CDirector of Public Prosecutions v Chan & Chen
[2022] VCC 1463
•12 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00156
CR-19-02539
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICK SUI CHAN AND KWUN LAM CHEN |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 2-25 May 2022 | |
DATE OF SENTENCE: | 12 September 2022 | |
CASE MAY BE CITED AS: | CDPP v Chan & Chen | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1463 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Import a commercial quantity of a border controlled precursor – Ephedrine – Verdict of guilty – Joint commission – Agreement – Syndicate
Legislation Cited: s307.11(1) Criminal Code (Cth)
Cases Cited:R v D’Aloia [2006] VSCA 237; R v Cheung Wai Man (unreported, NSWSC, 22 March 1991); R v McLeish (1982) 30 SASR 487; DPP v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063; Gregory (a pseudonym) v R (2017) 268 A Crim R 1; Fernando v R [2017] VSCA 208; Director of Public Prosecutions v Condo [2019] VSCA 181; R v Pidoto andO’Dea [2006] VSCA 185; Nguyen v R [2010] VSCA 127; DPP (Cth) v Omar [2019] VSCA 188; Suri v DPP (Cth) [2014] VSCA 260; Topal v R [2019] VSCA 289; R v Dries [2020] NSWDC 872; Brar v R (2016) 263 A Crim R 67; ES v R [2014] NSWCCA 268; Standen v R [2015] NSWCCA 211; Li v R [2021] NSWCCA 100; R v Pham (2015) 256 CLR 550; Thomas v R [2021] VSCA 97; R v Verdins (2007) 16 VR 269
Sentence: Rick CHAN: 18 years imprisonment, non-parole period of 14 years
Kwun CHEN: 17 years and 6 months imprisonment, non-parole period of 13 years and 10 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr S Ginsbourg | Solicitor for the Commonwealth Office of Public Prosecutions |
| For the Accused Chan | Mr S Kennedy | Bowler Man & Co |
| For the Accused Chen | Mr C Pearson | Theo Magazis Lawyers |
HIS HONOUR:
1Mr Rick Chan is aged 59, having been born in March 1963, and is a real estate agent. Mr Kwun Lam Chen is aged 56, having been born inDecember 1965, and is a manager of rentals and immigration agent. Mr Chan was represented by Mr Kennedy, Mr Chen was represented by Mr Pearson, and the prosecutor in the trial was Mr Ginsbourg, appearing on behalf of the Commonwealth Director of Public Prosecutions.
2For the purposes of this sentence, as adopted in the trial, I will call Mr Chan, Rick and Mr Chen, Kwun.
3The trial of the Commonwealth Indictment dated 20 August 2021 began on 2 May 2022, with the jury empanelled on 3 May. The trial proceeded for 17 days, both accused having pleaded not guilty to the charge.
4On 25 May 2022, the jury returned a verdict of guilty against each accused.
5The matter was adjourned for plea to 4 July 2022 and then adjourned for further plea to 29 August 2022.
6In the further plea on 29 August, tendered were the following exhibits:
·C: email requests from Court to counsel of 7 July 2022;
·D: prosecution submission in response by way of email dated 22 July 2022;
·R4: response submission of Mr Kennedy dated 17 August 2022;
·R5: report of eye surgeon Dr Kong dated 26 June 2021;
·R6: MRI report dated 1 July 2021;
·R7: further report of eye surgeon Dr Kong dated 28 August 2021;
·K3: neurological report of Mr Staios dated 26 August 2022;
·K4: further outline of submissions of Mr Pearson dated 28 August 2022; and
·K5: second further outline of submissions of Mr Pearson dated 29 August 2022.
7The charge on the indictment is a breach of sub-section 307.11(1) of the Criminal Code (Cth) 1995: being the joint commission of the crime of importing a commercial quantity of a border controlled precursor, namely ephedrine, into Australia, such importation being effected on 16 February 2019. Pursuant to the section, the maximum penalty prescribed for such an offence is 25 years’ imprisonment and/or 5,000 penalty units.
