R v Chun Fung Ku

[2015] VCC 634

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00935

THE QUEEN

v

CHUN FUNG KU

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2015
DATE OF SENTENCE:	14 May 2015
CASE MAY BE CITED AS:	R v Chun Fung Ku
MEDIUM NEUTRAL CITATION:	[2015] VCC 634

REASONS FOR SENTENCE
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Subject: Criminal – plea - sentence
Catchwords: Import commercial quantity of a border controlled drug contrary to s.307.1(1) of the Criminal Code (Cth)
Sentence: Total effective sentence 8 years and 6 months with a non-parole period of 5 years and 6 months. 451 days reckoned as time already served.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Sewell	CDPP
For the Offender	Mr J. Gullaci	Elizabeth Nickolls & Associates

HER HONOUR:

1Chun Fung Ku, you have pleaded guilty to three counts of importing a commercial quantity of a border controlled rug, namely methamphetamine contrary to s.307.1(1) of the Criminal Code (Cth).  The maximum penalty for an offence against this section is life imprisonment.

2The amount of pure methamphetamine involved is 7576.2 grams.  Methamphetamine is a border controlled drug pursuant to schedule 4 of the Criminal Code Regulations (2002) with a marketable quantity being greater than 2 grams and a commercial quantity being greater than 750 grams.

3The facts surrounding your offending are set out in detail in the prosecution summary which was tendered on the plea and I sentence you on the basis of the facts as set out in that document.  I summarise these facts briefly.

4You arrived at Melbourne Airport on 14 November 2013 on a Hong Kong passport and on a tourist visa.  On each of these occasions, you rented premises, then received packages addressed to each of these premises which contained goods in which were secreted methamphetamine in crystalline form. 

5Count 1 relates to offending on 8 January 2014 and to a package of shampoo and cream.  The package was sent to you from Hong Kong and was located at the first premises at 21 Kings College Drive, Bayswater.  Approximately 2396.9 grams of pure methamphetamine was suspended in a shampoo and cream in a package.

6Count 2 relates to offending which occurred in January 2014 when you were residing at 3/604 Riversdale Drive, Camberwell.  A package from China was addressed to you at that address and described as containing plastic candles.  A box was selected by customs officers for further examination.  The examination revealed two boxes, each box containing three irregularly shaped candles in long stemmed glasses.  Presumptive testing indicated the presence of methamphetamine and subsequent analysis confirmed that the package contained 2122.6 grams of pure methamphetamine.

7Count 3 relates to offending on 12 February 2014 when you received a package from Hong Kong addressed to premises at 45 Charles Street, Abbotsford, Victoria in which you had been residing since 26 January 2014.  The package consisted of a cardboard box containing bottles of liquid described as medication but which were tested and found to contain 3056.7 grams of pure methamphetamine.

8On 18 February 2014, you were detained at Melbourne Airport when you went to take a flight to Hong Kong.  You were found to be carrying a number of mobile phones and a SIM card.  An initial examination of the phones revealed text messages with the three addresses listed above at which you had been residing for short periods prior to receipt of each package.

9You were arrested by the Australian Federal Police and conveyed to the Australian Federal Police headquarters where you were interviewed and denied involvement in any drug importation.   The mobile phones and SIM cards seized by customs officers on 18 February 2014 were subsequently examined and translated.  There were numerous voice and chat messages in the Cantonese language which were summarised by the prosecution and relied upon as revealing that you played a crucial role in each importation of methamphetamine into Australia.  In particular it was submitted that you were motivated by financial gain to run the Australian end of the operation.

10On your behalf your counsel conceded your important and integral role in the importations which was motivated by your desire for financial gain but submitted that the recorded interactions revealed that others were involved, that you took some direction in relation to rented properties and that your flights and expenses were paid by others.

11I note the large quantity involved in the importations totalling over 7.5 kilograms of methamphetamine.  The prosecution submitted that if the drug was sold at street value at current purity, the wholesale price would be between $2.18 million and $2.398 million.  If the methamphetamine were cut into street level purity and sold in point form, that is 0.1 grams per point, at 70 per cent purity for $100 per point, the value would be over $11 million.

