Director of Public Prosecutions v Teh
[2019] VCC 391
•29 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-01739
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THENG TEH |
---
| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 March 2019 |
| DATE OF SENTENCE: | 29 March 2019 |
| CASE MAY BE CITED AS: | DPP v Teh |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 391 |
REASONS FOR SENTENCE
---Subject: Criminal law – Sentence
Catchwords: Trafficking in a drug of dependence (45.15 grams of methyl amphetamine) and possess other drugs (small quantities) – guilty plea – Malaysian citizen – no criminal history – good prospects of rehabilitation – parity
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence of 9 months imprisonment---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Strugnell Mr G. Martin | |
| For the Accused | Ms J. Clark |
HIS HONOUR:
1Theng Teh, you have pleaded guilty to one count of trafficking in a drug of dependence, namely methylamphetamine, Count 1, and three counts of possess a drug of dependence, namely cocaine, Count 2, 1,4‑Butanediol, Count 3, and ephedrine, Count 4. You have also pleaded guilty to the summary offence of possess a weapon without exemption, namely a capsicum spray canister.
2The agreed circumstances of your offending are set out in the prosecution opening upon plea, which was Exhibit A. In summary you were living in a relationship with the co-offender Robert Nguyen. Nguyen and you worked together in an ongoing business of trafficking methylamphetamine. Between 22 November 2017 and 20 December 2017 Nguyen and you jointly trafficked methylamphetamine in the following transactions.
3On 22 November the sale of 28 grams of unknown purity; on 23 November an offer to sell 1.5 grams of unknown purity; on 23 November again the sale of 1.7 grams of unknown purity; on 29 November the sale of 1.7 grams of unknown purity; on 30 November, two sales of 1.7 grams each of unknown purity; on 5 December the sale of 10.5 grams of unknown purity; and on 20 December the sale of 0.5 grams with a purity of 89 per cent. Nguyen and you trafficked a total of 45.15 grams of methylamphetamine of largely unknown purity, and that is Charge 1.
4On 20 December 2017 Nguyen and you were at your apartment when police executed a search warrant. You had just sold 0.5 grams of methylamphetamine to a customer. Inside the apartment police found 0.1 gram of cocaine, which is Charge 2; 8.9 grams of 1,4‑Butanediol, which is Charge 3; and 18.5 grams of a mixed substance containing 13 grams of pure ephedrine, which is Charge 4. They also found a capsicum spray canister, the summary charge. You were arrested and remanded in custody.
5You have no criminal history. You were born on 7 May 1991 and are now aged 27 years. Ms Clark, who appeared on your behalf, in written and oral submissions told me you were born in Kuala Lumpur, Malaysia, where you were raised by your mother. When you were 17 you gave birth to your first son. You had a second son four years later. In February 2014 you came to Perth with your husband for a holiday. After you separated from your husband you came to Melbourne in March 2014 and you met the co-offender Robert Nguyen in 2016. When you were with Nguyen you were using illicit drugs including methylamphetamine and in the context of your drug use, gambling and your relationship with Nguyen this offending occurred.
6You are a Malaysian citizen. You came to Australia on a holiday visa and when you moved to Melbourne you obtained a student visa, which allowed you to undertake studies here. Because of your criminal offending your visa has been cancelled and you will be deported when you complete your prison sentence.
7Ms Clark produced a number of certificates of completion of prison education programs, which were Exhibit 1; negative or clean urine screen results, Exhibit 2; and certificates of attendance at Alcoholics Anonymous and Narcotics Anonymous courses, Exhibit 3. I was told that although you have had no problem with alcohol you found it beneficial to attend the AA courses. You have also participated in the Somebody's Daughter theatre company drama program. The CEO described you as, "A hard worker who is focused, creative and a great role model within the group". Her letter was Exhibit 4.
8I have read the letter of a pastor from Engage Community Church who, with his wife, has been visiting you in gaol since mid-2018 at your mother's request. His letter is Exhibit 5. The pastor, the Reverend Raj Manni, has observed you have made significant positive changes whilst you have been in custody. He wrote:
"I was particularly struck by her remark that she was actually grateful to God for her detention, because through this intervention she has had a chance to soberly reflect on her life choices".
9You have studied scriptures and prayed regularly and you have taken responsibility for your offending and, according to Pastor Raj Manni, repented.
