Director of Public Prosecutions v Kwong
[2025] VCC 380
•2 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
Case No. CR-23-02159
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAN YEAN KWONG |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2025 | |
DATE OF SENTENCE: | 2 April 2025 | |
CASE MAY BE CITED AS: | DPP v Kwong | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 380 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Trafficking in a drug of dependence (commercial quantity), 2338.1 grams of cocaine – Trafficking in a drug of dependence, 15.6 grams of methylamphetamine – Role in the offending – General deterrence – Denunciation – No criminal history – Late plea – Remorse – Good prospects of rehabilitation – Unlawful non-citizen at time of offending.
Legislation Cited: Drugs, Poisons and Controlled Substances Act1981; Sentencing Act 1991.
Cases Cited:Gregory (a pseudonym) v TheQueen [2017] VSCA 151; Barbaro v The Queen [2021] VSCA 277.
Sentence: Total effective sentence of 5 years and 9 months’ imprisonment with a non-parole period of 3 years and 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z Petric | Office of Public Prosecutions |
| For the Accused | Ms K Ballard | Slades & Parsons |
HIS HONOUR:
1Tan Yean Kwong, on 24 February 2025, you pleaded guilty to two charges on Indictment number P11536208.1. The pleas were entered shortly before your trial was due to commence.
2Charge 1 is an offence of trafficking in a drug of dependence – commercial quantity, namely cocaine, contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act1981. This offence is a Category 2 offence[1] and carries a maximum penalty of 25 years’ imprisonment.
[1] Sentencing Act 1991, s 5(2H).
3Charge 2 is an offence of trafficking in a drug of dependence, namely methylamphetamine, contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act. This offence carries a maximum penalty of 15 years’ imprisonment.
Circumstances of the offending
4The circumstances of your offending are set out in an agreed prosecution opening which was read out in Court.[2]
[2]Exhibit A.
5At the time of the offending, you were 35 years of age and resided in an apartment on Station Street, Box Hill (‘apartment’) with a Mr Lye (‘Lye’) who rented the apartment. You were an unlawful non-citizen as your tourist visa had expired.
6Investigators obtained text messages between Lye and a Mr Choo which indicated that Lye was trafficking in commercial quantities of drugs of dependence. Subsequently, on 21 March 2023, investigators executed a search warrant at the apartment and an associated storage cage, as well as a silver Toyota Camry.
7Police officers were unable to open the apartment door using a master key and used a ram to gain entry. You and Lye were located in your respective bedrooms.
8After police officers observed clear resealable bags containing methylamphetamine on the top shelf of a desk in your bedroom, you were relocated to a couch in the living room and arrested.
9Police officers located and seized the following items:
Your bedroom
(a) Three mobile phones and a Samsung tablet, located inside a bedside desk;
(b) Apple iPad, Apple iPhone, three sim cards and four ziplock bags containing 6.5 grams of methylamphetamine, located on the top shelf of a bedside desk; and
(c) ziplock bag containing 1.7 grams of methylamphetamine, located on the top shelf of a cupboard.
Open box situated on the living/dining room table
(d) seven ziplock bags containing cocaine with a combined weight of 38.3 grams;
(e) three ziplock bags containing methylamphetamine with a combined weight of 7.4 grams;
(f) seven ziplock bags containing further bundled ziplock bags;
(g) a small set of scales;
(h) an ‘Ice’ pipe; and
(i) a black mobile phone, situated on a table near the box;
Kitchen cupboard
(j) a large ziplock bag containing 308.8 grams of cocaine at 14% purity.
10A review of Lye’s mobile phone alerted investigators to a nearby storage unit which you were renting in Box Hill. Investigators executed a search warrant at the storage unit, unlocking a padlock to the unit using a set of keys found inside the Silver Toyota Camry, which was parked in a public carpark near the apartment.
11The following items were located and seized from the storage unit:
(a) a silver pan;
(b) one vacuum sealed bag containing cocaine at 92% purity weighing 992.1 grams;
(c) one vacuum sealed bag with black marking ‘1000’ containing cocaine at 10% purity weighing 999.2 grams;
(d) a clear resealable bag containing gloves;
(e) a set of digital scales;
(f) a plastic bag containing gloves and sandwich bags; and
(g) a padlock.
12Following the search of the apartment, you and Lye were taken to Box Hill Police station. You made some admissions in your formal police interview.
13CCTV footage depicts you driving the Silver Toyota Camry to visit the storage unit on 10 and 13 March 2023. At 10:03pm on 10 March, you are seen entering the storage facility and running towards the storage unit, before leaving the facility approximately one minute later carrying a large brown package which appears to be full.
14On 13 March 2023 at approximately 9:42pm, you and Lye are seen entering the storage facility and walking towards the storage unit, before leaving the facility approximately six minutes later.
15On 18 March 2023 at approximately 8:28pm, Lye is seen entering the storage facility alone, walking towards the storage unit carrying a black satchel and leaving the facility approximately three minutes later carrying the same satchel.