12

You have been in custody since being arrested and have served 451 days in custody.  You sought a contested committal which was heard on 27 May 2014.  You were committed and entered a plea of not guilty to the charges on the indictment.  On 28 May 2014, a trial date was fixed for 29 June 2015.  At a mention on 6 February 2015, the matter was resolved.  At a further mention on

20 February 2015, the trial was vacated, you were arraigned and a plea hearing fixed for 29 April 2015.

13I turn briefly to your personal circumstances.  You are 26 years old and were 25 at the time the offences were committed.  You have no prior convictions in Australia but have one prior conviction in Hong Kong for assault in respect of which you were sentenced to 4-5 months' imprisonment.

14Your parents separated when you were eight and you lived in public housing with your mother.  You left school at 16 and worked full time renovating and installing internet equipment.  You had a relationship for three years which resulted in a daughter being born when you were 18.  That relationship broke up when you lost one of your jobs and you drifted into drug use and started to associate with criminal elements in Hong Kong.  You have not worked full time since then.

15You incurred some drug debts prior to coming to Australia.  You have little English and have no family here and have only occasional phone contact with your family in Hong Kong.  Your visa has expired and you will be deported upon your release from gaol.  At the time of offending, you had a drug problem yourself and were using ice.  While in custody, you were assaulted and suffered a broken jaw.  Your family is aware of your offending but will continue to support you.

16Your counsel conceded that you played an important role in the importations, that you must receive a significant term of immediate imprisonment and that a measure of cumulation is required.  However, your counsel submitted that there should be substantial concurrency in order to reflect that your offending was one sustained course of conduct over a four week period and to give effect to the principle of totality.  In addition, your counsel relied on a number of matters in mitigation.

17You pleaded guilty before the matter was listed for trial and are entitled to a real discount for this.  There is some limited evidence of remorse demonstrated by your plea of guilty.  You have a limited prior criminal history and no other matters pending.  You are relatively young and have a significant part of your life ahead of you in which to rehabilitate.

18You have been using your time in custody to work and study English.  You have been isolated while in custody due to your poor English and the absence of family here and this means that any additional term of imprisonment will be more onerous for you than on others with ties to the community here.

19Your counsel relied on the psychological report of Jeffrey Cummins dated 15 April 2015 but agreed that you minimised your role in your offending to Mr Cummins as well as to police in your record of interview.  Mr Cummins found that you suffer no mental health issues.  He noted that you feared the assaults that you suffered in prison may have been connected with the people who paid you to come to Australia.  There is however no evidence that this is the case.

20Your counsel also relied on the certificates concerning your education in prison and your negative urine screens.  He also relied on a letter from your aunt, Ku Suk Ching, dated 27 April 2015 which confirmed that your childhood was spent in poverty on an inadequate income, that after your relationship with the mother of your daughter broke up, you became depressed, used drugs and met bad people.  Your counsel also noted that, having suffered a serious assault at the Melbourne Remand Centre by an unknown assailant and having had your jaw broken, you had been moved to Port Phillip Prison and remain anxious about the possibility of further assault.

21There was some disagreement between counsel concerning the proper description of your role but I am satisfied on the material before me that it was a very significant and important one, that you had significant autonomy and responsibility and were running the Australian end of the importation on your own, albeit that you were taking some direction from other persons in Hong Kong.

22I accept that you were a drug user but on the material I find that there is no evidence that this interfered with your ability to arrange the importations as you did.  In addition I am not satisfied on the material before me that even if you had a drug debt in Hong Kong, that you acted under duress in carrying out the importation.  Rather I am satisfied that, as you have admitted, you were an active participant, motivated by the prospect of significant financial gain.  Given that the amount of amphetamine you imported was ten times the threshold for a commercial quantity, your offending must be treated as a significant instance of a serious offence.

