R v Fong

[2013] NSWDC 48

District Court

New South Wales

Medium Neutral Citation:	R v Fong [2013] NSWDC 48
Hearing dates:	18 February 2013.
Decision date:	18 February 2013
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment for 18 months. Set a recognizance release order which commences today and continue until the expiration of the sentence. The offender is therefore released immediately.
Catchwords:	CRIMINAL LAW - Sentence - Possession of methylamphetamine - Attempt to export a border controlled drug
Cases Cited:	R v De Simoni (1981) 147 CLR 383
Category:	Sentence
Parties:	The Crown Cho Shan Fong
Representation:	Ms S Talbert - The Crown Mr Taylor - The Offender Director of Public Prosecutions (Cth)
File Number(s):	2012/94082

SENTENCE

1. HIS HONOUR: Cho San Fong arrived in Australia on 13 March and attempted to leave on 24 March. When he was on the aeroplane, about to leave Australia, he was arrested because Customs officers had examined Mr Fong's luggage that he was to take with him out of Australia. They found a bottle which apparently should have contained some beverage. It is described as a Tru Blue orange crush bottle. When Customs officers examined this they found a brown coloured crystallised liquid which upon presumptive testing proved positive to the presence of methylamphetamine. The net weight of the methylamphetamine was 196.4 grams. Mr Fong has therefore been charged with attempting to export a border controlled drug.

1. The prosecution accepts that what Mr Fong told the authorities when he was interviewed is accurate. In particular, he told them that he had brought the "ice" as he described the contents of the bottle, into Australia from Hong Kong and was exporting what was left after he had used some of it within Australia. It is accepted that Mr Fong was not going to sell or supply the drug to anyone in Hong Kong which is where he was headed. I will sentence Mr Fong on the basis that he had in his possession that quantity of the methylamphetamine, that he attempted to take it out of the country and he was going to use it all himself over a period of months.

1. Mr Fong was originally charged with an offence of attempting to export a marketable quantity. He offered to plead guilty to the charge for which he must now be sentenced. The prosecution at that time did not accept the offer. Matters changed in more recent times with the amended charge being preferred against Mr Fong by way of indictment to which he pleaded guilty today.

1. Some discussion ensued this afternoon as I attempted to work out how I could sentence Mr Fong for attempting to export almost 200 grams of methylamphetamine and not breach the rule in R v De Simoni (1981) 147 CLR 383 with a marketable quantity, which is only two grams. As long as I sentence him on the basis that he had available to him the defence in 307(2)(4), as I understand it, I do not breach the rule in De Simoni and that is the approach I will take.

1. It is accepted given the events that I have outlined that Mr Fong has now done sufficient time in custody to reflect the circumstances of his offending and his personal circumstances as well. Mr Fong has no criminal history. He is presently fifty-one years of age. His willingness to facilitate the course of justice came at an early stage and it was no fault of his that the prosecution did not accept in the middle of last year what it has now accepted.

1. I note also that the maximum penalty for this offence is two years and that because it is a very rare offence to prosecute, not much assistance is to be gained through examining the statistics in the sentencing information system.

1. I am, however, satisfied that the joint approached taken by the parties is correct, namely that Mr Fong has done sufficient time in custody and that he should be released, therefore, immediately. Mr Fong is sentenced to imprisonment for eighteen months. The sentence commenced on 24 March 2012, the day he was arrested. I set a recognisance release order which will commence today and continue until the expiration of the sentence.

**********

Decision last updated: 26 April 2013