R v Tsang
[2017] VCC 196
•3 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-01810
| THE QUEEN |
| v |
| CHI WAN TSANG |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 February 2017 |
| DATE OF SENTENCE: | 3 March 2017 |
| CASE MAY BE CITED AS: | R v TSANG |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 196 |
REASONS FOR SENTENCE
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Catchwords: Attempt to possess a commercial quantity of unlawfully imported border controlled drug.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H. Baxter | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr T Kassimatis | Pica Criminal Lawyers |
HIS HONOUR:
1 Chi Wan Tsang, you have pleaded guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug. The drug involved was methamphetamine. The amount you attempted to possess was a touch over 1.8 kilograms pure. The commercial quantity is 750 grams pure.
2 You are 22 years old and have no criminal history. You came to this country as a foreign student and undoubtedly will be deported. The maximum penalty for this offence is imprisonment for life.
Facts
3 The circumstances of your offending are set out in a summary which was read to the court by the prosecutor, Ms Baxter, and marked as Exhibit A. There was also a chronology. Your counsel, Mr Kassimatis made plain that exhibit A was an agreed summary. In those circumstances, I see no need to descend in these reasons to the full details of your offending. I will not go beyond the agreed facts. I will discuss shortly the submissions made by your counsel as to your role.
4 What is plain from the summary is that you and two others were attempting to possess a commercial quantity of methamphetamine that had been unlawfully imported into this country secreted in some udon noodle bags. It was sent by post and detected on or about 14 April 2016. The drugs were removed and a controlled delivery was carried out on 20 April 2016.
5 Your boyfriend Mr Kao, another person Mr Ip and you were involved in attempting to possess as is plain enough from the various observations made when the package was delivered as well as in a phone call made to you by your boyfriend and the evidence obtained from a listening device located within the parcel. That device captured the three of you discussing the delivered product. You were arrested and did not tell the truth to the police. That is not an aggravating feature. Simply, you chose, for whatever reason, not to provide anything resembling a truthful account of your involvement, which had you done so, may well have been mitigatory. However, it follows that in the depositional materials there is no statement from you as to your role, the extent of involvement, reasons for being involved or anything from you at all explaining your involvement. You have been in custody from the date of your arrest.
6 The quantity of pure methamphetamine was 1.826 kilograms. Three other co-accused remain to be dealt with. Your boyfriend Mr Kao and Mr Ip are proceeding by way of committal in March. They face charges of importation of these and other drugs as well as attempting to possess charges and proceeds of crime offences. The third, Mr Pan, was due to appear in this court for plea on 15 February but that was in relation to some money laundering charges as I understand it, so he is not strictly a co-accused at all. It is evident that you still stand by your boyfriend who is said by your own counsel to be far more heavily involved in the drug trade.
Matters raised in mitigation
7 Mr Kassimatis raised a number of matters in mitigation on your behalf. They were referred to in his excellent written plea submissions dated 6 February and marked as Exhibit 1. I am not going to set them out in full or even necessarily refer to every aspect in my reasons. I take into account those written submissions as well as his oral submissions made on the plea. The matters principally relied upon were :
· The fact of your early guilty plea;
· The presence of remorse;
· The importance of your youth, your immaturity and the complete absence of any criminal history;
· Your increased custodial burden owing to your state of relative isolation in this country;
· He took me in detail to your personal background and your claimed explanation of the offending and he argued that you had a very limited and unimportant fleeting involvement and with no expectation of personal financial ‘gain’;
· He argued that you had insight into your offending, were still very young and immature, had strong family support and that you had good prospects of rehabilitation.
· He relied upon a report of Mr Newton which contained Mr Newton’s opinion as to your personality, the existence of an adjustment disorder and possible deterioration of your condition and he argued that the 5th and 6th limbs of Verdins were attracted in a very modest fashion;
8 Your counsel conceded that which had to be conceded; this was very serious offending carrying with it the inevitability of a prison term, though he challenged the prosecution contention that you were a ‘trusted’ member of the syndicate, that personal financial reward was your charter and the characterisation of your role as being above that of a courier. Mr Kassimatis took me through the Crown's selection of comparable cases pointing out distinctions in some and similarities in others. He challenged the contention that less weight should be given to your prior good character given the nature of the matter, reminding the Court that you fell to be sentenced for attempting to possess, not as an importer where a clean record would be a necessary and important recruitment consideration.
