The Queen v Chung
[2017] VCC 1558
•25 October 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-01287
THE QUEEN
v
TIN SANG CHUNG Accused
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JUDGE: HIS HONOUR JUDGE MURPHY
WHERE HELD: Melbourne
DATE OF HEARING: 23 October 2017
DATE OF SENTENCE: 25 October 2017
CASE MAY BE CITED AS: The Queen v Chung
MEDIUM NEUTRAL CITATION: [2017] VCC 1558
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Commonwealth offence – Attempt to possess a commercial quantity of a border controlled drug – Methamphetamine – Offender offered payment to come to Australia and receive and transfer packages – Offender wilfully blind as to contents of packages – Offender travelled to Australia for the sole purpose of committing the offence – Whether appropriate to ascribe particular role to offender – Offender’s travel arrangements were organised by others – Offender took instructions from others – Offender sourced his own accommodation and played a trusted role – Criminal Code (Cth) ss. 11.1(1) and 307.5(1)
CRIMINAL LAW – Sentence – Current sentencing practices – Federal sentencing – General deterrence – Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673; Chan, Lo & Nguyen v The Queen [2010] NSWCCA 153; The Queen v Nguyen; The Queen v Pham (2010) 205 A Crim R 106; Zhang v The Queen [2010] NSWCCA 105; Yu v The Queen [2016] NSWCCA 73; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41, considered – Crimes Act 1914 (Cth) s. 16A
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APPEARANCES: Counsel Solicitors
For the Crown Mr J Grant Solicitor for the Commonwealth
Director of Public Prosecutions
For the Accused Ms F Banihali Victoria Legal Aid
HIS HONOUR:
Introduction
Tin Chung, you have pleaded guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine.[1]
[1] Contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth) (‘Code’).
The maximum penalty is life imprisonment.[2]
[2] And/or 7500 penalty units (s. 307.5(1) of the Code).
Circumstances of the offending
The circumstances of the offence were set out in the prosecution opening which was read in open court on 23 October 2017 and which I incorporate by reference.
In essence, at the time of the offending you were aged 24. You were born in the People’s Republic of China. You subsequently moved with your parents and sibling to Hong Kong and you have resided there since 2000.
In February this year, you were offered the opportunity to travel to Australia. That opportunity was to be remunerated. You were facing financial pressure due to loans that you owed as a result of a failed share investment and other domestic purchases. You were to come to Australia, and while in Australia, were to receive delivery of some packages. You were then to deliver them to another person. The packages were to be described as “presents”.
The arrangements for your travel to Australia were made by other people and all that was required of you was to attend at a travel agent in order to apply for a Visa.
You are told approximately one week before you arrived that you were to travel. You arrived in Melbourne on a three-month tourist Visa on 23 February 2017. Arrangements had been made for your accommodation at the Quest Apartments in the Melbourne CBD.
You stayed there for three or four days and were then advised to obtain other accommodation. You proceeded to arrange that accommodation in Ringwood. You were at one address for a short time. You are then advised to move as it had become too “dangerous”. At one stage you were advised that you were to return to Hong Kong, however, this arrangement was cancelled at the last moment. You were then advised to go to another address.
There was a gentleman who left Australia for Hong Kong around this time. You were advised to tell the landlord that you were his cousin, and that you were to move into the bedroom of the property. This property was in Arlington Street, Ringwood. You were to wait there to take delivery of the consignment.
10.Before you left Hong Kong, you were given an amount of money that you converted to approximately AU$5,000 for living expenses while in Australia. This was used to provide for your day-to-day living and provide bonds for the various accommodation that you were to use whilst in Melbourne.
11.Thereafter, you waited in Australia for the promised consignment to arrive.
