Director of Public Prosecutions v Tiong

[2016] VCC 833

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01349

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHIONG TECK TIONG

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2016
DATE OF SENTENCE:	16 June 2016
CASE MAY BE CITED AS:	DPP v Tiong
MEDIUM NEUTRAL CITATION:	[2016] VCC 833

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Trafficking in drug of dependence – Dealing with proceeds of crime (summary offence) – Question as to role played in drug enterprise – Issue of drug addiction – Gambling addiction

Sentence:Convicted and sentenced to 3 years’ imprisonment with a non-parole period of 2 years’ imprisonment – Pre-sentence detention of 508 days declared – s.6AAA Sentencing Act 1991 declaration – Ancillary orders – Disposal and Forfeiture orders made

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Office of Public Prosecutions
For the Accused	Mr M. Brennan	Emma Turnbull Lawyers

HER HONOUR:

1Chiong Teck Tiong, you have pleaded guilty to two charges of trafficking in a drug of dependence and a summary charge of dealing with proceeds of crime.

2The maximum penalty for trafficking a drug of dependence is 15 years' imprisonment while the maximum penalty for the summary offence of dealing with proceeds of crime is two years gaol or 240 penalty units.

3Your offending was opened as follows:

4At about 1.20 pm on Friday 23 January 2015, you and a friend, Thanh Do, attended at the Punt Hill Apartments, 7 Yarra Street, South Yarra (the Apartments).  You stayed overnight and Thanh Do went to his home.

5The next day at about 10.30 am you and Thanh Do checked out of the Apartments. 

6While you were checking out, the apartment manager went to the apartment which you had occupied to check its condition.  He noticed a strong smell of ammonia or disinfectant coming from the room and that there was a pot on the stove with a sieve on top of the pot.  He believed that the room had been used to manufacture amphetamines and contacted the Prahran Police Station. 

7Police arrived shortly afterwards and searched Thanh Do’s vehicle which was parked immediately outside the apartments.

8You were asked whether any items in the car belonged to you and you pointed out a bag containing clothing and said that nothing else belonged to you.

9One item – a ‘book’, which was really a ‘lock box’, was seized by police for further investigation and you were allowed to leave the scene.

10The lock box, which was disguised by a book cover, was taken to the Monash Criminal Investigation Unit where it was unlocked and the contents examined.  Inside the lock box were found the following items:

(a) paperwork which was identified as belonging to you;

(b) 1x Glad snap lock plastic bag containing white crystals;

(c) 4x medium zip lock plastic bags containing white crystals;

(d) 1x small zip lock bag containing 10 small zip lock bags each containing white powder; and

(e) $6,285 cash in assorted denominations.

11I was shown photos of these items which were tendered in evidence at the plea hearing.

12At about 11.20 am on Sunday 25 January 2015, police arrested you outside the Apartments and they searched you.  Police found $8000 cash in the front left pocket of your shorts.  They then had a conversation with you. You said that you had borrowed the money from a friend of your mother’s.

13The money was seized. 

14You were arrested and taken to the Oakleigh Police Station for interview.  During the interview, you denied owning the lock box or its contents.

15Forensic analysis revealed that five of the plastic bags seized contained a total of 386.6 grams of 90 per cent pure methyl-amphetamine (347 grams). 

16The smaller plastic bags within the larger bag were found to contain a combined total of 10.1 grams of 20 per cent pure cocaine.

17Therefore, each of the substances were in excess of a traffickable quantity, which is at least 3 grams for each substance. Your possession of the drugs in these amounts is regarded by the law as prima facie evidence of trafficking

18The prosecution relied upon the trafficking provisions and quantity provisions as well as the way in which each of the drugs (methylamphetamine and cocaine) were packaged as proof of the allegations that you were trafficking each drug of dependence.  By your pleas of guilty to each of the charges on the indictment, you accept that you were trafficking in these drugs.