10In mitigation of penalty Ms Clark relied on the following factors: your plea of guilty, your expressions of genuine remorse, your lack of any criminal history, your positive response to your time in custody and your good prospects of rehabilitation. I accept the force of those submissions.
11On 1 October 2018 I sentenced Robert Nguyen to nine months' imprisonment with a community correction order for 18 months for the same trafficking and possession charges. Ms Clark submitted I should impose the same sentence of imprisonment upon you. In other words she submitted I should impose a lesser sentence upon you than Nguyen. I note Nguyen, unlike you, had prior convictions for drug trafficking and possession and pending drug possession charges. The need for specific deterrence was greater in his case than yours. I also note that you, unlike Nguyen, will suffer as a consequence of your offending the additional punishment by your deportation from Australia when you complete your sentence.
12Your offending is a less serious example of trafficking involving eight transactions over a four-week period in mostly small quantities; however, because of the social evil caused, drug trafficking of any kind is serious and must be punished, ordinarily by a term of imprisonment. Ms Strugnell on behalf of the prosecution submitted the appropriate penalty is a term of imprisonment; Ms Clark did not submit otherwise.
13In relation to the drug possession charges, which you possessed jointly with Nguyen, I have evidence only of the quantity and the nature of the drug possessed. Ms Clark submitted I should make the same findings in relation to you as I made in respect of Nguyen as to the purposes of your possession of those drugs with him. I am satisfied on the balance of probabilities your possession of cocaine, Count 2, which was only 0.1 of a gram, which is consistent with personal use, was not for any purpose relating to trafficking.
14As your possession of 1,4‑Butanediol, Ms Strugnell helpfully informed me the street value of that drug is between 40 and 80 dollars. Taking into account its low value and noting a trafficable quantity of the drug is 50 grams, I am satisfied on the balance of probabilities your possession was for a purpose not related to trafficking. That is a different finding to the one I made in relation to Mr Nguyen, but I did not have a street value estimate at that time.
15I consider it likely the ephedrine was to be used as a cutting agent for your methylamphetamine trafficking. In relation to the summary charge, possess a prohibited weapon, I find you likely had that capsicum spray for defensive protection.
16Ms Teh, by the sentence I impose I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or a similar kind. I must also look to the protection of the community and to your rehabilitation. Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promote the purposes of sentencing in a manner appropriate to you, I sentence you as follows.
17On Count 1, trafficking in a drug of dependence, you are convicted and sentenced to nine months' imprisonment. On Count 2, possess cocaine, you are convicted and sentenced to seven days' imprisonment. On Count 3, possess 1,4‑Butanediol, you are convicted and sentenced to seven days' imprisonment. On Count 4, possess ephedrine, you are convicted and sentenced to 14 days' imprisonment. On the summary charge of possess a prohibited weapon you are convicted and sentenced to 14 days' imprisonment.
18The sentences of imprisonment I have imposed on Counts 2, 3 and 4 and the summary charge are to be served concurrently with Count 1, the trafficking charge, and each other. That means that your total effective sentence is nine months' imprisonment.
19Pursuant to s.18(4) of the Sentencing Act I declare that you have already served 461 days - is that right?
20MR MARTIN: Sixty-four, Your Honour.
21HIS HONOUR: Thank you, Mr Martin. I declare that you have already served 464 days by way of pre-sentence detention and that is to be reckoned as time already served. So by the sentence I have imposed, Ms Teh, I intend you should be eligible for immediate release.
22Pursuant to s.6AAA of the Sentencing Act I indicate that but for your plea of guilty you would have been sentenced to a total effective term of 16 months' imprisonment with a non-parole period of 10 months. I make an order for disposal of the property set out in the schedule to the order. As you will be deported as soon as immigration authorities can arrange it and it is unlikely - I am sorry, it is likely that you will not be allowed re-entry to Australia, I am not satisfied in all the circumstances that the making of an order for the taking of a forensic sample is justified.
23Ms Teh, your total effective sentence is nine months and because you have served 464 days' imprisonment you should be eligible for release today and that is my intention. Thank you.
24OFFENDER: Thank you.
25HIS HONOUR: All right, thank you, Ms Clark.
26MS CLARK: If Your Honour pleases.
27HIS HONOUR: Mr Martin. We'll adjourn till 10 o'clock, please.
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