Director of Public Prosecutions v Weng
[2012] VCC 1160
•9 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-11-01534
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XIA WENG |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 26, 27, 30, 31 July; 1, 2 August. | |
DATE OF SENTENCE: | 9 August 2012 | |
CASE MAY BE CITED AS: | DPP v Weng | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1160 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Law - Trial – sentencing – attempt to possess a marketable quantity of a border controlled drug unlawfully imported contrary to sub-ss 307.6(1) and 11.1(1) of the Criminal Code (Cth)
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J Dickie | Commonwealth D.P.P. |
| For the Accused | Mr. M Thomas | Lewenberg & Lewenberg |
HER HONOUR:
1 Ms Xia Weng you have been found guilty following trial by Jury of one charge of attempting to possess a border controlled substance namely methamphetamine, in excess of a marketable quantity, contrary to s307.2(1) of the Criminal Code (Cth).
2 This offence is serious and that is reflected in the maximum penalty prescribed by Parliament namely, 25 years’ imprisonment and/or a fine of $550,000.
3 The Crown alleged that between 24 September 2010 and 28 September 2010 you attempted to possess a marketable quantity of the border controlled drug methamphetamine, contrary to subsections 11.1(1) and 307.6(1) of the Criminal Code (Cth).
4 At trial the factual matrix was largely not in dispute.
5 The parties signed a Statement of Agreed Facts that was marked as Exhibit 1. By making those admissions you greatly reduced the complexity and length of the trial. This cooperation has furthered the course of justice.
6 Briefly, the circumstances of your offending relate to you actively arranging with covert Australian Federal Police (AFP) officer Carroll, to collect a package that was found to contain methamphetamine.
7 On or about 15 September 2010, a brown package addressed to ‘Ting LIN, 8 Stewart St, Reservoir VIC, Melbourne Australia was unlawfully imported into Australia. The package had been sent to Australia from China. It contained various items of children’s clothing and a soft toy monkey.
8 Following examination of the soft toy monkey, a small item wrapped in foil and clear plastic was found concealed inside its head. When removed, a clear vacuum sealed plastic pouch containing 211.4 grams of an off white coloured powder was located. Subsequent forensic analysis of the powder contained in the pouch revealed that it consisted of 123.6 grams of pure methamphetamine.
9 It was not disputed that the methamphetamine was imported into Australia.
10 Federal Agent Carroll was assigned responsibility for the investigation. Enquiries failed to associate a person by the name of Ting Lin to the address of 8 Stewart Street Reservoir. Federal Agent Carroll was authorised to do a controlled delivery of the parcel. He arranged for an Australia Post “Postal article to be Collected” Slip in the name Ting Lin and bearing notation “contact 0417 377 440”, a covert telephone used by the AFP, to be left at 8 Stewart Street, Reservoir.
11 Evidence showed that you contacted the covert number a number of times, using your own mobile telephone number 0423 862 988,and that you represented to Federal Agent Carroll posing as Gary Andrews Australia Post Courier Services that you were Ting Lin. You made arrangements for the delivery and on 28 September 2010 you attended 8 Stewart Street, Reservoir to accept delivery. At the time of your arrest you had the postal slip in your possession.
12 At the time of your arrest you were standing in the driveway of the address. You told police that you were Xia Weng. The two males who were present with you were identified as Jie Chen and Chao Chen.
13 Following your arrest you co-operated with police and participated in a field interview and a record of interview. The details of those conversations form part of the evidence in the trial, Exhibits 5 and 6. You denied any knowledge that the package contained methamphetamine and said that you had been asked by a male friend Jing Zhang to the collect the package on his behalf.
14 The Crown did not allege that you had knowledge of what the package contained, rather the case was put on the basis that when you attempted to take possession of the package, you did so believing that the package contained a border controlled drug.
15 By their verdict the jury was satisfied beyond reasonable doubt that you attempted to possess the imported package believing that the package contained a border controlled drug.
16 You now state that you were requested to collect the package at the request of your boyfriend, Chao Chen. You had known him for 12 months at the time of your arrest.
17 I am satisfied that you committed this offence as a consequence of your naïveté and your misplaced loyalty to Chao Chen. There is no evidence to show that you knew the quantity or the type of drug involved or that you were to receive any financial reward. The Crown could not show that you were involved in the movement of the package from China or in the ultimate distribution of the methamphetamine in Australia.
18 I accept that your role was limited to that of an intermediary and involved contacting the Australia Post telephone number, arranging for the package to be delivered, attending 8 Stewart Street to collect the package and attempting to collect the package, with the likely purpose of passing it and/or its contents on to another person.
19 You took the risk of facilitating the movement of a substantial quantity of drugs which if circulated would have had potential for real and lasting harm. I consider your role to be that of a low level courier. Nonetheless, every player in moving drugs plays an indispensable role in the process and the finding of guilt confirms that the jury found that you engaged in that conduct believing that the drugs would be present.
