Director of Public Prosecutions v Law
[2016] VCC 1443
•29 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-01730
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KWOK PING LAW |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 September 2016 | |
DATE OF SENTENCE: | 29 September 2016 | |
CASE MAY BE CITED AS: | DPP v Law | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1443 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – trafficking a large commercial quantity of methylamphetamine – Hong Kong national – immediate custodial sentence imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Hollingworth (Plea) Mr H Tighe (Sentence) | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms M Tittensor | Lethbridges Solicitors |
HER HONOUR:
1 Kwok Ping Law, you have pleaded guilty to one charge of trafficking in a drug of dependence – large commercial quantity. The charge is very serious and that is reflected in the maximum penalty prescribed by law, namely, life imprisonment.
2 The offending relates to allegations of trafficking between 4 September 2014 and 12 September 2014.
3 You were apprehended by police on 12 September 2014. You had been under surveillance and police were monitoring your mobile telephone calls. It was known that you were intending to travel by train from Melbourne to Sydney. Police intercepted you on the train in the course of you transporting a large commercial quantity of methylamphetamine. You had, in the weeks before your apprehension, received a small post-pack parcel box from Hong Kong containing six boxes labelled as “Bausch Lomb Re’Nu Fresh Multipurpose Solution Contact Lens Wash”. Police seized the parcel containing the boxes and later the items were examined and analysed and found to contain 2.4 kilograms of liquid. The liquid was 50 per cent pure methylamphetamine. Therefore, it contained 1.2 kilograms of pure methylamphetamine.
4 A large commercial quantity, where methylamphetamines is part of a mixture, is one kilogram. Therefore, the amount that was found in your possession exceeded a large commercial quantity.
5 The telephone intercept material revealed that you were having conversations with others involved in the movement of the drug from the time of delivery of the package in Melbourne. You were intending to deliver the drugs to a person in Sydney and you were to be paid for that task by monies being paid into a Hong Kong bank account. The reason why you used the train rather than travel by airplane was that you wanted to avoid detection by customs.
6 Following your arrest, there was a contested committal hearing on 7 October 2015. You entered a plea of guilty on the first day of trial on 18 July 2016. The plea proceeded on 22 September 2016.
7 I shall now proceed to sentence you on the basis of the Crown opening. There was no dispute taken at the plea hearing as to its contents. I do not propose to repeat the opening. It is tendered and is exhibited as part of the material on the plea.
8 I have had regard to your personal history and background. You are a Chinese national who was born in Thung Chung district, Hong Kong. You were aged 23 at the time of the offending. You are now 25. You are a person who looks a lot younger than your chronological age. You have no prior criminal history.
9 You travelled to Australia on a tourist visa in April 2014 with a girlfriend. You travelled around and attended various holiday destinations. Whilst in Australia, you were gambling at various casinos and, as a consequence of your gambling, you developed substantial debt.
10 I accept that your involvement in this offending came about because of your dire financial circumstances associated with your large gambling debt. You were approached by somebody at the casino who offered you money, which you took up as a loan. Progressively, over time, you built up a gambling debt of some $150,000.
11 Whilst I accept that your motivation for the offending was your dire financial circumstances and inability to meet your debts, that provides no excuse for this serious offending.
12 As discussed in the plea hearing, I consider your role was one of courier, that is, you were the agent transporting the drug at the request of persons unknown, and you were to be paid for delivering the drug to a person in Sydney. The Crown is not able to precisely identify the amount that you were to be paid, but I accept that you were involved in this criminal activity to receive a monetary reward. I do not accept that you were the person who was at the top of the tier of the hierarchy of this drug syndicate.
13 I consider that this offending is at the lower end of seriousness for this type of serious charge.
14 I have taken into consideration the matters put on your behalf by Ms Tittensor in mitigation. I note that you have no real connections to Australia. You come from a family of relatively modest means. Your parents are in their fifties. Your father works as a chef and your mother works as a cleaner in Hong Kong. You have an older brother who is aged 27 and who is married with two children.
15 You have a son from a previous marriage who is aged six. You are divorced from your wife but maintain regular contact. There is nothing remarkable about your background. You had a normal upbringing. Your parents were very supportive and keen for their children to improve themselves. You were able to complete secondary schooling and then undertook a finance course which taught you market trading skills. Whilst living in Hong Kong you were self-employed, trading online in gold.
16 Whilst living in Hong Kong you were a keen Baccarat player and you played from a very young age. This is a very popular pastime in Hong Kong. When you came to Australia, you were playing Baccarat at various casinos and gambling, and now it is known this affected your life considerably, leading to a significant debt and providing you with the motivation to engage in this offending.
17 It was in the context of problematic gambling that your first marriage broke down and you were divorced in 2012. Your former wife and your son live with her parents.
18 Ms Fai, your girlfriend, with whom you travelled to Australia, has left Australia and has returned to Hong Kong. She left because of a family member being involved in a serious accident.
19 I accept that your time spent on remand has been particularly difficult. It has been more onerous for you because of a combination of factors; namely, that you have no real connections to Australia; you are completely separated from your family supports, all of whom remain in Hong Kong, as they cannot afford to travel to Australia to visit you; you have been lonely and isolated in prison as because you have had no visitors; you have been missing your young son because of not being able to see him for the past two and a half years, and only having some limited telephone contact.
20 During your remand period, your family have provided you with some limited financial support to purchase clothing and Chinese books. That has caused them to suffer some financial strain and has compounded the anxiety that you have suffered whilst serving your prison term here in Australia.
21 You have limited contact with your family. You have had limited telephone connections with them. I accept further that your circumstances in custody have been difficult because of linguistic and cultural difficulties and not being able to speak and understand the English language properly.