12.Hong Kong authorities had intercepted two consignments in Hong Kong that were to be delivered to two different addresses in Ringwood. They were described as “porcelain tea sets”. The first consignment was to be delivered to the address you were first staying at in Ringwood. The second consignment was to be delivered to the Arlington Street property where you were staying. On this second consignment, the original consignee’s name was struck out and your name was inserted. These consignments were found to contain methamphetamine.
13.The consignments arrived in Sydney on 31 March 2017.
14.You were arrested at the consignee address in Arlington Street, Ringwood on 3 April 2017 and have been held in custody since this date.
15.You participated in a record of interview where you advised the Australian Federal Police (‘AFP’) of the arrangements that had been made for you, including that you were receiving instructions from an unknown male named “Tony”. You told the AFP that you were to accept delivery of the parcel and sign for it in the name of “Leung”. This was the name of the gentleman who was staying in the Arlington Street property prior to you moving there. This was also the name of the original consignee.
16.In the record of interview you indicated that you were to be paid, when you returned to Hong Kong depending on how many packages you delivered, a total of up to 300,000 Hong Kong dollars, or approximately AU$50,740.00.
17.“Leung”, whose place you took in Ringwood, had arrived in Australia on 22 February 2017 and departed the day he left the Ringwood property, being 25 March 2017.
18.You provided your mobile phone to the AFP and they downloaded various “WeChat” conversations with an unknown person named “Tony” and another unknown male.
19.After you were arrested, police executed a search warrant on the bedroom of the house at which you were residing in Arlington Street, Ringwood. Police located six black backpacks that you had purchased days prior from the Reject Shop in Eastland, as well as bank cards and identity documents in your name. You had sent an image of the backpacks as well as the receipt to “Tony”.
20.Analysis of the two consignments received in Sydney indicated a total weight of 11,771.9 grams of methamphetamine. The first box contained 4,603.9 grams of pure methamphetamine, and the second box contained pure methamphetamine in the amount of 4,522.6 grams. The purity of the substance received was approximately 78%. The total pure weight of the methamphetamine was 9,158.5 grams.
21.A commercial quantity of methamphetamine is 750 grams.[3] Therefore, the quantity of pure methamphetamine for which you are being sentenced is approximately 12.2 times the commercial quantity.
[3] Criminal Code Regulations 2002 (Cth), Schedule 4 – Border Controlled Drugs.
22.It was common ground on the plea that the potential wholesale value of the methamphetamine was between $936,000 and $1,404,000, and the street value between $2,942,975 and $5,885,950.
23.As I have said, you have been in custody since your arrest. At the committal mention on 27 June 2017, you indicated your intention to plead guilty.
Assessing the seriousness of the offence
24.The period of your offending spans from 31 March 2017 to 3 April 2017. You arrived in Australia on 23 February 2017, and were at all times making arrangements and communicating with “Tony” and another unknown male. Therefore, it is clear that you entered Australia for the purpose of this offending.
25.Your initial arrangements to return to Hong Kong on 21 March 2017 were cancelled and you remained in Australia where you moved to the Arlington Street property in Ringwood.
26.Your involvement upon entering Australia before the actual charge period indicates a significant degree of culpability for your conduct. You admitted in the record of interview that you were aware that the parcels would contain illegal drugs, although you did not know the type or quantity of the drug to be delivered.
27.It has been indicated by the High Court and the Court of Appeal in a number of cases that the quantity of drugs possessed, imported (or sought to be imported) or trafficked is relevant to the seriousness of the offence.[4] Here, your offending involves 12.2 times a commercial quantity. This covers both packages that were in the consignment for which you were to sign for upon delivery.
[4] See, eg, Adams v The Queen (2008) 234 CLR 143 and Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162 (Maxwell P, Santamaria JA and Beale AJA).
28.Similarly, the wholesale and street value of the drugs sought to be possessed indicates that this was an attempt to possess a very valuable shipment of illegal drugs.
