Director of Public Prosecutions v Wong

[2014] VCC 2214

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00001

DIRECTOR OF PUBLIC PROSECUTIONS

v

YONG WONG

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF PLEA:	3 & 4 December 2014
DATE OF SENTENCE:	5 December 2014
CASE MAY BE CITED AS:	DPP v Wong
MEDIUM NEUTRAL CITATION:	[2014] VCC 2214

EX TEMPORE REASONS FOR SENTENCE

Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr. M. Gumbleton
For the Accused	Ms. M. Mykytowycz

HIS HONOUR:

1Yong Lim Wong last Friday on 28 November, you were found guilty by a jury of 12, of importing a commercial quantity of a border-controlled drug.  The drug in question was heroin.  A commercial quantity of heroin is 1.5 kilograms.  The quantity of heroin found in the suitcase which you bought to Australia and the suitcase which your 19 year old girlfriend who was found not guilty, totalled approximately 3.3 kilograms.  That means that the quantity of heroin which you bought in to Australia, pursuant to an agreement with others, amounted to no less than approximately 2.2 times the commercial quantity of that narcotic.

2The prosecution case was that you had entered into an agreement with others to bring in a border-controlled drug.  Those others principally included a person by the name of Jong Paul, and YB Handler, who were apparent residents of Malaysia, your home country.

3I will come in more detail to the circumstances surrounding that importation.  The heroin in the suitcases were only detected in Australia at the airport, because both you and your girlfriend, Ms Koot, were selected for baggage examination.  But for that fact, the importation of that commercial quantity of heroin would have been successful.  The heroin was concealed in the false bottoms of each of the suitcases and but for anomalies in each of the suitcases, may not have even be detected upon examination. 

4It is well understood and known that detection of this type of importation is difficult.  As I have mentioned, your girlfriend then of some six months, was acquitted.  You introduced her as part of this process to facilitate the importation.  However, as is plain from the discussions and the concessions made by Mr Gumbleton on behalf of the prosecution, and accepting those submissions, you are to be treated only as a courier for the purposes of this sentencing process.  Any suggestion in the materials that you had a greater role than that to play, I entirely put aside.

5Nonetheless, from your point of view, this was not a spontaneous decision by you to enter into this agreement and pursuant to that agreement, to bring in this large quantity of heroin.  Telephone records evidence that you were in contact with another party to that agreement who I have  mentioned, Jong Paul, from the 5th of August 2013, some six days prior to your arrival in Australia.  Furthermore, those same records evidence the fact that from the 8th of August 2013, you were in contact with another one of those involved in the agreement, a person known as YB Handler. 

6In addition, en route to Australia, you stopped at Singapore and there was further contact.  You had been provided with information about the hotel to drop off the suitcases and not to stay at that hotel.  Your denials of your knowledge or belief that the suitcases contained a border-controlled drug were unsurprisingly rejected by the jury, as evidenced by their finding of guilt.

7The fact that you had been in contact with Jong Paul from the 5th of August 2013, and YB Handler from the 8th of August 2013, evidences that you had ample time to decide whether or not you would enter into the agreement or not, or decide if you did enter into the agreement, not to carry through your role in effecting that agreement.  You made a considered decision not only to be party to that agreement, but to play your role - a critical role - in effecting that agreement.

8Your reason for engaging in that criminal enterprise was purely financial.  In your record of interview, you indicated that you had been involved in buying foreign currencies in Penang, and you apparently had lost a lot of money.  You could barely afford to pay the rent and you were faced with eviction.  It was in those circumstances that Jong Paul, according to you, came to you with the proposition "Would you like to carry the luggage to Australia?"  You said in your interview, that Jong Paul had said to you, "You just go with your girlfriend, have a holiday in Australia and they will pay you AUD$3000 a day for each of you."  You also expected to receive an additional lump sum amount of, for the purposes of these sentencing remarks, an indeterminate amount. 

9General deterrence, that is, deterring others from engaging in this grave criminal activity is the primary sentencing factor.  I must, and do, take it into account. As is just punishment and the denunciation of your conduct.  Furthermore, specific deterrence, that is, deterring you, is of some weight, though in the circumstances which I will come to, of little moment.

10At the time you entered into this agreement and came to Australia, you were 23 years old.  You are now 24.  I have had the advantage of a thorough plea made on your behalf by Ms Mykytowycz.  I drew her attention to an aspect of your record of interview where, at the very beginnings of that interview, you say this in answer to questions 8 to 12. 

Question:  "Did you wish to communicate with a friend or relative?" 

Answer:  "Yes." 

Question:  "Yes, okay.  Who was that friend or relative you wish to communicate with?" 

Answer:  "The person who introduced me to come here." 

Question: "Who is that person?" 

Answer:  "I don't know." 

Question:  "Okay, how would you contact that person?" 

Answer:  "I have the phone number." 

Question:  "What do you think that they can do for you?" 

Answer:  "So I will tell them, and I want to know what they can do to help me, so if they're not going to help me, then I will tell you everything." 

The person in question appears to be Mr Jong Paul from your later answers. 

11That you could think for a moment that a person involved in this activity would come forward to assist you in some way in your plight speaks in my view to a naivety in you.  I consider that despite the fact that you are young person at the age of 23 you are, for your age at that time, immature. 

12You are a young man of impeccable background.  Your parents had striven from your birth to give you all the advantages that they could, and did.  You took advantage of those opportunities and performed to the best you could, having achieved academic and sporting success.  You are a young man with no prior criminal history.  Your prospects of rehabilitation are excellent.  I will come to your personal history in more detail later in these sentencing remarks.