8At the plea, the prosecutor tendered exhibit A, being the prosecution submissions on plea hearing.
9Given the written submissions of the prisoners, I accepted them on the basis that they were at odds with the prosecution as to factual matters.
10As it developed, however, Mr Pearson accepted that the jury verdict clearly involved a rejection of the proposition that Kwun was involved in the importation of cigarettes. Hence Mr Pearson accepted Kwun’s role was the management of sales upon landing of the precursor in Australia and the description as the sales manager in regard to the ephedrine upon arrival in Australia.
11As to Rick, Mr Kennedy maintained, as detailed in his submission (exhibit R1) as follows:
(a) his client’s role was limited, and occurred after the precursor arrived in Australia, being that of a storage facilitator;
(b) that Rick was a much lesser player than others;
(c) that Rick had a lack of knowledge as to the size of the importation;
(d) that the only evidence of financial gain from the crime for Rick was the payment of $2,700.
Mr Kennedy submitted that any other finding would be unwarranted on the evidence.
Summary of crime and roles
12In the trial, the prosecutor summarised the crime and roles to the jury, and also maintained the same at the plea as follows:
· The agreement was formed on or before 17 January 2019 and the parties to same were:
§In Hong Kong or China: Hong, Bee and others who arranged to purchase and load the ephedrine onto the boat at Lanshi Port;
§Rick in Australia was in charge of the logistics in regard to the landing of the ephedrine and the delivery of such ephedrine from the port to the storage site at 105 Williams Road, Caulfield;
§Kwun’s specific role was to seek finance for the project and to handle the processing and sales of the ephedrine in Australia to thereby obtain funds to be split amongst all participants.
Background
Setup stage
13These matters were detailed precisely to the jury by the prosecutor and further by myself in my charge.
14Essentially, such involved the setup of a ruse of a legitimate importing tiles businesses, and the effecting of four “dummy” runs to test the importation process whereby, from 2 December 2018 to 10 January 2019, a total of nine containers of tiles landed in Melbourne.
15All such containers contained tile glue, which on the evidence before the Court was not necessary to import as such is easily obtained in Australia.
16In order to effect this ruse, Rick set up with Hong in China, and as a result of Hong’s visits to Australia in June, August and October 2018, the ostensible businesses of importing tiles. In that regard, Rick set up corporate entities, warehouses and contacts with, in particular, AU Tile Company (Sri Lankans) and PPM Enterprises Pty Ltd (Denny Chan) from June 2018 to January 2019.
17As to such businesses, they were never likely to succeed, as, for example, the so-called exporter was not wanting to be paid until sales were made by importers in Australia, and the operators of the alleged tile businesses were receiving their goods in circumstances where all import fees and duties had been already paid, which upon the evidence before the jury was particularly unusual.
18The delivery of tiles in the dummy runs were of tiles not fit for purpose.
19The failure to effect any sales of significance.
20Given the above, such led to the connections made by Rick, in particular, Denny Chan in January 2019, requesting no further delivery of tiles and, further, that the remainder of tiles which were at the PPM warehouse in Dandenong be removed to the Williamson Road store and/or the address of the twins. By the date of the happening of the crime – that is, the entry of the precursor into Australia – there were no effective sales or business operations, nor was there likely to be.
21As to Kwun, in regard to this setup stage, there is no direct evidence of his role, albeit he was in China from 28 October 2018 to 1 December 2018. He apparently was also conducting at the same time illegal importations of cigarettes into Australia and providing services for persons immigrating to Australia. Whatever he was doing during such period, the end result was that Kwun was without funds. His businesses (nefarious or otherwise) were unsuccessful, he could not pay his children’s private school fees in Australia, and he was evicted from his business premises in Box Hill.
Meetings in Melbourne
22On 2 December 2018 (coincidentally, approximately when the first of the dummy run containers arrived in Melbourne), Kwun had returned to Melbourne and that day met separately in Box Hill with Hong. Later that day, Hong met with Rick.
