Wing Thi Chu v The Queen

[2018] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0244

WING THI CHU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2018
DATE OF JUDGMENT:	20 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 65
JUDGMENT APPEALED FROM:	Director of Public Prosecutions (Cth) v Chu & Anor [2017] VCC 1027 (Judge Mason)

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CRIMINAL LAW — Appeal — Sentence — Import a commercial quantity of a border controlled drug — Attempt — Whether sentence manifestly excessive ­— Applicant has no relevant priors — Early plea of guilty — Part of organising chain of drug enterprise — Serious offences —Application for leave to appeal against sentence dismissed —
Criminal Code (Cth), ss 307.1(1), 11.1(1) & 302.2(1) — DPP (Cth) v Thomas (2016) 347 ALR 275

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr H Rattray	Peter Monagle Lawyers
For the Crown:	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

OSBORN JA:
BEACH JA:

1. Following pleas of guilty in the County Court at Melbourne Wing Thi Chu was sentenced by his Honour Judge Mason on 31 July 2017 as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation/ Concurrency
1	Import a commercial quantity of a border controlled drug contrary to ss 307.1(1) Criminal Code (Cth)	Life	9 years	Commencement 31 July 2022 (3 years cumulation)
2	Attempt to traffick in a commercial quantity of a controlled drug contrary to ss 11.1(1) and 302.2(1) Criminal Code (Cth)	Life	11 years	Base
Total Effective Sentence:		14 years’ imprisonment
Non-Parole Period:		10 years’ imprisonment
Pre-sentence detention declared:		635 days
6AAA Statement: 18 years’ imprisonment with a non-parole period of 14 years’ imprisonment.

1. On the same date, and again following a plea of guilty, Alan Aik Huat Lim, Chu’s co-offender in respect of the attempt to traffic was sentenced by his Honour Judge Mason as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation/ Concurrency
1	Traffick in a commercial quantity of a controlled drug contrary to ss 302.2(1) Criminal Code (Cth)	Life	9 years	N/A
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period:		6 years’ imprisonment
Pre-sentence detention declared:		699 days
6AAA Statement: 12 years’ imprisonment with a non-parole period of 8 years’ imprisonment.

1. Sing Fat Cheung, Chu’s co-offender with respect to the importation offence, was sentenced to seven years’ imprisonment with a non-parole period of four and a half years by his Honour Judge Stuart in the County Court at Melbourne on 22 November 2016 following a plea of guilty to one charge of importing a commercial quantity of a border control drug contrary to s 307.1(1) Criminal Code (Cth).

1. Chu now seeks leave to appeal with respect to the individual sentence imposed on charge 2, the cumulation imposed on charge 1, and the resulting total effective sentence on the ground of manifest excess.

The basis of the importation charge

1. Commencing on 12 June 2015 Chu had a series of conversations with Cheung concerning the setting up of premises to receive imported methamphetamine and arrangements pursuant to which Cheung would sign for parcels containing such methamphetamines.

1. On 6 August 2015 Cheung informed Chu that a package had been sent to Australia from Hong Kong.

1. On 7 August 2015 two consignments directed to Cheung were received at the City Parcel Facility in Melbourne from Hong Kong.  One was delivered to Cheung and the other was intercepted by police and seized for inspection.

1. Cheung told Chu that he had received one item but not the other.  Chu told Cheung to put the received parcel aside and that Chu would wait for the second parcel to arrive before collecting both.

1. Chu then had a series of telephone conversations with Cheung and another person in Hong Kong concerning the contents and whereabouts of the second parcel.

1. In the course of the conversations Chu gave directions to Cheung and referred to him as his employee.

1. The package seized by police was found to be a gold coloured pig ornament containing 4.296 kilograms of methamphetamine of 48.3 per cent purity, yielding a net weight of 2.075 kilograms pure methamphetamine.  As the sentencing judge noted, a commercial quantity is 750 grams of pure methamphetamine.  The total quantity imported was therefore 2.7 times the commercial quantity applicable.

