Director of Public Prosecutions v Yeong (Sentence)

[2024] VCC 1255

, in this case

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00010

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHAR CHOON YEONG

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2024 (arraignment) & 16 August 2024 (plea in mitigation)
DATE OF SENTENCE:	16 August 2024
CASE MAY BE CITED AS:	DPP v Yeong (Sentence)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1255

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentencing                

Catchwords:              Guilty plea following sentence indication – trafficking in a commercial quantity of methylamphetamine – quantity was 8.19 times the pure commercial quantity and 1.99 times the mixed commercial quantity – single day trafficking – role of a driver – no prior criminal history – Malaysian national – risk of deportation and isolation and experience of violence in custody add to burden of imprisonment – reasonably good prospects of rehabilitation – general deterrence and denunciation paramount sentencing considerations – parity with co-offender.

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Migration Act 1958 (Cth); Sentencing Act 1991

Cases Cited:Guden v. R. (2010) 28 VR 288; Barbaro v. The Queen [2021] VSCA 277; DPP v. Lam [2020] VCC 160

Sentence:                  Four years, four months’ imprisonment with a non-parole period of 2 years, eight months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C. Fairfield	Office of Public Prosecutions
Victoria
For the Accused	Mr P.P. Kounnas	Victoria Legal Aid

HER HONOUR:

1Khar Choon Yeong, following a sentence indication hearing before me[1], you have pleaded guilty to the following offences:

(a) Trafficking in not less than a commercial quantity of a drug of dependence, namely methylamphetamine contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 ('the Act'), the maximum penalty for which is 25 years' imprisonment (Charge 1); and

(b)   Two charges of possession of a drug of dependence, namely, methylamphetamine (Charge 2) and cannabis (Charge 3) contrary to s 73(1) of the Act, the maximum penalty for which, in the circumstances of this case is five years’ imprisonment.

[1]Sentence Indication Hearing held on 14 June 2024

2You have also pleaded guilty to two related summary offences:

(a) Being a non-prohibited person in possession of an imitation firearm without exemption or approval contrary to s 5AB(1) of the Control of Weapons Act 1990, the maximum penalty for which is 2 years' imprisonment or 240 penalty units (summary charge 4); and

(b) Possessing prohibited weapons without exemption or approval, namely a flick knife and four combat knives contrary to s 5AA of the Control of Weapons Act 1990, the maximum penalty for which is 2 years' imprisonment or 240 penalty units (summary charge 9).

3You were born in Malaysia and were 28 years old at the time of the offending. You were living in Australia on a bridging visa.  At the time of the offending you were residing in Leicester Street, Carlton. You have no prior convictions in Australia.

4Your co-offender, a 35-year-old Chinese national named Weiwei Yu, was also living in Australia on a bridging visa.

Circumstances of offending

5The circumstances of your offending are set out in the Summary of Prosecution Opening on a Plea dated 18 July 2024, which is the agreed basis upon which you are to be sentenced.

6In January 2022, the police commenced an investigation into the importation and trafficking of methylamphetamine in north-west Victoria. As part of this investigation, you were placed under surveillance by police.

7On Monday 28 February 2022 at 11.45 pm, the police observed you drive to an apartment complex in Whitehorse Road, Box Hill in a blue Mercedes sedan that was registered in the name of your girlfriend.  CCTV shows you leave the apartment half an hour later at 12.53 am on 1 March 2022 with Mr Yu.  You are both seen wearing backpacks.

8

The two of you entered the Mercedes sedan and you drove in the direction of the city.  The police intercepted the Mercedes vehicle at 1 am in East Melbourne. 

Mr Yu was seated in the front passenger seat.  When the police spoke to you, you gave them a false name of Wah Seng Low. The police searched the vehicle locating a backpack in the front passenger footwell in front of Mr Yu, in which they located two plastic film wrapped bags containing off-white crystals, which the police seized.

9Mr Yu was arrested at this time. You were free to leave.

10On 11 May 2022, the police executed a search warrant at your apartment in Leicester Street, Carlton, where they located and seized the following items:

(a)   Seven Ziplock bags of a crystal substance that was subsequently analysed and found to contain 12.8 grams of methylamphetamine (Part of Charge 2);

(b)   Three vessels and wet paper found in the dresser, the liquid of which was subsequently found to contain approximately 74.3 grams of methylamphetamine in liquid form, consistent with the methylamphetamine re-crystallisation process (The liquid found also forms part of Charge 2);

(c)   34 Ziplock bags containing green vegetable matter which subsequent analysis found to contain 270.6 grams of cannabis (Charge 3);

(d)   A flick knife and four combat knives (rolled up summary Charge 9);

(e)   An imitation handgun (summary Charge 4); and

(f)    Two mobile phones and five SIM cards.