29.Also relevant in considering the seriousness of the offence is your motivation for the offending. Here, your motivation was monetary gain. Should you have been successful in the importation and transferring of the packages, you stood to gain up to AUD $50,000 upon your return to Hong Kong. This increases the seriousness of your offending and your culpability.
30.Another factor to be considered is your role in the enterprise. Your counsel submitted that you were to be regarded as a ‘courier’ in the overall enterprise. The learned Crown prosecutor submitted that labels are not necessarily of assistance, but rather sentencing should proceed on the basis of what an offender actually did.
31.Here, while I accept that the initial arrangements for your accommodation were made by others and you were provided with funds by others, once you arrived in Melbourne, you made your own arrangements, save in relation to the final address, in relation to accommodation. While the specific arrangements for the receipt of the parcels at the address were made by others, and thus you were not acting autonomously, you did proceed to purchase six backpacks and indicated that the shipment was to be inspected and photographed so that further action could be taken. Your possession of the backpacks indicates that you were to be trusted to divide up any successful shipment and prepared for distribution to the next people in the chain of trafficking from source to ultimate street consumer.
32.Thus, while your offending is alleged to be only over a narrow period of time, your role in preparing to receive the packages, moving addresses, being prepared to sign for them in a false name, to inspect and photograph them and then divide them up in preparation for the next movement in the distribution chain, indicates that you must be seen as having a significant facilitating role over the period of your offending. While you are not to be sentenced as a principal, using labels, your role was above that of a mere courier.
33.Overall this was a serious example of a serious offence
Personal circumstances
34.Your personal circumstances were outlined in a comprehensive plea submission from your counsel, which I incorporate by reference. Your were aged 24 at the time of this offending and are now aged 25. You have had permanent residency in Hong Kong since 2000. Prior to coming to Australia, you had been living with your family in public housing in the New Territories region of Hong Kong.
35.Your mother works in fresh food packaging, and your father is a contract builder. You have been especially close with your mother.
36.You successfully completed secondary school and wished to gain a job in the public sector. Your grades, however, did not allow you to obtain a public sector job and, as a result, you have been working in sales (as an insurance consultant, working for Samsung and in a retail sports store) since leaving school.
37.You were providing a significant portion of your salary to your parents to assist in the rent. You have been involved in casual relationships and, in recent times, had a serious relationship with a 29-year-old female. You have not had any contact with her since your arrest.
38.You do not have drug or alcohol problems. Your general stable good character is supported by testimonials from your sister and your mother.
39.You have also provided a letter to the court indicating that you are sorry and remorseful for your offending. In your record of interview you apologised for telling a lie.
40.In recent times, you mother has had serious health problems. You counsel did not submit, however, that the impact on your family was a sentencing factor that I should take into account. Obviously separation from your family will make a sentence in Australia and away from them more burdensome – that is a factor to be taken into account.
Other matters in mitigation
41.Your counsel submitted that you are entitled to full recognition of your plea of guilty. I accept that you have facilitated the course of justice by your plea of guilty and accepted responsibility. You indicated your intention to plead guilty at an early stage in the proceedings. You plea is also evidence of remorse.
42.In addition, you did cooperate with the authorities upon your arrest. You provided them with your mobile phone and the (limited) details of the names of persons whom you had been in contact with. There was full cooperation on your behalf. Despite this information not leading to any further investigations, it is still a matter to be taken into account.
43.Your counsel noted that you are likely to be deported at the end of any sentence. This does not make your sentence more burdensome given that you came to Australia for the purpose of committing a crime. Further, your counsel did not submit that your isolation in custody is a significant matter.
44.I do take into account as something of a mitigating factor that you will no longer be able to support your family. You provided information to indicate that your mother has had a serious medical condition since your time in custody, so this is a factor that will mean that separation from the family will be more burdensome. I give it some weight.