23The next day, 3 December 2018, Rick flew out from Melbourne to China, and three days later, Hong returned to China.
24In China, on 12 December 2018, in Guangzhou (approximately 20 kilometres from Foshan), Rick met with Bee and Hong.
25On 13 December 2018, Rick went to Foshan, being the town out of whose port the ephedrine was ultimately loaded on 17 January 2019. During this period, Kwun was seeking finance for the enterprise, in particular from his business partner Chunying Zhang (Telephone Intercepts, exhibit L on the trial).
Journey of the ephedrine
26From the time the ephedrine left China, there is ample evidence of Rick taking steps to ensure control of such forbidden load, in the sense of securing the separation of the ephedrine from the balance of such load, its passing through Customs and ultimate landing in a warehouse where it could be accessed by the syndicate. Such close personal supervision also related to the delivery from the warehouse to the house of the twins on 25 February 2019.
27As to Kwun, during the journey of the ephedrine, there is ample evidence as to his interest in the load and his wish to profit from it. In particular, his concern when the load was stopped in Customs must be seen to relate to the ephedrine as the jury found by their verdict. As Mr Pearson said, the jury must implicitly have rejected Mr Pearson’s submission that Kwun was in fact expecting a load of cigarettes.
Findings
28I am satisfied beyond reasonable doubt upon the evidence that was before the jury:
(a) that the jury rejected Mr Pearson’s argument that Kwun thought he was involved in the importation of cigarettes arranged by his brother Hong, and that he had been hoodwinked by Hong, who was actually dealing with ephedrine precursor, unknown to his brother;
(b) that as to Rick:
(i)the jury would have been satisfied beyond reasonable doubt on the evidence that Rick was not only a party to the agreement prior to 17 January 2019, but as to the first scenario as to element 4 put by the prosecutor that Rick was one of the parties involved in the arrangements to source the ephedrine, load and ship it from China, together with other parties to the agreement, and that he thereafter performed his particular tasks as to tile logistics of securing the landing of the precursor on 16 February 2019 and its distribution to the syndicate on 25 February 2019. In that regard I accept the arguments of the prosecution put at the plea [15];
(ii)that Rick’s role was not limited to actions after the unloading of the precursor in Melbourne whereby Mr Kennedy described his client as a mere “storage facilitator”;
(iii)that the jury would have been satisfied beyond reasonable doubt that Rick was a principal and not a lesser player as submitted by Mr Kennedy;
(iv)that there is clear evidence that Rick was fully aware of the size and volume of the ephedrine imported:
-he had organised the ruse,
-he was a party to the agreement,
-approximately a day after the first of the dummy runs of containers landed in Melbourne, he had met in Melbourne with Hong,
-that he went the next day to China, where he met with Hong and Bee, other parties to the agreement, and thereafter went to Foshan, where the ephedrine was ultimately loaded at the port of Foshan, being Lanshi,
-that he was particular as to isolating the ephedrine from the shipment containing the ephedrine and not allowing the ephedrine to fall into anyone else’s hands,
-that he was particular in guiding and admonishing Kwun as to his being careful as to his conversations and fulfilling the tasks designated to him,
-that Rick was fully aware from the shipping documentation designating the loaded goods, being the glue, of its weight.
29I am satisfied beyond reasonable doubt that it could be inferred by the jury upon all the above evidence that Rick knew he was dealing with a commercial quantity of ephedrine.
30While it was not necessary for Mr Kennedy to so submit to the jury, I point out that as to element 4 an absolute liability applies as to weight, and, as to knowledge as to such product being ephedrine, at no stage did Mr Kennedy ever put to the jury that if his argument as to Rick only being involved with the tiles and glue post-arrival in Victoria involvement was rejected, that the jury should consider the issue of knowledge as to Rick being aware that the glue was ephedrine and it being of a commercial quantity.
31In regard to the aspect of knowledge, raised for the first time by Mr Kennedy on the plea in his submissions (exhibit R1), the Court made a request to the parties, per email of 7 July 2022 which was marked exhibit C, as to whether, following the plea, they desired to make any further submission. Mr Pearson did not seek to make any submission. The prosecution made a written submission by way of an email, dated 22 July 2022, which was marked as exhibit D on the plea.
