Director of Public Prosecutions v Oung

[2018] VCC 1406

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01358

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT OUNG

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 September 2018
CASE MAY BE CITED AS:	DPP v Oung
MEDIUM NEUTRAL CITATION:	[2018] VCC 1406

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Darby
For the Offender	Mr R. Galbally

HIS HONOUR:

1Robert Oung, you have been found guilty by a jury after a trial of one count of importing a marketable quantity of a border controlled drug; namely Ketamine.

2You have admitted prior matters from your teenage years in Perth.  I was told, and accept, that you had taken your father's car without permission.  As it was a company car, and was damaged, he had to report the matter to the police.  You were charged with the unauthorised use of that car.

3Those matters, and the matter of driving while suspended in 2015, are not relevant to the sentencing consideration in this case.

4The evidence on which you were found guilty was largely uncontested, and it may be stated as follows.

5For some period of time you have worked as a bicycle mechanic, and also as a DJ in the Melbourne music and nightclub scene.  In the course of your work as a DJ you became good friends with the co-offender, Kasey Taylor.  In the period leading up to the offending you socialised with Mr Taylor about three times a week.  Your time together alternated between playing golf, where you provided instruction to Mr Taylor, or working at your music studio, where
Mr Taylor provided you with instruction on engineering and mixing software and music production.

6In recent times prior to your offending your time together was also marked by your mutual use of Ketamine, which was invariably supplied to you by
Mr Taylor.

7In the weeks leading up to 14 April 2016 Mr Taylor asked you to travel to India with him.  You had, before that, suffered a breakdown in your relationship with your partner.  You thought the idea of a holiday was a good one.  Mr Taylor then told you of his plan to purchase Ketamine and to bring it back into Australia.  He offered you the sum of $15,000 to participate and you readily agreed.

8You had not travelled overseas since you first arrived in Australia from the UK as a young boy.  Mr Taylor organised the details of the trip and gave you considerable assistance, and, in fact, organised on your behalf the obtaining of travel document requirements, such as passport and visa.  Although
Mr Taylor organised the accommodation and flights you paid some $1,200 for your flight.  It is noteworthy that you paid this sum at a time when you were impecunious and struggling to pay your rent.

9You travelled together with Mr Taylor through Malaysia to India.  When you arrived in Delhi you stayed in the apartment arranged by Mr Taylor.  You became aware of the quantity of Ketamine being present in the apartment on the second day.  Your trip to India was plagued by four days of illness and two days of preparation of the drug for its importation back into Australia.

10There was a pair of scales present in the apartment.  Together you weighed out 3.5 gram quantities of the drug.  It was wrapped in Glad Wrap and then each package was dipped into melted candle wax to make a rather large pellet.  In all both you and Mr Taylor swallowed 74 pellets each before boarding a flight to Australia.

11The total quantity of pure Ketamine carried into Australia by you and Mr Taylor was 445.8 grams.  This represents 148 times the marketable quantity, which is a threshold amount of 3 grams.

12On arrival at Melbourne Airport on 22 April 2016 you and Mr Taylor stood apart from each other.  You were then taken aside by Australian Border Force members.  You immediately denied knowledge of, and of travelling with
Mr Taylor, but after only a couple of minutes hesitation you then admitted that you had travelled together and that you had illegally imported Ketamine into Australia by swallowing the pellets.

13You passed some 28 pellets at the airport and you were then transported to the Royal Melbourne Hospital, where you passed the balance of the pellets.

14The following day, on 23 April 2016, the police conducted a videotaped record of interview.  You made full and comprehensive admissions to all aspects of the importation, as I have set out.  Moreover, you told the police that you had been promised the sum of $15,000 payment by Mr Taylor, which had not been paid to that point.

15You initially instructed lawyers to enter a plea of guilty on your behalf, but at some point in 2017 you changed your plea.  The issue for trial was simply whether or not you could satisfy the jury on the balance of probabilities that you had no commercial intent when you imported the Ketamine.  That is, you neither intended to sell the drug, nor believed that Kasey Taylor intended to sell any of the drug.  It was on that point that you failed to satisfy the jury on the balance of probabilities.

16The trial proceeded with remarkable efficiency.  The jury was empanelled on the afternoon of 21 August 2018.  All evidence was concluded on 22 August and the jury commenced deliberating on 23 August.  The Crown case consisted of two witnesses; the informant and an expert as to the valuation of the drugs in question.  The informant's evidence consisted primarily of reading an agreed statement of facts and playing the record of interview.  There were one or two exhibits tendered.

17The expert gave evidence that the total value of the drugs imported ranged from roughly $29,000 to about $72,000.

18You gave evidence on behalf of your case.  Essentially you told the jury that although you had the option of keeping some of the Ketamine for yourself you did not intend to do so, and consequently did not intend to sell any of the Ketamine you had brought back.  You also stated that although Mr Taylor had always shared Ketamine with you and others you had never seen him sell the drug, and you did not believe he intended to sell any part of the drug – that is, the quantity he carried or the quantity that you were to return to him.

