R v Shum
[2017] VCC 1031
•2 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-17-00772
| THE QUEEN |
| v |
| KWOK WING SHUM |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2017 | |
DATE OF SENTENCE: | 2 August 2017 | |
CASE MAY BE CITED AS: | R v Shum | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1031 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Attempt to possess a commercial quantity of an unlawfully imported border controlled drug.
Legislation Cited: Criminal Code Act 1995 (Cth) (Criminal Code); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic).
Cases Cited:Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673; R v Lin [2016] VCC 2016; R v Yeung [2017] VCC 1003; R v Odumegwu [2016] VCC 553; R v Tsang [2017] VCC 196; Zang v R [2010] NSWCCA 105; Tsai Yu v R [2016] NSWCCA 73; Chan, Lo & Nguyen v The Queen [2010] NSWCCA 153; R v Nguyen; R v Pham (2010) 205 A Crim R 106.
Sentence: Convicted and sentenced to 7 years and 6 months imprisonment with a non-parole period of 5 years. Section 6AAA declaration: 10 years imprisonment with a non-parole period of 7 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr I. Buckley | Commonwealth DPP |
| For the Accused | Mr Z. Zayler & Mr D. Gerogiou | Melasecca, Kelly & Zayler |
HIS HONOUR:
1 Kwok Wing Shum, you have pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled drug, having been unlawfully imported, contrary to ss.11.1.(1) and 307.5(1) of the Criminal Code (Cth). The maximum penalty for this offence is life imprisonment or 7,500 penalty units or both.
2 The circumstances in which the offending occurred are set out in the prosecution opening for plea,[1] the accuracy of which you accepted through your counsel.
[1]Exhibit 1.
3 As your involvement in importation of the drug you attempted to possess was, on the Crown case, limited to your activities on 10 January 2017, the background circumstances to your offending may be shortly stated.
4 An Australian company had been engaged by a Taiwanese freight agent to manage a consignment of 13 boxes addressed to a Mr Kan at an address of 82 Joseph Avenue, Bundoora, in the State of Victoria.
5 The consignment arrived in Australia on 20 December 2016 and, after x-ray by Australian Border Force showed abnormalities, further investigations revealed that three of the 13 boxes contained methylamphetamine in roughly equal quantities totalling 12,618 grams at a purity of about 80 per cent or 10,132.4 grams of pure methamphetamine. A commercial quantity of methamphetamine is 750 grams, so that this importation represented about 13 and a half times a commercial quantity.
6 A valuation statement was tendered on the plea[2] which showed that, in round figures, the value of the methamphetamine you attempted to possess was between $1m and $1.5m wholesale, and between $3.15m and $6.3m in street value.
[2]Exhibit 3.
7 After the consignment has been intercepted, one of the three boxes was deconstructed, and a controlled delivery by an undercover officer of the Australian Federal Police was arranged to take place on 10 January 2017 at the consignment address, 82 Joseph Avenue, Bundoora.
8 Surveillance operatives observed you to arrive about an hour before the intended delivery and to wait in your car in the vicinity of the delivery address. At 11.10 am, the AFP officer purporting to be the courier arrived at the intended address and there, spoke to the two elderly residents who appeared confused. The officer decided not to proceed with the delivery. Whilst this was occurring, you left your vehicle and walked towards 82 Joseph Avenue, but returned to your car when the elderly occupants were asked to come out and inspect the delivery.
9 Next, the AFP officer then drove off, still with the boxes, and you briefly followed in your car before returning to 82 Joseph Avenue. Soon after, the AFP officer telephoned a mobile telephone service, 0434 529 604, which was a number subscribed to by a person called Siu Wah Ngai, who had visited Australia for a period of five days in October the year before. You answered the AFP officer’s call and advised him that the correct address was in fact 81 Joseph Avenue and not 82.
10 The AFP officer returned to 81 Joseph Avenue. You then approached the van and confirmed to him that you were the intended recipient, Mr Kan, and completed the delivery paperwork for the consignment, which was then left in your possession.
11 From the eight boxes delivered to you, you selected the box wrapped in green woven plastic. This box was the deconstructed box, which was distinctive in this regard when taken from the original consignment of 13 boxes. You took the green wrapped box and placed it in your car. You were observed to make a couple of phone calls and then, using the mobile service ending in 9604, you made arrangements for a hire van company to collect the remaining seven boxes, which you left behind. You then returned to an apartment block in Power Street, Southbank where you parked your vehicle in the space provided for Apartment 1814, and you removed from your vehicle the box earlier delivered to you and took it to level 18.
12 Ten minutes or so later, you returned from level 18 to the car park and drove to an address in South Melbourne. There, you took an unidentified item from the boot of the vehicle and placed it on the ground before driving away. At this point, you were lost to surveillance. About an hour later, you were seen back at the Power Street, Southbank apartment building, taking apparent care to avoid being seen disposing of the box from the shipment containing a gym equipment seat, which you did using the bin chute on level 7.