45.Your counsel submitted that, given your age, you are a first-time youthful offender, and that this ought to be taken into account in mitigation. Ordinarily this is a matter to be taken into account, but as has been noted in a number of cases, most recently in Director of Public Prosecutions (Cth) v Besim,[5] in cases involving serious criminality, the fact that a person is youthful and previously of good character is given less weight given the needs of general deterrence and denunciation. It follows that, while I give your lack of prior convictions and youth some weight, it cannot be a major consideration.
[5] [2017] VSCA 158, [116] per Warren CJ, Weinberg and Kaye JJA. See also Director of Public Prosecutions (Cth) v MHK (a pseudonym) [2017] VSCA 157; Director of Public Prosecutions v Lawrence (2004) 10 VR 125 and Azzopardi v R [2011] VSCA 372.
46.Your counsel submitted that your prospects of rehabilitation must be regarded as excellent, given your age, work history, remorse, guilty plea and lack of prior convictions. I accept that you have good prospects of rehabilitation.
47.In final submissions, your counsel submitted that factors such as your age, lack of criminal history, assistance to authorities, role, early guilty plea, remorse and prospects of rehabilitation called for a shorter than normal non-parole period.
48.I have taken into account all the matters put on your behalf in mitigation. In sentencing you I have sought to give effect to the requirements of s. 16A of the Crimes Act.[6] I note that general deterrence has recently been inserted as a specific matter that ought to be taken into account in that provision.[7]
[6] 1914 (Cth) (‘the Act’).
[7] See s. 16A(2)(ja) of the Act. Subsection (ja) of s. 16A(2) was inserted by Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) schedule 7, s. 1.
Prosecution sentencing submissions
49.In a comprehensive sentencing submission, the prosecution referred to a number of relevant authorities in relation to the objective seriousness of the offence, your role, the quantity of drugs involved, your motive and the need for general deterrence.
50.I have accepted the prosecution submission is that your role is above that of a mere ‘courier’. I also accept the prosecution submissions as to the objective seriousness of the offending and must have regard to the sheer quantity of drugs in assessing the overall seriousness of the offence, together with your motive for engaging in the offending behaviour. As I have indicated, I also accept the submission of the prosecutor that your prior good character and relative youth is to carry less weight in these types of cases, due to the seriousness of the criminality.
Purposes of the sentencing
51.The basic purposes for which a court may impose a sentence are punishment, deterrence (both general and specific), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.
52.I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, so far as possible, offenders are rehabilitated and reintegrated into society. Together with these factors, I must apply the principles set out in s. 16A of the Act, and the principles of parsimony. Your counsel accepted that imprisonment was the only appropriate disposition.
53.The Courts have stated that, in cases of large scale drug trafficking, general deterrence is the principal sentencing consideration.[8] This is an economic crime and the penalties must reflect a risk/reward calculus. This applies notwithstanding that it is not appropriate to refer you as ‘principal’ in this case.
[8] Le v R [2011] VSCA 42 [47] per Hansen JA (with Harper and Bongiorno JJA agreeing).
54.The comments of Kaye AJA in Dawid v Director of Public Prosecutions[9] relate to the offence of trafficking, but apply equally to the offence to which you have pleaded guilty:
[9] [2013] VSCA 64 (Redlich and Whelan JJA and Kaye AJA).
“The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.”[10]
[10] Dawid v Director of Public Prosecutions [2013] VSCA 64 per AJA Kaye (as His Honour then was).
55.It the quantity of illegally imported drugs that you attempted to possess that puts this case in the mid-range of cases of this type. It is an established principle that the quantity of drugs involved is a highly relevant consideration in sentencing for importation offences.[11] It is important also to note that the same maximum penalty applies to both an attempt and to a successfully completed possession of the imported drug.
[11] Director of Public Prosecutions (Cth) v K M D [2015] VSCA; (2015) 254 A Crim R 244, 254 at [36] citing Adams v The Queen (2008) 234 CLR 143 and Director of Public Prosecutions (Cth) v Thai (2014) 242 A Crim R 173 at [9].
