Director of Public Prosecutions v Kwong
[2018] VCC 1619
•2 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-00983
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAUGHN KWONG |
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| JUDGE: | HER HONOUR JUDGE HOGAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 October 2018 |
| DATE OF SENTENCE: | 2 October 2018 |
| CASE MAY BE CITED AS: | DPP v Kwong |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1619 |
REASONS FOR SENTENCE
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Catchwords: Contravention of CCO (part of sentence for 1 charge of trafficking and 1 charge of possessing a drug of dependence – pursuant to s.83AS(1)(c), CCO cancelled and defendant re-sentenced
Sentence:Total Effective Sentence of 3 years’ imprisonment with a non-parole period of 20 months. 18 months’ pre-sentence detention declared as already served. Section 6AAA declaration: 6 years’ imprisonment with a non-parole period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | OPP Victoria |
| For the Accused | Mr C. Terry | Patrick W. Dwyer |
| For Box Hill Community Correctional Services | Ms E. Buttigieg | (via videolink) |
HER HONOUR:
1Mr Kwong, you have admitted the contravention of the Community Correction Order which was part of my sentence imposed on 6 October 2015.
2You will have heard what I have had to say to your counsel, Mr Terry, when I engaged with him in relation to the arguments that were put on your behalf, and I left you in no doubt when you appeared before me unrepresented on 6 September 2018 that you were at risk of being returned to prison. You came before this court to be sentenced for a very serious offence and I do not propose to repeat those aspects of my sentence that was handed down on 6 October 2015 which made the seriousness very plain. I append a copy of those sentencing remarks to these sentencing remarks.
3Notwithstanding that you spent 18 months in custody, your engagement on your Community Correction Order has been very poor. My assessment of the entirety of the situation is that there has been too little effort, too late, by you. This is coupled, of course, with further offending. However, I make it plain that I in no way take into account that further offending, for which you have been already punished, in making the disposition that I make today. Indeed, I take into account the recent time you have spent in prison for that offending as a matter of fairness, applying the principle of totality.
4In my view, your lack of engagement with the Community Correction Order, the fact of reoffending, your ongoing drug use and your only very recent attempts at serious rehabilitation mean that, pursuant to s.83AS(1)(c) of the Sentencing Act, I should cancel the original sentencing order. Accordingly, the entirety of the sentence that was imposed by me on 6 October 2015 is set aside.
5In its stead, I convict you of Charge 1, Trafficking, and sentence you to a period of three years' imprisonment and of Charge 2, Possessing a Drug of Dependence and sentence you to 1 month’s imprisonment. The sentence on Charge 2 is to be served concurrently with the sentence on Charge 1. The Total Effective Sentence is 3 years’ imprisonment, with a non-parole period of 20 months. I declare a period of 18 months to be time reckoned as already served under the sentence imposed this day.
6I have no control over whether you will be granted parole, Mr Kwong, but it is my intention that, if at all possible, you be paroled and be supervised on parole and given assistance to deal with the various factors which seem to have led to your offending, the worst of which is your drug addiction. You may be granted parole in two months' time but I do not know whether you will be. I have to operate on the basis that, if, for whatever reason, the Parole Board does not grant parole, you may well have to serve the whole three years. I would hope not, but it is going to be up to the Parole Board.
7If and when you are hopefully paroled, you will be able to reengage with those services with which you have recently engaged. I make it plain that, in arriving at the sentence of three years' imprisonment, I have taken into account the fact that you have engaged to some extent (albeit a not very impressive extent) with the Community Correction Order. Also, as I have already mentioned, I have taken into account, as a matter of fairness, the principle of totality and the fact that you have spent four months' imprisonment in recent times for offending and this may have had some positive impact on your attitude towards your rehabilitation.
8I make the same declaration pursuant to s.6AAA that I made at the time of sentencing you. That is, had you not pleaded guilty to the offences, the Total Effective Sentence would have been six years with a non-parole period of three years.