32Mr Kennedy forwarded a further submission of 17 August 2022 (exhibit R4), which in essence put forward the same arguments as in his written submission (exhibit R1), and spoke to such further submission at the further plea on 29 August 2022.
33Upon consideration, I accept the argument of the prosecution that upon the totality of Rick’s involvement, as I have detailed, the weight of the ephedrine being 1052.7 kilograms (commercial quantity threshold being 1.2 kilograms), the ruse businesses, the dummy runs and the expectation of the huge profits, the WeChats between Rick and Bee (exhibit W on the trial), Hong (exhibit V on the trial), Mandy (exhibit X on the trial), the further WeChat messages involving Rick (exhibit Y on the trial) and the telephone intercepts between Rick and Hong, and Rick and Bee (exhibit L on the trial), it is inconceivable that the jury were not satisfied beyond reasonable doubt that Rick had knowledge that the product, he had so assiduously wanted to separate and safeguard, was ephedrine of an enormous quantity.
34I find also, upon such evidence, that it is inconceivable that Rick believed and intended to import into Australia less than 1.2 kilograms of ephedrine.
35As to Mr Kennedy’s argument as to financial gain of his client, true it is that Rick was paid $2,700 upon instructions from Shumin, the partner of Hong, by way of refund of payments made for landing costs. However, given the totality of the evidence I have no hesitation in rejecting Mr Kennedy’s argument, as there is ample evidence that, given the financial potential of the criminal scheme, and the quantity and quality of the precursor, that Rick expected as a principal to receive a share of very large profits, had the sales been realised.
36I formally find, beyond reasonable doubt:
· that Rick and Kwun were principals in this scheme to import a commercial quantity of ephedrine into the country;
· that each participated in the planning of the enterprise, in particular with Kwun’s brother Hong;
· that Rick had fulfilled his particular role in the syndicate (see paragraph 28 of the prosecution submission on plea), being a joint enterprise, by way of the logistics involved in ensuring the delivery of the ephedrine and securing of the ephedrine upon its arrival in Melbourne and post-arrival into Kwun’s possession (albeit at that stage being unaware of the substitution by the police).
· I also find that once the ephedrine was in Kwun’s possession by way of delivery to the twins’ premises, Kwun was therefore in a position, having played a prior role of obtaining finance from Zhang, to then progress his role of the selling, distribution or manufacturing of the product in order to attain the funds to be shared by the whole syndicate, which were anticipated to be in the millions of dollars.
37This crime, jointly committed by both prisoners, I classify as one of utmost seriousness, given:
(a) the penalty prescribed;
(b) the size of the importation, being 1052.7 kilograms;
(c) the potential profits involved. Given the minimum wholesale price per kilogram of $25,000, the total wholesale price in Australia is at a minimum $26,000,000. Such wholesale value of ephedrine could render a return of $87,000,000 once it was converted to methamphetamine hydrochloride; and
(d) the principal roles played by the prisoners in such criminality.
Indeed, I find it is in the worst category of its type.
Applicable sentencing principles
38While a number of the cases I am about to quote relate to trafficking crimes, the principles expressed apply by analogy to this offence.
39As a general approach to sentencing in crimes of this type, Nettle JA, as he then was, said in R v D’Aloia:[1]
“[S]o far as the effects of ... MDMA are concerned, the matter may still be approached on the basis that all of the drugs which are proscribed have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence.”
[1][2006] VSCA 237 at [56]
40Sully J in R v Cheung Wai Man,[2] relating to trafficking of drugs, stated:
“[Such a crime] is in a very real sense a declaration of war on the community. It is a distinct challenge, both to the concepts of human dignity, and to moral values, otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law, which in the end is the ultimate guarantee of the personal freedoms and social stability, which all of us Australians take for granted.”