Comparable cases
56.The prosecution referred me to five cases which it said were broadly comparable with the facts of the present case.
57.In Nguyen & Phommalysack,[12] the Appellants pleaded guilty to importing a commercial quantity and attempting to possess a commercial quantity of a border controlled drug – namely 21.8 kilograms of methamphetamine (29 times the commercial quantity), 6.3 kilograms of MDMA (12.6 times the commercial quantity) and 29.1 kilograms of cocaine (14.5 times the commercial quantity). Nguyen was sentenced to a total effective sentence of 12 years imprisonment with a non-parole period of 8 years on the basis that she arranged for the lease for the factory for the delivery of the importation, liaised with custom brokers and potential purchasers, and eventually signed for the delivery of the foot spas in which the drugs were concealed. Nguyen was 34 years old at the time of the offending, entered a guilty plea at an early opportunity and undertook to give evidence against her co-offenders. She was held to be an “integral facilitator” of the enterprise.
[12] (2011) 31 VR 673; [2011] VSCA 32.
58.Phommalysack was tasked with collecting the drugs for the purchaser and driving from Melbourne to Sydney to deliver them. He was to be paid a reward of $50,000. He was 25 years old at the time of the offending, and was sentenced to 12 years imprisonment with a non-parole period of 9 years. Neither Appellant had a drug related prior conviction.
59.In Chan, Lo & Nguyen v The Queen,[13] the Appellants were sentenced each for their respective roles in the importation of three suitcases containing 10.01 kilograms of methamphetamine (13.3 times the commercial quantity). Relevantly, Chan was found to be the “middle man” who oversaw the operation. He arrived in Australia in advance of the importation to procure a number of phones using false names and remained in Australia until he was notified that the operation had been successful. Chan received a head sentence of 12 years and 6 months imprisonment, and a non-parole period of 7.5 years. The prosecution submitted that this sentence was a relevant comparator.
[13] [2010] NSWCCA 153 (Beazley JA, Kirby and Johnson JJ).
60.Nguyen was found to be of similar importance to the enterprise as Chan and received a head sentence of 10 years imprisonment and a six-year non-parole period.
61.The Queen v Nguyen; The Queen v Pham[14] involved offending that is similar to that in Nguyen v The Queen; Phommalysack v The Queen.[15] Here, the respondents to a Crown appeal travelled to Australia for the purposes of the offending that involved secreting cocaine and methamphetamine in foot spas. The offending involved 27.1 kilograms of cocaine (13 times the commercial quantity) and 13 kilograms of methamphetamine (17 times the commercial quantity). Pham travelled to Australia for the sole purpose of offending. She was not aware of the exact drug that was being imported, but was aware that a drug was being imported and that eventually it would be distributed to the community. Pham was tasked to communicate with parties overseas, remove the drugs from the foot spas and deliver them to the purchaser. She was 32 years old at the time of the offending, had no prior convictions and was resentenced to 15 years imprisonment.
[14] (2010) 205 A Crim R 106.
[15] [2011] VSCA 43.
62.Nguyen was 42 years of age at the time off the offending, set up a business, registered two business names and leased a commercial warehouse in Victoria all to ensure that the offending would go undetected. He paid relevant fees, communicated with transporters, deconstructed the foot spas with Pham to remove the drugs and attend with Pham to hand them over to the purchasers. He was sentenced to 18 years imprisonment with a 12 year non-parole period. Both accused pleaded guilty prior to trial, and after the trial commenced, respectively. The prosecution submitted that this sentence of Nguyen was not an appropriate comparator.
63.In Zhang v The Queen,[16] the appellant was sentenced to 11 years imprisonment for his role in importing 8.2 kilograms of methamphetamine secreted in boxes (10.96 times a commercial quantity). Zhang met with another man to obtain possession of the boxes, however, was arrested before he could take possession. Zhang pleaded guilty, was found to have psychological problems, however, knew that he would be transporting illicit drugs. He was found to have a ‘mid-level’ role.
