Director of Public Prosecutions v Tung

[2017] VCC 1435

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01045

THE QUEEN

v

WELSON JIA SHUN TUNG
SOON KIAT LIEW
CHIN TEO

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2017
DATE OF SENTENCE:	6 October 2017
CASE MAY BE CITED AS:	DPP v Tung & Ors
MEDIUM NEUTRAL CITATION:	[2017] VCC 1435

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr T. Crouch
For Accused Tung and Accused Liew	Mr D. Leggart
For Accused Teo	Mr L. Barker

HIS HONOUR: 

1I am going to state my reason for the sentence of you three, and then I am going to formally sentence you.  I will not ask you to stand until that time comes.

2Welson Jia Shun Tung, Soon Kiat Liew and Chin Wei Teo, you are each to be sentenced for once charge of possessing tobacco products knowing them to be imported, with the intention of defrauding the revenue.  This is an offence under s.233BABAD(2) of the Commonwealth Customs Act.  The maximum sentence is ten years' imprisonment.

3You pleaded guilty before me on 27 September 2017.  When interviewed by police on 16 February 2017, Welson Tung, you exercised your right to silence.  Soon Liew, you answered questions and made admissions.  Chin Teo, for operational reasons there was not time to interview you on 16 February.  You later declined interview.

4Your committal hearings went by hand-up brief in May of this year.  You entered pleas of guilty.  You each receive the benefit of your early pleas of guilty and the level of cooperation that short history of your proceedings shows.  You have facillitated the interests of justice and your pleas express remorse.

5At your plea hearings, also on 27 September, Mr Crouch for the Crown tendered a written Crown opening, and provided an outline of submissions.  Mr Gipp, acted for you, Welson Tung and Soon Liew.   On your behalf, Welson Tung, he tendered the forensic psychological report of Jeffrey Cummins, dated 19 September 2017, and your wife's letter to the court dated 14 September 2017.  He provided an outline of submissions.  For you, Soon Liew, Mr Gipp tendered the forensic psychological report of Jeffrey Cummins, also dated 19 September 2017, and provided an outline of submissions. Mr Barker for you, Chin Teo, tendered certificates related to educational programs in remand custody, and also provided an outline of submissions.

6The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own summary may be short.

7You are relatively young men, aged respectively 25, 22 and 24.  You are Malaysian nationals of Chinese ethnicity.

8Welson Tung, you came to Australia on 24 November 2016 on a tourist visa, which expired on 24 February of this year, shortly after your arrest.  Soon Liew and Chin Teo, you came here on 4 February, also on tourist visas.  You both stayed with Welson Tung in Bentleigh.

9In short, a large importation of cigarettes came to Australia on 10 February.  Three shipping containers were delivered to a Thomastown warehouse on 13 February and taken away empty on 14 and 15 February.

10A police raid of the warehouse on 16 February revealed cartons of cigarettes which were and/or had been secreted within a large number of imported metal gates.  These were in total about 7,135,000 cigarette sticks.  The total duty and GST evaded or to be evaded was approximately $4,800,000.

11Each of you were found at or in the immediate vicinity of the warehouse.  I find that your role within the enterprise was to dismantle the gates and thus produce and prepare the cigarettes for further movement along the commercial chain, Australian tax upon them not paid. 

12You were each low-end participants in a large, sophisticated enterprise, particularly you, Soon Liew and Chin Teo.  The Crown concedes as to each of you that it cannot prove beyond reasonable doubt that you came to Australia to commit this offence.   I find that realisation and knowledge sufficient to make out the offence and your roles within it, must have come quickly after arrival.  Clearly you two were only involved arising out of this importation.  The enterprise, importation of concealed cigarettes and therefore evasion of tax, was already established.

13It cannot be said that you, Welson Tung, were only involved in this isolated offence before me.  You do not have the benefit of that.  However, you are to be sentenced only for this offence without speculation beyond it.

14As stated, all three of you were low-end participants.  You participated for gain, albeit relatively modest.

