Director of Public Prosecutions v Wong
[2022] VCC 961
•22 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00409
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIAN KEAT WONG |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2022 | |
DATE OF SENTENCE: | 22 June 2022 | |
CASE MAY BE CITED AS: | DPP v Wong | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 961 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Trafficking in drug of dependence – Possession of an unregistered category A longarm – Possession of a drug of dependence – Possess suspected proceeds of crime – Failure to comply with direction of Chief Health Officer – Non-prohibited person possess imitation firearm – Degree of genuine remorse – Delay – Very strong prospects of rehabilitation - COVID-19 pandemic.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 ss 71AC(1), 73(1); Firearms Act 1996 s 6A(1); Crimes Act 1958 s 195; Public Health Wellbeing Act 2008 s 203(1); Control of Weapons Act 1990 s 5AB(1); Sentencing Act 1991 ss 6AAA, 18.
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 3 years with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Mr A. Jackson | Theo Magazis & Associates |
HIS HONOUR:
Introduction
1Kian Keat Wong, you have pleaded guilty to:
(a) one charge of trafficking a drug of dependence contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs, Poisons and Controlled Substances Act’), which carries a maximum penalty of 15 years imprisonment (Charge 1);
(b) one charge of possession of an unregistered category A longarm contrary to s 6A(1) of the Firearms Act 1996, which carries a maximum penalty of 2 years imprisonment (Charge 2); and
(c) one charge of possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act, which carries a maximum penalty of 1 year imprisonment if the possession is not for the purpose of trafficking or 5 years imprisonment if the possession is for the purpose of trafficking (Charge 3).
2You have also pleaded guilty to the related summary offences of:
(a) possess suspected proceeds of crime contrary to s 195 of the Crimes Act 1958, which carries a maximum penalty of 2 years imprisonment (Summary Charge 3);
(b) failure to comply with direction of Chief Health Officer contrary to s 203(1) of the Public Health Wellbeing Act 2008, which carries a maximum penalty of 120 penalty units (Summary Charge 9); and
(c) non-prohibited person possess imitation firearm contrary to s 5AB(1) of the Control of Weapons Act 1990, which carries a maximum penalty of 2 years imprisonment (Summary Charge 11).
3You have also admitted your Criminal History.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5At the time of offending were 28 years old. You were a Malaysian citizen on a student visa and resided at 1/40 Harlington St, Clayton.
6On 20 July 2020 at approximately 3:10 AM Detective Senior Constable Jacqueline Reeves (‘DSC Reeves’) and Senior Constable Ashley Jung (‘SC Jung’) observed a black coloured Audi Sedan travelling North on Nepean Highway, Brighton.
7DSC Reeves and SC Jung intercepted the vehicle approximately 100 metres south of Cochranes Street, Brighton. Checks conducted on the vehicle revealed it to be registered to an unknown male, Adil Tekin of a Craigieburn address. However, you were the one driving the vehicle.
8SC Jung approached the vehicle and spoke to you, being the only occupant of the vehicle. You provided your international driver's licence. SC Jung formed the suspicion that there may have been drugs located within the vehicle.
9You gave your consent to the vehicle being searched and were asked by SC Jung to step out of the vehicle. SC Jung conducted a search under the Drugs, Poisons and Controlled Substances Act and located a small black pouch underneath the front driver's seat. Inside the pouch police located:
(a) 2 x plastic sealed bags containing a crystal substance;
(b) 1 x ice pipe with crystal remnants inside; and
(c) $1,875 of Australian currency (Summary Charge 3 – possess suspected proceeds of crime).
10Analysis of the crystal substance revealed that the net quantity contained within one bag was 27.1 grams and had a methylamphetamine percentage of 86%.
11You were arrested and an Apple iPhone was located within the vehicle and seized. You were transported to the Moorabbin Police Station.
12At the time of interception, you were absent from your home without a lawful exemption pursuant to the Chief Health Officer’s direction (Summary Charge 9).
13On 20 July 2020 at approximately 10:00 AM, detectives from the Moorabbin Crime Investigation Unit executed a search warrant at your residential address. Detectives located your girlfriend, Pui Fong and your housemate Hauyue Hu within the premises, both asleep.
