R v Mia Vivien Chong
[2009] NSWDC 377
•17 December 2009
NEW SOUTH WALES DISTRICT COURT
CITATION:
R v Mia Vivien CHONG [2009] NSWDC 377
FILE NUMBER(S):
2009/11733
HEARING DATE(S):
20/11/09
JUDGMENT DATE:
17 December 2009
PARTIES:
Regina
Mia Vivien CHONG (Offender)
JUDGMENT OF:
Williams DCJ
COUNSEL:
SOLICITORS:
Ms Choi (Crown)
Mr Abbott (Offender)
CATCHWORDS:
SENTENCE-import marketable quantity of prohibited drug-151g cocaine-young US citizen-prior drug and criminal history-difficult background.
LEGISLATION CITED:
Criminal Code Act 1995
CASES CITED:
TEXTS CITED:
DECISION:
She is convicted and sentenced to six years imprisonment with a non-parole period of three and a half years to date from 10 May 2009. She is eligible for parole on 9 November 2012.
JUDGMENT:
HIS HONOUR: Ms Chong is a twenty-six year old resident of the United States who lives with her parents in California. She has pleaded guilty to an offence of importing a marketable quantity of a border controlled drug, namely cocaine, contrary to s 307.2(1) of the Commonwealth Criminal Code. The maximum penalty is twenty-five years imprisonment and/or a fine.
On 10 May 2009 she arrived in Australia by air. Her responses to the purpose for her visit created suspicion at the Customs barrier and she was detained and questioned. Eventually three concealed packets of cocaine were located, two sown in her bra and one in her underwear. The bulk amount was 420.5 grams, but the pure weight of cocaine was 151.1 grams.
There is an agreed statement of facts. Located in her handbag shortly after detention at the Customs barrier, was a small glass vial with a residue of what she admitted was crystal methamphetamine. She asked to go to the toilet on several occasions but then declined when she was informed that it was a controlled toilet and she would be observed. At one stage she said “What if I gave you a little bit, could we just forget about the rest of the stuff?” After returning from the toilet on one occasion she produced the package concealed in her underwear, indicating that that was all she had. After advice from a Justice of the Peace that he would authorise a full body search, she consented to being searched and the remaining packets were found. She was arrested and has been in custody ever since.
Ms Chong has a criminal record in the United States, mainly relating to possession of controlled substances, but also some dishonesty offences and some minor assault matters. She spent some periods in prison, the longest being about one month.
Ms Chong gave evidence. I also had a pre-sentence report, a report from Dr Canaris, a psychiatrist, and a number of letters and other documents. It appears that she is the only child of Korean parents who have lived in the United States for the last thirty years. Although she achieved quite well at school enabling her to go to college, she mixed with the wrong group of people and began using drugs at an early age, experimenting with ecstasy, cannabis and, briefly, heroin before adopting her drug of choice which is crystal methamphetamine, or ice. Dr Canaris did not find that she was suffering from any overt psychiatric or psychological illnesses, but she probably suffered from undiagnosed ADHD as a child. He felt that she was currently suffering from a mixed anxiety depression, which was fairly obvious during her relatively lengthy and, at times, tearful evidence.
It is quite clear that her involvement in drugs and the skewed outlook that that brings, particularly with a drug like ice, has been of significant influence in her young life to date. Although she was under the influence of another man and had been in a relationship with him for some time, about three days before she came to Australia she entered into an arranged marriage with a person described as a “good man” who it was felt would have a positive influence on her. However it was her former partner who persuaded her to come to Australia with the drugs. He is apparently involved in the drug scene. Ms Chong said she used ice shortly before she got on the plane. The fact that she retained a vial with ice residue in it in her handbag suggests that there was little planning to this importation, at least on her part. As well, I suspect that she may well have been affected by drugs during the flight and in Customs, having regard to her behaviour when spoken to. She did not pay for the flight, but neither did her friend accompany her on it, and apart from one contact after her arrest, he has abandoned her, although her father remains in contact and is supportive.
The pre-sentence report indicates that she completed high school and entered a college but was unable to pursue her education having regard to ongoing drug problems. She had short periods in the hospitality industry and assisted in her father’s shop. She expressed the intention to resume tertiary education at the earliest opportunity. She denied any history of mental illness but she has commenced antidepressant medication using the drug Avanza after her admission into custody, and that has been confirmed by Justice Health. She told the parole officer that she commenced using elicit substances at the age of fifteen and she entered a residential rehabilitation centre at the age of eighteen where she remained for several months. At the age of twenty-three, after a drug involved boy friend of hers was murdered, she returned to her parents’ country of origin, where she remained for about twelve months before returning to the USA and relapsing into drug use.
Her medical records indicate that on admission she was prescribed methadone. She is currently on 40 milligrams of that drug daily, although she has discussed withdrawing from methadone and is on a reducing prescription. In evidence before me she indicated that the methadone was prescribed for her to reduce the side effects of withdrawal from ice addiction. Her only visits in Australia at the present time are consular visits from the US Consul.
She does not deny the police facts. When she was offered the opportunity to travel to Australia to spend a few days delivering a bag of drugs she did not consider it to be a big deal at the time. She had been on a drug binge for a number of days and would not have made the same decision had she been drug free. She apologised for any harm done and stated she intends to return home to the USA at the earliest opportunity and put this experience behind her.