22 Whilst you have been in custody, you were exposed to the prison riot in July 2015 that occurred at the Metropolitan Remand Centre. Your liberty has been much more restricted since that time.
23 On the night that the riot broke out you were working in the kitchen. Because of the disruption you were taken, together with other prisoners, to an outside protection yard where you were kept for the night. None of the prisoners were aware of what was going on. Some prisoners became frustrated and tried to climb out of that yard and, thereafter, tear gas and dogs were deployed by the authorities to regain control. This was a very traumatic experience for you.
24 Following the riots, you were locked in a holding cell for two days with no shower, food, blankets or pillows. You were then transferred to Barwon Prison for one month. There, you enjoyed the privileges associated with being a mainstream prisoner and were able to undertake exercise and employment.
25 In August, you were transferred back to the Metropolitan Remand Centre where you experienced a regime of being locked in your cell for the majority of the time. That system has only recently been modified so that you can enjoy up to five and a half hours per day out of your cell.
26 I accept that it has been difficult for you in prison because of a combination of being so far removed from your family and supports in Hong Kong, your cultural and linguistic difficulties and the onerous conditions experienced whilst on remand. I have taken that into account.
27 Notwithstanding all of these very real difficulties, you have made significant strides in terms of addressing your underlying offending behaviour. You have had the opportunity to undertake a course to deal with gambling and you have also undertaken numerous TAFE courses relating to workplace safety, gardening and food preparation. You are now looking forward to your ultimate release when you return home to Hong Kong. You accept that you will be deported. You are anxious to be reunited with your family members.
28 In sentencing you, I have had regard to the gravity of the offending. I accept that this is a very serious crime deserving of a prison sentence of some length. I have had regard to the plea of guilty. I note the stage it was entered. Nonetheless, I accept that there is still utility in the plea. It has spared the State the cost and inconvenience of having to conduct a trial. You have facilitated justice. It also reflects that you accept full responsibility for your actions and is demonstrative of some remorse. I have had regard to your letter of apology, in which you do not seek to avoid responsibility. You have outlined to the court that your intention for the future is to work hard and to be a law-abiding citizen.
29 I note that a large commercial quantity of the drug methylamphetamine was involved. As I said earlier, I consider this offending is an example at the lower end of the scale of seriousness for this type of serious offence. The offending was introduced by Parliament to cover the crimes of serious criminals responsible for large criminal syndicates and you are not a person who fits into that category.
30 You are a person of previous good character. However, that is not unusual where this sort of offending occurs. Ultimately, I consider, having regard to your post-offence conduct and your conduct whilst in remand in difficult circumstances, that is indicative of you having realistic prospects of rehabilitation. I consider your prospects are excellent.
31 In sentencing you, the court must formally denounce your behaviour. It is necessary to emphasise both general and specific deterrence. However, given your post-offence conduct, I consider that the need to emphasise specific deterrence is less than otherwise.
32 I have had regard to the delay in your matter being dealt with and note that the Crown accept that there have been periods of delay in the processing of your matter that have occurred through no fault of yours and, in part, was attributable to the shared operation between Australian Federal Police and Victoria Police, and delays with having the telephone intercepted material interpreted.
33 You have had a very difficult time whilst you have been held in custody. You are a person who is unfamiliar with the Australian legal system and you have suffered real hardship whilst undergoing remand.
34 I accept that your role in this enterprise was a limited one but, nonetheless, it was an important one. You were responsible for delivering the drugs that would have ultimately been distributed by others. Drug enterprises can only prosper if there are people like you who are willing and able to perform these important roles in moving drugs from source to consumer. It is important for the courts to deter others from embarking on such enterprises by imposing stern punishment.
35 I have had regard to the particular features of the offending, the fact that such a large quantity of pure methamphetamine was involved and the need for serious drug trafficking to warrant significant punishment. I have come to the conclusion that an immediate custodial sentence is the only sentencing option.
36 The formal court orders are, in respect of trafficking a large commercial quantity of a drug of dependence, you are convicted and sentenced to six years’ and six months' imprisonment and I fix a minimum term of four years’ and six months' imprisonment before you are eligible for parole.
37 I make the declaration for pre-sentence detention. I declare that you have served 748 days’ imprisonment and direct that that be entered into the records of the court.
38 I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a sentence of eight and a half years’ to serve six years’ imprisonment.
39 I make the order pursuant to s.464ZF(2) of the Crimes Act 1958. An application was made for a forensic sample, namely a scraping of your mouth and that has been granted. What that means for you is that you will be asked to take a cotton bud and rub it around the inside of your mouth so that a sample can be taken of your saliva from which your DNA can be extracted. I must warn you, if you do not co-operate at the time of the request then police are authorised to use reasonable force to enable the forensic procedure to be conducted by way of taking a blood sample.
40 The reasons for making this order are because of the seriousness of the circumstances of the offending and I consider the granting of the order is in the public interest. I note that the order was not opposed by your counsel.
41 I make the disposal order sought in respect to the drugs and phones and I make the forfeiture order sought.
42 Finally, pursuant to s.89D(1) of the Sentencing Act 1991, I make the declaration that you are a serious drug offender for the purposes of the Confiscation Act 1977. That is all the orders that were sought.
43 Ms Tittensor, did you want to speak with your client whilst you have got the interpreter here in court?
44 MS TITTENSOR: Yes, that would be great, thank you.
45 HER HONOUR: That is fine.
46 MS TITTENSOR: If I might approach him now.
47 HER HONOUR: You might, yes.
48 MS TITTENSOR: Thank you, Your Honour.
49 HER HONOUR: That is all right.
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