14Police entered the study which contained your possessions and required a code to enter. You had installed a digital lock. The study contained various implements, glassware and chemicals used in the manufacturing of methylamphetamines. Mr Fong and Mr Hu were arrested and provided their caution and rights.
15The Clandestine Laboratory Squad were notified and all personnel from inside the address were evacuated. At 11:40 AM the Clandestine Laboratory Squad arrived at the premises and processed the scene before assisting in seizing several exhibits which included various chemicals, glassware, a stove and mixing bowls used in the manufacturing of methylamphetamines.
16Marianne Sleebs, forensic officer at Victoria Police Forensic Services Centre, attended the scene in Clayton and examined the exhibits seized by police. The relevant exhibits were found to contain 559.2g of methylamphetamine. Dimethyl sulphone (a diluent/cutting agent) was present in most of the exhibits.
17At approximately 3:50 PM, members from the Moorabbin Crime Investigation Unit commenced a further search of the address and the following items were located and seized:
(a) 9.3 grams of cannabis located in the chest of drawers (Charge 3 – possession of a drug of dependence);
(b) 1.8 grams of cannabis located in the chest of drawers (part of Charge 3);
(c) 4.7 grams of cannabis located in the chest of drawers (part of Charge 3);
(d) 19 x 0.22 calibre cartridges located in the chest of drawers;
(e) one small black safe located in the wardrobe;
(f) one long arm rifle in two pieces located on the floor (Charge 2 – possession of an unregistered category A longarm);
(g) one imitation firearm (H & K carbine) located leaning against the wall (Summary Charge 11 – non prohibited person possess imitation firearm);
(h) one black Apple iPhone X located on the desk; and
(i) one iPhone Rose Gold located on the desk.
18About a month after the locks were installed to the study, Mr Hu walked into the study and noticed a large black liquid bottle on the floor near the TV. He asked you what it was for and you said, ‘It's for making ice.’ Mr Hu asked how much you paid for it, to which you replied, ‘$10,000.’ You told Mr Hu that you got it from smugglers from Malaysia and that the price for ice was very high because of the lock down and you were going to make some money.
19A few days later Mr Hu walked into the study and saw you opening the bottle. Mr Hu saw that you had set up a heat light in the closet and a camping stove on a refrigerator. Mr Hu asked you about the stove and the light and you told Mr Hu it was for ‘making ice’.
20In the following days, approximately once per week, Mr Hu would go into the study when you were in there for a couple of minutes at a time. Every time Mr Hu went into the room, he saw you making ice and there was often new equipment or tools. Whenever Mr Hu was curious, he would ask you about it and you would tell Mr Hu that you were making ice. Sometimes Mr Hu would notice a chemical smell, like glue, coming from the room when you were making it.
21On one occasion Mr Hu watched as you took out a vial filled with liquid from the fridge. You showed it Mr Hu and said it was methylamphetamine. It looked settled at the bottom, it was white and solid. On another occasion Mr Hu saw you put a flat tray with a white substance in the closet under the heat lamp.
22Fingerprint analysis conducted on an Anko branded air fryer located within the study revealed two fingerprints identified as your prints.
23The mobile phone located in the vehicle and one mobile phone located in the study were downloaded by police and contained significant amounts of messages and pictures indicating trafficking drugs of dependence. Images depicted within these phones show large amounts of Australian currency and crystal substance. Messages located commence on 1 March 2020 and include discussions surrounding transactions and make mention of drug related terminology such as ‘rock’. Some examples of those messages are reproduced in the prosecution opening.
24Charge 1 on the indictment is put on the basis that you were in the business of trafficking methylamphetamine and trafficked methylamphetamine between 1 March 2020 and 20 July 2020. The trafficking is based on the sales contained within text messages, manufacture based on the items located within the premises and possession for sale based on the amount of methylamphetamine in your possession.
25Following your arrest, you were interviewed with the assistance of an interpreter and made no comment regarding the allegations put to you.
Nature and gravity of the offending
26Trafficking in a drug of dependence is, by its nature, a serious offence, recognised by Parliament in the maximum penalty of 15 years imprisonment. In this instance the prosecution case is put on a combination of matters including that you were in the business of trafficking methylamphetamine based on the sales information contained in the text messages, the manufacture of methylamphetamine in your home together with the amount of methylamphetamine in your possession.
