offences themselves are as he puts it ‘relatively mild examples of the offence’, see paragraph 17 of the submissions. They plainly are not. Having said that though, of course, I recognise that large commercial quantity is the highest quantity specified in the Act and that therefore there is no upper limit to what constitutes a large commercial quantity. Whether a person has 500 grams pure or 5,000 kilograms pure, in each case it is a large commercial quantity.
67It is not part of my task to concern myself with the harmfulness of the given drugs. This is, as I say, a quantitative-based regime. I do note however that in Haddara[7] the Court of Appeal spoke of the prevalence of the offence of trafficking in methylamphetamine and the need to elevate general deterrence in the sentencing task.
[7]Haddara v The Queen [2016] VSCA 168
68Duration is what it is, one day. On 6 September 2021, you were trafficking in a large commercial quantity of methylamphetamine and a commercial quantity of cocaine, as you were on that day in possession of those drugs for sale.
69It is clear that you do not fall to be sentenced for events before that date even though your own counsel acknowledges that there were acts and that your conduct on 6 September cannot be viewed as isolated. It is not mitigatory that you are in possession for sale on the day of arrest. You stand to be sentenced for 2 instances of trafficking on that date and that is very often the case when a drug is seized as it was here. There are statements in Quah[8] as to some of the common fallacies surroundings submissions as to single date trafficking.
[8] Quah v The Queen [2021] VSCA 164; 290 A Crim R 136 (“Quah”) at [37] to [47]
70Sometimes there is a duration of offending alleged. In some cases, there can be material that might cast some light on an offender's role or the scale of the enterprise. There might be physical surveillance or phone intercepts or listening devices. There might be a documentary trail or even evidence from a co‑accused spelling out the duration of offending, there might even be covert purchases. The seizure here was a matter of pure chance as it arose from the activation of an alarm and the sprinklers, which led to the entry of the firemen and then the calling the police, so it was a chance discovery of your crimes.
71Well here, what I had was your no comment interview. It was your right to make a no comment interview. There was precious little said to Mr Armstrong and I had your untested instructions provided to your counsel. As I have said already, it is really nigh on impossible for me to determine your precise role or the precise nature of the financial reward.
72Though I am not satisfied beyond reasonable doubt that you were a principal, I am satisfied beyond reasonable doubt that you played a vital and trusted role in what you knew to be a serious high-level criminal enterprise. That is conceded.
73There is no reason at all for me to think that you were some minor player nor does your counsel suggest that you were. It is quite the opposite actually given your possession of this quantity of drugs and equipment and cash. It speaks of the level of trust. As I have said, financial gain undoubtedly was the principal motivation here for you. Greed and not need.
74Your culpability is high. You were a mature man committing what you must have known were very serious crime, of that I entertain no doubt at all.
75The trafficking constituted by Charges 1 and 2 is very serious offending.
76I also have the serious offender provisions which will come into play when dealing with you for the commercial quantity trafficking. By that point you will fall to be sentenced as a serious drug offender and the protection of the community will be the principal purpose of sentencing. I have the ability for that offence to impose a disproportionate sentence to achieve that purpose but I certainly will not be doing that here.
77The proceeds of crime offence is a serious example of the offence relating as it does to over $895,000 cash. It is serious offending and that is not dependent on any finding that you were somehow the beneficial owner of the whole sum or even a large part of it. They were the proceeds of crime and you knowingly dealt in those proceeds with the intention of concealing them. The retention of stolen goods charge is the least serious offence on the indictment. The summary offences are less serious still and really the least of your concerns.
Purposes
78I have to consider a number of purposes of sentencing. Rehabilitation is one such purposes and I do not ignore it. I view your prospects favourably as I have announced.
79I am required to punish you justly and proportionately. Punishment is clearly an important sentencing purpose for this style of offending committed on this scale.
80I must also denounce your conduct. That too is important.
81Community protection is also of some importance given the nature of these crimes. It in fact will be the principal purpose of sentencing for Charge 2.
82Deterrence looms large in this sort of case. There is of course the need for this court to seek to deter you, and also others from offending in the future.