She has been employed as a clerk for the manager of Industries since 21 July 2009 and is considered a good worker who relates well to other inmates and staff, and has not incurred any Correctional Centre disciplinary or adverse reports as to conduct. The parole officer thought she was an immature person and had committed the offence without considering the consequences of her actions. However, she does appear to have the support of her family and has been in contact with them. He said that to her credit, and without prompting, Ms Chong has revealed her long history of addiction and the struggle with drugs and admitted to a criminal history in the USA.
In her evidence before me she said she wanted to study for a commerce degree and says that since she has sobered up whilst in custody, her outlook on life has changed significantly. She says she undertook the trip, that is, to bring drugs into Australia, in order to salvage the relationship that she felt she had with her former partner. Her chaotic background is evidenced by the fact that her child was taken from her at an early age. A past boyfriend and drug user was shot in the stomach and died, and about one month prior to her trip to Australia she had a pregnancy termination at six months gestation, having delayed the termination through procrastination.
Dr Canaris’ report fleshes out to some extent the pre-sentence report. He says at page 5:
“Those who abuse drugs and especially those who are heavily dependent on drugs, frequently exercise very poor judgment, whether in their relationships or in their social behaviour. People who move in a subculture in which drug use is normative are likely to misperceive importation of drugs as not a big deal, notwithstanding the severe penalties, including capital punishment that apply in some countries. Having regard to her history of impulsive behaviour and her portrayal of herself in childhood she may well have suffered from attention deficit hyperactivity disorder. Such individuals are at substantially greater risk of becoming involved in substance abuse and dependence. Her current presentation is consistent with a mixed anxiety depression, a condition nor formally incorporated in DSM IV.”
He concludes:
“I think she should be reviewed by the Justice Health psychiatrist with a view to a trial of one of the new generation antidepressant medications. She would need regular review of her dosage as well as monitoring to ensure that she does not switch into the manic phase of a bipolar disorder.
Meantime I would strong encourage her to persevere seeing the psychologist. She needs to understand that there is no quick fix for her current distress and she will need to apply at least some anxiety and mood management strategies that she has to offer her. A psychologist would also play a significant role in monitoring her wellbeing between visits to the psychiatrist.
Her expression of relief that she is now in gaol and perhaps has an opportunity to address her problems with drugs and her mood disorder, is encouraging at least in relation to her prospects for rehabilitation.”
Closer to home, her mother has had a relapse of breast cancer and has a poor prognosis.
Ms Chong said that she was reluctant to fully disclose the drugs that she was carrying to the Customs people when apprehended in the belief that the less that was found the less her penalty was likely to be. She said she did not really think very much at the time about what she was saying. She said she was sorry in thinking that to bring drugs into the country was not such a big deal and that she did this for someone who was not really worth it. She said she realises and is sorry for the harm drugs do to people and understands how badly drugs affect the community. She also wrote a letter to the court which is part of exhibit 1 in which she expresses similar sentiments.
Ms Chong is not the usual type of drug courier. Indeed it is somewhat surprising that she was entrusted with the shipment given her obvious heavy addiction to a severely mind-altering substance. Whilst it could not be said that she offended out of need, it also seems to be the case that she did not offend out of greed. However, I cannot overlook the factors operating on her offending, such as her own addiction, her clouded judgment and the emotional pressure placed on a vulnerable personality. I am not satisfied that she fully understood what she was doing or that she was fully able to rationalise her choices. That is reflected in the lack of substantial planning, lack of a cover story, the lack of sophistication about the whole operation, and also carrying drugs in her own handbag.
I also take into account the other personal matters that have been referred to by her and in the reports that I have been provided, although I must say that many of those considerations are ones that any person in her situation is likely to experience. Cocaine is a seriously damaging drug in its effect on the mental stability of users. A marketable quantity consists of anything between two grams and 2,000 grams. Thus her importation was in the bottom ten per cent of the range. I also accept that she was courier, as much as that is relevant to penalty. In the scheme of things her past record does not entitle her to any particular leniency, even though prior good character is not much of a consideration in this type of offending. Her previous record is merely indicative of her lowly status in the importation and helps explain why she offended, a realistic explanation being something that is often lacking with other offenders in similar circumstances.
She pleaded guilty at the earliest opportunity and has thus facilitated the legal process and is therefore entitled to the full discount that that entails. It is also probably a fair assessment to say that her rehabilitation has already commenced. A referee, Mr Kim, said that she made one critical error in not disassociating herself from the drug milieu and friends that she had made therein.
There is not a great deal of latitude in these matters, barring exceptional circumstances or the provision of significant assistance. Whilst the amount of drug imported is not of overwhelming relevance, it does need to be taken into account, as does of course the issue of general deterrence.
Taking all those matters into account, the orders I make are that she is convicted and sentenced to six years imprisonment with a non-parole period of three and a half years to date from 10 May 2009. She is eligible for parole therefore on 9 November 2012
HIS HONOUR:
What that means Ms Chong is that you have been sentenced to a term of imprisonment of six years with a minimum period that you must spend in custody of three and a half years dated back to 10 May 2009, which means that the first date that you will be eligible for release on parole is 9 November 2012. You understand that?
OFFENDER:
Yes.
LAST UPDATED:
15 February 2010
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