19You were cross-examined by prosecuting counsel, Ms Avis.  You repeatedly denied that it had crossed your mind to keep the Ketamine and to sell some of it in order to pay your rent.  You stated that you would not do so if Mr Taylor was offering you money.  Ms Avis suggested that it was odd that you would be offered $15,000 but you had to pay your own airfare.  You agreed that you had not been paid any money to that point and you did not know when the money would be forthcoming.

20It is necessary to say something of the course taken by the co-offender.  After some prevarication Mr Taylor pleaded guilty before Her Honour Judge Quin on 18 March 2018.  In her sentencing remarks Judge Quin stated - and I refer first to paragraph 10.  She said:

You maintained that Mr Oung's pellets were to be used by you and your flatmate, and that those that you had consumed were for your own personal use.

21At paragraph 28 of her sentencing remarks she stated:

Your counsel submitted that I should accept that it was never your intention to sell the drug, to put it out into the community, or to use your share of it for anything other than personal use.  That is, I should conclude that your position as revealed in the record of interview, and in your dealings with authorities, that you are honest, naive and unsophisticated.

22At paragraph 29 Judge Quin said, on detail of plea:

It was submitted that you did not become involved because of mercenary interests or greed, as others who engage in similar kind of offending do.  It was submitted that given the relatively low market value of the Ketamine imported, and the amount for personal use, that there was thus a relatively low reward expected.

23And then at paragraph 45 of the sentencing remarks Her Honour stated:

I accept that there is no evidence that you were motivated in the offending by greed, which would have been a further aggravating factor, however given the total amount imported by you both some of it may have become available on the market, or within the community.

24I have been careful not to interweave the sentencing remarks of Judge Quin in making my findings for the purpose of sentence, however I am satisfied that the jury verdict is consistent with a failure to prove that you believed Mr Taylor would not sell any of the drug in his possession, or of the drug that you would pass to him.  This arises from the fact that you were not paid before you went to India on this doubly dangerous venture.  Not only did you have to bring the drugs back into Australia, but you took an enormous risk in swallowing such a large amount of it.

25It is a logical conclusion, and consistent with the jury verdict, that you believed Mr Taylor would sell some of the drug to fund the trip, and to fund your promised reward.

26In making this finding I refer also to your evidence that you both considered that your Ketamine use was getting out of control.  It had cost you your relationship; Mr Taylor told you his relationship at the time was in danger, and you both expressed (in text messages before your departure to India) the fact that this had to be the last of it.  In your evidence to the jury you described this as a sort of "last hurrah".  It is inconsistent with your evidence as to belief that the drug was entirely for personal use, that Taylor would bring back a supply that would last for many months, even if shared, or would last over a year if consumed only by Mr Taylor.

27In the circumstances I reach the conclusion that in reality you had adverted to the likelihood or probability that some of the drug would be sold in order that you could be paid.  I simply note that this finding is broadly similar to that made by Judge Quin.

28This is a serious example of the importation of a marketable quantity of a border controlled drug.  In this instance you and your co-offender agreed to bring in 148 times the marketable quantity of the drug Ketamine.  Moreover, you agreed to the plan two to three weeks in advance and participated in the preparation of the drug for concealment in India before taking on the role of courier.  You did all of this in the hope, or perhaps even expectation, of financial reward.

29The principles for sentencing in cases in importation require that:

·general deterrence is to be given chief weight on sentence and stern punishment will be warranted in almost every case;

·involvement at any level must attract a significant sentence otherwise the interests of justice are not served, and the interests of deterrence are not served;

·factors personal to the offender are therefore given less weight than might otherwise be given.

30Your role, however, must be distinguished from that of your co-offender in that you were neither the architect nor the organiser of the plan.  You played no part in financing the purchase of the Ketamine.  You paid for your airfare but did not otherwise finance the venture.  It appears that your role in preparing the drug for importation was at the direction of Mr Taylor.  Finally, there is evidence that you would hand the drug over to Mr Taylor at the end of the venture.  Your role was more than that of a mere courier, but it remained considerably lower than that of Mr Taylor.  I find your moral culpability is also lower than Mr Taylor's moral culpability.

31I turn now to your personal circumstances.

32You are 43 years of age and you were born in February 1975.  You are a UK British National.  You came to Australia with your family as a child and settled originally in Perth.  Your father still lives in Perth whilst your mother lives in Adelaide.

33You are the middle of three children.  Your mother describes that you left home at age 18 to move to Melbourne with your girlfriend.  She stated that you were a quiet child, very independent, and a private person.  She states that you assist your older sister, who is a single parent, by taking in her daughter on weekends.  You also provide support to your younger brother.

34For much of your adult life you worked as a bookkeeper.  You have also worked as a steel cutter.  In more recent years you have worked buying BMX bikes; refurbishing them and selling them on eBay.