83Specific deterrence relates to the need to deter you and I believe that that purpose will, to a large degree, be achieved by the very sizeable prison sentence which I will soon impose. I have mentioned already my relatively favourable views as to your future prospects. I would be surprised if you re‑offended in this way ever again.
84General deterrence is however an important purpose of sentencing in this case.
85Illegal drugs have had a devastating impact on our community. Drugs cause untold misery to the many who use them and to the families of those many who use them. They destroy lives. Those who make the decision to traffick in drugs at the level you did really should not expect much by way of leniency.
86People such as you who traffick in drugs at this level are always taking a calculated risk. You were. People hope that the potential financial rewards on offer, the large rewards, will justify taking that risk. Of course, they hope not to be caught. You knew that you were playing a very high stakes game here.
87We get a sense of the scale of rewards potentially on offer as evidenced by the amount of cash in that apartment. That is not to say that I find that you are the owner of the cash or the principal here. I do not. But it signifies the nature and the wealth of the criminal organisation that you were engaged in.
88The seriousness with which Parliament regards drug trafficking can be gleaned from the very large maximum penalties provided for. I have said already, Charge 1 is punishable by life imprisonment. It also has that standard sentence.
89The courts through the sentences imposed seek to deter future like‑minded offenders from committing these serious offences. To have them turn away and to actually process the very sizeable risks.
90I must pay regard to current sentencing practices though it is not a single controlling factor and of course for the standard sentence offence, I must only have regard to sentencing practices arising in relation to matters covered by that scheme. So sentences imposed for large commercial quantity trafficking not covered by the standard sentencing scheme are not to be taken into account in assessing past sentencing practices.
91I have looked at the relevant portions of the Judicial College of Victoria Sentencing Manual Case Summaries.
92I have looked also at the case of Gregory[9] which is in fact relevant to each of the trafficking charges.
[9] Gregory (a pseudonym) v The Queen [2017] VSCA 151; 268 A Crim R 1 (“Gregory”)
93I have also looked at the Sentencing Advisory Council Snapshot No. 269 of 2022 dealing with the large commercial quantity charge. It is a problematic Snapshot as plainly, a large enough number of the matters covered by that data would not have been the subject of the standard sentence regime given that the data spans the periods from 2016-17 to 2020-21. However, as I said earlier this morning, a very new feature of the Sentencing Advisory Council online data is the ability to look at the statistics held only in relation to past sentences relating to offences covered by the standard sentence scheme and I have looked at that material.
94I have looked also at the Snapshot No. 268 of 2022 for commercial quantity trafficking. It must be treated with caution given that the statements of the Court of Appeal in Gregory and cases beyond might have not been reflected in that data given the period in which those sentences had been imposed.
95I have looked also at the online statistics for the proceeds of crime offence.
96The Court of Appeal concluded in the case of Gregory that the current sentencing practices for serious examples of commercial quantity trafficking were inadequate. Plainly then, there has to be some caution in looking at sentences imposed prior to that decision or the data contained in the statistics from sentences which predate that decision.
97The Court of Appeal in Gregoryidentified features which would lead to the expectation of sentences for commercial quantity trafficking advancing well into double figures. See paragraph [98] of the decision. One factor was if the quantity was close to the large commercial quantity. Another was a finding that a person had a senior role, or role in charge, or lengthy duration of offending, or a person having relevant prior convictions or for that matter being convicted following a trial. There were a variety of matters which the Court of Appeal said would lead to far greater sentences being imposed in the future in serious examples of that crime.