[2]Unreported, NSWSC, 22 March 1991
41Usually in such sentence I also quote Wells J in R v McLeish,[3] where he bemoans the fact that the courts rarely have the opportunity to pass sentences on principals as to crimes of this dimension. He made the general comment as follows at 492:
“It seems to me to follow that after making all due allowances for the personal circumstances and antecedents of the prisoner, the facts of the particular case and the need to show such mercy as is compatible with the safety of the public, the Court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as to potential recruits, the simple truth that a man who participates in such an organisation at any level – and I repeat, at any level – must expect and will receive a heavy penalty.”
[3](1982) 30 SASR 487
42Again as to a trafficking crime, with the same qualification, I refer to the High Court decision of DPP v Dalgliesh (a pseudonym),[4] which has not dissolved the need for an uplift in sentences as detailed by the Court of Appeal in Gregory (a pseudonym) v R[5] and Fernando v R.[6] Albeit that such uplifted sentencing practice is not a “controlling factor”, it cannot be ignored: see DPP v Condo.[7]
[4](2017) 91 ALJR 1063
[5](2017) 268 A Crim R 1
[6][2017] VSCA 208
[7][2019] VSCA 181 at [20]
43Trafficking methamphetamine is a prevalent offence, which means that the weight to be afforded general deterrence should be increased, such offence harming the community for the criminal’s own profit: Condo.[8]
[8]Ibid at [22]
44As was said by the Court of Appeal in Gregory and Fernando, any attention to individualised sentencing must necessarily have in sharp focus the maximum penalty, the respondent’s role in the drug enterprise, the quantity of the drug actually transacted, and the period over which the offending occurred: Condo.[9]
[9]Ibid at [30]
45As to quantity, I refer to R v Pidoto andO’Dea.[10] The maximum penalty prescribed is always a yardstick, especially in a quantity-based regime (Condo[11]); and further, in Nguyen v R,[12] the Court of Appeal said:
“[I]t is of course irrelevant which drug is being cultivated. So much was made clear by the decision of this Court in Pidoto. Since that 2006 decision the sentencing regime has remained unchanged. ... As the Court said in Pidoto, this is a quantity-based sentencing regime. Although quantity will not bear an arithmetical relationship to sentence, the quantity involved is a very significant matter in sentencing for these offences.”
[10][2006] VSCA 185 at [38]-[41]
[11]Supra, [2019] VSCA 181 at [28]
[12][2010] VSCA 127 at [19]
46Further, in DPP (Cth) v Omar[13] the Court of Appeal said:
“[T]he amount ... involved in an importation will ordinarily be ‘a highly relevant factor in determining the objective seriousness of the offence’. As this Court has previously suggested, making comparative judgments about offence seriousness is made easier when the quantity involved is expressed as a percentage, or multiple, of the [commercial quantity].”
[13][2019] VSCA 188 at [8]
47I also refer to paragraph 33.8.2.3 of the JOIN Victorian Sentencing Manual, warning that of course quantity is not the sole determinant of gravity.
48I also refer to the words of the Court of Appeal in Suri v DPP (Cth)[14] that general deterrence is of paramount consideration in cases concerning importing of commercial quantities of border controlled precursors.
[14][2014] VSCA 260 at [31]
49Finally, given the huge profits contemplated with the importation of such a large quantity of ephedrine, the concept of the role of this sentence as a “counterweight to reward” as detailed in Topal v R[15] must be taken into account.
[15][2019] VSCA 289 at [52]
50The prosecution was at pains to ensure that, while it submitted that the volume of precursor in this case was exceptional (only equalled in the case of R v Dries[16] where the volume was 1300 kilograms of ephedrine), and there being no previous cases considered by appellate courts of this volume or magnitude, it is important for this Court to remember the caution issued by the Court of Appeal in Omar that while quantity is a highly relevant factor in determining objective seriousness, it is not the sole determinant of the gravity of the offending.
