DPP v Hong

[2015] VCC 344

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01662

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHUAN HONG

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 March 2015
CASE MAY BE CITED AS:	DPP v Hong
MEDIUM NEUTRAL CITATION:	[2015] VCC 344

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Dhillon
For the Accused	Mr L. Hartnett

HER HONOUR: 

1Mr Hong, you can remain seated until I tell you to stand. Chuong Hong, you have pleaded guilty before me to one charge of importing Tier 2 goods, contrary to s.233BAB(5) of the Customs Act 1901, and one charge of importing goods, namely tobacco products, with intent to defraud the revenue, contrary to s.233BABAD(1) of the Customs Act 1901. You have also pleaded guilty to one charge of possessing a prohibited weapon.

2The facts underlying this offending are contained in some detail in the prosecution opening, which is exhibited with my sentencing remarks. 

3In very short compass, in April 2013, items were intercepted from China by the Australian Customs and Border Protection service.  There was, on 20 April 2014, a consignment containing 48 extendable batons assigned to “Wedge” at an address in Settlement Road, Thomastown.  On 22 April 2014, customs officers at Melbourne Gateway Facility intercepted a consignment from China containing 180 canisters of anti-personnel spray, also addressed to “Wedge” at Settlement Road, Thomastown.  And on 23 April 2014, a cargo shipping container was intercepted after being unloaded at the Port of Melbourne, having been brought here from China, inside which cardboard boxes containing 5,400 knuckledusters; 810 electric shock devises or Tasers; and 100 extendable batons were found.

4Custom officers also located 12 cartons containing 5,000 Double Happiness brand cigarettes.  A large number of blankets were also located inside the shipping container, and indeed the container items were described in Customs documentation as being blankets; sports fitness products; and flashlights.

5On 1 May 2014, an undercover police officer attended your hardware store at Settlement Road, Thomastown, where you told him that you sold knuckledusters for $25 each, and Tasers for $100; that the Tasers could be on sold for $150 each; that you were the only person in Australia selling Tasers of that type; that you had to be careful with these items, because customs had previously seized your Tasers and that you were expecting a delivery of more knuckledusters either that afternoon or the following day; and that your name was Wedge Hong.  The undercover officer purchased one electric shock device in the shape of a torch for $100.

6You were observed by police directing the driver of the delivery truck with the shipping container upon it to your premises, and then unloading the contents and taking them inside.

7The address that had appeared in relation to the items that I have outlined, was in fact the address of your neighbour at the same set of units at 196 Settlement Road, Thomastown.

8When interviewed during the execution of the search warrant, you initially told police you had not seen any weapons before, then admitted that you knew the shipping container had weapons inside it; that you used a name, "Wedge"; that you ordered the goods and did not know you needed permission to import them; and that you had not made enquiries as to whether such goods could be imported into Australia.

9Eventually, after being arrested and formally interviewed, you told police you had no idea that electric shock devices and batons could not be imported; that you had come to Australia on 4 January 2013 on a business investment visa; and that you had a factory in China which manufactures tools; that customers had asked you if you could sell knuckledusters, electric shock devices, and batons; that you sold them at various markets in suburbs such as Laverton, Dandenong and Thomastown; that you had got the idea to import the items when you saw others selling them; that you had paid $7000 for all the items found in the shipping container; that the cigarettes were intended as gifts for your Australian customers; that you had not ordered the batons; that you had never been told that you could not import the weapons; and when asked to identify bins you used at the rear of your premises, you failed to identify a recycling bin in which 29 electric shock devices were located. 

10The discovery of those electric shock devices underlies the summary charge.  Your importation of all the items bar the cigarettes underlie Charge 1 on the indictment.  And the importation of the cigarettes underlies Charge 2 on the indictment.

11You pleaded guilty at the fourth committal mention on 17 September 2014, which is accepted by the prosecution as being an early plea.

12The maximum penalty in relation to Charge 1 is 10 years, or a fine of 2,500 penalty units, or both.