9 Though he suggested that deportation was a certainty in this case, he made very plain that this was in no shape or form being relied upon in any mitigatory fashion as per Guden and later authorities. You never had any expectation of permanently settling in this country and in fact now were very keen indeed to return to your homeland as soon as was possible.
Prosecution submissions
10 The prosecutor Ms Baxter made a number of submissions. Her written submissions were marked as part of Exhibit B. Again, I see no need to set them out in full. Many of the submissions were uncontroversial. The prosecutor made submissions as to your role at paragraphs 7-10 and the expectation of financial gain. Paragraph 13. Those submissions were disputed by your counsel. So too the submission as to the reduced weight to be attached to your past good character. I was taken to the relevant considerations spelt out in s.16A (2) of the Commonwealth Crimes Act 1914. That provision sets out many of the matters that I must have regard to under the Federal sentencing scheme.
11 The prosecutor placed before me a selection of sentences imposed for the offence of either importing a commercial quantity or attempting to possess a commercial quantity. As I say there were submissions made by each party on those so called comparable cases. I was also directed to cases dealing with matters of principle such as Nguyen v R [2011] VSCA 32. Even some of the other cases to which I was referred containing matters of principle had themselves a selection of sentences referred to. See for instance Thomas and Wu 2016 VSCA 237.
12 The prosecution challenged the existence of any Verdins factors in this case and questioned the evidentiary basis for the submissions made by your counsel as to the existence of a debt and your reasons for offending as were advanced on the plea.
Background
13 I have to this point not described your personal background at all. It is not my intention to go into your personal background in great detail. That is because I am prepared to accept the family and personal background that has been placed before me by your counsel in his written and oral submissions. It is also contained in the report of Mr Newton, Exhibit 2, and is referred to in your own mother’s letter being Exhibit 6.
14 Very briefly, you were born on 7 March 1994 and are now 22 years of age, turning 23 in a few weeks. Hence you were 22 years old at the time of the offending. The various co-accused were also young. You were born in Hong Kong, the youngest of two children. Your parents are both still living. They were present in court on the day of the plea and are obviously supportive of you and worried about you as they evidently have been throughout your life. Unlike so many who sit in the dock, you have had a good upbringing with loving, supportive and protective parents. It is a close knit family and one without any hint of violence, abuse or conflict. You completed year 12 in Hong Kong but did not do particularly well and you came out to Australia to study in 2014. Your parents funded you. They sponsored your study costs which were sizeable as Exhibit 5 makes plain. You had known Mr Kao in Hong Kong and reconnected with him in Australia and ultimately formed a relationship with him. He was your first boyfriend. You and he and Ip shared the city apartment where the ‘drugs’ (by that stage substituted with an inert substance) were delivered. It is not suggested and I do not find that you have come to Australia for the purpose of offending. You came to study and completed an English Bridging Diploma in early 2015 and then completed a Diploma of Business at Monash College in November 2015. You did pretty well in that diploma and were studying for a business/finance degree at Monash University as of the date of your arrest. You have no history of drug use. You were in no way addicted to the drug that you were attempting to possess. You have no prior criminal history at all. You have been in custody since arrest. Happily your parents have been able to travel out on three occasions to see you. Otherwise you are limited to a handful of short phone calls each week.