[16][2020] NSWDC 872
51As to sentencing, I was referred to a number of cases by the prosecution. Firstly, three first-instance cases set out in the table, exhibit B, on the plea, being:
· Brar v R,[17] which was a trial involving an attempt to import a precursor weighing 218 kilograms where the role of the accused was one of being a substantial intermediary. The prisoner was sentenced to eleven years with a non-parole period of eight years, with leave to appeal refused; and
· secondly, Suri v DPP (Cth),[18] where the accused was convicted at trial involving 100 kilograms of ephedrine, it being a conspiracy case where the prisoner was sentenced to 11 years with a non-parole period of nine, and on appeal 11 years with a non-parole period of eight; and
· finally, ES v R,[19] which was a plea of guilty by way of a principal offender involving the importation of 125 kilograms of pure ephedrine, with a 40 per cent discount for the guilty plea and assistance to the authorities, who was sentenced to two years and two months.
[17](2016) 263 A Crim R 67
[18]Supra, [2014] VSCA 260
[19][2014] NSWCCA 268
52Further in his submission, the Prosecutor provided the Court with the following reports, which the prosecution specifically did not rely upon:
· Standen v R,[20] which was a conspiracy charge to import a commercial quantity, being 300 kilograms of pseudoephedrine, whereby the sentence handed down for the conspiracy was 18 years with a minimum period of 12 years;
· R v Dries,[21] which I have already referred to, which was the sentence in the New South Wales District Court upon a plea of guilty, whereby nine years and four months was prescribed for the role of a trusted assistant in the importation of 1300 kilograms of ephedrine; and finally
· Li v R,[22] which was an appeal following a sentence handed down in the New South Wales District Court on a charge of attempt to import a commercial quantity of precursor, being the attempted importation of 282 kilograms of precursors, whereby a sentence of 11 years and 11 months was passed.
[20][2015] NSWCCA 211
[21]Supra, [2020] NSWDC 872
[22][2021] NSWCCA 100
53While I have considered all of those cases, and all are illustrative yardsticks, I refer in this regard to the comments of the High Court in R v Pham[23]:-
“Where ... decisions of other courts in sentencing appeals are referred to in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as “yardsticks” that may serve to illustrate ... the possible range of sentences available. A court must have regard to such a decision in this way unless there is a compelling reason not to do so...”
[23](2015) 256 CLR 550 at [29]
Plea of Mr Kwun Chen
54As to role played by Kwun, Mr Pearson, while accepting the verdict of the jury classifying his client as a principal in this crime, suggested I should conclude that Kwun’s role was really subservient to his brother Hong. I see no basis for this. I accept that he clearly participated in the criminality to alleviate his financial distress, and that he demonstrated ineptitude in carrying out various tasks that were allocated to him.
55I accept Kwun has no criminal record.
56He migrated to Australia in 1997 and is a citizen of this country. His personal particulars are detailed in exhibit K1, paragraph 8. I note that he had a stroke on 15 December 2016, as detailed in exhibit K2; however, such report indicates that his ongoing issues have been limited, certainly subjectively.
57As to Mr Pearson’s submission as to a reduction in moral culpability for Kwun on the basis of Verdins[24] principles, I note the neurological report of Leonie Simpson dated 19 January 2018 which identified a stroke of 15 December 2016. Kwun, however, discharged himself four days after that stroke, and by December of 2017, when talking to Simpson, had set up a new business after a trip to China, and was still driving, but having, according to his wife, occasional stress owing to the progress of such new business. Despite tests undertaken as part of that consultation, the history from his family identified limited change in cognition and little impact on his daily life from the stroke.
[24]R v Verdins (2007) 16 VR 269
58At the further plea was tendered a further neuropsychological report dated 26 August 2022 of Mr Staios (exhibit K3), which contained within it inconsistencies with the earlier report, in that Mr Chan stated by way of history that he had not worked since his haemorrhage in 2016, nor had he driven. Such also appears inconsistent with the facts before the Court when he clearly was working as an estate agent, importing prohibited cigarettes, and acting as an immigration agent.
59Again he reported no subjective cognitive problems. Mr Staios noted the inconsistencies with the history in the Simpson report [3.3].