98They went on to say that had they not been constrained, as they then thought they were, by current sentencing practice, that a sentence of 13 to 15 years would have been within range on a guilty plea in that case. These were very high numbers indeed and they signalled a very different range of sentences into the future for some commercial quantity traffickers. Well, that case of Gregory has been followed and affirmed in many cases since, including the case of DPP v Fatho[10] and Huynh[11], Sharbell[12] and Condo[13]. I was referred also to the case of Quah which dealt at length with the ramifications of Gregory for some instances of commercial quantity trafficking but also the ‘knock on effect’ for the crime of large commercial quantity trafficking. That knock on effect was mentioned in the case of Rahmani.[14]
[10]Director of Public Prosecutions v Aysar Fatho [2019] VSCA 311
[11] [2019] VSCA 311
[12]Sharbell v The Queen [2018] VSCA 324
[13]DPP v Condo [2019] VSCA 181
[14]Shahin Rahmani v The Queen [2021] VSCA 51
99I have mentioned the statistics but statistics have inherent limitations. They do not assist me. Nor do other sentences actually greatly assist me. Each counsel took me to some cases. Mr Morrissey took me to a case of Larrain. That is a decision of a single judge of this court. It is not even an appellate decision. The Crown took me to cases of Dukic[15] and also Quah, which I have already mentioned.
[15]Sasa Dukic v The Queen [2021] VSCA 18
100I have read all the cases and as is usually the position, I found that there were differences ‘all over the shop’. Differences in quantity and role and duration. Differences in matters in mitigation and in aggravation. Differences in matters personal to the given accused. Mr Morrissey spent a bit of time on the case of Larrain and argued that Larrain’s offending was more serious. Really the unspoken slant of that style of advocacy is that therefore, you ought do better than Larrain did by way of sentence. Well of course that is not the law at all. I am not passing sentence upon Larrain. Nor was the sentence imposed upon him the only available sentence open to the court. There is no such thing as one correct sentence.
101Another Judge might have imposed a greater or a lesser sentence upon that person and not fallen into error. There were some personal matters in his case which do not apply in your case and no doubt some matters in your case that do not apply in his. That decision is no more than a single example of a sentence imposed in another case. Another offender committing other crimes sentenced by another Judge. It is not a precedent to be followed and it does not set some notional ceiling in your case. In fact it says very little, if anything, about the appropriate sentence required in your case.
102Nor was I assisted by the decisions I was taken to by the Crown in terms of the actual sentences imposed in those cases. Again, there were differences aplenty. They were not comparable.
103Of far greater importance than past instances of actual sentences imposed are the matters of principle referred to within the cases. There are many such statements of principle in the cases to which I have referred including in the case of Quah.
104My task is to sentence you for your crimes. That is not a mathematical or statistical task or one where the outcome is driven by what has happened in another case.
Standard Sentence Scheme
105As I said earlier, the standard sentence scheme applies only to one of the matters before me, being the charge of large commercial quantity trafficking.
106I must have regard to that standard sentence.
107The effect of that scheme has been discussed in a number of cases including Brown,[16] Victorsen[17] and also in Quah, which I have mentioned a few times now.
[16]Brown v The Queen [2019] VSCA 286
[17]Victorsen v The Queen [2020] VSCA 248 (“Victorsen”)
108I also have regard to the discussion of that provision that is set out in the Judicial College of Victoria Sentencing Manual.
109Pursuant to s71(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), the period of 16 years is the standard sentence for the offence of trafficking in a large commercial quantity. That period is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness, see s5A(1)(b) of the Sentencing Act 1991 (Vic). So that is to say, without reference to purely personal matters, see s5A(3)(a).
110Viewed objectively, for the reasons that I have provided, this is a serious enough example of the offence of large commercial quantity trafficking. You have not just tipped over that threshold. Your role was vital and you were obviously highly trusted. The quantity significantly exceeds the large commercial quantity threshold. I have said a moment ago, it is an unlimited ceiling beyond that threshold. I do not lose sight of the fact that the amount here is nothing like the massive quantities that can be captured by this offence. There is no ceiling and so it follows then that you are a long way removed from the most serious examples of the offence that are brought before this court. Having said that though, you are also a fair distance removed from the least serious examples. It is my view that this instance of large commercial quantity trafficking falls at least at the mid-range taking into account only those objective factors affecting the seriousness of the offence.
111What is plain though from the SentencingAct provisions and from those decisions interpreting the relevant provisions, is that the standard sentence is only one of a number of matters that I am required to take into account, see s5B(3)(a) and (b). Where it does apply, as it does here, I must take it into account as one of the factors, but this scheme was not intended to interfere with the intuitive synthesis that really lies at the heart of sentencing nor was it designed to lead to two-stage sentencing.