Role
15Mr Kassimatis raised on the plea what he said was your peripheral and very limited involvement and your reasons for involvement. That is, the claimed existence of a debt owed by your boyfriend following on from police seizure from him of some $200,000 at Southern Cross Station on 30 March 2016. Mr Kassimatis stated that your boyfriend owed that sum to some ‘serious people’ and was in danger and you knew these things. That unbeknown to you, he had been involved in a number of other illegal acts including another importation of liquid amphetamine and a large number of currency offences as well. That you became involved late in the day, in fact within 24 hours of apprehension, knew that there would be two kilograms of drugs obtained to be sold to expunge that debt. That is your account that has been placed before me. Obviously it was being raised in a mitigatory manner as in some way reducing your culpability for the offending. There is no version from you other than that given to Mr Newton. No version that has in any way been tested at all. There is material in the depositions speaking of Kao’s and Ip’s alleged involvement in other earlier offending and it is plain that police did seize a large amount of money from him following his return from Sydney at the end of March. Mr Kassimatis asks the Court to draw inferences from that material as supporting the existence of a debt and your account of the debt giving rise to some form of threat issued against your boyfriend. Did the loss of those funds seized on 30 March result in a debt being owed by Kao to others or was that money his own ill-gotten proceeds of some earlier completed transaction? I have no idea at all. Well I am not bound to accept what you told Mr Newton and I do not.
16 What I do know is that once the consignment was received into the unit, you were contacted by Kao. You fall quickly into step with the others discussing the quantity and the means of extracting the drug.
17 None of your present explanations for engaging in this crime were mentioned at all in the Australian Federal Police interview. In that account it is conceded that you lied. All I have is what you have told Mr Newton in the course of a video link conference with the use of an interpreter in late January of this year. That, and the instructions given to Mr Kassimatis, and the material disclosing other alleged offending by Kao and Ip and the seizure of the cash at Southern Cross Station in March which would suggest their higher level of involvement. I raised the vacuum in the evidence directly with your counsel and told him that I was having difficulties accepting the submissions as to role. I flagged those difficulties as a matter of fairness. It gave your counsel the opportunity to place evidence before me on these topics if he wished. For whatever reason, he chose not to call you to give any evidence on the topic.
18 I have no reason at all to doubt that the obtaining of money was your motivation. I am satisfied of that beyond reasonable doubt. It almost always is in this domain. I am satisfied that you were involved for financial gain in that sense. Even your own account specifies that you knew that there was to be two kilograms of drug received to be on-sold. Your own account places you as part of a group seemingly with the power to determine what would happen to the two kilograms of drugs. What I cannot determine is if there was a debt owed, whether there were threats issued and if that in any way drove your conduct. As to your precise reasons for wanting or needing money or for being involved, I am simply not able to determine them. Was there a debt owed by your boyfriend? I do not know. Were there threats? Again, I have no idea. He, your boyfriend, seemingly was not speaking of that in the listening device conversation. I am just not satisfied of your account on the balance of probabilities. That of course does not then lead me to find against you beyond reasonable doubt a particular role or precise motivation or to make judgements against you as to any desire for personal enrichment. Or to import into the agreed summary some matter of aggravation as against you.
19 The fact remains that even on your own account, you knew that you were dealing with what was expected to be two kilograms of drugs for on-sale.
20 As young and as immature as you were, you had no cognitive deficits. You were an intelligent young woman. You come from a region renowned for taking a very strong stand against drugs. There is just no doubt in my mind that you knew you were engaged in serious offending. I am satisfied beyond reasonable doubt that you knew you were committing a serious crime.
21 You took a gamble as people almost always do in this field and you lost. It is impossible for me to understand precisely why you did what you did other than to know that ‘financial gain’ was at the heart of the decision as it almost always is. I use the word ‘gain’ in a neutral fashion, not as suggesting that you were pursuing some extravagant lifestyle or greed drove you but rather gain to indicate the undoubted and admitted knowledge of the on-sale of the drugs to obtain a sizeable amount of money for someone. Whether it was for you or your boyfriend or to expunge a debt or for the three of you to take a share, I just cannot determine.
