Director of Public Prosecutions v Pong

[2016] VCC 390

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02248

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHAO KEONG PONG

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 April 2016
CASE MAY BE CITED AS:	DPP v Pong
MEDIUM NEUTRAL CITATION:	[2016] VCC 390

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lye
For the Offender	Mr J.D. Singh

HIS HONOUR: 

1Chao Keong Pong, you have pleaded guilty to one charge of import a commercial quantity of a border controlled drug, namely methamphetamine.

2The facts of the matter are contained in the prosecution summary, Exhibit 1.  I will not refer to the facts in any detail.  They are not disputed by your counsel.  Any reader of these reasons can refer to the exhibit to place the sentence in its factual context.

3Briefly stated, you brought into Australia two bottles of cognac.  Contained in the bottles was methamphetamine.  The amount was subsequently analysed to be a pure weight of 1.303 grams.  This is 1.7 times the threshold amount for a commercial quantity of methamphetamine.

4You have no other criminal history. 

5You were 23 at the time of the offending and 24 now.  The prosecutor filed written submissions and made oral submissions.  She submitted that I must take into account the matters listed in s.16A(2) of the Commonwealth Crimes Act.  I have done that.  She submitted that the principle of general deterrence was an important sentencing consideration here.  That is, I must impose a sentence that deters other people like yourself from committing such offences.  The maximum penalty for this offence is life imprisonment.

6The prosecutor submitted that a period of imprisonment was the only appropriate sentence having regard to the nature and circumstances of the offending.  I agree with that submission.

7The prosecutor submitted that I should take into account your guilty plea, but in accordance with current Commonwealth DPP sentencing policy she submitted that I should not have regard to what I called utilitarian benefits, that is by pleading guilty you have saved the community the cost of a criminal trial.  As discussed during the plea, I reject that submission.  I reject that submission for the reasons stated.

8You made a record of interview with the police in which you set out an account of how you came to have the cognac bottles, but maintained in that interview you did not know the bottles contained drugs.  However, you acknowledged that you did so know, by the entry of your plea, and your counsel in his written outline stated you may have known they contained some form of illegal contraband.  I have no evidence from you as to how you came into possession of the bottles or why you did so, but the undisputed facts are as set out in paragraph 12 of the Crown opening.

9It is also put that you were not to obtain any benefit from this behaviour.  I have no evidence of that, but as is stated in paragraph 17 of the Crown opening, unless there is evidence to the contrary I should infer you were doing it for financial gain.  In the absence of evidence to the contrary, I do so infer.

10On your behalf your counsel filed written submissions, a reference from your mother and made oral submissions.  In particular he referred to your plea of guilty at a committal mention, which I accept was at the earliest opportunity, and has the benefit of saving the court a jury trial and is also an acceptance of responsibility by yourself.

11Mr Singh relied on your age, you are now 24, and the fact you have no other criminal offending.  I accept both of those submissions as mitigating factors.  In his written submission he set out your personal circumstances, including your family's background, an account of your short marriage, your education and employment history.  He submitted that as you speak no English and you are in a foreign country your time in custody will be more difficult for you.  He submitted, on your instructions, that you wish is to be returned back to your own country, Malaysia.  He conceded that a term of immediate imprisonment should be imposed.

12He submitted that your rehabilitation prospects are hopeful.  I am not in any

13position to make any sort of judgment about your rehabilitation prospects through lack of relevant material.  I can only hope that you will not re-offend.

14Both counsel referred me to a number of cases, including the case of Lacaille a decision of Appeal Justice Whelan, dated 8 October 2014, in which at paragraph 22 His Honour set out the use I can make of comparable sentences.

15The chart given to me by Ms Lye of numerous cases concerning similar charges shows a wide range of sentences of imprisonment for this type of offending.  I have considered all those cases, but of course I have to consider the peculiar circumstances of your own case.

16Taking all those factors into account, I impose the following sentence of six years with a non-parole period of four years. 

17I declare that the period of 196 days that you have been in custody to be reckoned as part of the sentence I have just imposed.  The starting date of your sentence is today, 6 April 2016. 

18I declare, pursuant to s.6AAA of the Sentencing Act, that if you had proceeded to trial and you were convicted by a jury of this offence, I would have imposed a sentence in the range of eight years with a non-parole period of six years. 

19Are there any other matters I need to attend to?

20MS LYE:  No, thank you, Your Honour.

21MR SINGH:  No, thank you, Your Honour.

22HIS HONOUR:  Thank you.  You can take Mr Pong out, thank you.  Thank you, Madam Interpreter.

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