[16] [2010] NSWCCA 105 (Allsop P, Grove and Hislop JJ) (‘Zhang’).
64.In Yu v The Queen,[17] the appellant received a sentence of 9 years imprisonment after pleading guilty for his role in importing 10.6 kilograms of methamphetamine (14.22 times the commercial quantity). The appellant arrived in Australia with a co-accused six days prior to the delivery of the illegal drug. The Appellant was instructed by the co-accused to accept delivery and store the drugs. At all times, the Appellant was supervised by the co-accused. The Appellant was 24 years of age, had significant gambling debts for which engaging in the criminal conduct would have paid off these debts, was described as a “relatively immature young man” and entered Australia for the specific purpose for engaging in criminal conduct. The Appellant knew that it was likely that the packages would have contained illicit drugs.
[17] [2016] NSWCCA 73 (Hulme, Garling and Wilson JJ) (‘Yu’).
65.While each of the above cases display both similarities and differences to the present case, there are some similarities in that Yu depicts a similar situation for which you have found yourself in. You have succumbed to criminal conduct in order to pay off your debts. You entered Australia for the sole purpose of engaging in this conduct, and you obeyed the instructions of a more senior figure in the enterprise at all times. You were allured with the prospect of financial gain, for which you knew, or ought to have known, that this deal was too good to be true.
66.The learned Crown prosecutor submitted that your offending here was more serious than that involved in Yu. I agree. While there will always be limitations in comparative cases, I regard your offending as being somewhere between that of Yu and Zhang.
Use of comparable cases
67.The cases presented by the learned prosecutor are of some assistance in providing a yardstick. Since the High Court’s decision in Dalgliesh,[18] courts have been reminded that the maximum penalty of an offence must always be given careful attention.[19] Here, the maximum penalty of life imprisonment shows the seriousness with which the legislature treats this offence.
[18] Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 (‘Dalgliesh’).
[19] Dalgliesh at [10] per Kiefel CJ, Bell and Keane JJ.
68.The principal mitigating factors here, as I see them, are your plea of guilty, your lack of prior convictions, and your relative youth.
69.Weighed against these matters, however, is the seriousness of the offence as I have discussed, and the need for general deterrence. As has been repeatedly stated by appellate courts, clear signals must be sent to deter those potential offenders who are motivated by the large financial reward is available in the unlawful drug trade.[20]
[20] See most recently Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162 [68] citing R v Nguyen & Pham (2010) 205 A Crim R 106, 127 [72] and Nguyen & Phommalysack (2011) 31 VR 673, 682 [34].
70.Your conduct must be utterly denounced. You came to this country to help facilitate, for your own financial gain, a major drug importation. The sentence of the court must reflect the community’s condemnation of your conduct.
Sentence
71.Weighing all the competing considerations and take into account the matters set out in s. 16A of the Act, and giving full weight to the matters put by your counsel in mitigation, I sentence you as follows.
72.On the charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, you are sentenced to 10 years’ imprisonment.
73.I direct that you serve 6 years and 6 months before becoming eligible to apply for parole.
74.In fixing a non-parole period, it represents the minimum period that you must serve having regard to all the elements of punishment, including the objective seriousness of the offence, general and specific deterrence, denunciation and your subjective circumstances.
75.I declare that you have served 205 days of pre-sentence detention, and that it be noted in the records of the court.
76.I order that the sentence commence this day.
77.I declare, pursuant to s. 6AAA of the Sentencing Act 1991 (Vic), that had you not pleaded guilty, I would have imposed a head sentence of 13 years’ imprisonment with a non-parole period of 8 years and 6 months.
78.On the charge, I have sentenced you to 10 years’ imprisonment, after taking into account all the matters put on your behalf, I have determined that you must serve at least six and a half years before you will be eligible to apply for release on parole.
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