22 The Crown very fairly suggested that you should be judged to be at the lowest level of the three and I am prepared to accept that submission. I suspect that submission is driven by the history of the other alleged offending by Kao and Ip and your lack of appearance or involvement in those other transactions. Absent that concession by the Crown, when dealing with the events on the consignment delivery day there is very little to distinguish your actual role within the group. Kao was downstairs, and directed the undercover ‘postman’ to Ip. Neither Kao nor Ip’s name was on the consignment. Once received and taken upstairs you were advised to “come and eat” and thereafter the three of you discussed the product jointly. There is nothing much in the Listening Device product suggesting any greatly lesser role by you. You were in joint possession, you helped unpack the substance and made suggestions as to the means of extracting the drug. You spoke of the expected weight being two kilograms. You evidently were a trusted member of this group or else there would have been no need to involve you in any way at all. You knew that this was to be two kilograms of a drug with an on-sale. The actual pure weight of the removed substance was 1.826 kilograms. You attempted to possess over 2.4 times the commercial quantity.
23 However, the Crown has made the concession of your having a more limited role. They would not make that submission lightly and no doubt it is driven by a more complete understanding of the total evidentiary materials and intelligence held in relation to the various players. They are in a superior position to me in that regard. As a matter of fairness then I will act on the Crown's submission as to your role being inferior to the other two men.
No prior criminal history.
24 You have no prior history before the courts at all. That is of course relevant. I do take it into account. The issue is to what extent do I take it into account? Good character is very often afforded less weight in this area whether dealing with importations, or attempts to possess in the aftermath of an importation. But each case is surely different. The Crown argued less weight should be given to past good character owing to the authorities on this topic including Leroy. Mr Kassimatis argued that those authorities could be confined to circumstances where the good character was one of the essential requirements to commit the crime as it would be for instance in the case of a courier or someone importing the substance. Here that rationale did not exist. He argued that you were not recruited because of your good character. It was not a factor explaining your selection and a fact or characteristic employed to increase the chances of the success of the criminal venture. You do not fall to be sentenced for importation. Really, the argument was that your good character was merely a personal circumstance on the plea that was not inextricably linked with your involvement in the crime and should not be subject to the Leroy type reduction. See Leroy 1984 13 A Crim R 469. I am bound to say that the Crown did not greatly assist me in this area. Mr Kassimatis was making a submission running counter to the prosecutions specific written submission in this regard. When I asked what the prosecution had to say as to that submission, I was told it was a matter for the Court. Well that was not particularly helpful. In any event, I have read those authorities and, I accept Mr Kassimatis’ submissions in that respect. However, your past good character, as important as it still is, does not alter the seriousness of the offending.
Guilty Plea
25 You have pleaded guilty. I am encouraged to treat it as the earliest plea and will do so. There is no point quibbling over a few months as the contested committal beckoned. I take your earliest guilty plea into account in your favour. It is a matter of significance. The community has been spared the time, cost and effort of a trial in this court. There is a utilitarian benefit. Witnesses have been spared the experience of giving evidence either at trial in this court or at committal in the lower court. At least in your case and that is the only one you can control. The sentence I will impose is far less than would have been imposed if you had been found guilty by a jury. You, unlike your co-accused, have accepted responsibility. You, unlike your co-accused, have facilitated the course of justice by pleading guilty and at the earliest stage. That is deserving of a significant reduction in sentence.
Remorse
26 Your counsel submits that I should find you are remorseful. He points to your early guilty plea, and Mr Newton’s views in this area. Also the letter from your mother. It is here that the strength of the case can be of significance. Not everyone who pleads guilty is remorseful. Some are, some are not. Some take the decision to plead owing to the strength of the case and a guilty plea in such circumstances may give no indication of any true remorse at all. Here it was a very strong if not overwhelming case against you given the phone and listening device evidence. Remorse or contrition is not to be confused with self-pity for winding up in custody or somehow letting down or shaming your family. You have pleaded guilty and at the earliest stage and have been in prison for quite some time. You have no prior criminal history. You are young and immature. You have had the ability to reflect on your crime and its seriousness. There are suggestions of remorse over and above your early guilty plea. I am slightly disturbed that you stand by your boyfriend. That does worry me.
