R v Kev and Sok

[2014] VCC 741

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-02356
CR-12-02357

THE QUEEN

V

CHHODAPHEA KEV
SAMBATH SOK

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2014; 5 May 2014
DATE OF SENTENCE:	19 May 2014
CASE MAY BE CITED AS:	R v Kev & Sok
MEDIUM NEUTRAL CITATION:	[2014] VCC 741

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth of Australia	Mr. Y. Hardjadibrata	Commonwealth Director of Public Prosecutions
For Accused Kev	Mr I. Lloyd QC	Grigor Lawyers
Mr M. Thomas
For Accused Sok	Mr B. Walmsley QC	Matouk Joyner Lawyers

HIS HONOUR: 

1Chhodaphea Kev and Sambath Sok, following a trial that occupied 16 sitting days, the jury found each of you guilty of one charge of importing a commercial quantity of a border-controlled drug contrary to subs.307.1 of the Criminal Code (Cth) and one charge of possession of a commercial quantity of an unlawfully imported border-controlled drug contrary to subs.307.5(1) of the Criminal Code (Cth).

2The maximum penalty for each of these offences is life imprisonment. 

3The border-controlled drug the subject of the charges was heroin.  The charge of importation concerned 12.36 kilograms of that substance and the charge of possession concerned 2.4 kilograms of that substance, although this was also the subject of the charge of importation.  A commercial quantity of heroin is 1.5 kilograms.

4The circumstances of your offending may be summarised as follows: 

5On 29 March 2012, five parcels containing the heroin the subject of the charges were presented at a post office in Phnom Penh, Cambodia, for posting to two addresses in Melbourne, Australia.  Evidence led at the trial disclosed that you were both involved in arranging the rental of those premises, and I am satisfied that that was for the purpose of receipt of the heroin.  The evidence also disclosed that you were both residents of Sydney at that time.

6On 1 March 2012, Sok travelled to Cambodia and returned to Australia on 2 April 2012.  I am satisfied that this was for the purpose of arranging the acquisition of the heroin to be posted to Australia and that Kev was aware that this was to occur. 

7On 4 April 2012, one of the parcels arrived in Australia, and on 10 April 2012 it was delivered to the premises that you were both occupying in Springvale.  The parcel contained 2.4 kilograms of heroin suspended in 14 kilograms of liquid.  You were both present when it was delivered and knew it contained heroin.  The heroin in this parcel is the subject of Charges 2 and 3 on the Indictment.

8On 6 April 2012 the other four parcels arrived in Australia and were examined by Customs on 8 April 2012.  Following the examination of the parcels they were found to contain heroin, and upon analysis by AFP forensic science officers the parcels were found to contain a total of 9.96 kilograms of that substance suspended in 57.26 kilograms of liquid. 

9The heroin in three of the parcels was substituted with an inert substance and delivered to the premises in Keysborough leased by you in a controlled delivery on 13 April 2012.

10Following this, Kev collected the parcels from those premises and transported them to the premises in Springvale occupied by both of you, where you were both arrested by investigating police.  The three parcels had been submerged in water to deactivate any listening or surveillance devices that had been placed in them.

11One of the five parcels that had been posted from Cambodia was not delivered. 

12In total, the five parcels contained 2,678 individual sachets of liquid labeled "Ginseng instant dyeing beauty star 30 ml".  The total quantity of pure heroin in the sachets was, as I have said, 12.36 kilograms, which was valued at between $8 million and $15 million wholesale.  Plainly, the heroin the subject of the charges was a very substantial quantity and your offending may be properly described as of the utmost seriousness.

13As observed by the President of the Court of Appeal, Maxwell P, in Nguyen v. R and Phommalysack v R [2011] VSCA 32, in relation to the offence of importation of a commercial quantity of a border-controlled drug:

"Where a commercial quantity of a drug is imported, the maximum penalty for importation and for possession is life imprisonment.  Self-evidently, therefore, the offence is to be viewed as being of the utmost seriousness.  The sentencing regime being quantity-based, the scale of the importation will be a very significant factor in sentencing.  Ordinarily, the larger the quantity imported the more serious will be the offence (other things being equal)."

14Clearly, your offending is a serious example of the offence of importation and the offence of possession of a commercial quantity of a border-controlled drug.