19By your plea of guilty to the summary charge, Charge 3, you also admit to being in possession of property suspected to be proceeds of crime, which is a rolled up charge taking in the two substantial sums of cash found on two different days-the first amount being in the lock box with the drugs and the list of names with phone numbers et cetera. Therefore, the money found by police on 25 January was not a loan from a friend of your mother’s as you told police.

20You were remanded in custody on 25 January 2015.  Pre-sentence detention, as at the date of the plea hearing on 8 June, was 500 days.

21Mr Tiong, your offending is serious, especially Charge 1 where the quantity involved is at the higher end for traffickable quantity.  Indeed, you were in possession of a commercial quantity of methamphetamine as I understand it.  However, the prosecution do not allege that you had the necessary state of mind to found the more serious charge and I sentence you on the basis of trafficking simpliciter.  The point to be made is that the quantity in your possession, insofar as Charge 1 is concerned, was most significant, placing your offending at the higher end of seriousness insofar as quantity is concerned. However, I also sentence you on the basis of trafficking on one date which is what the Prosecution alleges in relation to Charges 1 and 2.

22Your Counsel said that the money found was your payment for your role as a courier in respect of the offending. I have some difficulty with this, in circumstances where the first wad of cash was found in the lock box with the drugs and list of names, while the second wad of cash was found in your pocket several days later.

23I am unable to determine precisely what your role was in this trafficking enterprise in all of the circumstances but, whatever it was, it was undoubtedly an important one in the distribution of the drugs found in your possession.

24I was told that you were addicted to ice at the time that you engaged in this offending, that you had drug and gambling debts, as you were also addicted to gambling.  No evidence was placed before me in support of these assertions. Apparently, you have been able to give up drugs whilst in custody without assistance.  I gave your Counsel an opportunity to provide some documentation in respect of this aspect-in the nature of notes taken by custody officers or medical officers who have observed your withdrawal from drugs.  After taking instructions from you, your Counsel did not take advantage of this offer.  I make no adverse inference in this regard.  However in the end, I sentence you on the basis that, if you were addicted to drugs at the relevant time, you were able to function sufficiently to be in possession of drugs that you were apparently addicted to and to handle large sums of money.  In any event, drug and gambling addictions do not lessen your moral culpability – it’s just that your moral culpability may be seen as even higher if you were offending for sheer profit.

25In all of the circumstances, I must impose a punishment which is just in all of the circumstances and give strong weight to general deterrence and denunciation.  Drugs of the kind that you were trafficking are an utter scourge on our community.  They destroy lives- The lives of those who take the drugs as well as the lives of their families and friends.  Do you understand that?  They are also the trigger for violent and criminal behaviour which impacts of many other members of our community.  Do you understand that?

26I was told that you came to Australia in order to study hospitality in circumstances where you had worked for a number of years at your parents’ noodle shop in Malaysia.  However, I was told that you fell in with a bad group in the context of your marriage having failed, shortly after you arrived here, and due to feeling lonely here.  Your peers introduced you to drugs and you apparently became addicted to methylamphetamine, using this daily.  I understand that you were working long hours at a butchers’ business and found that the drug helped you to stay awake.  You also developed a serious gambling problem and accrued debts for gambling and drugs, apparently turning to trafficking in order to repay debts and fund your drug addiction.

27Mr Tiong, you had the privilege of coming to Australia to study.  Many others do not enjoy such a privilege but are treated as criminals, locked in detention for doing nothing more than trying to find refuge and a better life here.  Within a number of months you were no longer studying and then you turned to this offending.  I must say that this appears to be a familiar pattern with a number of drug offenders nowadays-coming in from overseas, abandoning studies and committing drug offences.  However, I do not sentence you on the basis that you came here in order to commit these offences.

28Your Counsel submitted that your time has been and will be harsher because you face the inevitable prospect of deportation when you complete your gaol term.  He said that you had planned to build a life in Australia.  As I said in discussion at the plea hearing, your expectations of remaining here were somewhat unrealistic when you chose to drop out of your studies within months of commencing them.  Also, you are looking forward to returning to your young child who you have missed.  In the end, I make very limited allowance for such hardship.