112It does not have primacy over other factors which must be taken into account. It introduces an additional factor in the form of this legislative guidepost.
113It does not represent a starting point from which the sentence should be fashioned or structured. I am not to start at that point in relation to Charge 1, large commercial quantity trafficking, and then work my way either up or down from that standard sentence figure, making a series of adjustments in either direction.
114Nor does this scheme otherwise affect the matters that a court must take into account. It does not change the requirement to assess the seriousness for the offence or the means of assessing the seriousness of the offence.
115I mentioned a moment ago that the provisions do impact upon the consideration of past sentencing practices for the crime covered by the scheme. When considering sentencing practices, or looking at comparable sentences, I must only have regard to sentences imposed for the offence of large commercial quantity trafficking when it was dealt with as a standard sentence offence. Sentences imposed for crimes which predate the scheme are not to be taken into account but of course that does not impede my taking into account statements of principle from cases which happen to predate the scheme. That certainly is not prohibited.
116The standard sentencing regime also has consequences for the setting of a non‑parole period and the ratio of the non-parole period to the head sentence. See s11A(4).
117I take into account the submissions made by your counsel and those made by the prosecutor. I take into account all the written material that has been filed in the course of the plea.
118Prison is always a disposition of last resort. Your counsel conceded the inevitability of a substantial prison sentence requiring the fixing of a substantial non-parole period. Of course, he was quite right to make that concession. It was obvious one in the setting of this case.
119I have to proceed on the footing that you will serve every day of the head sentence that I will soon pronounce. I am not able to take into account the possibility of early release on parole. I am required by law to fix a non-parole period but it is the Adult Parole Board, which will make the decision as to whether you can be released. It has nothing to do with me. I will in the circumstances make provision for a decent enough gap between the head sentence and the non-parole period in this case.
Totality
120I take into account the principle of totality of sentence.
121I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. Your overall criminality here was high. The most serious offence obviously is the large commercial quantity trafficking charge for the reasons that I have announced to date. However, Charge 2 is itself a very serious offence in its own right. It relates to a very sizeable quantity of a different drug and by then, you fall to be sentenced as a ‘Serious Drug Offender’. The presumption of concurrency is hence removed and replaced by a presumption of cumulation unless concurrency is otherwise ordered under the provisions of s6E. That provision undoubtedly modifies the principle of totality. Totality is obviously though still a significant consideration here notwithstanding that provision, as there is a temporal relationship between the offences as well as a form of link in that you were trafficking in drugs of two types on this one day. I believe that there must be a quite sizeable moderation of the level of cumulation as between those two sentences. So I will be ‘otherwise directing’ in due course.
122The proceeds of crime offence is not subsumed by either of the trafficking charges. The trafficking charges are as I have said, single date offences. They are not between dates offences from whence it is said the proceeds of crime have sprung. There is not that relationship between the charged trafficking and the proceeds offence as seemed to exist in the case of Larrain. Nor was Larrain even dealt with under the same provision. The maximum in his case was 15 years rather than the 20 years in your case, as his charge did not contain the element of intentional concealment under s194(1) as your charge does. The retention of stolen goods is obviously less serious and obviously so too the summary matters that I have scarcely mentioned.
123I have engaged in a last look at the overall effect of the sentences imposed by this court and I have done that to guard against the imposition of a crushing term upon you. However, a very sizeable prison term is demanded here. That is just the reality of offending at this level. The maximum penalties provided for and the standard sentence scheme make pretty clear that life altering sentences may well await those who engage in these crimes when they are committed at certain levels.
124There are a couple of ancillary orders in this case.
Forfeiture
125The first of those is a forfeiture order sought pursuant to the provisions of s.33 of the Confiscation Act 1997 relating to the various items set out in the schedule which include the detonators and the safe and the cash for that matter. There is no opposition to the making of the order. I am satisfied the conditions exist for the making of the order under the relevant provisions. I order pursuant to s.33 of the Confiscation Act that the property referred to in the schedule be forfeited to the Minister.