60Kwun has other medical conditions of hypertension and type 2 diabetes.
61Again, on observation by Mr Staios, no cognitive or perceptual disturbances were noted, with functional memory being intact [5.1]-[5.2]. Kwun had ongoing vascular risk, and his cognitive status was fine, with his wife noticing no cognitive change following the 2016 incident again [7.3]. The conclusion of Mr Staios was that Kwun would need ongoing care to avoid stress in his life and support for his conditions.
62On the basis of the rigorous evaluation required in regard to such applications, and considering the ongoing and enthusiastic participation of Kwun in this criminality, I would reject the submission set out in exhibits K4 and K5 that the culpability of Kwun’s offending should be reduced in any way. I also note in this regard the authorities tendered by the prosecution, and in particular Thomas v R[25] and the references therein to clear and strategic thinking, planned and purposeful offending, and implausibility, which are all applicable to this application.
[25][2021] VSCA 97, [35]-[36]
63As to Mr Pearson’s submission in exhibit K4 [7(vi)], while no doubt treatment of Kwun’s conditions would be easier in the community, I do not consider such is a basis for the imposition of a shorter minimum than is appropriate, taking all the circumstances into account.
64No doubt principle 5 of Verdins applies to Kwun, and I have taken such into account in the fixing of the sentence and minimum term. Such consideration must be balanced with the necessity to impose an appropriate sentence and minimum term, given the seriousness of the offending in this matter.
65I accept that there has been delay from the offending and the arrest in 2019. Such delay, given the complexity of such matters, is not unusual. However, I take such delay into account. I find that such was through no fault of Kwun. To date he has served 3½ years pre-sentence detention, and I accept that such has been served during times of COVID while he has been on remand, whereby he has been subject to deprivation, and such has been more difficult for him because of his limited English.
66I accept the proposition put by Mr Pearson that, given his client’s history and what might be seen as the opportunistic reason whereby he was involved in this very serious criminal scheme, one could expect that with the rehabilitative effect of prison, his prospects would be positive.
67Mr Pearson accepted that a prison term must be imposed, which would considerably exceed the pre-sentence detention. As to both prisoners, of course, there is no discount for remorse, given the trial. However, I want to assure both prisoners that such factor does not in any way result in an exacerbation of their sentence. The fact of going to trial is a right of all prisoners, and it simply excludes the aspect of remorse from the matters that can be put by their counsel, and is not a factor which in any way exacerbates the sentence passed by me.
Plea of Mr Rick Chan
68Coming to Mr Kennedy’s plea on behalf of Rick. Mr Kennedy set out his submissions in exhibit R1. As to the factual propositions in such submission, I have already dealt with those in so far as they affect Rick. I note the plea of the family as to his sentence set out in exhibit R2, and his mother’s issues as detailed in exhibit R3.
69Essentially, Mr Kennedy adopted the matters put in plea by Mr Pearson; however, stressed the issue of his client also having no prior convictions; having, since the time that he was placed on remand post-verdict, to deal with the issues of COVID‑19; and, most importantly, will have to deal with in so far as any future sentence is concerned. I do take those matters into account. I also accept, given his age, that a prison sentence will be onerous for him.
70In the further plea, Mr Kennedy tendered exhibits R5, R6 and R7, being medical reports in regard to the condition of glaucoma suffered by Rick. I accept that treatment for glaucoma may be more difficult in prison, and the condition itself brings in the operation of principle 5 of Verdins. I take such into account in setting the sentence and minimum term in regard to Rick. As I said in my remarks as to Kwun, such must be balanced with the necessity to impose an appropriate sentence and minimum term, given the seriousness of the offending.
Parity
71In so far as the factor of parity, I find there is no basis for any culpability difference in the sentences between Rick or Kwun. Both are sentenced as principals in regard to a very serious criminal venture.
