Director of Public Prosecutions v Takamatsu

[2015] VCC 1543

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01039

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

MOE TAKAMATSU

---

JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2015
DATE OF SENTENCE:	27 October 2015
CASE MAY BE CITED AS:	DPP v Takamatsu
MEDIUM NEUTRAL CITATION:	[2015] VCC 1543

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW
Catchwords:  Sentence - Importation into Australia of a commercial quantity of a   border controlled drug, methamphetamine
Legislation Cited: Commonwealth Criminal Code Act 1995, s.307.1(1); Criminal Code Regulations 2000 (Cth); Crimes Act 1914 (Cth), s.17A(1)

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Lynch (Plea) Ms R. Verdon (Sentence)	Commonwealth Director of Public Prosecutions
For the Offender	Mr R. Chaudhuri (Plea) Ms N. Giorgianni (Sentence)	Melasecca Kelly & Zayler

HIS HONOUR: 

1Moe Takamatsu, you have pleaded guilty to one charge of importing a commercial quantity of a border controlled drug contrary to s.307.1(1) of the Commonwealth Criminal Code Act 1995.

The offending

2On 12 February 2014, you arrived in Australia having flown from Ivory Coast.  You brought with you a suitcase which, upon inspection by customs officers, was found to have concealed inside its lining two bags containing methamphetamine which is a border controlled drug.  The weight of those contents was 1,591.5 grams.  The weight of pure methamphetamine was 967 grams.

3A commercial quantity of methamphetamine is defined in Schedule 4 of the Criminal Code Regulations 2000 (Cth) as 750 grams or more.  Thus it can be seen that the amount of pure methamphetamine brought into Australia by you was approximately 28.5 per cent above that threshold limit.

4You made no admissions to customs officials or to Federal Police, by whom you were later interviewed.

5Initially you pleaded not guilty to the offences with which you were charged, but on the day that your trial was listed to commence, you entered a plea of guilty to this charge.

Background

6You are aged 22.  You were born and brought up in Japan. 

7Your parents divorced when you were eleven and thereafter you lived with your mother and your older brother.  You continued to see your father several times each week.  You attended primary school and high school, apparently completing the latter.  At the age of 18, you commenced working at a supermarket and continued in that role for approximately two years.

8When 18, you met a person that you have identified as Kevin Okeke. You formed a relationship with him in Japan, prior to his moving to Nigeria.  It appears that he now resides in Ivory Coast.  You had been holidaying with him in Nigeria and Ivory Coast shortly prior to your travelling to Australia on the relevant occasion.

9The full extent of the role played by you in the importation of the methamphetamine located in your suitcase is not entirely clear.  Plainly, you were the person who brought the drug into Australia.  In your interviews with customs officials and with Federal Police, you provided no information concerning how you came to be involved in the importation, or the extent of your knowledge concerning the identity of the drug and the quantity of it.

10On 4 August of this year, you were examined at the request of your solicitors by a forensic psychologist, Ms Pamela Matthews.  In her report dated 30 August which was tendered on your behalf, the report states that you advised Ms Matthews that you and Kevin had found a suitcase at the last minute on the day of your flight, and that Kevin and a friend of his had packed your case for you and that you did not notice it was heavier than your backpack belongings.  There was no direct evidence concerning these matters in this court.  That history is in part inconsistent with statements made by you to customs officers and later to Federal Police that you had packed the case yourself.

11Your counsel conceded that you were aware when you entered Australia that the suitcase contained illicit drugs although his instructions from you were that you did not know the identity or quantity of the drug.

Sentencing principles

12Section 16A of the Crimes Act 1914 (Cth) provides that a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. That section provides for a number of matters that the court must take into account. They include:

·    The nature and circumstances of the offence;

·    The degree to which the person has shown contrition for the offence;

·    The fact that a person may have pleaded guilty to the offence;

·    The degree to which the person has co-operated with law enforcement agencies;

·    The deterrent effect of any sentence or order that may have on the person involved;

·    The need to ensure that the person is adequately punished for the offence;

·    The character, antecedents, age, means and physical or mental condition of the person;

·    The prospect of rehabilitation of the person; and

·    The probable effect that any sentence or order under consideration would have on the person's family or dependants.

13Section 17A(1) of that Act provides that:

"A court shall not pass a sentence of imprisonment on any person for a federal offence [...] unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case."