13The maximum penalty on Charge 2 on the indictment is 10 years' imprisonment, or a fine of 1,000 penalty units, or the amount of duty payable if the goods had entered for domestic use.

14And the maximum penalty for the summary offence of possessing a controlled weapon is 240 penalty units, or imprisonment for two years.

15I now turn to your personal circumstances.  You are 45 years old and were born in a province near Shanghai; raised in an area called Tonglu County, which your client described as a small, provincial town in a rural area, with a population of about 500,000.  Your parents are now retired but worked as farmers, and you have a younger sister who is an employee at a shoe factory and who is married.  You have a responsibility as the eldest son, or as the only son, towards your parents, and you are very close to them.

16You were apparently a very good student who finished university in China, completing a Bachelor of Machinery Design.  You also worked in that time as an apprentice, which took you five years.  You worked in a factory making bike handles, and then in 1997 established your own business, where essentially you made various tools.

17It took you a year to become established, but you began at a time when there was a campaign in China to encourage small-scale private factories such as yours.  The business initially did well.  The factory made screwdrivers, spanners, scissors and so forth - that is, hand tools, and at its peak you were employing about 100 people.  The business then suffered a downturn in the Global Financial Crisis of 2007-2008.  Business thereafter declined.

18You came to Australia in 2011, initially simply to seek out possible business opportunities here, and in 2012 were granted a s.163 investment visa, but did not come to this country until January 2013, bringing with you your wife and daughter.

19You initially had a shop-showroom in Preston, but the rent was too high.  You then moved to the premises in Settlement Road, Thomastown, which was both a factory and a residence where you, your wife and daughter lived.  The business did not go particularly well.  You were selling tools that you had made in China, but you were not making a profit, and it was this that led you to engage in the criminal enterprise which has brought you before this court.

20After being charged in these matters, you abandoned the factory and you and your wife share rented premises in Bundoora.  You now work for JBM Manufacturing Displays, where you source materials from China for exhibit displays, working on a commission basis and earning about $500 per week.  You still have the business going in China, which brings you some income, and which is run by your brother-in-law.  You have held your current employment for about a 12 month period.  Your wife, who is a qualified teacher, works at Northland in the food court and makes about $500 per week.

21Your daughter is in year seven at McLeod High, and I was handed a report of her academic progress, which is clearly excellent.  Your current visa lasts until November this year, and you must apply for an extension.    Your counsel urged that I deal with you by way of a community corrections order, citing to me the Court of Appeal decision of Bolton, which has very much expanded the use of this order in the criminal justice system, being said by their Honours to have changed the sentencing landscape, and encompassing a wide variety of criminal offending, and attending to both the punitive and rehabilitative aspects in each case.

22I accept that you are a person ordinarily of good character.  You have no prior convictions, and there has been no offending since.  I accept that you have completely abandoned any occupation which could bring you into the sort of situation where such an offending would recur.  That is, you are no longer working for yourself, you are in an employed situation, and you no longer reside in a factory-type scenario.

23I have had you assessed for a community corrections order, for which you have been found suitable.  I did warn you when I ordered this assessment that no reliance should be placed upon you thereby being the recipient of such an order.  Unfortunately, whilst I accept that specific deterrence is not an aspect of the sentencing exercise before me, which I need have regard for, I have decided after anxious consideration that the amount and quality of the items that you sought to import into this country are of too great a magnitude for me to accede to your counsel's request. 

24Knuckledusters and Tasers and extendable batons are extremely dangerous items, which for good reason are not able to be sold legally on the streets of this country.  They can cause enormous physical damage to other persons.  And as I have said, the amounts of these items that you sought to import were simply of too great a number and magnitude for me to consider that I should deal with this matter by way of a community corrections order.

25As I have said, this is a decision that has caused me some anxiety, but in the end it is my view that I can only deal with you by way of a sentence of imprisonment to be immediately served, but it will be of short duration.  I also intend to deal with you in a way whereby the majority of the sentence I impose will be in fact be suspended.  I therefore sentence you as follows:

26I will begin with the summary matter first.  On that charge I sentence you to one month imprisonment.

