Director of Public Prosecutions v Mok
[2014] VCC 2306
•10 October 2014
|
IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
Case No. CR-14-01182
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MILTON MOK |
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JUDGE: | His Honour Judge Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 10 October 2014 | |
CASE MAY BE CITED AS: | DPP v Mok | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2306 | |
REASONS FOR SENTENCE
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Subject: Trafficking in no less than a commercial quantity of cannabis- trafficking in Ketamine- trafficking in Ecstasy.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Porceddu | |
| For the Accused | Mr A. Dickenson |
HIS HONOUR:
1 Milton Mok, you have pleaded to one charge of trafficking in no less than a commercial quantity of cannabis, one charge of trafficking in Ketamine and one trafficking in Ecstasy.
2 The first charge was in relation to a period between 2 November 2013 and 19 December 2013 in relation to the cannabis. In relation to the Ketamine, the trafficking was a shorter period between 28 November and 19 December 2013 and in relation to Ecstasy that was alleged to have taken place on 6 December 2013.
3 You also pleaded guilty to two related summary offences being possession of a prohibited weapon, namely a flick knife and dealing with property suspected of being proceeds of crime, namely $4,800 in cash.
4 The charges have been summarised in a summary of prosecution opening which was exhibited upon the plea and which will be retained on the Court file. I will not read that summary again but for the purposes of this sentence the circumstances of the offences can be briefly stated thus.
5 A suburban divisional response unit commenced an investigation in mid-2013 into the trafficking of drugs of dependence and this investigation identified five persons and you were one of them. The primary targets were a man named Gutsell and his wife. The investigation identified Gutsell’s supplier of methyl amphetamine, cocaine and cannabis, one Yuen.
6 Yuen sourced these drugs from Tran. You had introduced Yuen to Gutsell and you supplied Gutsell and another person named Yu, with cannabis and Ketamine. Yu – sold to customers who went to his house or Gutsell’s house.
7 Many thousands of phone calls were intercepted between October and December 2013 as well as other digital messaging. Undercover operatives were also used by police to buy drugs from Gutsell.
8 During the period I mentioned above, you trafficked some 38 and a half kilograms of cannabis to Gutsell for a value of over $200,000. You had 4.48 kilograms in your possession for sale at your arrest.
9 In the relevant period, you trafficked therefore a commercial quantity of cannabis.
10 In the relevant period for Charge 2, you trafficked 147 grams of Ketamine with seven grams found in your possession for sale. The value of the sales were $12,500.
11 On 6 December, you trafficked, MDMA Ecstasy capsules by having them in your possession; 15 such capsules which you had purchased from Gutsell for $300 in total.
12 The summary then outlined individual instances of the sale of cannabis and Ketamine. These transactions involved you in frequent communication primarily with Gutsell and on some few occasions others named.
13 There are a number of transactions on single days; 2, 3, 21 and 29 November and 4, 6, 10, 11, 12 and 13 December.
14 In the messages you discussed amounts, the cost, the quality, the availability, the practical arrangements for the transactions. On a number of occasions you delivered drugs to Gutsell’s home for sale. Some of the sales took place in public places like service stations.
15 You bought MDMA from Gutsell in early December. Some of these sales were captured by closed-circuit cameras. On some occasions you used your father’s van to deliver and transport drugs.
16 At the time you were living in Kew with your parents. A search warrant was executed on those premises during which you were present and the above named knife and capsules of MDMA were found. The cash was found as well as cannabis and Ketamine. Of the cash found, $4,200 had been paid to Gutsell by the undercover police operative some days before during a drug transaction.
17 I note that you have four co accused. It appears that Yuen has been dealt with by way of a plea on 7 October, although as I have been told he has not been sentenced. Gutsell and Yu have been sent to trial and Tran has his trial listed for some time in mid-2015.
18 The trafficking of drugs of dependence is a social evil which damages and creates inestimable costs to our community by way of resources, health costs, consequential crime, traumas to individuals and families. It is a blight which lies at the heart of every social ill and much of the criminal behaviour we see in the Courts.
19 The Court must send an unequivocal message to those who are like-minded that trafficking in drugs will be punished sternly.
20 The community looks to the Court to denounce such behaviour as totally unacceptable.
21 The circumstances of the offences must be taken into account. A commercial quantity of cannabis is between 25 to 250 kilograms so that the amount involved here is at the lower end of this scale being some 15 per cent of the maximum weight of commercial quantity.
22 Similarly, 147 grams of Ketamine lies at about the one-third mark of the top traffickable quantity of 500 grams.
23 The offending period is of about six weeks, although the actual transactions occurred on 10 days.
24 Your role appears to be that of a supplier and distributor, so certainly higher than street level dealing although you had your own lines of supply above you, meaning that although the value of the transactions are substantial that figure must take into account the upward flow of moneys to those above you who were supplying you.
25 There were some 15 separate sales involved during this time and your offending was motivated by a lifestyle which you had pursued ,which involves doing up cars, gambling, recreational use of drugs, accumulating debts, greed and the apparent inability to gain your parents’ approval.