72There is need to discriminate the sentences brought about by the fact that albeit bail was granted to Kwun, he never made his bail. As a result, up to date of the jury verdict Kwun had served 1184 days on remand, approximately 3 years. Hence Kwun endured the rigours of COVID restrictions and lockdowns for almost the entire period of his remand. Such also involved restrictions on visitors and privileges. Albeit allowance being made administratively for such restrictions by Corrections, Kwun is entitled to a discount of sentence (as against Rick’s sentence) for such remand experience. I indicate that I have taken such into account in Kwun’s sentence.
73As to the impact of the sentence this Court gave to the twins on 9 September 2020, being Junlong and Junju Shen, I do not find any parity issues arise from such sentence.
74The twins, of course, are the sons of Hong’s partner, Shumin Zeng. The twins were sentenced on the basis of them having no role in this charge; that is, they are not co‑accused in regard to the crime of which the prisoners are convicted. The twins’ charge was pursuant to s73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), being the attempted possession of a drug of dependence for one day, for which the maximum penalty proscribed was one of five years. The facts, of course, related to their mother phoning them to pick up what she described as tiles on 22 February 2019 from a factory in Dandenong. They did that on 25 February 2019, and unloaded those tiles at their house in Wheelers Hill. Their knowledge was limited, as the transcript revealed. This of course was in issue. However, as detailed in my sentence indication ruling leading to the sentence of the twins on 4 September 2020, I found the circumstances as presented by the prospective plea illustrated very valuable pleas: see paragraph 21. In the totality of the circumstances, the twins were sentenced to the pre-sentence detention of 562 days each.
75I come then to pronouncing your sentences, having taken into account the considerations I have detailed today.
76May I finally say that in accordance with the pronouncements of the High Court in Dalgliesh,[26] both prisoners are entitled to individualised justice and a just sentence based upon the facts relevant to their case.
[26]Supra, (2017) 91 ALJR 1063 at 1072 [49]
Important remarks before sentencing
77Before sentencing, I want to make two remarks:
(a) Can I congratulate the Australian Federal Police, and the Victoria Police, if they were involved in this investigation. These prosecutions are notoriously difficult, and no doubt require tenacity and perseverance. The time involved, with the telephone intercepts and surveillance, is, I presume, rarely fully rewarded. The community can be thankful that because of such police diligence this very serious crime was detected. Two of the principal perpetrators were brought to Court and prosecuted, and our community has been saved from the ravages of the large volume of methamphetamine being ultimately distributed through the country. Mr Prosecutor, would you convey such congratulations not only to the DPP team involved, but in particular to the police officers who were involved in this investigation?
(b) I would also like to thank again the jury, who performed their role most diligently pursuant to their oath and/or affirmation. The material that they had to consider was dense, to say the least, as was the presentation of facts by the prosecution; in particular, the transcripts of telephone intercepts and the evidence of surveillance.
In this instance, the jury had to listen for 13½ hours while translated telephone intercepts and recordings were read to them, the jury being at all times fully masked due to the rigours of the COVID restrictions.
The community owes you, members of the jury, deep thanks for the meritorious way in which you conducted your task. As I stated to you, this Court makes no comment upon your verdict. However, I was particularly impressed with the way you carried out this arduous task on behalf of the community. I thank you one and all: that is, the whole fourteen of you that were involved up until the final verdict.
78Yes, both prisoners, given your location you need not stand.
79Mr Chan and Mr Chen, you will each be convicted of a breach of s307.11(1) of the Criminal Code (Cth) by way of joint commission. Mr Chan you will be sentenced to 18 years imprisonment. As to your non-parole period pursuant to s19AB, I impose 14 years as the period to be served before you are eligible for parole. Mr Chen you will be sentenced to 17 years and 6 months imprisonment. As to your non-parole period pursuant to s19AB, I impose 13 years and 10 months as the period to be served before you are eligible for parole.
80I declare that the pre-sentence detention which you have served while being on remand, in regard to Mr Chan, 111 days (not including the date of sentence); and in regard to Mr Chen, 1,294 days (not including the date of sentence), be deemed part of each respective sentence, and that this declaration be recorded in the records of this Court.
81I have signed the Forfeiture Orders as sought.
0
17
0