15Whilst it is not possible to precisely determine the roles you each played in the importation of the heroin, I accept that you entered an agreement with one another to import it and that you both must have occupied trusted and significant positions in a wider organisation involved in this offending.  Persons who participate at your level in the importation of a commercial quantity of heroin for profit must expect the imposition of a substantial term of imprisonment upon conviction.  The sentence that I impose must be calculated to deter you and others from offending in this way.  Illegal drugs of dependence cause incalculable damage to our society and the community must be protected from people like you.  You must also be punished for what you have done, and I detect no evidence of remorse in either of your cases.

16I now turn to your personal circumstances. 

17Chhodaphea Kev, you were born on 8 January 1974 in Cambodia and you are now aged 40.  Your family suffered persecution in Cambodia at the hands of the Pol Pot regime and fled that country when you were 11.  You resided in a refugee camp in Thailand until 1988 when your family arrived in Australia as refugees and settled in Sydney.  Following your secondary education you qualified as a fitter and turner and you have worked in that capacity and in demolition.  You are married and have three young children.  You have no prior convictions.  Your family reside in Sydney and I accept that your imprisonment in Victoria will cause a degree of hardship to them.  You were on bail for two years prior to your trial and have not re-offended.  I am prepared to accept that your prospects of rehabilitation may properly be described as reasonable.

18Sambath Sok, you were born on 4 April 1979 in Cambodia and you are now aged 35.  You have admitted two prior court appearances in New South Wales in 2003 and 2009 for offences of violence, and your counsel also informed me that your family has sought an intervention order against you due to your violent behaviour.

19You arrived in Australia as a refugee at the age of approximately 16 and completed Year 10 at Cabramatta High School in New South Wales.  Your family circumstances were disrupted and it would appear that you have had no contact with your parents or siblings for some years.  Your work history is intermittent, and whilst you are a qualified forklift driver, you have not worked regularly.  You are married but separated and have two children.

20I have received in evidence a psychological report of Mr Timothy Watson-Munro, a consulting and forensic psychologist, detailing your psychological profile and developmental history.  I accept that you suffer from a longstanding polysubstance abuse disorder and you also suffer from depression and anxiety.  I accept that you were using heroin and methylamphetamine at the time of your offending, but I do not accept that this impaired your judgement to any significant degree.  Furthermore, I do not accept that your participation in this offending was to feed your addiction.  You played a significant role in the importation of a very substantial quantity of heroin for profit.  In my opinion, any assessment of your prospects of rehabilitation must be guarded.

21Whilst it is clear that your respective personal circumstances differ, in my opinion those differences do not warrant the imposition of different sentences in your respective cases, and it was not submitted by your counsel or the prosecution that I should impose different sentences in respect of you. 

22It is also accepted by counsel for the prosecution that the sentence I impose on the charge of possession of a commercial quantity of an unlawfully imported border-controlled drug should be served concurrently with the sentence I impose for the charge of importing a commercial quantity of a border-controlled drug. 

23In the result, the sentence of the court is as follows: 

24Chhodaphea Kev, in relation to the charge of importation of a commercial quantity of a border-controlled drug, you are convicted and sentenced to be imprisoned for 14 years and 9 months.  I direct that this sentence commence on 19 May 2014. 

25In relation to the charge of possession of a commercial quantity of an unlawfully imported border-controlled drug, you are convicted and sentenced to be imprisoned for 6 years.  I direct that this sentence commence on 19 May 2014. 

26I order that you serve 11 years' imprisonment before becoming eligible for release on parole. 

27I declare that you have served 130 days by way of pre-sentence detention not including today.

28Sambath Sok, in relation to the charge of importing a commercial quantity of a border-controlled drug, you are convicted and sentenced to be imprisoned for 14 years and 9 months.  I direct that this sentence commence on 19 May 2014. 

29In relation to the charge of possession of a commercial quantity of an unlawfully imported border-controlled drug, you are convicted and sentenced to be imprisoned for 6 years.  I direct that this sentence commence on 19 May 2014. 

30I order that you serve 11 years' imprisonment before becoming eligible for release on parole. 

31I declare that you have served 164 days by way of pre-sentence detention not including today.

32Are further orders required?

33COUNSEL:  No, Your Honour.

34HIS HONOUR:  Yes, thank you.  When those reasons for sentence are complete they will be distributed to the parties. 

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