27 However ultimately I am prepared to find that you are to an extent remorseful and I take that into account.
Increased burden
28 Your counsel raised your custodial predicament. He pointed to the isolation of your experience. You are a young woman in custody for the first time in a foreign country. You have no regular visitors and only limited access by phone to your family. You are a long way away from them and you are still very young. Prison is a strange and unfamiliar place to you still at this stage, I am sure. I am sure it must be difficult to serve a sentence at the best of times. It must be harder for a youthful first offender. It will be harder still for you because you are in a country remote from your friends and relatives. I do assign some weight to your increased custodial burden, more than would have been the case had you entered the country intending to commit crimes. However I cannot give great weight to your increased burden. It was an inescapable fact that if caught, you would end up serving a lengthy term of imprisonment far removed from your loved ones. I suspect that a person as young as you may not think too deeply about those consequences until it is too late. You will be distanced from your family for quite some time. It will not be easy. You will be deprived of the visits that would sustain many other prisoners as they go about the business of serving out their prison terms. It is a bleak and depressing future for you. You feel deeply pessimistic about the future. I am prepared to accept your time in custody will be tough and that you will experience an increased custodial burden. I am prepared to take this into account in mitigation in the way that I have described.
Mr Newton’s report
29 I take into account the report of the Mr Newton though I will not descend to the full details of that report in my reasons. I have already spelt out my inability to be satisfied on the balance of probabilities of your account to Mr Newton as to how and why you were involved. Now Mr Newton has acted on your account as he was entitled to. He and I have very different roles. It is not his job to weigh up evidentiary matters or to reflect on the carriage of a burden on a plea. His acting on your account doesn’t invalidate his findings in any way. The report is still of great value to me. You are only 22 but you impress him as being quite immature with only the one relationship with Mr Kao. Your personality is such that at the time of offending he believes you were strongly reliant or dependent on those around you and likely to go to lengths to obtain approval. You had the desire to please those to whom you were close. You have developed a reactive anxiety disorder. It is not a major condition. Now Mr Kassimatis was arguing in favour of the fifth and sixth limbs of Verdins being attracted here. The Crown challenged each and argued there was no evidentiary foundation. Even as he argued in favour of a Verdins type allowance, Mr Kassimatis submitted that it would not be large and would be of little weight given the nature and extent of the reactive disorder. I am prepared to give some quite modest weight to an increased prison burden flowing from the conditions referred to. So the fifth limb is enlivened. I have had serious doubts about the sixth limb but ultimately will find in your favour in that respect as well. The reason I had doubts is there is no material before me suggesting the serious risk of prison having a significant adverse effect on your mental health. There is at best a risk of some deterioration of your mood in the context of prolonged stress. I am not permitted to speculate or guess and I won’t. I take it into account in the way argued but it is by no means a large matter given the nature of the evidence placed before me.
Youth
30 Counsel relied upon your youth and referred me to a number of matters of principle. Youth generally does lead to a far greater focus being placed on rehabilitation and, accordingly, some lessening of the weight to be placed on other sentencing purposes. Rehabilitation is usually far more important than general deterrence. The community ordinarily has a strong interest in the rehabilitation of a young offender whatever the tabloid media might say on the topic. Young people are far more prone to act without regard to consequences. They can lack the degree of self-control, judgment and insight possessed by more mature adults. You were not a teenager. You were 22 years of age and with no cognitive deficits. You were under no illusions as to the seriousness of the offending. However you were still quite immature as Mr Newton makes clear.
31 You probably did not really think through the consequences. Young people often enough do not. They are generally less culpable. You were not just youthful but also were immature.
32 Young people are also more amenable to change. They can be reclaimed. There is a strong and understandable interest in the reclamation of young offenders, especially young or youthful first offenders which you are. The community has a strong interest in that successful outcome, even of those who will be surely be expelled from the country as you plainly will be in due course. So I pay regard to these principles dealing with the sentencing of youthful offenders referred to in cases such as Mills and Azzopardi and restated and elaborated on in the more recent case of Boulton. See also Pitone V The Queen 2017 VSCA 3.
