DPP v Quah [2019] VCC 1158

3 Those assertions are patently false, as your guilty pleas to trafficking in a large commercial quantity of methylamphetamine and to possession of property suspected to be the proceeds of crime in respect of the cash, acknowledge.

4 In fact, the methylamphetamine, which was found in three separate bags weighing just under a kilo each and in three separate containers - two in one room of the apartment and one in another - was of high level purity, ranging from 77 to as high as 89% pure.

5 The quantity of methylamphetamine found in the execution of the warrant is a large commercial quantity. In fact, 750g by law constitutes a large commercial quantity. This was just under four times that amount. Possession of that quantity of methylamphetamine is, by law, treated as possession for the purpose of trafficking. The large amount of cash, the scales and deal bags, the firearm, ammunition and prohibited weapons are all too common trappings of a trafficking enterprise. Although Mr Dickinson QC submitted at one stage that

I should sentence you on the basis that the explanation you advanced in your interview was true or could not be excluded - that is, that you had been reluctantly saddled with unsaleable methylamphetamine in discharge of a debt - this did not sit comfortably with the other submissions put on the plea or with the explanation advanced by you to the psychologist, Mr Luke Armstrong, on whose report you otherwise sought to rely. That explanation was that you had been engaging in trafficking in methylamphetamine as a means of making money well in excess of what you needed to support what you said was a significant and expensive cocaine habit.

6 In any event, as a result of what was found when the warrant was executed, you have pleaded guilty to and come to be sentenced before me for the following charges.

7 Charge 1, trafficking in a large commercial quantity of methylamphetamine on 2 January 2019. The amount in total was 2867.7 grams and the maximum penalty for that is life imprisonment or 5000 penalty units.

8 Four charges of possession of small quantities of drugs. Charge 2, possession of 0.3 grams of cocaine. Charge 3, possession of 0.6 grams of MDMA. Charge 4, possession of 24.7 grams of 1.4 Butanediol. Charge 5, possession of 0.2 grams of heroin. The maximum penalty for each of those charges is 12 months' imprisonment, 30 penalty units or both.

9 So far as the firearm and ammunition found when the warrant was executed is concerned, you have pleaded guilty to Charge 6, possession of an unregistered general category handgun. The maximum penalty for that is 7 years' imprisonment or 600 penalty units. The maximum penalty for Charge 7, being an unlicensed person failing to store a firearm in a secure manner, is 4 years' imprisonment or 240 penalty units. The maximum penalty for Charge 8, being an unlicensed person failing to store ammunition in a secure manner, is 4 years' imprisonment or 240 penalty units.

10 In addition, you have pleaded guilty to a number of related summary charges. So far as the prohibited weapons are concerned, you pleaded guilty to Charge 9, possessing 2 butterfly knives, one silver and one black, Charge 10, to possessing knuckle dusters, Charge 12, to possessing an extendable baton, and Charge 13, possessing the kubotan. The maximum penalty for each of those charges is two years imprisonment or 240 penalty units.

11 You have also pleaded guilty to a final related summary charge, Charge 19, dealing with property suspected of being the proceeds of crime, namely $86,660 in cash. The maximum penalty for that offence is imprisonment for two years.

12 Charge 1, the large commercial quantity trafficking, is a standard sentencing offence. The Sentencing Amendment (Sentencing Standards) Act 2017 came into effect on 1 Feb 2018 and applies in respect of offences committed after that date. This offence was committed about 11 months after that Act came into effect.

13 The standard sentence prescribed by the amending Act for large commercial quantity trafficking is 16 years' imprisonment. The amending Act also introduces a standard non-parole period, being 60 percent of that 16 years.

14 Helpful submissions were provided by the prosecution and accepted as correct by Mr Dickinson on your behalf. The parties were agreed that that the approach of Champion J in R v Brown[1] was the correct approach to follow.

15 Both the maximum sentence prescribed for Charge 1, namely life imprisonment and the standard sentence, namely the sentence that takes into account only the objective factors affecting the relative seriousness of the offence of large commercial quantity trafficking in the middle range of seriousness are properly to be regarded as legislative guidepost in the sentencing process. I note that, by the amending act, and as reflected too in the explanatory memorandum, the instinctive synthesis approach to sentencing which is part of the common law in this state is specifically preserved.

16 It follows that the standard sentence does not assume a dominant role in determination of the sentence imposed for that charge. The standard sentence prescribed by Parliament for the offence is simply one of the relevant sentencing factors to which the court must have regard, along with the other sentencing factors identified and which are required to be taken into account under s 5(2) of the Sentencing Act.