16An activity log revealed recent access to the storage unit by you between 16 February 2023 and 20 March 2023.
17The Samsung mobile phone seized from your bedroom was analysed by investigators, revealing that you were trafficking in methylamphetamine from at least November 2022 until January 2023.
18The drugs located and seized from the apartment and storage unit were forensically analysed. In summary:
(a) The total amount of cocaine located and seized from the apartment and the storage unit was 2338.1 grams (Charge 1 – Trafficking in a Drug of Dependence, Commercial Quantity).[3]
(b) The total amount of methylamphetamine located and seized at the apartment was 15.6 grams (Charge 2 – Trafficking in a Drug of Dependence).
[3] The total amount of cocaine located at the apartment was 346.8 grams.
19DNA analysis revealed you to be one of three contributors to the zip lock bag containing 26.8 grams of cocaine and the zip lock bag containing 2.6 grams of methylamphetamine. You were excluded as being a contributor to each of the vacuum sealed packages containing cocaine located in the storage unit.
Personal circumstances
20You were born in Malaysia in 1987 and are now 37 years of age. You grew up in Penang with your parents and younger brother and sister.
21Your father, now aged around 60, worked away in the construction industry and was rarely home during your childhood. You spent time with him during the holidays at the end of each year and were not very close to him. Your mother, now aged around 58, worked full-time at a supermarket. You shared a close relationship with her as well as your paternal grandmother, who cared for you and your siblings while she lived with you all in the family home.
22Your parents divorced when you were around 18 years old. Your brother is married with two children. You have had little contact with him since you arrived in Australia. You understand your sister, an accountant, still lives with your mother in Penang.
23Soon after completing schooling in Penang, you began working as a labourer for a glazing company at around the age of 18 or 19. You installed windows on residential properties until 2011, earning a modest wage and struggled to get ahead. You had one significant relationship, which ended in 2010 when your partner left to the United Kingdom to explore work opportunities.
24In early 2012, you came to Australia for the first time on a tourist visa seeking better opportunities. You initially found work in construction which ended due to the COVID-19 pandemic. It was through your labouring work that you were introduced to methylamphetamine. You used it occasionally with friends before becoming addicted.
25In 2021, your grandmother passed away in Malaysia. The grief you suffered from her passing was compounded by the stress of your precarious economic situation. You wanted to return home, but struggled to make it happen. Your feelings of worry and angst culminated in you inflicting self-harm by cutting your arms. You were hospitalised for a brief period before seeking respite with friends in country Victoria.
26Having had time to reflect, you are now cognisant of the damaging impact drug use has inflicted on your life. You have been drug-free and feeling noticeably better since your arrest.
27I was told you have lost contact with your family after your mobile phone was seized by investigators some two years ago. You plan to re-unite and live with your sister and mother in Penang once you are deported back to Malaysia following your release.
No Criminal history
28You have no prior convictions, no subsequent matters and there is nothing else pending.
Objective gravity
29Plainly, Charge 1, which carries a maximum penalty of 25 years’ imprisonment, is an extremely serious offence. Charge 2 is also inherently serious, carrying a maximum penalty of 15 years’ imprisonment.
30In respect of Charge 1, you were in possession of 2338.1 grams of cocaine ranging in purity between 10 and 92 percent. This is a very significant quantity, just under 4.7 times the commercial quantity and over two times large commercial.[4] The bulk of the cocaine, nearly two kilograms, was securely stored in a storage unit.
[4]Commercial quantity is 500 grams mixed and large commercial is 1 kilogram mixed.
31While the weight of drugs involved in the trafficking is a very significant matter, it is one of many factors to be taken into account. Your role in the subject offending is an important consideration.[5]
[5]See for example, Gregory (a pseudonym) v The Queen [2017] VSCA 151, [24].
32In a nutshell, you allowed the warehousing of a drug of dependence so that it was stored in a safe and secure place from where others could dispose of it and make significant profits.
33As a result of your increasing addiction, you accumulated significant debts. You agreed to allow others to store the cocaine in a safe place where its presence would not be detected in return for your debts to be wiped out. Other than your debts being wiped out, you were not to gain any other financial reward from the sale of the cocaine stored at the unit. By allowing the cocaine to be stored, you accept that you played what I consider to be an important role in avoiding detection and facilitating the sale of at least a commercial quantity of cocaine. It is accepted by the prosecution that you did not handle the cocaine or know the precise quantity, which turned out to be significant. Other than allowing its storage, you were not going to be involved in its sale. I also bear in mind that I am sentencing you in respect of offending limited to a single day.
34Therefore, while the quantity is significant, I bear in mind your role in the offending subject of Charge 1. Of course, in addition to the cocaine secured at the storage unit, 346.8 grams of cocaine was recovered from the apartment. You accept that you were in possession of that cocaine for the purpose of sale.