14In a case such as this, I consider that principles of general and specific deterrence are the primary sentencing considerations.  I accept, for the purpose of sentencing you, that you were a courier of the drug involved.  Whilst I may have some suspicions that your involvement may have been more than merely a courier, there was no satisfactory evidence indicating this.

15Nevertheless, the persons behind crimes involving the importation of drugs into this country rely on persons such as you, who are presumably regarded by them as trustworthy to transport the drugs for them.  Your role in bringing the drugs into Australia was crucial to the operation.

16Whilst there is no evidence as to what incentive you had for bringing drugs into this country, I consider that it is most unlikely that you would have done so without some direct or indirect gain (either actual or anticipated).

Sentencing considerations

17I will now turn to consider each of the relevant matters referred to in s.17A of the Crimes Act.

18Firstly, the offence is a serious one.  Illicit drugs and in particular methamphetamine (or Ice) are a scourge of this community.  Such drugs have caused and continue to cause great harm, directly and indirectly to users and persons associated with them.

19You pleaded guilty to the charge on the morning that your trial was due to commence.  It was a late plea but I accept that it does have some utilitarian value in that witnesses were not required to give evidence in the case and there was a saving of court resources.  However, given that the case against you was - I consider - relatively strong and given the lateness of the plea, I consider that your discount in respect of that plea should be relatively modest.

20Although your late plea might indicate some contrition for the offence, it could not be said that you have co-operated with law enforcement agencies to any extent.  You provided inconsistent versions as to the packing of the suitcase in which the drug was found.  Although you provided the name of Kevin Okeke to authorities, their inquiries revealed no person of that name as having entered Nigeria or Ivory Coast in the months leading up to your alleged travel with him to those countries shortly before your arrival in Australia.  It thus remains uncertain whether that is his correct name.

21General deterrence is, in my view, an important issue here.  Members of this community and the international communities must understand that importation of drugs into this country is not tolerated and that those who offend in this way will be severely punished.  There is a need to adequately punish you for the offence.  I need to take into account the need to impose a sentence that will deter you from offending in this manner again.

22I take into account that you are relatively young.  You have a child aged about 18 months approximately.  You were 32 weeks pregnant when you brought the methamphetamine into this country.  You well knew of your pregnancy and the imminent birth of your child when you departed for Australia.  You must have known of the risk of interception by authorities here and the risk of detention here.

23You have been in detention since the discovery of the drugs in your luggage.  Your child was born about eight weeks after your arrest and has remained with you in custody to date.  I was informed by counsel that your child is able to remain in custody with you until she reaches approximately primary school age – which I assume is when she is approximately 5 years old.  After that, if you remained in prison, your child was likely to be placed in the care of the Department of Health and Human Services and would likely be placed in foster care. Alternatively, it is possible that your father or other members of your family might be able to take care of your daughter either in this country or in Japan, although there was no evidence before me that this was likely to occur.  I accept that prison is not an ideal place to raise any child.  However, I do not consider, in all of the circumstances, that the consequences of your incarceration could properly be described as exceptional in terms of hardship to any members of your family.

24Given your age, your education, the fact that you now have a child and that it appears that you have some level of support from your father, I consider that you have reasonable prospects for rehabilitation.

25Ms Matthews reported that you had no difficulties in regard to your physical health and took no medication.  No mental health problems were reported although she stated at times you felt slightly depressed about your situation, which is hardly surprising.

26Both your counsel and counsel for the Director of Public Prosecutions referred me to a number of decisions of courts which sentenced persons in recent years in respect of similar offending.

27Counsel referred me to the matters in which Jennifer Hotvedt (sentenced in March 2013 by Judge Maidment of this court), Nicole Demirkiran (sentenced in October 2009 by Judge Cotterell of this court), and Yuen Kwong Lee (sentenced in January 2015 by Judge Cohen of this court).  In addition, I was referred to the matters of Yi Ling Tsang, Ka Po Chan, and Raymond Miego who were each sentenced by the New South Wales District Court for the same offence.  The offences of each of these persons were committed in circumstances similar to your own offending.

28In those cases, each of the offenders was sentenced to prison, to a head sentence of between 5 and 7 years.  Whilst the circumstances involved in those cases may not identical to your own, they did involve a number of similar aspects: 

·    With one exception, they were all young persons aged in their 20s.

·    Each brought methamphetamine into Australia on an international flight, the drugs concealed in their luggage or on their person.

·    The amount of pure methamphetamine brought into Australia varied between 771 and 1120 grams.

