Director of Public Prosecutions v Su Him Ho
[2016] VCC 174
•25 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-02055
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SU HIM HO |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2016 | |
DATE OF SENTENCE: | 25 February 2016 | |
CASE MAY BE CITED AS: | DPP v Su Him Ho | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 174 | |
REASONS FOR SENTENCE
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Criminal law – sentencing- import a marketable quantity of a border-controlled drug contrary to ss307.2(1) of the Criminal Code (Cth)- Immediate term of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Piechutowska | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr N Tehan | Slades |
HER HONOUR:
1 Mr Ho, you have pleaded guilty before me on indictment to one charge of import a marketable quantity of a border-controlled drug contrary to s.307.2(1) of the Criminal Code (Cth).
2 This is a serious offence as is evidenced by the maximum penalty that is prescribed at law and that is, 25 years' imprisonment, a fine of 5,000 penalty units ($900,000), or both.
3 I shall proceed to sentence you on the basis of the Summary of the Prosecution Opening that was exhibited at the plea hearing.
4 In brief, following your arrival at Melbourne International Airport from Hong Kong on 12 August 2015, you were selected for a baggage examination. Your suitcase was examined where a 1.5 litre bottle of Remy Martin Fine Champagne Cognac was found. Preliminary testing returned a positive result for methamphetamine.
5 Following the presumptive test, you were then escorted to an interview room, cautioned and given your rights with assistance of a Cantonese telephone interpreter.
6 You were arrested and taken to the Australian Federal Police (“AFP”) building at the airport and interviewed. You were assisted with a Cantonese speaking telephone interpreter during the interview.
7 During the course of that interview, you made a number of admissions. You told the AFP that you had been asked by a friend, Ping, to bring the wine to Australia and that you had been given a telephone number to call upon your arrival. Ping was known to you through working together in the same restaurant. He was aware of your trip and came to your house and packed the bottle in your suitcase. You did not know the person to whom you were to deliver the bottle. You were given a name and an address in West Footscray. You were warned by Ping not to touch, open, break or damage the bottle. When you got to the airport, you tried to shake the bottle to see what was in it, to be on the safe side, as you did not want to bring in anything illegal and you wanted to make sure it was wine. You were afraid that there could be illegal drugs in the bottle due to Ping’s behaviour and warnings. You told police if you had known, you would not have brought it into Australia.
8 You were arrested and charged on 12 August 2015, and remanded in custody. Following your arrest, the liquid crystalline material from the Remy Martin bottle was sent for analysis by the National Measurement Institute and that analysis confirmed that the liquid and crystals were methamphetamine with a purity of 43.8 per cent. The net weight of the pure methamphetamine was 667.7 grams.
9 Methamphetamine is a listed border-controlled drug with 2.0 grams being a marketable quantity and 750 grams and above being a commercial quantity. The quantity of drug you imported is therefore at the upper end of the marketable quantity.
10 The wholesale value of the methamphetamine imported is estimated between approximately $226,440 and $366,300, while the street value is between approximately $701,075 and $934,700.
11 Mr Tehan on your behalf highlighted a number of mitigating factors. He addressed the court on your personal history and background.
12 You were twenty-eight at the time of the offending and you are now twenty-nine. You have spent 198 days in pre-sentence detention. You have no prior criminal history.
13 Your parents are Cantonese. You were born in Germany. Your parents were granted German residence. Your mother returned to Hong Kong with you and your younger twin siblings when you were aged between six and seven years. Your father stayed in Germany and later went to live in Thailand where he later re-partnered. Your siblings are now aged eighteen. Your mother had a myriad of health problems and sadly she died when you were about fourteen years of age.
14 Following her death, you were sent to Thailand to be with your father. You lived in Thailand between the ages of fourteen and seventeen and returned to Hong Kong thereafter.
15 Following your mother’s death, both you and your younger siblings have been cared for by your extended family. Over time, you have taken on greater responsibility, including financial support for your younger siblings.