33 The potential rehabilitation of a young offender may not be served by the corrupting influences that we as Judges know exist in adult prisons. Young people are more vulnerable in custody. These are just plain facts as far as I am concerned. Courts understand that adult prison is more likely to impair rather than improve rehabilitative prospects. If confinement can be avoided, of course it must be. As a result, the benchmark for conduct deserving of sending a young or youthful first offender to prison is a high one indeed. Even where reached, matters of youth will still have a real role in shaping a reduction of the weight to be placed on general and specific deterrence.
34 It is generally accepted, at least by the courts, that an offender’s youthfulness is a proper reason for extending leniency. However, it is clear that sometimes the conduct of a youthful offender, even a youthful first offender, leaves the court with no choice but to impose a substantial prison term. That is clearly the position here. The principles dealing with the importance of youth are not automatically applied in the same way in every case where there is a youthful offender. There is always a need to consider youth but the extent to which it reduces the weight given to other purposes of sentencing will depend on the nature of the crime and the age and history of the offender. Sometimes it will and must surrender some, if not significant ground to other purposes of sentencing. As the level of seriousness of criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. See Azzopardi, see Pitone. This crime is very serious and though I do not lose sight of your youth, it is still an important consideration here, there is still a need to punish, to denounce and to deter others. General deterrence is of real importance in this sort of case. The more weight that must be given to punishment, deterrence and community protection, the less weight can be afforded to youth.
Rehabilitation
35 You are 22 years old now and at the time of offending. You are almost 23. You come from a very decent family and have no criminal history. You have pleaded guilty at the earliest opportunity and are remorseful. You feel ashamed of what you have done. You feel shame also for the predicament of your family. You have insight into the seriousness of your offending. You will undoubtedly be deported and wish to be as soon as possible but will be going home with your tail between your legs and with a sense of having damaged your future irretrievably. You have a pessimistic outlook as to what the future holds for you and I hope that you are mistaken and that your life can move in an upward trajectory upon your ultimate release. You are learning and will continue to learn a valuable but difficult lesson. You will be paying a high price with your liberty. I am confident that the process of being arrested, charged and imprisoned and then sentenced will have a very sizeable role in deterring you in the future. My only concern is your continued support of your boyfriend. However when looking at all the materials before me including the written references, I believe you are a very low risk of ever committing an offence such as this again. I am prepared to accept your counsel’s submission that you do have good prospects of rehabilitation. I said on the plea and repeat now that you have made a dreadful decision to involve yourself in a crime as serious as this. You know that. Life imprisonment is the maximum term. The decision must and will cost you dearly. You are going to spend a significant period in prison. I accept that will greatly address specific deterrence. I do not believe community protection has much of a role here at all. You will be a good deal older when you are eligible for eventual release and deportation back to your homeland. I think it highly unlikely indeed in those circumstances that you will commit a crime such as this ever again. I do think your prospects are good.
Principles of sentence
36 I have been referred by counsel to a range of cases dealing with matters of principle. The principles to be applied are well known and are set out in cases such as Nguyen v The Queen [2011] VSCA 32. I do not see the need to restate them all in my reasons. Now I accept that you are not to be sentenced for importing this substance into this country. I am dealing with you for attempting to possess a commercial quantity of an unlawfully imported border controlled drugs and the offending spanned a very limited duration. But many of the same principles apply. Indeed many of the decisions to which I have been referred involve attempts to possess following controlled deliveries. Need I say much more about the serious way that our Parliament has viewed this type of offence? This offence is punishable by life imprisonment. It carries the same maximum as importing a commercial quantity.
37 Attempting to possess is not in a less serious category than importing the drug. See Nguyen point 13. In this case you and those you joined with were exercising control over what you believed to be a sizeable quantity of a drug of dependence. I can easily determine and do beyond reasonable doubt that your group intended to on sell the drug. That is what your counsel actually concedes. I cannot find on the balance of probabilities that a debt existed and you were acting only owing to the debt and your fear for your boyfriend’s safety. Those mitigatory matters are not established on the balance of probabilities. Financial gain is the obvious motivation and I am satisfied beyond reasonable doubt that it motivated this crime. As I have said though, I cannot determine to the required degree whether you were going to share in profit or the division of funds.