35In respect of Charge 2, you were in possession of 15.6 grams of methylamphetamine ranging in purity between 85 and 88 percent. In addition, you were in possession of various accoutrements associated with drug dealing. However, I bear in mind that I am sentencing you for trafficking simpliciter, pertaining to a single day involving your possession of drugs for sale. I accept that you were a heavy user who funded your use by selling.
36There is no doubt that general deterrence, denunciation, just punishment and community protection are important sentencing purposes.
37In Barbaro v The Queen,[6] the Court of Appeal stated:
The proliferation of illicit drugs in the community, and the significant harm and suffering caused by them, has had the consequence that the courts, in sentencing offenders who have been engaged in the drug trade, must impose sentences that are of sufficient severity to make plain that any person, who is minded to participate in that trade, will, upon apprehension, suffer a significant period of deprivation of his or her liberty. It is only in that way that the courts can do their part in combating the scourge of the proliferation of drugs.
[6][2021] VSCA 277, [70] (Kaye and T Forrest JJA).
Defence submissions
38I was assisted by the written,[7] and oral submissions of your counsel, Ms Ballard.
[7]Exhibit 1.
39Ms Ballard relied upon the following matters in mitigation:
(a) your limited role in the offending;
(b) your lengthy period on remand and progress;
(c) lack of any criminal history;
(d) the utilitarian benefit of your pleas of guilty;
(e) remorse; and
(f) your good prospects of rehabilitation.
Role in the offending subject of charge 1
40In respect of the cocaine at the storage unit subject of Charge 1, Ms Ballard submitted that the court must not be swayed simply by the quantity, which is an important factor, but pay regard to your limited participation. The agreed basis is set out in paragraph [6] of Ms Ballard’s written submissions. While I have dealt with your role when considering the seriousness of your offending, I shall set out here the contents of this paragraph [6]:
(a) [You] knew that a drug of dependence was being stored at the facility;
(b) [You were] aware of the likelihood that [you were] facilitating the possession for sale of at least a commercial quantity of a drug of dependence;
(c) [You were] not aware of the precise quantity of drugs being stored;
(d) [You] had not inspected or handled the drugs;
(e) [You] possessed the drugs in the storage facility for someone else;
(f) [You were] not the person who would ultimately sell the drugs;
(g) [You] agreed to store the drugs at the facility because [you] owed money to someone;
(h) [You] did not stand to financially gain from the eventual sale of the drugs; and
(i) The possession for sale was on a single date.
41You have been in custody for a significant period since your arrest as a remand prisoner. I accept that the fact that English is not your first language and that you have had no visitors in custody, would have, and will continue to make your time in custody more burdensome. You have had no contact with your family abroad and they do not know that you are in custody.
42On a more positive note, you have abstained from illicit substance use for an extended period since your arrest. You are feeling better both mentally and physically. You have completed courses in food handling and Occupational Health and Safety. You have been working five days a week in the kitchen. You have maintained a low profile and have been of good behaviour. You recognise the ills that your addiction has brought in your life. It is hoped that recognition is maintained once you are released. You understand that, bearing in mind your unlawful status, you will be deported back to Malaysia.
43Although late in the day,[8] the resolution entitles you to a sentencing discount. The resolution has saved some court time and expense associated with a trial. By pleading guilty you have accepted responsibility for this serious offending and facilitated the course of justice. In addition to the utilitarian benefit, I accept that you have demonstrated some remorse.
[8]The matter was listed for trial which included a charge of trafficking a large commercial quantity (cocaine). This resolved to a plea to a commercial quantity, in addition to the trafficking of methylamphetamine.
44Bearing in mind your lack of priors, the insight you are developing, and the fact that you have been clean of illicit substances for a significant period, I am prepared to accept that you have good prospects of rehabilitation.
Prosecution submissions
45I have taken into account Mr Petric’s submissions on behalf of the Crown, highlighting the gravity of the offending and the relevant sentencing purposes.[9] I have also considered the sentencing decisions set out in the written submissions.
[9]Exhibit B.
Sentencing
46Having taken into account all relevant matters and circumstances, Tan Yean Kwong, you are sentenced as follows:
· On Charge 1, trafficking cocaine – commercial quantity, you are convicted and sentenced to 5 years and 6 months’ imprisonment.
· On Charge 2, trafficking methylamphetamine, you are convicted and sentenced to 15 months’ imprisonment.
47The sentence on Charge 1 will be the base sentence. Three months of the sentence on Charge 2 will be served cumulatively upon the sentence on Charge 1. This makes a total effective sentence of 5 years and 9 months’ imprisonment.
48I direct that you serve a non-parole period of 3 years and 8 months.
Pre-sentence detention
49Pursuant to s 18 of the Sentencing Act 1991, the period of 743 days of pre-sentence detention, not including today’s date, is declared as having already been served in respect of this sentence.
Section 6AAA declaration
50Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months.
51I grant the disposal order sought.
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