20 The fact that you played only a menial or limited role does not necessarily entitle you to any degree of leniency.[1] Illicit drug organisations are only able to prosper because people like you are ready, willing and able to undertake these types of roles.
[1] R v Muanchukingkan (1990) 52 A Crim R 354 at 356; R v Laurentiu (1992) 63 A Crim R 402
21 The Courts have long held that persons who participate in the illicit drug trade, at any level, should expect, and receive, heavy penalties.[2]
[2] R v Budiman (1998) 102 A Crim R 411, citing Wells CJ in Le Cerf (1975) 13 SASR 237 at 239
22 In sentencing you I must also have regard to the amount of drug involved that is,123.6 grams, which is substantially more than the marketable quantity threshold (2 grams), but less than a commercial quantity (750 grams).
23 I have been told something of your personal history and background. You are still a relatively young person. You were 22 at the time of your arrest and are now aged 24. You are a Chinese national. You were born in China and grew up in the Nanjing province.
24 Your parents remain China and are not aware of your current predicament.
25 Your father is an orthopaedic surgeon and your mother is a health professional. You are their only child. Your parents divorced when you were aged 12. You then continued to live with your father whom you say was a very authoritative person. Your father had extremely high expectations of you and your upbringing was very strict. His focus was on your education and learning and developing technical prowess over and above emotional development. You only saw your mother once a week following their separation.
26 Your life in China is described as one characterised by great loneliness with there being no emotional support. You had a very restrictive childhood. For instance, you were required to learn the piano from age four and had to practise many hours a day. Ultimately, you reached Grade 10 standard. You had little in the way of outside activities and did not have the opportunity to develop childhood friends.
27 At age 16, your father decided that you would be sent to Australia to further your education without any consultation with you or your mother. You were extremely unhappy about that decision and felt like you were being pushed away.
28 Initially you stayed in Adelaide at a home stay with a non-Chinese family. You felt very isolated and lonely. You only returned to China for a couple of months every year whilst undergoing your education and completed Year 12 in about 2006. Your father made a decision that it would be best to continue your education in Australia.
29 Following completion of Year 12, you moved to Melbourne where you studied accounting at Holmes College and then transferred, after about two years, to Swinburne University. You commenced a three year course in accounting. You had a chequered academic result, but nonetheless you passed your course. Prior to being remanded in custody, you were doing a Diploma of Management at GIT, a private college.
30 At the time this offence was committed you were not in any way affected by drugs, drinking or gambling. You were being supported financially by your parents, as well as working as a waitress in a coffee shop.
31 You were in a relationship with Chao Chen who has currently overstayed his visa and is now an illegal immigrant. He is avoiding the authorities. For some inexplicable reason, notwithstanding he was arrested and the evidence points to him being heavily involved in this attempted importation of a border controlled drug, he was never charged by the police. Similarly, Jie Chen, his cousin, was arrested but no further action was taken against him.
32 You do not have any prior criminal history and I am satisfied that you are otherwise a person of good character. However, as was stated during the plea hearing, this carries less weight in crimes of this nature. Sadly, it is often the case that people like you who are of otherwise good character are vulnerable to approaches by those engaged in the drug trade. I note that there has been no further offending.
33 I consider that your arrest has been a salutary experience for you and that you are remorseful for the role that you played in this importation. I consider that you have good prospects for rehabilitation and that the risk of re-offending in a like manner in the future is low.
34 I note that you have no direct family in Australia. You have some cousins living interstate and only a few of your local friends are aware of your predicament. I consider that your time spent in custody will be more difficult by reason of your relative isolation in Australia due to your personal circumstances. I note that you also have the worrying concern of not knowing what may happen to you upon your eventual release. There is no evidence about this before the court and this has not been taken in to consideration by me when determining the appropriate sentence, as to do otherwise would be to engage in speculation.
35 s.16A(1) Crimes Act (Cth) 1914 states that the primary obligation of a sentencing judge is to impose a sentence that is of severity appropriate in all the circumstances of the offence. I must also take into account when determining that sentence the matters listed in s.16A(2). That list is not exhaustive, and the need for general deterrence is also of relevance. Other would-be couriers must be deterred from taking on such a risk.
36 Balancing the various sentencing considerations, in particular the matters set out in ss.16A and 17A of the Crimes Act 1914 (Cth), and after having considered all other available sentences, I am satisfied that no sentence other than a term of imprisonment is appropriate. I propose to sentence you to serve a sentence of imprisonment with a minimum period before being eligible for parole.
37 The formal sentence is:
38 On the one charge of attempt to possess a border controlled drug, you will be convicted and sentenced to four years’ imprisonment and six months such sentence is to commence from 9 August 2012. I fix a non-parole period of two years 6 months.
39 I also declare, pursuant to s.16E(2) Crimes Act (Cth) 1914, that you have spent 7 days by way of pre-sentence detention, and I direct that declaration be entered into the records of the court.
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