17 That is, in addition to the maximum penalty prescribed and the standard sentence, current sentencing practices, the nature and gravity of the offence, your culpability and degree of responsibility for the offence, whether the offence was motivated by hatred for or prejudice against a group of people, having characteristics belonging to or believed to be belonging to the victim, the impact of the offence on any victim, the personal circumstances of any victim, any injury, loss or damage resulting directly from the offence, whether you pleaded guilty and the stage of the proceedings at which you did, your previous character, the presence of any aggravating or mitigating factors and any other relevant circumstances.

18 I note that, so far as consideration of current sentencing practices are concerned, s 5B(2)(b) requires a court, when considering current sentencing practices for a standard sentence offence, to only consider sentences previously imposed where the relevant offence was subject to the standard sentence scheme.

19 I have been told there are no other sentences which have been imposed for trafficking in a large commercial quantity of methylamphetamine or any other drug, for that matter, since the standard sentencing scheme was introduced. Therefore, there is no current sentencing practice for this offence to which

20 Before leaving general principles, I note that the amending act does not in any way cut across or interfere with the clear legislative prescription in s 5(1) of the Sentencing Act as to the only purposes for which sentence may be imposed. They are: to punish the offender to the extent and in a manner which is just in all the circumstances, to deter the offender or other persons from committing offences of the same or similar character, to establish conditions within which it is considered by the court that rehabilitation of the offender may be facilitated, the manifestation of denunciation by the court of the type of conduct in which the offender engaged, to protect the community from the offender or a combination of two or more of those purposes.

21 This is the first time that you have been charged with trafficking and your first appearance before this court.

22 However, at the age of now 31, 30 at the time of the execution of the warrant and the charges, and with your background of privilege, opportunity and intelligence, it is disturbing to view your criminal record.

23 In 2008, you were sentenced for offences of affray, possession of a prohibited weapon, possession of a controlled weapon and possession and use of ecstasy.

24 In 2009, you were sentenced, for a second time, for affray and two further charges of possession of a prohibited weapon. On that occasion, you were also sentenced for one charge of recklessly cause injury. On each of those occasions, a community correction order was imposed, the first time without conviction, the second time, with conviction. Just after the 12-month term of that second CCO expired, you were fined for yet another charge of possess a prohibited weapon.

25 In the 10 years since that last court appearance, you have not been charged with any other offences. So whilst on the one hand, those three 2008-2009 court appearances can be regarded as youthful folly, they are serious offences and they do provide some context and some significance when sentencing you for some of the offences for which you are before me today.

26 It was put on your behalf that you had an interest in weapons, particularly martial arts weapons, that you were a collector of them and that the possession of the firearm was consistent with a collector's interest. It was put that that provided an, if not innocent, at least anodyne explanation for your possession of the firearm and ammunition, as well as the other weapons that were found on the day of the execution of the warrant, and that I should not regard them as accoutrements of drug-trafficking activities.

27 I disagree. In my view, your history of possession of prohibited weapons, coupled as it is with the convictions for affray, and the locations in which the prohibited weapons and the firearm were found in your apartment on the day of the execution of the warrant do not sit comfortably with an explanation of collector's interest.

28 The possession of the firearm and the weapons are separate charges from the trafficking charge. I understand and accept that I must avoid the risk of double punishment. However, in my view, the finding of the gun, the ammunition and the other weapons are properly to be regarded in the context in which your drug trafficking activity must be seen for this single-date charge. They bear on the assessment of the objective seriousness of the charge of large commercial quantity trafficking.

29 As noted in the prosecution summary, the gun was found in a Louis Vuitton box, unsecured in the living room of the apartment. One of the butterfly knives and the knuckledusters were found near the box containing the gun. They were all on the television stand. Also in the living room, but in a different place, was the extendable baton and, in a different place again, the 20 hollow-point bullets that are the subject of the failure to securely store the ammunition charge.

30 The other butterfly knife was found in your bedroom, in the laundry basket, and the kubotan was found in the kitchen. In other words, these weapons were spread across the apartment.

31 I accept the prosecution submission that this is mid-range offending.

The quantity of methylamphetamine, 3.8 times the threshold for a large commercial quantity, the number and location of the weapons, the amount of cash and the presence of scales and deal bags all point to this being a continuing commercial enterprise.