9Were there consequential orders that I needed to make? I think I have already made the s.464ZF order and the s.78(1) Confiscation Act order. They can simply be repeated in the same terms as I made them at the time of sentencing, along with the s.33(a) Confiscation Act order.
10In relation to the actual contravention charge itself, although it does carry a term of imprisonment of three months' imprisonment, I propose to simply find the contravention proved and to make no further order.
11So the total effective sentence imposed this day is three years' imprisonment with a non-parole period of 20 months, with a declaration that 18 months' pre-sentence detention is to be reckoned as time already served. You will be remanded into custody now, Mr Kwong.
12MR TERRY: If I could just briefly approach my client, Your Honour?
13HER HONOUR: Yes, you may.
14Are there any custody management issues that should be noted? Have a seat, Mr Kwong.
15MR TERRY: No, Your Honour. My client's no longer on pharmacotherapy, that's the only one I enquired about this morning.
16HER HONOUR: All right, thank you. So, the order on the contravention is that the matter has been proven, but no further order made. All right, is there any clarification of anything I have said required?
17MR TEO: No, Your Honour.
18MR TERRY: No, Your Honour.
19HER HONOUR: Yes, thank you, would you take Mr Kwong from the court.
20Thank you, Ms Buttigieg, the link will be formally terminated once I leave the Bench.
APPENDIX
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00983
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAUGHN KWONG |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2015 | |
DATE OF SENTENCE: | 6 October 2015 | |
CASE MAY BE CITED AS: | DPP v Kwong | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1371 | |
REASONS FOR SENTENCE
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Subject:One charge of trafficking in commercial quantity of methylamphetamine (by manufacturing the drug) and 1 charge of possession of heroin. TES 18 months imprisonment and Community corrections Order for four years.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr Jassar | Solicitor for Office Public Prosecutions |
For the Accused | Mr Thyssen | Patrick Dwyer Solicitor |
HER HONOUR:
1 Vaughn Kwong, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, methylamphetamine. This carries a maximum penalty of 25 years' imprisonment. You, also, have pleaded guilty to one charge of possession of a drug of dependence, heroin. It is conceded by the prosecution that this possession was not for any purpose relating to trafficking in that drug of dependence. Accordingly, the penalty for the offence is not more than three penalty units or one year’s imprisonment or both.
2 The circumstances of your offending are summarised in the prosecution opening (Exhibit “A”). In essence, between 6 and 16 August 2014, while your father was away on business, you converted his home where you lived with him at 20 Finsbury Close, Rowville into a laboratory for the manufacture of methylamphetamine. You hold a Bachelor Degree in Science (Biology and Chemistry). Your offending came to light when your sister, Natalie, visited the home and observed pipes and hoses, fire extinguishers and fans. When your father returned to his home on 16 August, he was appalled by the condition of the house and observed chemicals and glassware which he had never seen previously.
3 Your father and your sister reported the matter to police. Police subsequently searched the home and you were arrested and interviewed and made a “no comment” record of interview. A search warrant was executed on 17 August 2014. Police located a quantity of laboratory equipment. This included powders, funnels, flasks, filter papers and several documents relating to the manufacture of various drugs, including methylamphetamine, along with a video relating to the manufacture of methylamphetamine. Police found mixed substances weighing 1086.9 grams. The mixed substances included methylamphetamine. The law is that if a mixed substance contains methylamphetamine, then 500 grams of such mixed substance constitutes a commercial quantity, even though the actual amount of methylamphetamine, in your case, comprised only 89.97 grams. The charge of trafficking relates to the fact of your manufacturing the drug albeit that the prosecution is not able to say whether there had been any manufacturing of methylamphetamine prior to the date of 6 August 2014 or any dealing in the drug between then and 16 August 2014.
4 Charge 2, possession of heroin, relates to a small quantity of heroin (namely 0.3 grams) found in a plastic bag at the house where you were living and hence in your possession.