13 Further investigations followed, and on 30 January 2017 you were arrested in Southbank. At arrest, you were found in possession of access devices to apartments in Sturt Street and Waterview Walk, Docklands, and following a search of the Docklands address, to be in possession of a range of identification documents, a mobile phone, three international sim cards and keys to the Power Street apartment that I have earlier referred to.
14 Through your counsel on the plea, your relationship to the three different apartments was explained in this way. Up until 24 December, you had lived at the Power Street address, and at the time of the offending, were in the process of moving to Sturt Street, although you still had possessions at, and access to, the Power Street address. Soon after the offending and before your arrest, you had agreed to move into the Waterview Walk, Docklands apartment with your new girlfriend, and you were in the process of moving there when arrested.
15 Following your arrest, you made a no comment record of interview.
16 You indicated your intention to plead guilty to this offence at the committal mention, which proceeded by way of straight hand-up brief.
17 You were remanded in custody and, as of today, you have spent 185 days on remand. I will check that with counsel in a minute.
18 You are now 24 years of age and you have no prior convictions.
19 Kwok Wing Shum, I state to you that I have taken into account the following matters in mitigation of sentence.
20 Your plea of guilty, entered at a very early stage, I take to be evidence of your contrition and remorse, and evidence of your acceptance of responsibility for your offending. Your plea has facilitated the course of justice and the community has been spared the time and cost of a trial. You are entitled to have these matters taken into account in mitigation of penalty and I have done so.
21 I have taken into account your relative youth. You were 23 when this offence was committed and are now only 24 years of age. You have no prior convictions and references were tendered on the plea to show that you were previously of good character.[3]
[3]Exhibit 4.
22 I have taken into account your background and personal circumstances, and these are set out in some detail in the report of Patrick Newton, psychologist, dated 12 July 2017.[4]
[4]Exhibit 2.
23 Born the youngest of three children in Hong Kong, you were raised until the age of seven by your grandparents, as both your parents worked very long hours. Spoiled by your grandparents, you were somewhat disappointed when at the age of seven, you were returned to your parents’ full time care, which was much stricter than your grandparents had been. Nevertheless, you grew up in a stable environment and attended primary and secondary schooling, although I was told you were not very good at school, having twice failed the equivalent of Year 9. This, apparently, was in part due to missing a considerable amount of schooling due to a fractured arm at the age of 13. After leaving school, you worked in food services and deliveries in Hong Kong.
24 You came to Australia in 2014 on a holiday visa and a year later, transferred to a student visa, studying for Certificate III in English at the Victorian Institute of Technology. Your sister was already living in Australia when you arrived.
25 I was informed that, despite support from your parents in Hong Kong, and part time work, you were in financial difficulties after paying for rent and tuition expenses, and I was informed on the plea that it was this difficulty which led to your involvement in this offending.
26 I was told, and Mr Newton’s history also has it, that you met people in a bar who, on hearing of your financial difficulties, offered you $10,000 for your part in this importation. In the circumstances, it is not surprisingly that you have not received any of that money.
27 As far as your psychological status is concerned, Mr Newton assessed you as someone who was relatively immature and naïve, and made a diagnosis of an adjustment disorder with mixed anxiety and depressed mood in response to your current legal predicament. He also recorded your account that it was not until your time in custody that you had any realistic appreciation of the damage that drugs do to people’s lives.
28 You were supported on the plea in court by your sister, and I was informed that, despite their disappointment and shame, you still have the support of your parents. At the time of this offending, you had just formed a new relationship and you informed Mr Newton that you did not expect this to persist because of your incarceration. I accept that because of your relative isolation from your family, your time in custody is likely to be more onerous for you.
29 I am satisfied, having regard to your lack of prior offending, your apparent remorse, and your family support (although from your parents, this is difficult because of their geographical situation) that your prospects of rehabilitation are quite good.
30 I accept also that as a foreign national, your time in custody will be more anxious for you not least because of your natural concerns as to prospects of parole, the possibility of being placed in detention upon release on parole, and your prospects of deportation. It was not put that the likelihood of your deportation created, in your particular circumstances, any particular hardship or additional punishment.
31
Against the matters to be taken into account in mitigation, must be balanced the fact that, as the maximum sentence fixed by Parliament shows, this is a very serious offence. The harm that illicit drugs do to members of our community, particularly its young, is enormous. Importation offences are difficult to detect and highly profitable when successful. The many cases referred to in the course of submissions show that general deterrence and denunciation are very important in the sentencing consideration for offences such as this. As you embarked on this offending for financial gain, specific deterrence must also be given weight in the sentencing consideration. I have had regard to the applicable sentencing principles, which were collected by Maxwell P in
Nguyen v The Queen; Phommalysack v The Queen(2011) 31 VR 673 at paragraphs 33 to 39.