11You were arrested and interviewed with the assistance of an interpreter. You admitted that you lived in the apartment in Leicester Street, Carlton. You told police that an unknown person by the name of 'Teddy' owned one of the mobile phones and had left the 31 Ziplock bags of cannabis and two of the Ziplock bags of methylamphetamine at your house. You said you had never seen the SIM cards before. You admitted that two Ziplock bags of methylamphetamine were yours. You told police you purchased the imitation firearm, saying that you were not aware it was illegal to have one. You said the flick knife was a gift and the black knife was purchased when you went fishing. You said you did not know you were not allowed to possess these weapons.

12

As to the crystal seized by police on 1 March 2022, you admitted you were with

Mr Yu, and told police that you intended to buy 3.5 grams of the methylamphetamine. You said you later became aware Mr Yu had 500 grams on him, saying 'I knew it was 500 grams later because I asked him to sell me those small bags'.

13

Subsequent analysis of the white crystals seized by police on 1 March 2022 revealed the substance was 499.2 grams of methylamphetamine with a purity of 82 per cent.  The methylamphetamine found in the backpack in your vehicle on

1 March 2022 is the subject of Charge 1 – trafficking in not less than a commercial quantity of a drug of dependence.

14Subsequent forensic analysis identified both you and Mr Yu as contributors to the DNA located on the wrapping used to pack the methylamphetamine found in the backpack.

15Call charge records show frequent telephone contact between you and Mr Yu during the period 19 February 2022 and 1 March 2022.

Nature and gravity of offending

16The gravity of the offence of trafficking in a commercial quantity of a drug of dependence is reflected in the maximum penalty of 25 years' imprisonment.

17A commercial quantity of methylamphetamine is defined in two ways:

(a)   where the drug is in its pure form, an amount of 50 grams;

(b)   where the drug is present in a mixture, the commercial quantity is 250 grams of the mixture.

18The minimum threshold that constitutes a commercial quantity is relevant not only to the category of trafficking offence committed, but is also highly relevant in assessing the gravity of the offending in a particular case.  Here, the quantity of methylamphetamine found in your possession on 1 March 2022 was 8.19 times the threshold where the drug is in its pure form, and 1.99 times the threshold for a 'mixed' commercial quantity. This was a significant quantity of methylamphetamine, well in excess of the threshold for a commercial quantity, that was in your possession for a trafficking purpose.

19The quantity of drugs marks the objective gravity of the offending, however it is not determinative.  While the quantity involved must be given due weight in the sentencing calculus, other factors remain relevant, including your role in the offending, the duration of your offending and the motivation for your involvement.

20In this case, you possessed a commercial quantity of methylamphetamine for a trafficking purpose on one day only. The prosecution accepts that it could not be said you were involved in the business of trafficking for a substantial period.

21Your role was that of a driver. You were observed driving your girlfriend’s Mercedes to collect Mr Yu and were driving the car when intercepted by police. Although it was Mr Yu’s backpack in which the drugs were located, your DNA was located on the packaging surrounding the crystals. You clearly knew that Mr Yu was carrying methylamphetamine, and provided police with a false name at the time to protect your true identity. It appears you undertook this role in order to purchase a quantity of methylamphetamine for your personal use.             

22The prosecution accepts that your role was subsidiary to that of Mr Yu. In sentencing Mr Yu, I found that he was acting as an agent or intermediary in trafficking the methylamphetamine that is the subject of Charge 1. In Mr Yu’s case, there was evidence that he was actively involved in negotiations with another person in performing his role as an intermediary and was motivated to undertake that role in the lure of profits. I accept that you played a less significant role in this offending and there is no evidence you were actively involved in those negotiations.…

23Given the harm caused by illegal drugs such as methylamphetamine in the community, general deterrence is of paramount importance in sentencing you for this offence.  Others must be deterred by the sentence I impose in order to achieve the deterrent effect that Parliament has intended by fixing a maximum penalty of 25 years' imprisonment for commercial quantity trafficking. While your role in the offending was not as significant as that of Mr Yu, the sentence I impose must also deter those involved in subsidiary roles, such as drivers, from playing any role in the methylamphetamine trade.

24As to Charges 2 and 3 – possession of the methylamphetamine and cannabis seized from your Carlton apartment, I consider these to be serious examples of the offence of possession of a drug of dependence. The total mixed quantity of methylamphetamine was approximately 87.1 grams (mixed) and approximately 35.07 grams (pure). A traffickable quantity of that drug in mixed form is 3 grams or more. You therefore possessed over 29 times the traffickable quantity of methylamphetamine, found in Ziplock bags and vessels, in mixed form. A total of 270.6 g of cannabis was found in your possession on 11 May 2022. A traffickable quantity of cannabis is 250 grams.