26 The offending is not highly sophisticated but was , during the period , persistent and deliberate and only disrupted by police intervention.
27 I take your plea into account. It was made at the earliest opportunity. I will accord it a discount as I must by law. It represents a significant utilitarian benefit for the community in this context having avoided a trial.
28 I heard evidence given on your behalf by a number of witnesses and I accept that your plea is accompanied by expressions of regret and remorse for your offending.
29 It is often difficult to fully assess remorse much beyond the asserted expression of such feelings to different people. However, it is legitimate to evaluate such assertion in part by objective steps which a person in your position has taken which can be related to rehabilitation, a growing sense of maturity and insight and which represents some change in your personal circumstances. It is from these that I draw some comfort in the findings about your remorse.
30 There are such steps in your case and I am prepared to allow that this aspect does not appear inconsistent with remorse.
31 I take your personal circumstances into account. You have no prior criminal history at all and this is relevant to your prospects of rehabilitation in the future and in establishing a pre-offence good character.
32 You were 23 at the time of the commission of the offences and you are now 24 years old. You are not strictly speaking a youthful offender, however, you are not long out of the chronological definition of that term.
33 I consider that your relative young age is an important factor for me to take into account in moderating the sentence of the court and your age and lack of prior convictions reflect the prior good character but also certain aspects which often characterise young offenders.
34 Not all of these aspects are positive but I take them into account. These are your level of immaturity, the effect of impulsivity and inadequate personality style, the normalisation, in your view, of drug taking and the drug culture.
35 I heard evidence from Dr Simon Kennedy, a forensic psychologist, who provided a report to the Court dated 24 June 2014.
36 Although you appeared bright, intellectually average with low self-esteem and poor social skills, he gave evidence that in 2013 with personal debts mounting you began occasional drug use which you tended to minimise.
37 You quickly became accustomed in your social circle to drug use, particularly in the club scene and from your perspective drugs may have become normalised behaviour. You did not see drugs as personally problematic, although it appears that you kept your drug use relatively secret.
38 You have found it hard to live up to your parents’ expectations and the more you wished not to lose face with them and the world , the more you got involved with unacceptable behaviour: gambling, mounting debts and ultimately serious criminal behaviour.
39 Drug-dealing was an uncomplicated and quick way to resolve your problems. You had little self-control with which to divert from this criminal activity. Your IQ and intellectual functioning are average and Dr Kennedy describes you as a young person with a tendency towards acting out due to a feeling of alienation who is unable to identify behaviour and turn away from such.
40 He opined that the criminal charges have produced substantial positive change including the cessation of substance use and gambling, causing you to focus on work in particular.
41 There are positive prognostic signs in his view. He reports that your consideration of your future has now moved to further studies and career, at least in the period between being charged and now.
42 I heard from Mr Pang, a childhood friend, who shared a common interest in cars. He attested to your work ethic and the change he has seen in you recently.
43 Your girlfriend was called. She is 21 and gave evidence that she was introduced to to you by a friend in April. She expressed the view that you are shy and not outspoken and that this offending is out of character.
44 These charges have reduced your social life, she said, and increased your working and family life. You did not inform her that you had been taking drugs.
45 Mr Zang also gave evidence. He spoke of you as a caring person for whom this offending was out of character. Another witness who has known you for one year only gave evidence that she considered you a hard working person who was remorseful.
46 I also read two references from Bonnie Wong and Jimmy Zang, each of which attest to your good work record and good character.
47 I take all of these references and evidence into account.
48 You were born in 1990 and your parents came to Australia over 30 years ago. They are hardworking and have been a law-abiding and successful family in our community. Your parents run a restaurant in the city and have done so for many years. You have two older brothers to whom you are not so close.
49 Your schooling was marked by bullying and was difficult. You felt alienated and you were not academically successful. You did not complete Year 12 and after some periods attempting an apprenticeship you worked in your father’s restaurant and then have combined it with work at a Telstra dealership .
50 You worked five to six nights per week for a relatively low wage and soon you found that fines, the cost of your car hobby, the gambling and the drug taking took their toll despite working two jobs.
51 Though you had a supportive family environment, you felt it was not emotionally sustaining. However, you have now enrolled in a marketing course offered by the RMIT. You have been working full-time at the Telstra store. You are no longer, it appears, using drugs and recent clear urine screens that were certified were tendered on the plea to indicate that change.
52 You retain your family support and I consider because of this that your prospects of rehabilitation are reasonable. Such prospects, of course, reduce the significance of specific deterrence but do not diminish the primacy in this sentence of general deterrence.
53 I take into account that as a relatively immature 24 year old who appears much younger than your years, there is a realistic risk that reclusion will expose you to more criminally experienced people who will find you a vulnerable and susceptible target for persuasion and the normalisation of criminal conduct in someone who is easily led, bullied, compliant and finds it hard to fit in.
54 I acknowledge that these factors should moderate your period of imprisonment somewhat.
55 It was submitted that I should opt for a sentence which would favour rehabilitation by avoiding reclusion altogether. However, in my view, the offending is of a relatively serious nature which must be met by imprisonment.