15You, Welson Tung, were senior to the others.  Mr Crouch pointed out these aspects of your role:  You rented the Bentleigh home.  To a significant extent, you supervised what you were doing at the warehouse.  You purchased tools, for example to saw open the gates, and had receipts for that.  You possessed a key to the factory.

16You all await these sentences in remand custody.  You seem to come from law-abiding families.  Welson Tung and Soon Liew, members of your families have come to Australia to support you in court.  Chin Teo, your family is poor and I would find could not afford to come here.  Your mother died on 17 September of this year, you being held in prison here.  This has clearly made your imprisonment harder.

17Welson Tung, you were raised and educated in Penang, leaving school at 16.  You have worked since in jobs including customer service, maintenance work in a factory, and as a nightclub waiter.  You married in September of 2016 and have a six-month-old son.  Your wife has been residing with the child and her family in Taiwan since you came to Australia.  As stated, she has written to the court and suffers hardship because of your imprisonment here.  It is not argued to be exceptional as the relevant test requires.  However, I accept that your imprisonment here will be harder for the knowledge of her difficulty.

18You were recruited to come here through your job as a nightclub waiter.  It is stated on your behalf that you came here without prior knowledge of illegality.  It is relevant to all three of you that the attraction of recruitment was the opportunity, in modest financial circumstances or worse, of much better payment than in your home country.  You, Welson Tung, were paid $1,500 per month. 

19You, Welson Tung, have no prior convictions, and I accept that you are of otherwise good character.  You, like the others, will be deported upon parole or recognisance release.  It is not put that that has particular relevance, for example as to hardship arising out of that.  You will be given the appropriate sentence and minimum term irrespective of pending deportation.  This proposition applies to all three of you.

20Welson Tung, forensic psychologist Jeffrey Cummins does not report any significant mental health conditions.

21Soon Liew, you were born and raised in Johor, Malaysia.  You completed year 10, leaving school at 16.  Since, you have worked as a tyre repairer and machine operator.  There have been periods of unemployment and doing odd jobs, travelling between Malaysia and Singapore.

22It is stated on your behalf that you were recruited by Welson Tung for a temporary job doing factory work in Australia.  You received one payment of $1,500.  You and Teo had been at the factory for only a couple of days.  Your visa expired in May of this year. 

23You also have no prior convictions.  Mr Cummins reports no relevant mental health condition.  He states that you present as immature and possibly vulnerable in the prison setting.

24Chin Teo, you were also born in Johor and in fact went to school with Soon Liew.  Your family is poor.  Mr Barker's outline describes a hand-to-mouth early life.  You are the oldest of three children, and therefore responsibility to help support the family came early.  You left school after year 8 at 14.  You have worked as a waiter, selling electronic dictionaries, and spent a time drafted into the Malaysian Army.

25About four years ago your father left the family, making the financial situation worse and your income more critical.  You have had no contact with your father since.

26Your last job was in Singapore, working on sound equipment at concerts.  In mid-2016 work dried up and you were unemployed.  That is said to be the context for your decision to come here.

27Mr Barker's outline states recruitment through social media.  I note that,  as stated, you knew Soon Liew and seem to have come here with him.  Mr Barker's outline describes a similar role at the warehouse to him.  Mr Barker pointed to no diagnosable mental health condition, albeit that you are distressed at news of your mother's recent death.  The full seriousness of her illness was not known to you.

28You have no prior convictions.

29As raised and conceded during the plea hearing, this was serious offending which attacks this country's revenue and wellbeing.  The maximum sentence, which has been raised in respect of such products as here, reflects this.  I was directed to appellate court authority which emphasises that.

30This was a sophisticated, large-scale operation.  The potential loss to the revenue was very large indeed.  Your participation, particularly that of you, Soon Liew and Chin Teo, was short-lived and at the very low end of the entrepreneurial ladder.  However, such participation by those enticed for some gain to an exposed role such as unloading or similarly  handling the product for others, is necessary and important to the larger operation.

31The predominant sentencing purpose is general deterrence.  A significant term of imprisonment is the necessary and proportionate punishment.