27While the amount of methylamphetamine found in your possession exceeded the traffickable quantity, the gravity of your offending must be assessed by considering a combination of matters as noted which when considered together, demonstrate that you were operating an established, organised drug trafficking business. Thus in my view Charge 1 represents is a relatively serious example of trafficking simplicitor.
28Further, while it is not in dispute that you had a significant drug habit during the course of the offending, you admitted to Mr Hu and to your psychologist, that you were also motivated by financial gain.
29The possession of the long arm rifle and the imitation firearm are not uncommon items found in the context of the type of business you were running. While you are not a prohibited person and there is no evidence that you used the firearms, in my view the offences are still serious in the context of the drug business you were operating.
30In relation to Charge 3, possession of cannabis, in the circumstances I am satisfied that the possession was not related to the purposes of trafficking and thus the lower maximum penalty applies.
Personal circumstances
31You were born and raised in Kuala Lumpur and are of Chinese-Malay descent. It was submitted on your behalf that your childhood was free of any significant abuse, conflict or trauma. You enjoyed a good relationship with both of your parents and two older brothers and have a large extended family network in Malaysia.
32Your father, an engineer, has in recent years suffered from heart attacks and ongoing cardiac problems. You are much closer to your father than your mother, who is also not in good health. She is currently not on speaking terms with you as a result of these criminal charges.
33In Kuala Lumpur, you attended public school, where you experienced significant bullying. For your secondary education, your father enrolled you in a private college where you were an average student. Whilst in Malaysia, you were financially supported by your parents and therefore do not have any significant employment history there.
34You arrived in Australia on a student visa in 2015 and enrolled at the RGIT College in Melbourne, where you studied English and hospitality modules, completing a Diploma in 2018. You then returned to Malaysia for about two years, returning to Australia to engage in further studies in hospitality and take up casual employment in the hospitality industry. At the time of your arrest, you were working about 20 hours a week in hospitality.
35You have been in a relationship with your partner ‘Liang’ for approximately four to five years. She returned to her country of origin, Taiwan, about six month prior to your arrest. She found herself unable to leave Taiwan as a result of the COVID-19 pandemic and was therefore unable to return to Australia. This separation has caused you considerable distress. However, the two of you continue to communicate by videolink.
36Regarding your relationship to substances, you rarely consumed alcohol. As a young adult in Malaysia, you smoked methylamphetamine on a few occasions, but did not enjoy it and never developed dependency. You have smoked cannabis on and off for many years.
37You first started smoking methylamphetamines in Australia in 2019 after you were hit by a car and suffered chronic back pain. Over time, your drug used evolved into an entrenched habit, and at the time of your arrest you were smoking between two and three grams a day.
38A report prepared by Ian Mackinnon, forensic psychologist, dated 8 June 2022, was tendered on the plea. After assessing you on 3 June 2022, Mr Mackinnon concludes that your functional intelligence and general cognitive functioning falls within the normal range and that at the time of the assessment you were not suffering from any major psychological disorder. He notes you appeared to be reactively anxious during the assessment but attributes this response to your imprisonment and legal predicament, regarding it as ‘not clinically significant’.
39Mr Mackinnon submits that at the time of your offending, you probably met the clinical criteria for Multiple Drug Use Disorder, which likely made a major contribution to your offending by significantly degrading your ability to apply good reason and sound judgement, raising your impulsivity, lowering your awareness and concern for normal adult and community responsibilities and standards and fuelling antisocial and criminal impulses.
40In making this retrospective diagnosis, Mr Mackinnon concedes that a ‘degree of uncertainty’ applies, as he was essentially reliant upon your self-reported history of substance abuse. However, he is of the view that your ice habit developed as a means of self-medicating your chronic back pain and through association with people who were involved in illicit substance use and activities.
41During your time in custody, you have engaged in multiple educational and rehabilitative courses, including English language and business courses, in addition to a drug course. Mr Mackinnon concludes that should you be imprisoned for a further significant term, you are likely to cope ‘well enough’ with the prison environment. He notes that your mind set at the time of assessment was conducive to a law-abiding and productive lifestyle, making you unlikely to become reinvolved in serious criminal activities.