1. The wholesale value of the importation was estimated to be approximately between $859,360 and $1.37 million, and the street value was estimated to be between $2.15 million and $4.3 million.

1. On the plea the sentencing judge accepted that he could not be satisfied beyond reasonable doubt of the contents of the non-intercepted package and put aside the fact of those contents as irrelevant to his considerations.[1]

   [1]Director of Public Prosecutions (Cth) v Chu & Anor [2017] VCC 1027 (‘Reasons’) [24].

1. We interpolate that in sentencing Cheung, his Honour Judge Stuart had taken the view that although it was admitted the importation involved two parcels, he should not treat the second parcel (which was not intercepted) as an aggravating feature of the importation of drugs which was proven.  In consequence both offenders were in effect sentenced on a similar basis.

The basis of the trafficking charges

1. On 29 August 2015 Chu had a series of telephone conversations with an unknown male concerning the supply of drugs.  Chu was told that a quantity of drugs would be provided for him.  On 31 August 2015 Chu made a telephone call to Lim who advised him that he would arrive at 6:00 am the following morning.

1. At 7:00 am on 1 September Lim arrived at the Southern Cross station by way of an overnight bus from Sydney.  He was carrying a back pack and satchel and accompanied by another male.  He advised Chu that he had arrived and arrangements were made to meet at premises in Maribyrnong.

1. When Lim arrived at these premises he called Chu and Chu arrived shortly thereafter.  The two men then entered the rear of a house.

1. Once they had entered the house police executed a search warrant and entered the premises.  Upon entry they found the two men in a rear bedroom.  Also located in the room was a yellow plastic bag found to contain three packages containing methamphetamine.

1. Forensic analysis revealed that the packages contained 4986.1 grams of methamphetamine at 79.7 per cent, yielding a total net weight of 3973.9 grams of methamphetamine.  As the sentencing judge observed, the total quantity trafficked or attempted to be trafficked was 5.3 times the commercial quantity applicable to methamphetamine.  The wholesale value of the drug was estimated to be between approximately $997,220 and $1.59 million and the street value was estimated to be approximately between $2.49 million and $4.98 million. 

Relevant findings

1. The sentencing judge found that with respect to the culpability of Chu that in each case — both importation and trafficking — Chu was ‘part of the organising chain’.[2] 

   [2]Ibid [60].

1. His Honour further found that Chu’s motives were ones of financial reward. 

1. His Honour accepted that although Chu had not pleaded guilty until the stage of a pre-trial hearing, because those pleas were entered following notice of additional evidence they should be regarded as having been made at the earliest practical date. 

Personal considerations

1. Chu was aged 31 at the date of sentence.  He had been born in Hong Kong but moved to Australia when aged 11.  He had no prior convictions but did have subsequent drug offence convictions dating from December 2016.  He was on bail at the time of the offending now in issue.

1. The sentencing judge detailed a series of matters personal to Chu.[3]  They included the fact that he had been in a de facto relationship since his early twenties and had two young children.  He had begun using cocaine at the age of 23 and had been a regular user since.  He was educated to year 11 level and had a solid work history.  He had completed qualifications in motor mechanics and building and construction.  He went back to Hong Kong in 2013 and established his own business installing fibre optic cable in commercial premises.  He returned from Hong Kong in 2014 and was arrested for drug offending at that time.  He spent three months in custody before he was bailed.  Whilst in custody he met people who had contacted him upon his release.  He was at an emotionally low ebb and in financial need and involved himself in the offending in this context.  He had expressed genuine remorse.

   [3]Ibid [38]–[46].