5 You are presently aged thirty-nine years, having been born on 9 March 1976. In a plea on your behalf, Mr Thyssen told the Court that you had been born in South Africa. Your father is an engineer, who conducts his own business, and your mother was a qualified nurse, who died of cancer in 2012. Your younger sister, Natalie, is employed as a disability worker and you have a younger brother, who does not work.
6 Your family moved from South Africa to Australia in 1980 and you completed Year 12 at Rowville Secondary School and then attended Deakin University where you graduated with a Bachelor of Applied Science in Biology and Chemistry. Subsequently, also at Deakin University, you completed a Graduate Certificate of Environmental Management and then enrolled in a Masters course of Environmental Engineering and Management and completed all but two subjects of that course.
7 After attending university, you joined the Australian Army in 2005 and served in various parts of Australia as part of the Australian Infantry. After four years, you left the Army and then had your own business of some sort as a contractor which involved drilling for water in Tasmania for a period of one year. After that, you worked for a company in Williamstown called Nemac Engineering, doing some form of engineering work for a couple of years until 2013.
8 Your counsel stated that you had had a problem with drug usage since the age of seventeen, initially starting off with marijuana and then heroin use. You were abstinent from drugs whilst in the Army, but, at some stage after leaving the Army, began drug usage again and ended up losing your job at Nemac Engineering in 2013 because you tested positive for use of drugs. At that stage, you were on a Methadone program. You have not been employed since losing that employment.
9 After you were arrested by police you were remanded in custody for 18 days prior to being granted bail under the Magistrates’ Court credit/bail support program (“CISP”). You were released from custody on 2 September 2014 and assessed as suitable for that bail program, which you commenced on 9 September 2014. Part of the conditions of the program involved you attending for psychological counselling with a psychologist, Dr Paul Grech.
10 A report from Dr Grech dated 30 September 2015 was tendered as Exhibit “1”. You had apparently first seen him on 17 September 2014 (albeit that his report mistakenly refers to the first consultation as being 17 September 2015). The referral from Dr Yaseem via a mental health care plan mentioned anxiety, depression and a suspected mild psychosis, possibly drug-induced, and substance abuse issues. Dr Grech’s report states that, since that time you have continued to attend, either weekly or fortnightly, for psychological sessions and have not missed any treatment sessions. He commented that you arrived punctually and engaged constructively and effectively and had given up all substance use during the period of engagement with him.
11 Dr Grech reported that you appeared to have developed a dependency upon cannabis in the context of difficulty dealing with the grief of the loss of your mother and this was subsequently compounded by renewed grief through the deterioration in the health of an uncle of yours. He noted that, when he first commenced seeing you, you were, at times, unclear and confused in your thought processes, but your clarity of thought had improved over time and he had not seen any evidence of substance abuse in the time that he had been seeing you.
12 I must say that I did not find Dr Grech’s report particularly enlightening. It contains very little analysis and he does not seem to be aware that you had been a drug user since your teens. He also mentioned that you are in a committed relationship with Narelle van Ginkel, however, it emerged in the course of the plea hearing that this was a very troubled relationship. Your counsel stated that you and Ms van Ginkel had known each other for 12 months prior to marrying earlier this year. However, the relationship had been troubled by violence on your part, which caused Ms van Ginkel to obtain an Intervention Order against you.
13 Certified extracts from the Magistrates’ Court at Ringwood show that on 28 September 2015, you were convicted of unlawful assault upon Ms van Ginkel, together with charges of intentionally damaging property and contravening a Family Violence Intervention Order. Your offending apparently occurred on 21 August 2015 and 27 September 2015. The Magistrate convicted you of the offences and ordered you to undertake a Community Correction Order for a period of 12 months with conditions of unpaid community work, supervision and treatment and rehabilitation conditions referrable to your drug abuse.
14 It would appear that you have been less than frank with Dr Grech about the calibre of your relationship with Ms van Ginkel, and the reasons for your violent conduct towards her were in no way explained at the plea hearing. Nevertheless, your counsel maintained that you had not used drugs in any “full on” way (as distinct from “dabbling”) since you commenced the credit bail program and counselling with Dr Grech.