32 You acknowledged as much to Mr Armstrong, the psychologist.

And although again I acknowledge that I must sentence you for trafficking by reason of your possession of that quantity on the day of the execution of the warrant, there is nothing to suggest that you were involved in a one-off single day transaction. Indeed, this has every appearance, consistently with what you told Mr Armstrong, and as it appeared to me was ultimately acknowledged in the course of the plea, that you were engaged in amphetamine trafficking, not just to pay for your own cocaine use, but for profit. You apparently wanted to demonstrate that you could be a financial success.

33 Mr Dickinson relied for your personal history predominantly on what had been recounted by you to Mr Armstrong.

34 To Mr Armstrong, you gave a history of feeling alienated from and unloved by your parents as a child. As Mr Armstrong noted in his oral evidence which supplemented his report, that your parents, particularly your father, displayed an expectation that you would achieve well academically. You are obviously intelligent, maybe even highly intelligent. Your father's expectations, in particular that you achieve well academically, it appears, was interpreted by you as meaning that you were never good enough to please him. From your childhood, it appears that you were exhibiting behavioural problems manifested particularly in opposition to your father and to authority generally. According to Mr Armstrong, you struggled throughout your adolescence and into your early adulthood to regulate anger and to take rejection.

35 You were born in Singapore. Your parents are Singaporean citizens - your father, Singaporean by birth, your mother, Malaysian by birth. When you were 9, your parents migrated to Australia, bringing you and your two sisters to this country. It would appear that they did so in order to afford you the educational opportunities that were available here. Up until Year 8, you went to Melbourne Grammar and then, apparently as a result of a downturn in the revenue generated by the restaurant that your parents owned and operated, you were removed from Melbourne Grammar. You obtained entry to Melbourne High, a selective-entry high school with an excellent academic record.

36 You are obviously of considerable intelligence. But both at Melbourne Grammar and thereafter at Melbourne High, it appears that you engaged in challenging behaviours including truanting, fighting and drug use. It would appear that you were expelled from Melbourne High during your VCE year and transferred to RMIT. You completed and obtained your VCE and you were accepted into a tertiary course at RMIT. It would appear that your attendance at university was desultory, your achievements considerably less than your capacity, having regard to the quality of your secondary schooling, the opportunities that you had been afforded and your intelligence and ability.

37 After tensions escalated within the family, particularly with your father after you finished your secondary schooling, and your recognition that you were already experiencing problems with drug abuse, ecstasy apparently being your then substance of choice, you went back to Singapore. You did so knowing not only of its very strict drug laws and the consequences for breach of them, but knowing also that to return at the age you did meant that you would be required to undergo national service. You did so, apparently hoping that the discipline of national service and the discouragement of drug use or abuse caused by Singaporean drug laws would assist you to overcome your substance abuse. It appears that you were successful.

38 You did, by all reports, very well on national service. You received commendations and medals from your superiors. By the time you completed service, you were a platoon sergeant. An impressive discharge testimonial was provided to me showing how well you could do when you accept the discipline imposed on you, something that you seemed to struggle with within the family dynamic.

39 You returned to Australia from Singapore and to the support of your family. You went to university and obtained a degree, but were unable to find employment and financial reward consistent with your expectations. Whilst at university, you had met your partner, a young woman who had a significant amphetamine habit. It would appear that at this time you began to use both amphetamine and cocaine.

40 You decided to go Singapore again, this time with your partner.

This appeared to be in the hope, not only of becoming and remaining substance-free again, but also, in pursuit of entrepreneurial and financial success. Apparently, you hoped success would give you the recognition for your achievements in your father's eyes that you felt you had been lacking.

41 In the two years that you were in Singapore on the second occasion, you reported you became and managed to remain substance-free. So too did your partner. However, employment opportunities or business opportunities were not sufficient to allow you to launch your career in the way that you had hoped, or to generate the financial success that you had hoped for. Again, you returned to Australia.

42 You reported tensions continued within the family unit and you returned to substance abuse, particularly to cocaine. Your partner, who returned with you to Australia, also returned to substance abuse, she apparently again to use methylamphetamine. Your drug use, you reported, spiralled rapidly downhill, generating what you told Mr Dickinson and Mr Armstrong was a cocaine habit of up to $2,000 a day.

43 And it is in that context and against that background, that the police executed the warrant at your apartment, and that large quantity of methylamphetamine, a drug that apparently you were not then using but only trafficking, was found.

I accept that all of the other substances found in the apartment were for personal use and I will deal with you for possession of them on that basis.