Disposal
126Secondly there is a disposal order sought under the provisions of s.78 of the Confiscation Act. Again, it is made without any opposition. I am satisfied the conditions exist for the making of that order. I order pursuant to the s.78 of the Confiscation Act, the forfeiture to the State of the large amount of property referred to in the Schedule and I direct that it be handled and dealt with in the manner contemplated by the signed order which I have announced in an abbreviated form.
127I am sorry I have taken so long to get to this point, Mr Kwag. I will have you stand up now if you would please and I will pass sentence upon you.
Sentence
128On Charge 1, which is the charge of trafficking in a large commercial quantity of methylamphetamine, I convict and sentence you to 13 years' imprisonment. That is the base sentence.
129On Charge 2 trafficking in a commercial quantity of cocaine, I sentence you as a serious drug offender. I convict and sentence you to 9 ½ years' imprisonment.
130On Charge 3 knowingly dealing with the proceeds of crime, I convict and sentence you to 3 ½ years' imprisonment.
131On Charge 4, retention of stolen goods, you are convicted and sentenced to 3 months' imprisonment.
132On the two related summary matters I do not believe they even warrant a term of imprisonment. I convict and fine you the sum of $300 on each of those charges.
133The base sentence is therefore the 13 years imposed on Charge 1.
Cumulation
134I direct that 2 years of the sentence imposed on Charge 2 and 1 year of the sentence imposed on Charge 3 is to be served cumulatively upon the base sentence and upon each other.
135I am to that extent otherwise directing concurrency under s6E in relation to Charge 2.
136The sentence imposed on Charge 4 will be served concurrently upon the base and part concurrent sentences.
Total effective sentence
137These orders then produce a total effective sentence of 16 years' imprisonment.
138Under the relevant provisions of the Sentencing Act I must fix a non-parole period of at least 60% of that total effective sentence unless I consider it to be in the interests of justice to fix a lower ratio. I am not satisfied it is in the interests of justice to fix a lower non‑parole period but as I have said I will provide for a quite decent gap between the head sentence and your non‑parole period.
Non-parole period
139I fix a period of 10 years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
140You have already served 655 days of this sentence by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA
141I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have sentenced you to 21 years' imprisonment. I would have fixed a non-parole period of 15 years. That declaration is also to be entered into the records of the court.
Serious Offender section 6F
142I have sentenced you as a serious drug offender in relation to Charge 2 and that fact will also be noted in the court records.
Section 89DI
143Having been convicted on Charge 1 for a ‘serious drug offence’, that is the large commercial quantity trafficking, I declare that under s89DI of the Sentencing Act, you are a serious drug offender.
Statement as to Standard sentence.
144I must also make a statement pursuant to s5B(4) and (5) of the Sentencing Act. Section 5B(4) requires a court sentencing an offender for a standard sentence offence as I am here, to state the reasons for imposing that sentence. Section 5B(5) requires me to refer to the standard sentence for the offence of large commercial quantity trafficking and explain how the sentence I have imposed on you relates to the standard sentence.
145I am required to identify the facts, matters and the circumstances which bear upon the judgment that I have reached as to the appropriate sentence for that crime.
146I believe that my lengthy reasons to this point would surely explain why the sentence imposed in relation to the single offence covered by the standard sentence scheme is lower than the standard sentence specified. I regard the crime as being a serious enough example of large commercial quantity trafficking falling at least at the mid-range looked at purely objectively.
147Of course, my sentencing task is not limited to an examination of the objective seriousness of the offence. There are many other matters that come into play including subjective matters in mitigation which must be factored into my task.
148By the process of instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentence, taking into account all the matters I am required to take into account, including the existence of the standard sentence scheme. It is, as I have said, but one of many of the factors that I must have regard to.
149Grab a seat then please I will see if there are there any other matters I will need to deal with. From your perspective, Ms Simpson, any other matters?
150MS SIMPSON: No, Your Honour.
151HIS HONOUR: Mr Morrissey, any issue?
152MR MORRISSEY: No, Your Honour.
153HIS HONOUR: I'll stand down till 11.30, thanks.
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