25Given that the drugs found in your apartment were in such high quantity, packaged in various Ziplock bags, combined with the other items found at your house, I cannot be satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking in that drug. Accordingly, the higher maximum penalty for the offence of possession of a drug of dependence applies.

26Further, I am not satisfied that the explanation you gave police for the items found in your possession was entirely credible, although I accept that feeding your own drug addiction was the motivation for your involvement in your offending. Nonetheless, the sentence I impose must deter you and others from possessing drugs and weapons incidental to drug trafficking activity.

Personal circumstances

27You were born in Penang in Malaysia in June 1993. You have two older brothers and an older sister. Your father was a bus driver and your mother cared for you and your siblings at home. Sadly, your mother passed away when you were 17 years old. You attribute this event as having been the catalyst to you spending more time with negative peers.

28You began abusing cannabis, heroin and methylamphetamine when you were around 20 years old. Your counsel informed the Court that you spent six months in custody in Malaysia for possession of drugs, at some point in time.

29You came to Australia in February 2017 with your partner at that time, to make a better life for yourself and to have a fresh start. You found employment in restaurants and then in construction, working as a plaster. You married in 2018, however, that relationship ended in early 2020 when your wife left you.

30When the pandemic commenced, your construction work ceased. You report that you became significantly depressed, making two attempts to take your own life. Medical records obtained from Eastern Health indicate that you were admitted to hospital in October 2020, following a suicide attempt by inhaling burnt charcoal in a car, but did not suffer any injury. You reported to Eastern Health that this event occurred in the context of having lost $7,000 in gambling, having secretly withdrawn money from your then partner’s account. The health records describe this attempt as reflective of a situational crisis, rather than any diagnosed depressive illness. The records also note that you had experienced previous gambling losses.

31These events led to a resumption of drug use, and you report experiencing a significant problem with 'ice' at the time of your offending.

32In late 2020, you met your present partner, Ms Yi Min Yeap, who remains supportive of you. You intend to marry Ms Yeap upon your eventual release.  You report remaining abstinent from drugs since being remanded in custody in 2022.

33You have no prior criminal history in Australia, however Interpol records indicate you had a relevant court appearance in Malaysia for a drug-related offence. In August 2015, you were fined RM2000 for a contravention of the Common Gaming House Ordinance. On 10 May 2015, the records indicate you were sentenced to six months’ imprisonment for contravening the Dangerous Drug Act, which your counsel advises related to possession of a drug of dependence for use only.

Matters in mitigation

34Having discussed the objective gravity of your offending, I now turn to the various matters raised on your behalf in mitigation of your sentence.

Guilty plea

35First and foremost, you pleaded guilty to these offences and in doing so, you facilitated the course of justice.  Although yours was not an early guilty plea, by pleading guilty prior to a trial, you saved the court and the community the time and resources associated with a trial, including those associated with a foreshadowed legal argument about the lawfulness of the vehicle search.  You are entitled to, and will receive, a significant sentencing discount to reflect the utility of your guilty plea.

36In a letter you have written for the Court[2], you have expressed your remorse for your involvement in this offending. You state that having been in gaol for two years, you have gained insight into the impact your drug-related offending has on others. You report that you have ceased all drug use and sought to distance yourself from negative, pro-criminal influences. You indicate that you intend to attend Narcotics Anonymous upon your eventual release. Your letter to the court is detailed and considered. I accept that your plea is accompanied by a level of remorse for your conduct and a desire to lead a pro-social life into the future.

[2]Exhibit 2 – letter written by Mr Yeong (undated)

Risk of deportation and the burden of imprisonment

37Under the Migration Act 1958 (Cth), a non-citizen is liable to deportation where they receive a term of imprisonment of 12 months, or more.  In those circumstances, visa cancellation is mandatory, although a non-citizen may apply to have the revocation reviewed by the Minister.

38Recalling that you are a non-citizen on a bridging visa in Australia, the prospect of deportation following sentence is a relevant sentencing factor. The courts recognise the risk of deportation may be relevant in two ways: first, that the expectation of being deported following release may mean the burden of imprisonment will be greater for that offender than for someone who faces no such risk; and secondly, in an appropriate case, it will be proper to take into account the fact that the sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia.[3]

[3]Guden v. R. (2010) 28 VR 288

39On your behalf only the first limb, being the added burden of your imprisonment, is relied upon in mitigation of sentence.  On your behalf, Mr Kounnas argues that the risk of deportation is of particular significance due to the impact it may have on your current relationship.

40I accept that your understandable concern about the risk of deportation, and the uncertainty that entails, particularly in relation to your relationship makes your time in custody more onerous than it would be for someone who is not in the same position.