35You have a long-standing interest in music.  In addition to working as a DJ around Melbourne nightclubs you have had a long-standing voluntary position presenting a program on Kiss FM since 2005.  The station manager, Timothy Byrne, provided a reference not only for the work that you have done, but your commitment to the station and to the positive influence that you have had on others.

36Both your mother, in her reference, and Mr Byrne, consider your actions to be out of character with the person that they both know well.  Both of them speak of your remorse for, and insight into, your offending.

37Your partner of the last two years, Amanda Taylor, gave evidence on your behalf.  She spoke of the quiet, simple lifestyle you have both led together in the last two years.  Ms Taylor is certain that you have not been using drugs in the period that she has known you.  As you now both live together in Rye, and as she gave up her career to live with you, and to work on BMX bikes with you, she said that you spend most of your days and nights together.  
Ms Taylor came across as a credible and genuine witness.  Her evidence certainly was not challenged in cross-examination.

38Ms Avis submitted on behalf of the Commonwealth DPP that your offending warranted a period of imprisonment involving the setting of a non-parole period.  The same submission was made by the Commonwealth on
Mr Taylor's plea.

39In that case Judge Quin imposed a sentence of three years and ordered
Mr Taylor to be released on a recognizance release order after serving a period of imprisonment of six months.  I note that the Commonwealth did not appeal that sentence as being inadequate.

40In this instance, however, Ms Avis submitted that the absence of the plea of guilty denies you the benefit of the mitigating factors that attend it, that is, the utilitarian benefit that flows with the plea of the guilty and the facilitation of the course of justice.

41Ms Avis referred to the table of cases that was originally provided to Judge Quin in respect to the Taylor plea.  In the end, however, I find that those cases do not involve Ketamine.  Furthermore, I am mindful of the fact that I must carefully consider the circumstances of your case and impose the sentence on you which I consider appropriate.

42Mr Sheales, who appeared on your behalf, submitted that the following factors influence the sentence to be imposed in this case.

43First; the plea of not guilty must be put in context.  You acknowledged that you had committed all of the acts of importation but sought to prove that you did not have a commercial intent.  Mr Sheales submitted this narrow issue should not be taken to contradict the expressions of contrition that you have made to your mother, and to Mr Byrne.

44Second; you cooperated extensively with the authorities.  In fact, except for some text messages produced by the informant the entire case against you consisted of the agreed facts, your record of interview, and the evidence of the value of the drugs given by the expert.  In this way nearly the whole case was either provided by answers and admissions made by you, or matters to which you agreed.

45Next Mr Sheales submitted that your prospects for rehabilitation are good to very good.  In this respect it was submitted I should accept that you have remained drug free since your interception on this offending.

46Next he submitted the offending conduct in the jury's verdict ought to be interpreted to conclude not that you intended to sell any of the drug, but that you could not establish that you did not believe Mr Taylor would not sell any of the drug.

47Next he submitted that parity is important, and finally he submitted that as a UK citizen you may face the prospect of deportation.

48With the exception of the last submission as to deportation - and there was simply no evidence put before me - I accept the submissions made on your behalf.  The question really becomes how does parity - that is, equal justice in sentencing - operate in this case?  Now, of course parity does not mean that as a matter of course each offender gets the same sentence.  Equal justice in sentencing can mean that offenders get different sentences depending on their role in the offending and the other factors to be taken into account in their individual case.

49As Ms Avis correctly submitted, you do not get the benefit which flows from a plea of guilty, however I must take into account, on the other hand, that your participation in this venture was at the direction of the co-accused.  He was the principal architect, he was the organiser, and you were not.  When I consider your personal circumstances and those of Mr Taylor's there is not really a great difference between you.  I certainly accept that in both instances you have remained drug free.

50Judge Quin remarked that this was a difficult sentencing task.  I agree with this observation.  In the end, however, I conclude that whereas the benefit of the plea of guilty which accrued to Mr Taylor mitigated his sentence, a proper analysis of your lesser role in the overall venture requires recognition in the sentencing process.

51For that reason I have decided that a sentence involving a period of imprisonment followed by a recognizance release order is also appropriate in your case.  I will ask you to stand now please, Mr Oung.

52On the charge of importation of a marketable quantity of a border controlled drug - namely Ketamine - you are convicted and sentenced to a term of imprisonment of three years.  That sentence commences today.

53It is my intention that you would be required to serve a period of six months of that sentence.  After that period of time you will be released upon giving security in the sum of $10,000 to be of good behaviour for three years.

54That means that you must not commit any further breach of the law during the period of the recognizance, a period of three years.  If you do breach the terms of the recognizance you will be brought back and ordered to serve the sentence I have imposed.  You do not have to pay the sum of $10,000 now, or at the end of the six month period.  That is the price of the promise to be good.

55The purpose of making this order is to give you the opportunity not to serve the whole of the gaol term, and to give you a chance to continue to reintegrate into the community as a law-abiding citizen.

56I declare the period of 13 days pre-sentence detention, excluding today, reckoned as already served.

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