32I also take into account and weigh moderating factors, most of which are common to all three of you.  They include the following matters:

33Your plea of guilty and cooperation.

34Your otherwise good character.  I bear in mind factors which limit the weight of this in offending of this kind.  Good character is not uncommon in persons performing your role.  It may almost be seen as necessary when the offender must travel into the country.  I avoid undue speculation about that.  You are still entitled to some appropriate consideration of your good character.

35Each of you is still young.  I see this as a significant matter.  It must be considered in the context of your decision to offend and rehabilitation of you.  I should see such prospects as genuine.  You also present to me as persons who will likely be deterred from further offending by your experience of imprisonment here.

36I take into account your personal circumstances, particularly those of imprisonment away from your home country.  A finding that you had come here specifically to offend would reduce the weight of this.  Mr Crouch made the argument that there remains some similarity to that here, where the offending occurs so soon after arrival.  I take into account in a measured way your isolation in custody here, particularly as to you, Chin Teo.  The somewhat sudden loss of your mother in the context of such separation justifies some mercy.

37These matters must of course be weighed against what I have already stated to be the predominant sentencing purpose, that of general deterrence.  I have reflected them particularly in the minimum term to be served before parole or recognisance release.  I feel that is justified in this case.

38I have also considered the appellate court judgments provided to me in a comparative way.  In doing that, I recognise the stated desirability of consistency in federal sentencing, and also the need to sentence individually as to each case.

39I am going to formally sentence you now.  Mr Crouch, what is the best way of doing it?  Finish each one individually, or state the sentences for all three and then do the documents that way?

40MR CROUCH:  It may be best to state each one, and then do the documents all together, because I will fill them out as Your Honour goes.

41HIS HONOUR:  Yes, all right.  Stand up, Welson Tung.

42You are sentenced to imprisonment for three years.  Take a seat please.  I forgot to raise this with you.  Of course, am I right?  Pre-sentence detention in Commonwealth sentencing is achieved by commencement date?

43MR CROUCH:  No, Your Honour.

44HIS HONOUR:  It is not?

45MR CROUCH:  Your Honour should simply declare that.

46HIS HONOUR:  That is only when you are cumulating or partially cumulating?

47MR CROUCH:  Yes, Your Honour.

48HIS HONOUR:  Thank you.  So I say commenced today, do I?

49MR CROUCH:  Yes.

50HIS HONOUR:  Yes, thank you.  Stand up, please.

51Welson Tung, you are sentenced to three years' imprisonment commencing today.  I order your release on a recognisance to be of good behaviour after serving 14 months of that sentence.  The recognisance will be in the sum of $5,000, and of duration three years.  I declare pre-sentence detention already served of 232 days.  Sit down, please.

52Soon Kiat Liew, if you would stand, please?  Soon Liew, you are sentenced to two-and-a-half years' imprisonment commencing today.  I order your release upon recognisance to be of good behaviour after ten months of that sentence.  Recognisance will be in the sum of $3,000, and duration of three years.  I declare pre-sentence detention already served of 232 days.  Sit down, please.

53Chin Wei Teo, I sentence you to imprisonment for two-and-a-half years commencing today.  I order your release on recognisance to be of good behaviour after nine months of that sentence.  Recognisance to be in the sum of $3,000 and duration of three years.  I declare pre-sentence detention already served of 232 days.

54What other orders are sought, Mr Crouch?

55MR CROUCH:  There are no further orders, sought, Your Honour.

56HIS HONOUR:  In these matters, the Commonwealth produces the document; is that right?

57MR CROUCH:  Yes, Your Honour.  I've done that now.

58HIS HONOUR:  I need to sign them.

59MR CROUCH:  You need to sign each one.

60HIS HONOUR:  And I need to explain to them the effect of it.

61MR CROUCH:  It may be that Your Honour's already ‑ ‑ ‑

62HIS HONOUR:  Yes.  Well, I need to explain the effect of it.  If they breach it, they are brought back before the court.  That is the effect of it, isn't it?