41There are, however, other matters that have also made your experience of custody more difficult. Firstly, your English is poor and this adds to your sense of isolation. You do, however, have regular contact with your partner. You have also experienced instances of violence in custody, which have been reported in your Justice Health records.[4] You reported being assaulted by an inmate in April 2024, and then, in July 2024, you were assaulted by being punched in the face, falling to the ground and then repeatedly kicked, while in your cell. You fractured your elbow in the fall, requiring treatment. You have subsequently been moved to a different prison for your own protection. I have taken account of the added burden of your imprisonment in moderation of the sentence I have imposed.

[4]Exhibit 5

Prospects of rehabilitation

42I turn now to my assessment of your prospects of rehabilitation.

43Since being in custody, despite your language difficulties, you have endeavoured to complete a number of courses, including TAFE courses in Food Processing, Construction, Workplace Safety and English Language, as well as modules of the Atlas Remand program, two 3-hour Drug and Alcohol programs, and other programs to assist in your rehabilitation. This is to your credit.

44Your current partner, Ms Yeap, has written a reference on your behalf in which she states she has seen 'big changes' in you over the past two years, and says this is why you retain her support and she sees a future with you[5].

[5]Exhibit 1 – reference of Ms Yi Min Yeap dated 11 June 2024

45Clearly, your future prospects of rehabilitation are inextricably connected with your ability to overcome your long-standing addiction to drugs and to remain drug free. You retain the support of your partner and your future life with her is a motivation to maintain abstinence. Viewed against these serious offences, I   assess you have reasonably good prospects of rehabilitation. Your experience of imprisonment will undoubtedly be salutary.  There remains however, a need for the sentence I impose to specifically deter you.

Other sentencing considerations

46The offence of trafficking in not less than a commercial quantity of a drug of dependence is a Category 2 offence under the Sentencing Act 1991 and, as such, the Court must impose a sentence of imprisonment unless an exemption applies.[6]  In this case your counsel does not argue that an exception applies and accepts that the only appropriate sentencing disposition is a term of imprisonment with a non-parole period fixed.

[6]Section 5(2H) of the Sentencing Act 1991

47The sentence I impose must justly punish you for this offending and mark the Court's denunciation of offending that involves trafficking in a commercial quantity of methylamphetamine.  As stated, general deterrence is a sentencing consideration of prominence in cases such as these.  Others must be deterred from engaging in drug trafficking activity in the knowledge that if they do so, irrespective of their role, they face the prospect of a lengthy sentence of imprisonment.

48Finally, I also have regard to current sentencing practices, and in particular, I have considered the cases to which I was referred by the prosecution, as a guide to sentences imposed for comparable offending[7]. I have also considered the sentence I imposed on Mr Yu[8]. Current sentencing practices are only one of many sentencing considerations that I must take into account.  As always, every case ultimately turns on its own facts and circumstances, and current sentencing practices are no more than a guide.

[7]Barbaro v. The Queen [2021] VSCA 277; DPP v. Lam [2020] VCC 160

[8]DPP v. Weiwei YU [2024] VCC 386

49I have had regard to the sentence I imposed on Mr Yu to ensure that the sentencing principle of totality is applied in respect of Charge 1, conscious of your distinct roles in that offending.

Sentence

50Balancing the matters to which I have just referred, while having regard to the maximum penalties for each offence, I sentence you as follows:

51On Charge 1 – trafficking in not less than a commercial quantity of a drug of dependence (methylamphetamine), you are convicted and sentenced to three years, 10 months' imprisonment. This is the base sentence.

52On Charge 2 – possession of a drug of dependence (methylamphetamine), you are convicted and sentenced to 12 months' imprisonment.

53On Charge 3 – possession of a drug of dependence (cannabis), you are convicted and sentenced to eight months' imprisonment.

54On related summary Charge 4 – possession of an imitation firearm – you are convicted and sentenced to two months' imprisonment.

55On related summary Charge 9 – rolled up charge of possession of prohibited weapons – you are convicted and sentenced to two months' imprisonment.

56I order that four months of the sentence imposed on Charge 2 and two months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1 and upon each other. I consider this degree of cumulation is warranted to reflect the separate criminality of the offending in respect of the drugs you possessed on 11 May 2022. All other sentences are to be served concurrently, having regard to the sentencing principle of totality.

57This gives a total effective sentence of four years, four months' imprisonment.  I fix a non-parole period of two years, eight months' imprisonment.  This is the period of imprisonment you must serve before you are eligible for parole.

58

Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served

828 days of pre-sentence detention to be reckoned as served under the sentence I have imposed.

59I make the forfeiture and disposal orders sought by the prosecution, noting they are not opposed.  I note that Mr Kounnas proposes to discuss with the prosecution the position in relation to personal items on the telephone.  This however is not a matter for the court.

60Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of six years, four months' imprisonment with a non-parole period of four years, six months.

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