Director of Public Prosecutions v Mak

[2014] VCC 1939

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01555

DIRECTOR OF PUBLIC PROSECUTIONS

v

WING KEUNG MAK

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2014
DATE OF SENTENCE:	24 November 2014
CASE MAY BE CITED AS:	DPP v Mak
MEDIUM NEUTRAL CITATION:	[2014] VCC 1939

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Kalyk
For the Accused	Mr C. Farrington

HIS HONOUR: 

1Wing Keung Mak, you can stay seated for the time being.  You have pleaded guilty to an offence of importing tier 1 goods in a quantity which makes it illegal.  The offence to which you pleaded guilty carries a maximum term of imprisonment of five years.  You have no prior convictions.  The prosecution has tendered and relied upon a summary of facts, which is Exhibit A, and that was read to the court a few minutes ago.  It is accepted as being an accurate basis upon which I should proceed to sentence you subject to the amendment on p.5, to which I was referred.

2It sets out the history of your coming to Australia on 6 April of this year and your activity in seeking to obtain the package containing the ephedrine, which is the subject of the charge.  The total weight of ephedrine imported was 657.9 grams.  The package had been intercepted and it was expected that the ephedrine would not in fact be handed over to you.    It seems likely that you were acting in the role of the front man for this particular criminal venture, which was designed to enable the ephedrine to be sold into the black market in Australia.

3I am satisfied that you were at least reckless as to the nature of the criminal venture to which you attached yourself, that that recklessness commenced before you left Hong Kong and you were participating for financial reward.  I cannot say how much that financial reward was.  I accept that it was not likely to be anything like the sums of money that those organising the criminal venture would have expected to reap by way of profit.   Nevertheless your motivation was greed and financial reward. 

4It is a serious offence.  There are many other offences in the criminal calendar involving importation of illicit substances which are far more serious, but it is necessary in such cases to pay proper regard to the need to deter others from committing offences of this kind.  You did not play a leading role, but you played a vital role in the criminal enterprise to which you attached yourself.

5Turning to matters personal to you, your counsel provided me with a helpful and succinct outline of submissions on your behalf.  I was also provided with written reference from your mother and your uncle and from your former school principal.  I was also provided with a copy of certificates from the Kangan Institute, which you have obtained as a result of participating in courses available to you whilst on remand.

6You clearly did not tell the police the truth when arrested; you did not tell Immigration the truth when you first arrived.  I am not satisfied that I have been given a full explanation for your involvement in these matters.   However, I am not satisfied beyond reasonable doubt that I should place you in any higher category that which I have already identified from the evidence before me.

7You are 21 years of age, 20 years of age at the time of the offending.  It is clear that you have caring parents.  Your father has taken the trouble to come here for your sentencing hearing today, as has your uncle from the United States.  That all bodes well for your prospects for the future.  I have no trouble in accepting that you have been a contributor, since you left school, to family finances.  I see no reason to suspect that you have other than good prospects of rehabilitation once you return to Hong Kong.  You pleaded guilty; you are entitled to a discount for that plea.  I accept that you have expressed remorse for your involvement in this criminal enterprise and that too is a mitigating factor and bodes well for your prospects of rehabilitation.

8Although your age does not mitigate to the same extent as it would for other criminal conduct.   Persons who come from overseas in order to commit offences of this kind are to be expected to have engaged in taking the risks and accepted that, if caught, they would have to serve a term of imprisonment in circumstances where they would not have ready access to friends and family and regular visits and would not be in an environment where they would be able easily to communicate, either through language difficulties or through cultural differences.   Therefore the hardship that would ordinarily amount to a mitigating circumstance is not as significant a sentencing or mitigatory factor as it might be in other cases.

9Nevertheless, I do regard the fact that you are a young man with good prospects of rehabilitation as significant.  I think it is important to facilitate your rehabilitation as far as I reasonably can. 

10I am well aware of the requirements for a sentencing judge to have regard to the terms of s.16A(1) and (2) of the Crimes Act (Cth) and I take into account the various matters that are relevant in this particular case that I must pay proper regard to.  I have been provided by the prosecution with a table of cases that might be regarded as broadly similar in order to give me some idea of current sentencing practice.  I note the content of that so far as it relates in particular to offenders who are about the same age as you.  I am assisted in identifying what seems to me to be the current sentencing practice.

11Your counsel has invited me, taking all those matters into account, to impose a sentence that would enable your either immediate release or almost immediate release.  It is inevitable that you will be deported upon the completion of your sentence.  The submission would be such as to enable me to impose an appropriate overall sentence for the offending conduct and to make a recognisance release order for your release after you have served an appropriate period of actual incarceration.  You have been in custody now for a total of 185 days not including today.

12The prosecution on the other hand submits that, looking at the table to which my attention is drawn, that current sentencing practice would suggest that you have not yet served sufficient time to meet all the competing sentencing considerations.  I take all that into account and I am now ready to impose sentence upon you.  Would you please stand.

13Wing Keung Mak, on the single charge on the indictment to which you have pleaded guilty of importing tier 1 goods, I convict you and sentence you to 16 months' imprisonment and I order that you be released on your own recognisance of $1,000, to be of good behaviour for a period of 12 months after having served a period of seven months of that 16 months.  That will not permit your immediate release, but it will permit your release within a relatively modest further period of incarceration.

14I expect that after you have been released you will be taken into Immigration custody and deported.  It is not a matter that I can or should take into consideration, but it is nevertheless a fact.  I need your consent to accept those terms and be placed on that recognisance and you will be required to sign the recognisance.  I will not require you to pay the $1,000 unless you breach the terms of the order.  If you were to breach the order during the next 12 months, then you could be brought back to this court and resentenced for this offence.

15The order will now be drawn up and you will be asked to sign it.  It has been drawn up, by the looks of things.  Just take a seat for a moment.  Are there any other orders I need make, Mr Kalyk?

16MR KALYK:  No, Your Honour.

17HIS HONOUR:  Thank you.  Yes, all right.  Well, Mr Farrington, would you go with Mr Travers and ensure that your client understands what he is being asked to sign.

18MR FARRINGTON:  Yes, Your Honour.

19HIS HONOUR:  Then once he has signed it, I will sign it.  I have now signed that order.  Any other orders I need make?

20MR KALYK:  No, Your Honour.

21HIS HONOUR:  Thank you.  But for your plea of guilty, I would have sentenced you to 21 months' imprisonment with a recognisance release order requiring you to serve a period of 15 months before being released on recognisance.

22MR FARRINGTON:  As Your Honour pleases.

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