38 You had an active enough role in the very limited time period of the attempt to possess. You must have been trusted. You were a joint possessor and speaking as one. Mr Kassimatis argued you were not vital, that you were not as seriously implicated as for instance a ‘mere’ courier where the venture was dependent on the movement of the courier from country A to country B. Every enterprise is different. Here you are not a courier. You are not charged with importation. There is no reason for me to think you unimportant to the venture. You and two others were the ‘group’ for want of a better term and on your own version, you knew of the existence of what you believed to be two kilograms of drugs, not a suspicion or inkling, but knew and expected drugs to be on sold for a sizeable sum. That money was on your account being used by your boyfriend so even on your own version there was to be large financial gain in that sense. A courier is often paid a small if not pitiful sum to carry drugs into the country. Physical drug couriers take massive risks and often do so as they are just so desperate. Desperation in that style of offending is almost always apparent. It is not evident in your offending.
39 General deterrence has a vital role to play in this area. The amount of drug is always an important consideration. The sentencing regime is quantity based. Often the quantity is the only point of differentiation between various instances of the offence. Here it was more than two times the commercial quantity. In the scheme of commercial quantities, there are obviously far larger quantities but there are very many that are smaller. Though I have mentioned repeatedly in these reasons, your understanding of the noodles containing two kilograms of drugs, of course I only sentence you for attempting to possess the 1.826 kilograms of pure drug.
40 General deterrence is a powerful sentencing factor in this sort of case and that is the position despite your youth. Young people often enough are involved in this type of offending. This court must send a loud and clear message to any other like-minded person engaged in, or thinking of being engaged in this sort of activity. Do not under any circumstances bow to the temptation. Whether young or old or somewhere in between. Whether for profit or gain, or to clear a debt or out of loyalty or desperation of for any other reasons existing under the sun. Do not take the risk. Think long and hard before becoming involved in attempting to possess commercial quantities of drugs brought unlawfully into this country, for if you are apprehended, the consequences will be dire indeed. The community is sick of the scourge of drugs. The sentences imposed by the Courts must signal to others that the potential financial rewards or gains from such an activity are neutralised by the risk of severe punishment.
41 Consistency of sentencing is an important consideration. Aside from the charts marked as Exhibit B, I have looked at other cases involving sentencing for this type of offence. I have looked also at sentences imposed for the lesser offence of attempting to possess a marketable quantity and tables dealing with that offence as set out in the case of Lau v R [2011] VSCA 324.
42 Each party expressed views as to the cases within the chart provided to me and marked as Exhibit B. Mr Kassimatis urged me to find that some of the higher sentencing outcomes were not comparable. He urged consideration of the penalty in the case of Aaron Tran. The Crown conceded that some were not truly comparable but as to Aaron Tran made the observation that he was not even fixed with actual knowledge as to the substance being a drug of dependence, there being a lesser state of mind.
43 It was clear that some of the objective factors in the cases in the chart were different. There were cases where there was a greater if not far greater quantity of drug. Some had a far greater duration of involvement. There were personal circumstances which differed in a variety of ways as did role and or state of mind. Mr Kassimatis urged consideration of Aaron Tran or Tiknius as being perhaps the closest comparable cases. As I say Tran had no actual knowledge. In Tiknius the sentencing judge found that there was significant non exculpatory duress at play there. It was a powerful factor and evidence was placed before that Judge to permit that finding. Tiknius though older, ultimately received an eight year term of imprisonment for a quantity of pure drug not that far removed from yours. The gross weight of the substances containing the pure drug in that case was however far larger. There was another offence as well and he received a total of nine years imprisonment with a non-parole period of five years.
44 The case of Thomas had a very sizeable coverage of sentences for commercial quantity offending as well as a survey of sentences for offences concerned with importing or attempting to possess a marketable quantity, the lesser offence.