15 Tendered as Exhibit “2” was a final progress report from the credit/bail program signed by Joanne Spanos, CISP Case Manager. The report states that, whilst involved with CISP, you maintained a positive attitude and engaged well with Dr Grech and the writer observed positive changes in you. She said that you had been able to learn relapse prevention strategies necessary to cease using illicit substances and appeared focused and motivated towards abstinence from illicit drugs and a life without offending. You apparently expressed remorse, a factor mentioned by Dr Grech, and indicated that you would like the opportunity to contribute to society.
16 Also tendered at the plea hearing was a reference from Mr Winston Yet Kwong Horman, who lives in Michigan in the United States of America. It is dated 1 September 2015. The reference states that he has known you since you were a young man, as you are his nephew, and he had regular contact with you until he left to live in the United States in 1997. He states that you applied yourself to your studies and are very intelligent and he believes that the combined stress of losing your mother and having a failed venture with your business drilling water wells in Tasmania drove you to seek refuge in drugs. He claims to have spoken to you several times recently and says that you have expressed remorse and that you recently married and have a desire to be a loving husband and father to your new wife’s child.
17 Whilst I do not doubt that the author’s intentions are good, it seems to me that he does not know you all that well. I cannot accept that your mother’s death and failed business in Tasmania led you to drug use, since you had been using drugs of one sort or another since your teen years. Further, your expressions about being a loving husband are not borne out by the recent orders made in the Magistrates’ Court convicting you of assaulting your wife, damaging property and breaching an Intervention Order.
18 Mr Kwong, the offence of trafficking in a drug of dependence in a commercial quantity is a very serious offence as reflected by the maximum penalty of 25 years' imprisonment. Drugs are a scourge on our society and, in sentencing for this offence, emphasis must be placed upon denunciation of your conduct and general deterrence and just punishment. Although you appear to have engaged in some illicit drug taking in your life for a number of years, the extent of any habit is quite unclear. To set up a laboratory in order to manufacture methylamphetamine is a very grave breach of the law. There was no material put before the Court as to the extent of your habit and, indeed, in a report from the Office of Corrections dated 1 October 2015, you give a history that, although you were somewhat unclear, your daily use of amphetamines had been “months”, rather than years.
19 You have a limited criminal history, with offences in the 1990s and early 2000s relating to dishonesty and assault and one later matter, in 2011, for driving whilst disqualified. Why someone who comes from an educated and law abiding family and who has had the benefit of significant tertiary education, should engage in this very serious illegal conduct remains something which is not explained by any of the material which has been put before the Court.
20 In the circumstances, the only appropriate sentence to reflect the gravity of your offending is a term of imprisonment. It is a tragedy that someone who has your scientific ability and qualifications has not turned his talents to good use. It is also a tragedy that your wife, who apparently was a support to you, has become a victim of your violence, for reasons which are unclear. Nevertheless, although your wife and father and sister are clearly appalled by your behaviour, they demonstrated their support by attending Court at the plea hearing. This is a factor in your favour, as is the fact that you do have intelligence and have held down employment in the past.
21 It is difficult for me to assess your prospects of rehabilitation, given that the reasons for your offending and, indeed, your conduct towards your wife remain unexplained. However, it is of significance that you managed to adhere successfully to the conditions imposed by the CISP bail program and that you have continued to engage in therapy sessions with Dr Grech, albeit that you appear to have been selective in what history you have given to him. These factors, together with your relative lack of criminal history and the fact that you, at least, in the past have endeavoured to engage in a Methadone program, lead me to believe that you are worthy of being given an opportunity by way of a combined sentence of imprisonment and a Community Correction Order. I consider it is reasonable to regard your plea of guilty as a remorseful one and the fact that you were prepared to engage in treatment is also some indication that you are motivated to try to turn your life around. For these reasons, the sentence which I impose is significantly less than what would have been the case had you not pleaded guilty and not taken any steps towards rehabilitation.