23The prosecution handed up a table of comparable cases which I have considered.  I note defence counsel's submission that the most useful of these cases was that of Yau, a sentence handed by His Honour Judge Tinney on 6 March 2015 on the basis that it concerned the importation of one parcel of around 6 kilograms of methamphetamine addressed to the offender who was 19 years old at the time which he received, unpacked, repacked into samples and showed to three different potential buyers before repacking it again into one kilogram bags ready for sale.

24He was sentenced to 7 years and 6 months' imprisonment on the importation charge.  The prosecution submitted that your offending is more serious than that of Mr Yau in that the quantity of methamphetamine you imported is greater, you face three charges and not just one, you did not plead guilty at the first opportunity and you have a prior criminal history.

25As was considered by your counsel, general deterrence along with just punishment is a principal sentencing consideration in offending of this kind, particularly as your offending was only detected through Customs noticing irregularities in the parcels you sent to Australia.

26As the Court of Appeal held in Nguyen (2011) VSCA 32, the difficulty of detecting importation offences and the great social consequences that follow suggest that deterrence is to be given chief weight on sentence and that stern punishment would be warranted in almost every case.

27Although you did not cooperate significantly with authorities, you volunteered that you had a prior conviction in Hong Kong.  In addition, you are entitled to a discount in your sentence for your plea of guilty.  Although the plea was not made at the earliest opportunity, it was made before the trial was significantly prepared.  The community has been spared the time, cost and effort of a trial in this court.

28For this reason the sentence I will impose is considerably less than one that would have been imposed if you had been found guilty after a trial, a jury trial. On the other hand, I note that apart from the remorse intrinsic to a plea of guilty, you have not expressed any remorse for your offending.

29However, you are still relatively young, only 26 years' old.  I consider that your prospects of rehabilitation are guarded.  As your prior conviction is for an unrelated offence, I consider that special deterrence does not loom large.  In the absence of psychological evidence, I am unable to find that your previous experience of assault in prison will make your experience in prison more burdensome.

30In addition, given that you entered Australia for the purposes of committing offences for financial gain, I am unable to give much weight to the isolation you will experience in prison.  I take into account that your offending was part of a course of conduct over a few weeks.  Substantial concurrency is therefore warranted on this basis.  On the other hand, bearing in mind the principle of totality, there must be some degree of cumulation to reflect the fact that there were three offences.

31For these reason I sentence you as follows.  Would you please stand.

32On Charge 1, you are convicted and sentenced to seven years' imprisonment.

33On Charge 2, you are convicted and sentenced to seven years' imprisonment.

34On Charge 3, you are convicted and sentenced to eight years' imprisonment. This is the base sentence.

35I direct that three months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 3.  I will mention what I think the commencement dates are and be grateful for any assistance that the prosecution might give.

36The commencement date of the sentence on Charge 3 is 14 May 2015.  The commencement date of the sentence on Charge 1 is 14 August 2016.  The commencement date of the sentence on Charge 2 is 14 November 2016.

37The total effective sentence is that of eight and a half years' imprisonment.  I impose a non-parole period of five and a half years but I understand that you are likely to be deported rather than remain in Victoria for the balance of the sentence.  You have spent 451 days in pre-sentence detention and I declare that this amount is to be deducted from the sentence I have imposed on you today and that this is to be noted in the court's records.

38Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your plea of guilty I would have imposed a sentence of 11 years with a non-parole period of eight years.  Mr Gullaci, did you want to have conversation with your client before - with the assistance of the interpreter before I leave and after you have confirmed the dates.

39MR GULLACI:  I would if Your Honour wouldn't mind.

40HER HONOUR:  That's all right.

41MR GULLACI:  Could I just have a moment to check the dates, Your Honour.

42HER HONOUR:  Absolutely.

43MR GULLACI:  Thank you, Your Honour.  There's no issue in terms of the sentence.  Would Your Honour permit - I am in Your Honour's hands if Your Honour wants to remain on the Bench.

44HER HONOUR:  No, I am happy to leave you here for a little while if you are happy with that, it may be of assistance.  I am happy to leave the Bench for as long as you need.  Thank you.

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