16 You told the AFP interviewing officers that you are recently married to a Chinese national, Le Tong Yin. She did not accompany you to Australia because she did not have travel documents. You have not had any direct dealings with your wife, or your siblings or extended family members since your arrest in Australia.
17 I accept that the motivation for offending was financial gain. You were in difficult financial circumstances and undertook to bring the wine to Australia to obtain money to help out with your family responsibilities. You now acknowledge that your actions were foolhardy, and that yours was a reckless decision to agree to bring the bottle of wine into Australia on Ping's behalf.
18 As has been held in Lau v R [2011] VSCA 324; recklessness is a relevant factor in sentencing. It is not a mitigating factor, but it is not aggravating factor.
19
I have regard to your early plea of guilty. At committal mention on
18 November 2015, you entered a plea of guilty to the one charge and you were committed by way of straight hand-up brief to the County Court for a plea hearing on 19 February 2016. It is accepted that you entered a plea of guilty at the earliest opportunity.
20 This is significant because it has saved the court time and resources, and is an expression of your willingness to facilitate the administration of justice. Further, I am satisfied there is real utility in the plea.
21 I am also satisfied that your plea is indicative of remorse.
22 There is, in this case, further evidence of remorse. You were fully cooperative with the police when interviewed, following your arrest. You have no English and through a telephone interpreter, you provided the police with fulsome answers concerning your involvement in this crime. Importantly, you acknowledged that you knew, the bottle was in your luggage; that you were suspicious that it contained something dangerous or illegal; that you were afraid that there could be illegal drugs in the bottle due to Ping’s behaviour. You told the police information about Ping’s whereabouts in Hong Kong and also information about the person who was expecting the delivery of the drug and the contact address details for that person.
23 In your interview with Mr Jeremy Parker, Consultant Psychologist, you expressed considerable anger at the person who asked you to bring the bottle to Australia and also to yourself, for not asking more questions about its contents.
24 I have had regard to the circumstances of your detention whilst being held at the Metropolitan Remand Centre (MRS). You were there for approximately five months and experienced lock-down conditions over that period, due to the prison riots in July 2015. You were in your cell for 23 out of 24 hours each day. Because of your inability to communicate in English, you did not know that these conditions were not the normal situation.
25 I have had regard to your linguistic and cultural differences that separates you from other prisoners, coupled with the very real difficulties associated with being held in the conditions at MRC.
26 You are currently being held at Port Phillip Prison. You were transferred there some two or three weeks ago. You continue to be isolated insofar as there are only a few people with whom you can communicate at Port Phillip. There are some other Cantonese speakers, however you have a speech impediment that makes it difficult for you to be understood. This was also the experience of the court interpreters who have assisted at the plea hearing.
27 Your wife, continues to live and work in mainland China. Your siblings and extended family live in Hong Kong. None of them are aware of the reasons for your detention in Australia. You propose to tell them once the sentence has been imposed. You have no connections with Victoria. Your continuing isolation is a factor that has been taken into account.
28 Since being held at Port Phillip Prison, you have been working as a metalworker and you have been undertaking some English classes.
29 I accept Mr Parker's assessment that you have an adjustment disorder with low mood. He describes that as being mild depressive symptoms and anxiety symptoms.
30 I am satisfied having regard to the difficulties that you have been experiencing whilst in custody, that your situation means that your time in prison is more burdensome, than for a prisoner who is able to communicate properly in English, with social networks. I have made allowance for your linguistic and cultural differences and accept that your time spent in gaol and ongoing will be more burdensome.
31 In the past, you have demonstrated a strong work ethic and have a strong work history. You have very little by way of formal education, having left school around the age of 15 to commence working with your father. You have indicated a strong desire to return to your family in Hong Kong once your sentence is completed.