22 On Charge 1, trafficking in a drug of dependence, namely methylamphetamine, in a quantity that was not less than a commercial quantity, you are convicted and sentenced to be imprisoned for a period of 18 months together with a Community Correction Order for a period of four years. The Community Correction Order will commence on the date upon which you are released from prison.
23 The terms of the Community Correction Order are as follows:
(a)You must not commit, whether in or outside Victoria, during the period of the order an offence punishable by imprisonment.
(b)You must comply with any obligation or requirement prescribed by the regulations.
(c)You must report to and receive visits from the Secretary during the period of the order.
(d)You must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force.
(e)You must notify the Secretary of any change of address or employment within two clear working days after the change.
(f)You must not leave Victoria except with the permission of the Secretary, either generally, or in relation to a particular case.
(g)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
24 In addition to the basic terms, the following specific conditions apply:
(1)You must perform 150 hours of unpaid community work.
(2)You must undergo treatment and rehabilitation in relation to your drug use including undergoing any assessment and treatment for drug abuse or dependency
(3)You must undergo any mental health assessment and treatment directed by the Secretary
(4) You must undergo any other programs to address your offending behaviour or other treatment and rehabilitation directed by the Secretary.
(5)You must be supervised, monitored and managed as directed by the Secretary.
25 Mr Kwong, are you prepared to enter into a Community Correction Order with those terms and conditions. Because, otherwise, I cannot make such an order?
26 PRISONER: Yes.
27 You need to be aware that if you breach such an order then that, in itself, will be an offence which carries a maximum penalty of three months' imprisonment. Should you contravene the order, you will be brought back before the Court and it may be that the Community Correction Order will be cancelled and, instead, you will be returned to serve a further term of imprisonment.
28 On Charge 2, possession of a drug of dependence, namely heroin, you are convicted and sentenced to a term of imprisonment of one month. I direct that this term of imprisonment be served concurrently with the sentence imposed on Charge 1.
29 I declare a period of 23 days’ pre-sentence detention to be time already served under the sentences imposed this day.
30 Pursuant to s6AAA of the Sentencing Act, I say that had it not been for your pleas of guilty, the sentence imposed this day would have been six years' imprisonment with a non-parole period of three years.
31 Pursuant to s464ZF(2), I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with subdivision 30A of Part 3 Crimes Act 1958. I consider this order is justified by reason of the seriousness of the offending and note that the order is by consent.
32 Mr Kwong, you need to understand that if you do not consent to the taking of this sample, then police are entitled to use reasonable force to enable it to occur.
33 Pursuant to s78(1) Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the Schedule and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
SCHEDULE Forensic Item No.
Exhibit Description
ETS Number/
Property No159
1 x plastic bag of powder/ T500100628
ETS224282159
160
1 x metal bolt with concealment/ T500100627
ETS224282160
161
1 x plastic jar of powder/ T328505
201408-E-1273-0008
162
(exhibit 27)1 x glass dish containing crystals/ T328504
201408-E-1273-0011
163
(exhibit 31)1 x glass jar containing crystals/ T456195
201408-E-1273-0012
164
(exhibit 57)1 x glass jar containing crystals/ T456194
201408-E-1273-0013
165
(exhibit 65A)1 x plastic bag of crystals/ T500100629
201408-E-1273-0014
166
6 x Drug counter samples from Items 159, 161‑165/ F208092
ETS224282166
167
Bag said to contain 1 x disc
ETS224282167
168
T102552: 177 x 81(3)e samples + 9 x Blanks
ETS224282168
34 Pursuant to s33(1) Confiscation Act 1997, I order that the property referred to in the Schedule be forfeited to the Minister.
SCHEDULE 1. Ex 140
1 x Black Apple iPhone 32GB -
2. Ex 141
3 x USB memory sticks -
3. Ex. 143
1 x Seagate portable Hard-Drive
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