42A character reference provided by your paternal aunt, Chau Sim Wong, was tendered on the plea. She expresses the view that your isolation in Australia, away from family, caused you to associate with a new group of friends who influenced you to offend. She is also of the view that your conduct was out of character describing you as an otherwise decent, reliable and thoughtful person.
43You prepared a letter for the court which provides further information about the period leading up to the offending including details concerning your back injury and the ongoing pain which you attribute to your increased use of drugs such as cannabis and Xanax. You state that you then mixed with bad crowds and began to smoke ice which soon became a habit. You state that the experience of prison has had a profound impact on you and you now have an appreciation of the impact your conduct has had on your family. While letters such as yours are often viewed with caution by the courts, in this instance given your lack of prior criminal history and the fact that this your first time in custody, I accept that you are genuine in your expressions of regret, and your commitment to change.
Sentencing considerations
44Mr Jackson who appeared on your behalf highlighted a number of matters to be taken into account in mitigation.
45First is your plea of guilty. It seems that while you initially pleaded not guilty at committal stage, negotiations continued and the prosecution decided to not proceed with a more serious commercial trafficking charge. In the circumstances I accept that your plea was at the first reasonable opportunity. Your plea has saved court time and expense and demonstrates your willingness to facilitate the course of justice.
46Your plea of guilty carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[1]
[1]Worboyes v The Queen [2021] VSCA 169 at [39].
47It was submitted also that you have demonstrated remorse. Since your remand you acknowledge your wrongdoing and you have sought assistance. While you have lived with the prospect of deportation to Malaysia at the conclusion of this matter, nonetheless you have taken advantage of educational and rehabilitative courses in custody. Further, as noted above I accept that your letter demonstrates the insight that you have gained since being in custody and in the circumstances, I accept that you have expressed a degree of genuine remorse.
48I take into account that there has been some delay in this matter coming to a conclusion. While you initially intended to contest a more serious charge, the matter resolved and much of the delay since has been as a result of the pandemic and the delays in the criminal justice system.
49I take into account that while you have been able to engage in some programs in custody you have been subject to a number of restrictions as a result of the ongoing pandemic. Prisoners have been subject to lockdowns and there has been restrictions on personal visits.
50Although you have been isolated from your family on remand, it appears that you have coped well in prison keeping contact with your father in Malaysia and your partner in Taiwan via the telephone. You expressed to Mr McKinnon that you wish to go back to Malaysia and start a new life. In the circumstances while your positive attitude and productive time in prison can be taken into account in your favour, it seems that you have also sensibly accepted the prospect of deportation and thus that fact has not had an adverse impact on you.
51Your prospects of rehabilitation in my view, can be assessed as very strong. You have no relevant prior criminal history, you have fully accepted responsibility for your conduct and your have a positive outlook for your return to Malaysia to start a new life.
52Mr Roper who appeared on behalf of the Director of Pubic Prosecutions submitted that general deterrence and denunciation of your conduct are prominent sentencing considerations in this instance. I agree. Trafficking in drugs such as methylamphetamine causes enormous harm to the lives of users, their families and on the wider community. As such a message must be conveyed that persons who engage in trafficking will face severe penalties.
53Given your lack of criminal history and the fact that you have very good prospects of rehabilitation, in my view specific deterrence need only carry minimal weight in the sentencing discretion.
Sentence
54Mr Wong would you please stand.
55Kian Keat Wong, on Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to 2 years and 9 months imprisonment.
56On Charge 2, possession of an unregistered category A longarm, you are convicted and sentenced to 6 months imprisonment.
57On Charge 3, possession of a drug of dependence you are convicted and sentenced to 7 days imprisonment.
58On Summary Charge 3, deal with property suspected of being the proceeds of crime, you are convicted and sentenced to 3 months imprisonment.
59On Summary Charge 9, failure to comply with direction of the Chief Health Officer, you are convicted and fined $200.
60On Summary Charge 11, non-prohibited person possess imitation firearm, you are convicted and sentenced to 4 months imprisonment.
61I direct that 3 months of the sentence imposed on Charge 2 be cumulative on Charge 1 making for a total effective sentence of 3 years imprisonment. I direct that you serve 2 years before becoming eligible for parole.
62Pursuant to s 18 of the Sentencing Act 1991, I declare that 702 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
63Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 5 years imprisonment with a non-parole period of 3 years.
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