·    In each case the person was sentenced on the basis that he or she was a courier rather than a principal in respect of the importation.

·    Each person had pleaded guilty to the offence, mostly at the earliest opportunity.

·    None of those persons had any prior convictions, nor do you.

29It can therefore be observed that the circumstances of those cases bore considerable similarity to your own offending.

30In contrast, at least to a degree, I have noted the decision of the Court of Appeal in Lau v The Queen[1].   There a 56-year-old man had imported 709 grams of methamphetamine into Australia in 2009.  That quantity was just under the commercial quantity threshold and was hence defined as a “marketable quantity”, a lesser quantity.  He was sentenced to 9 years' imprisonment with a non-parole period of 6 years.  The Court of Appeal held that that sentence was not manifestly excessive.  However, I do not take the Court of Appeal decision to indicate that in any other particular case including your own, a sentence of that amount would necessarily be appropriate.

[1] [2011] VSCA 324

31I have taken into account the remarks of the Court of Appeal in the matters of Pham v The Queen[2] (in relation to which I note that Special Leave has been granted to the DPP to appeal against the decision of the Court of Appeal to the High Court); Commonwealth DPP v Bui[3]; and Lau v the Queen[4] - decisions handed down between 2011 and 2014.

[2] [2014] VSCA 204

[3] (2011) 32 VR 149

[4] [2011] VSCA 324

32In all of the circumstances, I have come to the conclusion that a sentence involving immediate imprisonment is justified and that no other sentence would be appropriate.  This is because of the seriousness of the offence and the need to deter you and others from offending similarly.  Your counsel did not seek to dissuade me from such a view.

33I intend to impose a prison sentence and order that you be released after a certain time on a recognizance release order.  I am satisfied that the circumstances relating to your young daughter are somewhat out of the ordinary.  Whilst I am not satisfied that the hardship of your imprisonment on your daughter would amount to exceptional circumstances, I do accept that your time in prison will be considerably more onerous for you than most because of your need to care for your child and your undoubted appreciation that prison is far from an appropriate place for your child to be.  I have also taken into account that you have a very limited ability to speak the English language.

34Yes, stand up please, Ms Takamatsu.

35Ms Takamatsu, for the offence of importing a commercial quantity of a border controlled drug in contravention of s307.1(1) of the Commonwealth Criminal Code Act 1995, you are sentenced to imprisonment for a term of 6 years.  After you have served 4 years of that sentence I direct that you be released on a recognizance release order upon your entering into a recognizance in the sum of $500 to be of good behaviour for 2 years.

36Before making such orders, I need to know whether you agree to enter into such undertaking to be of good behaviour for 2 years after your release from prison.

37Ms Giorgianni, do you wish to have an opportunity of approaching your client and ‑ ‑ ‑

38MS GIORGIANNI:  Yes, Your Honour.

39HIS HONOUR:  ‑ ‑ ‑ spelling out and seeking her consent?

40MS GIORGIANNI:  Yes.

41Your Honour, she understands.

42HIS HONOUR:  Pursuant to s.16E, I am required to declare the number of days of pre-sentence detention.  My calculation is 622, is that correct?

43MS VERDON:  Yes, Your Honour.

44MS GIORGIANNI:  Yes, that's ‑ ‑ ‑

45HIS HONOUR: Pursuant to s.16E(2) of the Crimes Act 1914 (Cth), I declare that 622 days is to be reckoned as the period of imprisonment already served under this sentence and I direct that the fact of that declaration and its details be noted in the records of this court.

46Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I declare that had you pleaded not guilty to this offence and been convicted by a jury of it, I would have sentenced you to imprisonment for a term of 7 years and directed that you be released on a Recognizance Release Order after serving 5 years of that sentence.

47In terms of ancillary orders sought, what orders are sought?

48MS VERDON:  No orders today, Your Honour.

49HIS HONOUR:  Nothing under 464ZF?

50MS VERDON:  No.

51HIS HONOUR:  All right, thank you.  Ms Takamatsu, my associate will have you sign some relevant documents forthwith, acknowledging - thank you.

52Yes, anything else I should be attending to at this time?

53MS VERDON:  No, Your Honour, nothing.

54MS GIORGIANNI:  No, Your Honour.

55HIS HONOUR:  Yes, thank you.  If Ms Takamatsu might be taken downstairs, thank you.  Adjourn the court till 10.30 am.

‑ ‑ ‑