32 It was not in dispute that pursuant to s.17A, imprisonment is the only appropriate sentencing disposition here.
33 I am also required to assess your level of involvement in the overall criminal enterprise that this importation concerned, noting that attempting to possess the imported drugs is not less serious because, in this case, it was unsuccessful. As to your role in this offending, the Crown case was limited to your activities on the single day, and as to this, it was submitted by the Crown that you were not the mere recipient of the delivery, but rather, that it was your role to collect the consignment and take it back to your residence, and that your activities in Joseph Avenue and afterwards showed your level of involvement to include moving the shipment on. On your behalf, it was submitted that your involvement was, if at all, only just above that of a bare courier and it was submitted that you had no executive function, and that the phone calls demonstrated that you sought the instructions of others at each stage in the process.
34 In my view, whilst I accept that you had no executive or decision making function, your role was essential to the overall enterprise, and whoever decided to do it this way, it was you who redirected the controlled delivery to No.81 Joseph Avenue in order to complete the transaction after it was initially aborted. Further, those who did have executive functions in the importation had, on your account, agreed to pay you $10,000 for your role, and they entrusted you with accepting delivery of 10 kilograms of pure methamphetamine, and entrusted you with returning to your residence with it.
35 It was agreed in that in sentencing for Commonwealth offences, I must have regard to the range of sentences for like offending across the Australian jurisdictions, and a number of cases, said to be comparable in one respect or another, were provided and referred to in the course of submissions on the plea. I have considered these[5] along with a reference to the case of Yeung, a sentence recently handed down in this court.
[5]R v Lin [2016] VCC 2016; R v Yeung [2017] VCC 1003; R v Odumegwu [2016] VCC 553; R v Tsang [2017] VCC 196; Zang v R [2010] NSWCCA 105; Tsai Yu v R [2016] NSWCCA 73; Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673; Chan, Lo & Nguyen v The Queen [2010] NSWCCA 153; R v Nguyen; R v Pham (2010) 205 A Crim R 106.
36 Kwok Wing Shum, I state to you that I have taken all the matters put on your behalf in the course of the plea and all relevant sentencing principles into consideration in arriving at the sentence I am about to impose upon you.
37 On the single charge of attempting to possess a commercial quantity of a border controlled drug, you are sentenced to a term of imprisonment of seven years and six months, and subject to anything counsel might submit, I direct that that sentence commence from today.
38 The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist. For that reason, it cannot be fixed automatically, and all relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement and, in turn, rehabilitation under conditional supervision. In all the circumstances, I direct that you serve a minimum term of five years before becoming eligible for parole.
39 Now, I will direct (and I will have this done shortly) that your solicitor explain to you, through the interpreter, the matters referred to in s.16F of the Act, and I will get Ms Ryburn to provide counsel with a copy.
40 Now, before I make the declaration and pre-sentence detention, does it matter whether I declare the pre-sentence detention which I take it to be agreed to be 185 days? It was 184 yesterday.
41 MR BUCKLEY: One hundred and eighty five.
42 HIS HONOUR: And order that the sentence start from today or should I order that the sentence start from the arrest?
43 MR BUCKLEY: No. It is appropriate to declare that it starts today, but take into account the 185 days.
44 HIS HONOUR: All right.
45 MR BUCKLEY: Thank you.
46 HIS HONOUR: As required by s.18 of the Sentencing Act, I declare that the period of time you have spent in custody is 185 days, which is to be reckoned as time already served under this sentence. I direct that this fact be entered in the records of the court.
47 Pursuant to s.6AAA of the Sentencing Act, I state that had you been found guilty of these offences after a trial, I would have sentenced you to a term of imprisonment of ten years, with a non-parole period of seven years.
48 Now, it is a requirement of the statue, Mr Georgiou, that where I fix a non-parole period, I must explain or cause to be explained to the person in the language likely to be readily understood by the person, the purposes and consequences of fixing the non-parole period, including an explanation of the matters that are listed, (a) to (d) in s.16F(1). So, I will get you to approach the dock and with the assistance of the interpreter and in language he is likely to understand, explain to him what I have done here.
49 MR GEORGIOU: Yes, Your Honour.
50 HIS HONOUR: Could I get you to do that now?
51 MR GEORGIOU: Yes, Your Honour. Thank you, Your Honour.
52 HIS HONOUR: He understands all that? That is all right. Are there any other orders sought?
53 MR BUCKLEY: Nothing arising, Your Honour. Thank you.
54 HIS HONOUR: Would you please remove the prisoner? Just adjourn temporarily.
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