45 When all is said and done, I have to pass an appropriate sentence in your case. None of these other sentences passed in other cases dictate the outcome in your case.
46 Your offending was very serious. You were attempting to possess a commercial quantity of an unlawfully imported border controlled drug. Your youth is still of real significance to my task. I can, I believe, give far less weight here to specific deterrence given my positive findings as to your prospects. General deterrence is still a sizeable factor.
Sentence
47 I have taken into account all of the submissions made on your behalf and all of the exhibits tendered before me. I have not even mentioned in detail your mother’s letter or the letter from Dr Pullinger or the bundle of course certificates placed before me. Rest assured, I have viewed all of this material again since the plea and take it all into account. I have taken into account the various relevant matters listed in s.16A(2) Crimes Act 1914. I have no option at all but to imprison you as your counsel correctly concedes.
48 Weighing up all these various matters as best I can, on the charge of attempting to possess a commercial quantity of unlawfully imported methamphetamine, you are convicted and sentenced to six years' imprisonment.
Non Parole period
49 I direct that you serve a non-parole period of three years' imprisonment.
Parole order
50 I am required to explain to you the effect and the purpose of that parole order, even though the reality is that you will likely never be released into the community.
51 The purpose of such an order is to permit your possible release from prison, subject to certain conditions, at the expiry of the non-parole period. It follows that you will serve a sentence of three years in prison. A parole order may then be made but that is entirely in the hands of the Commonwealth Attorney General.
52 If and when such an order is made, it envisages a period of service in the community called the ‘parole period’ to complete the service of that sentence. This is likely to be illusory in your case as you are, I am very sure, likely to be deported immediately upon reaching that portion of your sentence but I cannot have regard to that fact in fixing the non-parole period. Nor can I decline to fix one for that reason. I have to proceed on the footing that you will serve every day of the six year term I have announced.
53 If a parole order is made, it will be subject to conditions which you would need to comply with. The order can be amended or revoked. I cannot know in 2017 what those conditions would be. They would be informed by your needs some years from now. The consequences if you failed without excuse to fulfil these conditions on parole, would be your being ordered to serve the balance of the sentence up to six years.
Section 17A
54 I am obliged to state the reasons for proceeding to impose a term of imprisonment. It is sufficient for me to refer to the various matters of gravity that I have referred to in these reasons to date. For the purposes of the records of the court, I state that no other sentence was appropriate, given the nature and gravity of your crime as was directly and correctly conceded by your own counsel, Mr Kassimatis.
Pre-sentence detention
55 I make a declaration pursuant to s.16E of the Crimes Act 1914, as to the time that you have already served in custody. The total pre-sentence detention is 317 days. I declare that this period of 317 days is to be noted in the records of the court. What that means is that you have already served that portion of the sentence.
6AAA
56 I have significantly reduced your sentence because you have pleaded guilty and at the earliest stage. I am required to state the measure of reduction. But for your guilty plea, I would have sentenced you to be imprisoned for a period of ten years. I would have fixed a non-parole period of seven years. That s.6AAA statement is to be noted in the records of the court.
57 Ms Baxter, have I mentioned everything I need to mention in terms of the sentencing regime or not? I do not need have a commencement date, there is only a single sentence.
58 MS BAXTER: You would need to state the commencement date.
59 HIS HONOUR: I do not think I do, it is a single sentence. But if I do, then I do. It commences today. But I do not think I do. Anyway, this sentence commences today. Anything else at all?
60 MS BAXTER: No, Your Honour.
61 HIS HONOUR: Mr Pica, any matters that I have overlooked or need clarification or not?
62 MR PICA: I have managed to type everything.
63 HIS HONOUR: All right, are you going to go down and see your client downstairs.
64 MR PICA: I will see her in the cells.
65 HIS HONOUR: All right, good. Well that completes the sentence, Ms Tsang. So I will shortly have you removed. You will be taken downstairs and Mr Pica will come down and see you downstairs. Remove Ms Tsang then, thank you.
66 (Offender removed.)
67 Thank you very much, Madam Interpreter, thank you for your assistance.
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