44 You have been in custody since your arrest and remand on 2 January this year. I am told that you have not only been drug-free, but you have also come to appreciate the impact of your drug-trafficking on so many of your fellow prisoners. You have seen prisoners who are substance-impaired, something I note you had already seen with your partner whilst you were at liberty. You report you have now seen the cycle of offending and other antisocial behaviours that have led so many people who were, as you now understand them to be, the victims of people like you who traffic for profit, and who find themselves serving prison sentences for offences related directly to their amphetamine use or for offences committed in order to feed their habit.

45 I accept that you are now expressing an understanding of the impact of methylamphetamine abuse on a large cross-section of the community, many of whom find themselves ultimately in prison. You apparently now acknowledge that your role in trafficking helped create this misery and cycle of offending for so many other people. It is obviously a great pity, given the two occasions when you removed yourself to Singapore and became drug-free and your exposure to the devastation that amphetamine addiction apparently wrought on your partner, that you were nonetheless able, whilst at liberty, to rationalise your behaviour in making a business of profiteering from trafficking in this drug of misery.

46 Mr Armstrong assesses you, not surprisingly, as having a substance use disorder. He also assessed you as having a borderline personality disorder, which compounded the development of your personality by reason of your family dynamics or your perception of them, as he put it. Neither the substance use disorder nor the borderline personality disorder constitute mitigating factors for this offending and I note specifically that Mr Dickinson expressly disavowed reliance on the principles in Verdins.[2]

47 There is therefore, on this analysis of the materials provided to me, in my view, nothing in your personal circumstances that mitigates or leads to mitigate any findings as to the objective seriousness of the offending.

48 It is clear that just punishment, deterrence, both general and specific and denunciation all must loom large in the sentencing mix.

49 Large commercial quantity trafficking, for profit, is a pernicious and insidious offence. It causes misery, misery that you saw by reason of your partner's habit, to countless people. And as you now appreciate, not just to the people who are addicts or users, but to their families, their friends and to the broader sections of the community who also are adversely affected by people who, because of addiction, commit terrible offences either to feed their addiction or because of the influence of drugs on them. People who think that they can lend themselves to this trade for profit, or to enjoy the trappings of financial success must face stern punishment to deter them and to deter others like-minded.

50 I am satisfied that you have demonstrated, by your two periods when you returned to Singapore, that you have the capacity to manage and control your own substance abuse. I am satisfied that you have sufficient intelligence to be able to study, educate yourself, engage in gainful employment and use your intelligence and capacity to good purpose if you choose to do so. And I am satisfied that you are presently motivated to use your time in custody well and to plan to do something better and more worthwhile with your life upon your release.

51 For all of these reasons, I am satisfied that your prospects for rehabilitation are good, provided you do remain substance-free on your release and turn your efforts to legitimate means of supporting yourself, and that should be properly factored in to the sentence.

52 Mr Armstrong recommends that, upon your release, you not only have significant assistance in relation to relapse prevention for your substance abuse, assisting you to identify the triggers for substance abuse and to be better able to avoid it, but also, that you engage in appropriate psychological therapy to address what he described as your "personality disturbance". I can only echo and support his recommendations and recommend that, if such therapy is available to you in custody, that you take advantage of it and anything else that is available to you.

53 You are fortunate to have the continued support of your mother and your siblings. I suspect that, if you start to prove yourself, not necessarily in terms of getting the highest mark at school or university, or making the most money of any son, but just as a worthwhile person, you will come to earn, understand and value the esteem and regard of your father as well. That is for the future. But you are fortunate to have the continued support of your mother, sisters and partner. That stands you in good stead to assist you during your time in custody and to look forward to a more meaningful and rewarding life upon your release. I take that into account as a very positive rehabilitative factor. I was very touched by the letter that your mother provided to the court that shows her unstinting love.

54 I have already noted that I consider the offending, looked at objectively, falls in the mid-range of offending, having regard to the objective circumstances. Notwithstanding the presence of the firearm and the other weapons, the large amount of cash, the scales and the deal bags and the sheer quantity of methylamphetamine found, I also accept Mr Dickinson's submissions that there are often, in cases that otherwise are characterised as mid-range offending, other and more serious aggravating features. Therefore, whilst at one level, it can be said to be objectively mid-range, it can also be said to be at the low-end of mid-range.

55 I have ultimately come to the conclusion that the appropriate sentence to fix, applying all of the sentencing factors, including consideration of the standard sentence, and as a matter of intuitive synthesis, that the just and appropriate sentence for charge 1 falls a little below the standard sentence for an offence of objective and mid-range seriousness.