32 In sentencing you, I have had regard to the relevant sentencing principles. I am required to sentence you in accordance with Part 1B of the Crimes Act (1914) (Cth). The Court must impose a sentence that is of a severity appropriate in all the circumstances: s16A(1). And in addition to other relevant factors, the court must specifically take into account all matters listed in s.16A(2) that are relevant and known to the court.
33 General deterrence is important in these types of cases and is of a fundamental consideration in sentencing a person for a drug importation charge.[1]
[1]R v Benais [1999] NSWCCA 26 at [28]; R v Budiman (1998) 102 A Crim R 411 at 416; R v Riddell (2009) 194 A Crim R 524 at 536 [55] – [58].
34 The Court must impose stern punishment. The sentence must be of such a nature that it will act, deter other would-be drug importers from engaging in such activity, and show in the event that they do so, they face severe punishment.[2]
[2]R v Nguyen: R v Pham (2010) ACR 106, 127 at “H”
35 You imported 667.7 grams of pure methamphetamine, a significant amount, being at the upper end of a marketable quantity and close to the commercial quantity threshold. The size of the importation is a relevant factor, although not the principle factor that must be considered when fixing the appropriate sentence.
36 You are being sentenced on the basis that you were a courier; that you were reckless as to whether the substance that you intended to import was a border-controlled drug.
37 Notwithstanding that, you are considered to be only a courier, your role was still very crucial to the importation of drugs into Australia. It is well established the persons who participate in the illegal drug trade at any level, should expect and receive heavy penalties.[3]
[3]R v Budiman (1998) 102 A Crim R 411 at 414, citing with approval the observations of Wells CJ in Le Cerf (1975) 13 SASR 237 at 239.
38 I have regard to your character, antecedents and background. The fact that you have no prior criminal history is a factor I must take into account. It is a well-established principle for offences of this nature, good character is generally of less weight as a mitigating factor.[4] Drug couriers are frequently selected because they have no criminal record.
[4]R v Nguyen: R v Pham (20100 ACR 106; cited by Maxwell P in Phommalysack at 682 [34].
39 Having regard to the objective features of your offending, I am satisfied that there was a degree of planning involved. You arranged and paid for your own flights to Australia and two nights’ accommodation. You permitted another person to place the bottle in your luggage and brought the concealed drugs into Australia from Hong Kong. Your participation in the offending was motivated by financial reward and the amount and value of the drug imported is significant.
40 Your role was an essential function of the drug trade.
41 I am satisfied having regard to your post arrest conduct, that this has been a salutary lesson for you and that it is unlikely that you will reoffend in the same well like manner in the future. I nonetheless consider there is still a need to emphasise specific deterrence in your sentence.
42 Overall, I consider your rehabilitation prospects are excellent and the likelihood of you reoffending is low.
43 I have had regard to and been guided by the comparable cases provided by the prosecutor in both Appendixes A and Appendix B.
44 Finally, having regard to all the matters that I have referred to, I consider that a period of imprisonment to be served is the only sentencing option available.
45 I just ask that Mr Ho stands now because I will read the formal court order. On the one charge of importing a marketable quantity of a border controlled drug, you will be sentence to five years imprisonment. I direct that that sentence commence from today's date.
46 I direct that you serve three years imprisonment before being eligible for consideration for parole
47 Pursuant to s.16E(2) of the Crimes Act 1914 (Cth), pre-sentence detention of 197 days is reckoned as time served pursuant to the sentence.
48 Finally, I make a declaration pursuant to s.6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have sentenced you to seven years imprisonment, to serve five years imprisonment.
49 MR TEHAN: As Your Honour pleases.
50 HER HONOUR: All right, thank you. Is it intended now that you will go downstairs?
51 MR TEHAN: Yes.
52 HER HONOUR: Thank you for your assistance, Mr Tehan.
53 MR TEHAN: Thank you, Your Honour.
54 HER HONOUR: And Ms Piechutowska.
55 MS PIECHUTOWSKA: Yes, Your Honour.
56 HER HONOUR: We can adjourn.
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