13Mr Gumbleton conceded, and conceded appropriately, that these matters of your age, your youth, your prospects of rehabilitation and the absence of any criminal offending in the past, amount to powerful mitigating circumstances.  I indicated at that time, that I accepted that submission and treat those matters as being powerful mitigating circumstances, which I take into account. 

14As to the absence of any prior criminal history, I give less weight to that matter than would ordinarily be the case.  For couriers such as you, it is typical that couriers do not have a criminal record, thus enhancing the prospects of a successful importation.  Nonetheless, it is a matter I do take into account, as I have said.

15You are an only child.  Your parents have been present in court throughout the trial and the plea that has been made and are present here today.  They have, as they have throughout your life, supported you and will continue to do so.  They have come from Malaysia for that purpose as well, shortly to return.

16Your academic history speaks for itself.  You completed Year 12 in 2007 and then attended at college, graduating with a Diploma in Games Technology in 2012. 

17You worked in 2009 for approximately six months as a waiter.  You have also worked at two technology fairs helping to sell laptops.  You completed in 2013 two further courses to supplement your Diploma.  In addition throughout your school years you played and excelled in a variety of different sports obtaining, for example, your brown belt in Karate-Do. 

18You are facing a lengthy period in custody in Australia.  You of course have no other family or friends in Australia and therefore will be isolated in that way.  That makes your experience of imprisonment more burdensome, though of course, I must also take into account that it was you who chose to come to Australia in order to import what proved to be a commercial quantity of a border-controlled drug, heroin.

19Since your imprisonment, you have become a model prisoner.  You work in prison and you have completed such courses as you can.  You intend to further your tertiary studies once sentenced in prison. 

20There has been much discussion concerning the need for consistency in sentencing you, as with other persons sentenced for this Commonwealth offence.  In the High Court of Hili v The Queen; Jones v The Queen [2010] HCA 45 (8 December 2010) the judgement of French, Gummow, Hayden, Crennan, Kiefel and Bell CJ, Their Honours address this matter in paragraphs 46 to 57. I shall quote but a few passages from those paragraphs.

21Their Honours, at paragraph 49 state: 

“The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt IB of the Crimes Act. When it is said that the search is for "reasonable consistency", what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression.”

22Later, at paragraph 50, Their Honours continue:

“The first and paramount means of achieving consistency in federal sentencing is to apply the relevant statutory provisions.  And that requires the application of those provisions without being distracted or influenced by other and different provisions that would be engaged if the offender concerned were not a federal offender.”

23Still later, in paragraphs 53 and 54, Their Honours continue: 

“Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases.  In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud.  Care must be taken, however, in using what has been done in other cases.

In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases.  As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed.  That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits.  As her Honour said:  "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts."  But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence".  Past sentences "are no more than historical statements of what has happened in the past.  They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence".  When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".

24In this case, the prosecution initially tendered two charts which became Exhibit P1 and P2, in relation to sentences imposed in commercial importation of heroin from 2010.  I indicated during the course of discussion, that I could not, from that material alone, discern any pattern and it was in those circumstances that Mr Gumbleton on behalf of the Commonwealth Director of Public Prosecution tendered a further chart which became Exhibit P3 which related to sentences imposed in a commercial quantity of border-controlled drugs other than heroin, from 2010, including other narcotics such as cocaine, MDMA Ecstasy, Methamphetamine and Amphetamine. 

25An analysis of that further material together with Exhibit P2 does disclose a sentencing pattern which has been submitted by Mr Gumbleton, and agreed by Ms Mykytowycz, to reveal a consistent sentencing practice across the Commonwealth and including Victoria.  I, too, have come to the same conclusion, that there is a consistency in sentencing practice in relation to a discernible pattern in relation to importation of a commercial quantity of heroin. 

26In contrast, President Maxwell, in the case of Vu Lang Pham v R [2014] VSCA 204, established that there as an inconsistency in the sentencing practice in Victoria as opposed to some other States and Territories in relation to the importation of a marketable quantity of a border-controlled drug.  Fortunately, there is no such inconsistency, as I said, in relation to importation of a commercial quantity of a border-controlled drug, as agreed by all in this case.

27Mr Gumbleton has carefully and methodically taken me through each of Exhibits P1, P2 and P3.  I have further reviewed Exhibits P2 and P3 - P1, the statistics contained in the materials contained in P1 being incorporated into P2.  The sentence I am about to impose is consonant with other sentences for like offenders and for like offending throughout the Commonwealth.  I say this, of course, considering the constraints or limits that are inherent in Exhibits P2 and P3. 

28Yesterday, and I think the day before, I indicated that these sentencing remarks must be read in conjunction with the detailed discussions during the course of the plea, where varying concessions were made and accepted, made by Mr Gumbleton and accepted by me, and varying submissions made by Ms Mykytowycz were accepted by me. 

29Taking into account all the matters that I have adverted to, or have been adverted to during those discussions, and these ex-tempore sentencing remarks, I sentence you as follows.  Stand: 

30On the Charge 1 of importing a commercial quantity of a border-controlled drug, heroin, I sentence you to be imprisoned for a period of 8 and a half years.  I direct that a non-parole period be set of five years.  The sentence of 8 and a half years commences today.  I direct that a record of pre-sentence detention of 481 days, excluding today, be recorded.  Is there anything further, Mr Gumbleton? 

31MR GUMBLETON:  Nothing, may it please the court.

32HIS HONOUR:  Any corrections?

33MR GUMBLETON:  No, Your Honour.

34HIS HONOUR:  Thank you.  I will stand down temporarily and resume at about twenty five to 12 with the other matter for plea. 

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