27On Charge 1 on the indictment, I sentence you to three months' imprisonment, which sentence is to begin today, 24 March 2015.

28On Charge 1, I sentence you to 12 months' imprisonment, which sentence is to begin today, 24 March 2015.  But I order that you are to then enter into recognisance to be of good behaviour on 24 July 2015.  That recognisance will be in the sum of $1,000, which amount you need only pay if you breach the recognisance by further offending, and will last for a period of 14 months.

29Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a total effective sentence of two years and ordered that you serve a minimum term of 10 months.  Thank you.

30So, he is going to serve an effective term of four months.

31MR DHILLON:  If I could just have a moment to complete the Commonwealth form.

32HER HONOUR:  Yes, Mr Dhillon.  Have a seat, sir.

33MR HARTNETT:  Four months, yes Your Honour.

34HER HONOUR:  Yes.  Everything is concurrent.

35MR HARTNETT:  Yes.  Everything concurrent.  So that's to enter the ‑ ‑ ‑ 

36HER HONOUR:  Beg your pardon, should be to 24 July it should be, he is to enter the recognisance, I beg your pardon.

37MR HARTNETT:  Thanks, Your Honour.

38HER HONOUR:  As I said, it is just the amount, it is too much.

39MR HARTNETT:  And the added complexity.  Not enough, with respect, Your Honour.  Corrections order two years, three years breach.

40HER HONOUR:  Look I do not know if that is necessarily something I can particularly take into account.  If I can say this, it has been more in a conversational way.  In the end, I simply did not feel that the community corrections order sufficiently represented the seriousness of the offending, Mr Hartnett.

41MR HARTNETT:  Yes, Your Honour.  No, you said that in your judgment.  I hear what you're saying.  You did say that.

42HER HONOUR:  Yes, that was always my concern.  I should also indicate, it was made clear on the plea that the answers you gave in your record of interview as to your knowledge as to the illegality and importation requirements over these items was not truthful.

43I should have regard to the sentence of Her Honour Judge Campton, which was tendered on the plea as the only other sentencing exercise that seems to have been undertaken in relation to this charge - that is, the matter of R v Shou Zhong Ma, which Her Honour delivered on 16 August 2010, which involved very similar offending and amounts, the differences being that the accused in that matter had a prior matter for dishonesty, and had subsequent to being charged in relation to these offences, engaged in similar offending, though of a lesser magnitude also.

44They are significant differences in my view, as Her Honour still had the issue of specific deterrence to deal with in that case, and I am satisfied, as I have said, that this is not an issue; that you are remorseful for your offending; and that your rehabilitative prospects are excellent; and that a court is unlikely to find you before it again.

45Thank you, yes.

46MR DHILLON:  Your Honour, I've completed the Commonwealth recognisance release order and my learned friend who's seen it is happy with the way I've set it out.  Perhaps if I could hand it up for Your Honour's signature.

47HER HONOUR:  Yes, thank you.  Could you stand up please, sir?

48MR DHILLON:  Your Honour, before Your Honour does that, I think I may have made an error on the form where it states that Mr Hong is required to be of good behaviour for 12 months.

49HER HONOUR:  It is 14 months.

50MR DHILLON:  If Your Honour has imposed - yes, I apologise Your Honour stated 14 months, which I have written and not transferred.

51HER HONOUR:  Yes, I will change that. 

52Once you are released from prison, Mr Hong, you will then be released on a promise by you to be of good behaviour for a following 14 months.  If there is no further offending, that will be the end of the matter, but if you commit any further offending within that 14 months, you will be brought back before this court for breaching that order, and will be resentenced.  Do you understand that, sir?

53OFFENDER:  I understand.

54HER HONOUR:  Thank you, sir, have a seat.

55I will hand you back authority, and I will hand those items back.  Thank you very much.  Sorry, and that goes as well, back to counsel.

56Yes, thank you very much.  Again I thank counsel very much for their assistance.  It was a very thorough and well-canvassed plea, I thank you for your assistance with that too, Mr Hartnett.  Thank you very much, we will adjourn to 10.30 tomorrow morning.

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