29I allow for hardship that you suffer in gaol because you are isolated from family and friends and no longer have any contact with your child in Malaysia.  While you chose to leave your child some years ago, you apparently had some Skype contact with her before your incarceration.  You have some command of English but I accept that your skills in this regard are somewhat limited which will add to the hardship that you suffer compared to other prisoners.  I also factor in that this is your first time in gaol and that you have been subjected to harsh lockdown conditions whilst you have been on remand.

30Also in your favour I take into account your plea of guilty and the stage at which it was made.  You ran a contested committal hearing which is your right, however the discount you receive will not be as great as if you had entered your plea of guilty at an earlier stage.  I still allow for a fairly significant discount in the sentence you would otherwise receive as you have saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial.  The stance that you took as at that time- that is, as at the time of the committal hearing, is not consistent with remorse.  However, I accept that you have since developed a level of remorse and insight in respect of your offending which is evident from your letter to me.

31I take into account your background:  You were brought up in Malaysia. In your letter to me you said that you were raised in a loving family.  You went to school until you were 15, then entered the workforce in order to help your family in their noodle shop business.  Your parents are still fully supportive of you and you have a close relationship with them.

32You came to Australia in 2012 to undertake a hospitality course but, as I was told, you abandoned your studies a number of months after you started.

33You were married but you divorced in 2014 after you discovered your wife was having an affair, shortly after you left Malaysia.  You have one child from your marriage who is still in Malaysia.

34You have no prior convictions and your deportation is inevitable once you are released from gaol, although this might mean that you spend time in a detention centre before finally leaving.  I cannot speculate as to how long you might be detained before leaving Australia.  You have not used drugs since being incarcerated, and you supplied drug screens to show this. You have undertaken a number of courses whilst in gaol.  I have read a letter from your brother, who attests to your otherwise good character. In view of these matters, I assess your prospects of rehabilitation as good and I only need to give minimal weight to specific deterrence and protection of the community.

35Your Counsel submitted that in view of all matters in mitigation, and considering the fact that your deportation is almost inevitable, I ought sentence you to time served.  The prosecution submitted that I ought sentence you to a period of imprisonment but had no instructions in respect of the submission that time served would suffice.  I might say I do not accept that a submission one way or the other in response to defence's submission, would amount to providing me with a sentencing range.

36I was given a sentencing snapshot from the Sentencing Advisory Council to provide me with some guidance in respect of sentencing practice in matters such as this.  As usual, the snapshot was of some assistance but limited by the fact that they ignore a number of important variables that only come with individual circumstances of a particular case.

37In the end, I have come to the view that the time in gaol that you have already served is not enough to address all relevant sentencing factors, especially in view of the seriousness of the offending and the need to give strong weight to general deterrence.

38Would you please stand up Mr Tiong.

39You are convicted of each of the charges.

40I make the disposal order and the forfeiture order sought by the Crown and which are not opposed by you.

41You are sentenced to the following periods of imprisonment:

42Charge 1:      two years', six months' imprisonment

43Charge 2:      one year, six months

44The summary Charge 3:      four months

45I direct that five months of the sentence on Charge 2 and one month of the sentence from the summary charge be served cumulatively with each other and with the sentence on Charge 1.  This produces a total effective sentence of three years' imprisonment and I direct that you serve two years' imprisonment before becoming eligible for parole.

46I declare that you have already served 508 days by way of pre-sentence detention.

47If not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years, six months.

48Take a seat for a moment please, Mr Tiong.

49Is there anything arising out of the sentence? 

50MR HUTTON:  No, Your Honour. 

51MR BRENNAN:  No, Your Honour.

52HER HONOUR:  All right.  Yes, thank you.  Yes, would you please remove
Mr Tiong. 

53Thank you very much, Madam Interpreter, for your assistance today.  We will now adjourn.

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