63MR CROUCH:  Yes, that's the effect of it, Your Honour.

64HIS HONOUR:  They lose the money and they get resentenced. 

65MR CROUCH:  Yes.

66HIS HONOUR:  All right, so if you hand them up to me in a bundle, I will do that.

67MR CROUCH:  And there's the recognisance amount if they were to breach it as well, I suppose.

68HIS HONOUR:  That is right, they lose the money.

69MR CROUCH:  Yes.

70HIS HONOUR:  Welson Jia Chun Tung, stand up, please.  I am going to explain to you the effect of the recognisance to be of good behaviour.  It is a bond to be of good behaviour upon your release.  The recognisance or the bond sum is $5,000.  You do not have to pay it now, but you would have to pay that if you commit another offence during the period of three years after release.

71If you breach the order by further offending or not being of good behaviour, you are liable to be brought back before me and resentenced for this matter.  Do you understand that?  All right, well you are a better man than I am.  Does he sign it first?

72MR CROUCH:  I think Your Honour should sign it first and then he'll sign it.

73HIS HONOUR:  Do you agree to this release recognisance?

74MR BARKER:  May we approach our client before they're asked that question, Your Honour?

75HIS HONOUR:  All right, yes.

76MR BARKER:  Thank you, Your Honour.

77HIS HONOUR:  Mr Tung, I have explained to you the effect of this recognisance release.  Do you agree to the terms of your release after that period of time on this recognisance?  Yes, well I will get you to sign where my associate directs you to do.  Sit down, please, Mr Tung.

78Mr Liew, would you stand, please?  The effect of the recognisance release is this:  That you are to be of good behaviour and not commit any further offences.  If you fail to do that, you will lose the $3,000 or will have to pay the $3,000, and you are liable to be brought back before me and to be resentenced for this matter.  Do you agree to the terms of that release?  If you would sign where my associate directs you. 

79I will just initial, Mr Crouch, the change from ten months to nine months that you made there.

80MR CROUCH:  Thank you, Your Honour.

81HIS HONOUR:  Sit down, please, Mr Liew.  Mr Teo, would you stand, please?

82You are liable to be released after nine months of your sentence upon a recognisance or bond in the sum of $3,000 to be of good behaviour.  If you are not of good behaviour or if you commit another offence, you will have to pay the $3,000, and you will be liable to be brought back before me and to be resentenced for this matter.  Do you agree to the terms of that release?  Yes.  Thank you.

83If you would therefore sign where my associate directs you.

84Who gets those, Mr Crouch or us, or both?

85MR CROUCH:  I think both, Your Honour.

86HIS HONOUR:  Do they get them?

87MR CROUCH:  A copy if they want, I suppose.

88HIS HONOUR:  I mean, people should get these things.

89MR CROUCH:  I think the practice is usually that when the orders are emailed, a scan of the form is sent with that.

90HIS HONOUR:  I see, all right.  We will leave it at that.  All right, now is there anything else I need to order?

91MR CROUCH:  No, Your Honour.

92HER HONOUR:  Good.  Thank you for your assistance today and the other day, Mr Crouch, and to you, Mr Barker, and thank you Mr Leggart for your assistance today.

93COUNSEL:  Thank you, Your Honour.

94HER HONOUR:  And to you, Ms Zhang, too.  I am obliged to you.  All right.  I am reminded about s.6AAA.  Give me some time to consider that, I am sorry.  You just use that section, do you?  There is not a Commonwealth section?

95MR CROUCH:  Yes.

96HIS HONOUR:  I am obliged to indicate this to you, and I will start with Mr Tung.  Had you pleaded guilty, I would have imposed a sentence of four years' imprisonment with a minimum term before parole release of two-and-a-half years. 

97I indicate to the other two men, I would have imposed a sentence of three years' imprisonment with a minimum term of 18 months before parole release.

98Now, that is it.

99MR CROUCH:  As Your Honour pleases.

100HIS HONOUR:  Thank you again.  I will adjourn until Monday.

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