1. Ultimately his Honour specifically accepted the following matters in mitigation of sentence:

In mitigation in your case, Mr Chu, I take into account the submissions of your counsel and, in particular, I accept:

·your pleas of guilty and that they were entered ultimately in what must be considered an early practical stage in the circumstances because of the requirement for further evidence;

·your expressions of remorse which I accept is genuine;

·the absence of prior convictions;

·your character otherwise which suggests that you are well regarded by others as a responsible, loving and caring family man who has worked hard in the past and has given time generously to homeless people;

·that you had suffered a downturn in your life following your return from Hong Kong and resorted to regular cocaine use - although the drug use does not excuse your conduct I accept that you were at an emotionally low ebb when you became involved in these matters;

·that whilst in custody you have applied yourself to rehabilitative courses - in light of your family support and with further reflection on your part, I regard your prospects of rehabilitation as fair; and

·the anguish that you will endure as your wife and young children will pass through life in the community without your presence.[4]

[4]Ibid [62].

1. His Honour also took into account the question of totality, including an allowance for the fact that Chu had spent time in custody for the subsequent conviction.[5]

   [5]Ibid [65].

1. Nonetheless, the sentencing judge also emphasised the significance of general deterrence in cases of this type:

The offending by both of you is, of course, serious.  The availability of illicit drugs in the Australian community is a cause of much misery and consequential criminal activity.  The sentence imposed for drug importation and trafficking, including attempted trafficking, must signal to offenders, or potential offenders, that the potential financial rewards to be gained for such activities are neutralised by the risk of severe punishment.  Each of you would have been aware that the value of the drug was likely to have been high in each instance.  They are crimes which require prominence in sentencing of what the law calls general deterrence.  That is, the sentence that you each receive is partly designed to deter others from engaging in the same type of conduct.  Other considerations are specific deterrence to you, denunciation by the court and the protection of the community, balanced with your personal circumstances and matters in mitigation.[6] 

[6]Ibid [58].

The ground of appeal

1. The proposed ground of appeal is particularised as follows:

That the individual sentence imposed on charge 2; the cumulation imposed on charge 1; and the resulting total effective sentence is manifestly excessive;

Particulars

a.        the applicant has no relevant prior convictions;

b.the applicant pleaded guilty to the charges at an early practical stage of the proceedings;

c.the applicant’s role, while correctly characterised by his Honour as being ‘part of the organising chain as opposed to being a basic courier’, did not warrant the sentence which was imposed; and

d.[the sentencing judge did not give due regard to all relevant considerations].

1. In our view, neither the individual sentences imposed on charge 2, the cumulation imposed on the sentences for charge 1, or the total effective sentence, could sensibly be characterised as manifestly excessive.

1. The sentencing judge took into account each of the matters identified in the particulars furnished of the proposed ground of appeal. 

1. They fell to be weighed against the fact of two serious offences, for which the maximum penalty is life imprisonment. 

1. The quantities of the drugs involved were substantial, and of high value. 

1. Chu was a mature offender.  His motives were ones of financial gain and the judge was entitled to find that he had an organisational role above that of a mere courier. 

1. Insofar as it was submitted that the sentence imposed could only be appropriate (given all other relevant considerations) to an offender with an even higher role in the drug importation and trafficking enterprises than that found by the sentencing judge we do not agree.  Chu’s role was plainly a significant one involving a high degree of culpability. 

1. Considerations of just punishment, and general and specific deterrence required sentences in the order of those imposed.  General deterrence required lesser weight to be given to personal factors than might otherwise have been the case.[7]

   [7]DPP (Cth) v Thomas (2016) 347 ALR 275.

1. Reference to the cases cited by the Commonwealth Director demonstrates that there is no inconsistency between the level of the sentences imposed and current sentencing practice with respect to broader comparable cases.[8]

   [8]DPP (Cth) v Thomas (2016) 347 ALR 275; DPP (Cth) v Wu [2016] VCC 141; R v Agboti (2014) 246 A Crim R 72; Saab v The Queen [2012] VSCA 165; Legault v R [2014] NSWCCA 271; Hui v The Queen [2015] VSCA 314.

1. Neither the individual sentences imposed nor the total effective sentences was so plainly excessive as to bespeak error of principle.[9]

   [9]Nguyen v R (2016) 331 ALR 30 46, [66] (Gageler, Nettle and Gordon JJ). R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ), and the cases there cited.

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