56 Further submissions on a second occasion were directed to the effect of the recent legislative amendments which now enable judges to impose longer terms of imprisonment when coupled with a community corrections order.
57 I have considered the current sentencing practices in relation to trafficking in a commercial quantity, in particular, and have consulted the most recent current sentencing cases as well as snapshots applicable .
58 Having taken all these matters into account I am of the view that a term of imprisonment is inevitable because of the serious nature of the offending. However, I consider that the submission as to the totality and parsimony involved here are well-founded particularly in view of your young age, previous good character and reasonably good prospects of rehabilitation.
59 In my view, beyond the incarceration which will be required by the sentence, a community corrections order which will follow such a sentence is a useful cocktail of dispositions which in combination will ensure the aims and principles outlined in this sentence.
60 The report of the correctional authority which I sought found you suitable to be supervised for a period of 12 months, to perform some unpaid community work and to undergo treatment and assessment particularly in relation to drugs and alcohol.
61 I had requested that offence specific programs be considered but I am unfortunately informed that such programs are unavailable. It is a pity when imposing a community correction order beyond a sentence that such programs are unavailable for persons such as you.
62 However, assessment and treatment, particularly for drugs, may provide some of the education which I feel is important and part of the aim of imposing partial imprisonment and a community correction order.
63 Please stand, Mr Mok.
64 In the charge of trafficking in a commercial quantity of cannabis, you are convicted and sentenced to 20 months imprisonment.
65 On trafficking Ketamine, you are convicted and sentenced to nine months in imprisonment.
66 On trafficking MDMA, you are convicted and sentenced to six months imprisonment.
67 I order that two months of Charge 2 and one month of Charge 3 be cumulative on Charge 1 in recognition of the separate but largely concurrent course of conduct.
68 That makes a total effective sentence of 23 months.
69 Thereafter I order that you be released and be the subject of a community correction order for a further 12 months during which you will perform 100 hours of community work, be under the supervision of the correctional authorities and attend to the assessment and treatment which the correctional authorities will deem appropriate in your case and of course during that time you will be of good behaviour.
70 On the possession of the prohibited weapon, you are convicted and fined $500. On the dealing with proceeds of crime, you are convicted and sentence to six months imprisonment concurrent with other sentences.
71 I declare that you have served 18 days by way of pre-sentence detention excluding today. I order that the community corrections order, if I haven’t already done so, will last for 12 months and I order under s.464ZF that a biological sample be obtained.
72 I have signed forfeiture and disposal orders. But for your plea, I would have sentenced you to four and a half years imprisonment with three years non-parole period.
73 I have the signed the disposal orders and the forfeiture orders and I have signed he 464 application order for the sample of sufficient standard.
74 I should tell you, Mr Mok, that at the time that a request is made for a mouth scraping from you which is not a painful procedure to obtain a biological sample so that your DNA can be placed on a database under the supervision of an authorised member of the police force, if you refuse that procedure the police may use reasonable force to obtain a blood sample from you. Do you understand?
75 PRISONER: Yes.
76 HIS HONOUR: I have considered the seriousness of the circumstances of the offending and I consider that on that basis and on the basis that the order is in the public interest I should make such an order. I have signed those orders.
77 MR PORCEDDU: Your Honour, before they get handed down, I will bring to your attention that forfeiture order, Your Honour, you may recall that it is not by consent and we were going to adjourn that off so I would ask that that not be returned at this stage.
78 HIS HONOUR: That is fine. Yes, I will keep that in abeyance as an order that I have in effect not made given that there is a dispute about those matters. I will hand down the other orders which I have signed. Are there any other ancillary orders that I have made? I think that amounts to a total effective sentence of 23 months with a community corrections order of a year.
79 MR PORCEDDU: That is understood, Your Honour.
80 HIS HONOUR: Thank you. Mr Mok needs to sign some paperwork in relation to his community corrections order. Yes; Mr Dickenson.
81 MR DICKENSON: There is also, I think, one other issue which flows from the sentence that was imposed by Your Honour and that relates to the question of parole. Your Honour, of course, is required to consider the issue of parole as it relates to any sentence between one and two years.
82 HIS HONOUR: Yes, well, I have considered that period but in my view the period that I have set is, if you like, a straight period and I don’t propose to set a parole period.
83 MR DICKENSON: As it pleases Your Honour.
84 HIS HONOUR: The document that will be signed in relation to the community corrections order will indicate that the prisoner is required to report to Box Hill Community Corrections Services within two clear working days of his release from custody.
85 MR PORCEDDU: As it please Your Honour.
86 MR DICKENSON: As Your Honour pleases.
87 HIS HONOUR: You can be excused, Mr Prosecutor.
88 MR PORCEDDU: Thank you.
89 HIS HONOUR: If the family want to say anything to Mr Mok, they should do it now before he is taken away. I will wait at the Bench.
90 MR DICKENSON: As it please Your Honour. Thank you, we are right, Your Honour.
PRISONER REMOVED
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