56 Having said that, I want to make it clear I am not engaging in a two-tier process, but rather that I appreciate, when sentencing for a standard sentencing offence, one factor I must have regard to is the prescribed standard sentence, and that I must express my reasoning for fixing on the sentence which I determine is appropriate.

57 As this is not the only offence for which you come to be sentenced and, in my view, cumulation is required in respect of some part of the sentence for some of the charges, I must of course have regard to totality. I must avoid a sentence that is crushing and give proper weight to encouraging your prospects for rehabilitation. Ultimately, the total effective sentence that I have fixed upon is slightly above the standard sentence for the single charge of large commercial quantity trafficking. That is the product of the application of instinctive synthesis to the sentencing principles I must have regard to.

58 It also follows, again, because of the number of other charges and the way in which I consider they should be dealt with, by way of the cumulation or partial cumulation orders, and the synthesis of all of the sentencing factors, ultimately, the non-parole period against that total effective sentence is slightly higher than the 60% non-parole period prescribed for a stand-alone single charge standard sentence for large commercial quantity trafficking.

59 So that is, as best as I can articulate it, the reasoning that has informed my approach to the individual sentence for large commercial quantity trafficking, the individual sentences for the other charges, the sentences where I have imposed either full or partial cumulation and the new non-parole period.

61 Cain Quah, on all charges to which you have pleaded guilty, you are convicted.

62 On Charge 1 of trafficking in a large commercial quantity of methylamphetamine, you are sentenced to be imprisoned for a period of 15 years and I fix that as the base sentence.

63 On Charge 2 of possession of cocaine, you are sentenced to be imprisoned for 7 days.

64 On Charge 3, possession of MDA, you are sentenced to be imprisoned for a period of 7 days.

65 On Charge 4 of possess 1.4 Butanediol, you are sentenced to be imprisoned for a period of 7 days.

66 And on Charge 5, possession of heroin, you are sentenced to be imprisoned for a period of 7 days.

67 On Charge 6 of possession of the handgun, you are sentenced to be imprisoned for a period of 18 months.

68 And I direct that 12 months of that be served cumulatively upon the base sentence and the other cumulation orders I am about to pronounce.

69 On Charge 7 of failure to safely store the firearm, you are sentenced to be imprisoned for a period of 6 months and I direct that 1 month of that be served cumulatively.

70 On Charge 8 of failure to store the ammunition, you are sentenced to be imprisoned for a period of 3 months.

71 On Charge 9 of possess prohibited weapons, that is the two butterfly knives, you are sentenced to be imprisoned for a period of 1 month and I direct the whole of that be served cumulatively.

72 On Charge 10 of possession of a prohibited weapon, that is, the charge in relation to the knuckledusters, you are sentenced to be imprisoned for a period of 1 month and I direct the whole of that be served cumulatively.

73 On Charge 12 of possession of a prohibited weapon, the extendable baton, you are sentenced to be imprisoned for 1 month and I direct the whole of that be served cumulatively.

74 And on Charge 13, possession of the kubotan, you are sentenced to be imprisoned for 1 month and I direct the whole of that be served cumulatively.

75 On Charge 19, the charge of possession of proceeds of crime, you are sentenced to be imprisoned for a period of 6 months. I make no cumulation order in respect of that, having regard to what I have said in relation to it and the trafficking, that is, to Charge 1.

76 That makes a total effective sentence of 16 years and five months and I fix a non-parole period of 10 years.

77 Pursuant to s 6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you to a total effective term of 22 years' imprisonment and fixed a non-parole period of 16 years.

79 MS MILARDOVIC: Two hundred and five days, not including today, your Honour.

80 HER HONOUR: I declare that you have spent 205 days in pre-sentence detention and direct that that be counted and deducted administratively and I make the forfeiture and disposal orders sought. Any further orders that are required to be made?

81 MS MILARDOVIC: Yes, Your Honour. There's one disposal order.

82 HER HONOUR: I said that I make the forfeiture and disposal orders sought.

83 MS MILARDOVIC: There are no further orders. Thank you, your Honour.

84 HER HONOUR: Arithmetic correct? Is the arithmetic correct?

85 MS MILARDOVIC: Just one moment, your Honour. It is, Your Honour.

87 HER HONOUR: Thank you. Can you please remove Mr Quah?

88 Pursuant to s 6F, I declare that you are sentenced as a serious offender and direct that be entered in the record of the court.

[1] [2018] VSC 742.

[2] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.